Dated. Notice: The signature to this assignment must correspond with the name as it appears upon the face of the within Note in every particular, without alteration or enlargement or any change whatever. 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______ TEN ENT--as tenants by the entireties (Cust) (Minor) JT TEN--as joint tenants with right Under Uniform Gifts to Minors of survivorship and not as Act__________________________ tenants in common (State) Additional abbreviations may also be used though not in the above list. --------------------------- [FORM OF SCHEDULE FOR ENDORSEMENTS ON GLOBAL SECURITY TO REFLECT CHANGES IN PRINCIPAL AMOUNT] Schedule A Changes to Principal Amount of Global Security Principal Amount of Securities by which this Global Security is to be Reduced or Increased, and Reason for Remaining Principal Amount of Notation Date Reduction or Increase this Global Securities Made by ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- Exhibit B SUBSIDIARY GUARANTEE FOR VALUE RECEIVED, the undersigned hereby jointly and severally with the Parent Guarantor pursuant to the Parent Guarantee and any other subsidiary Guarantors under their respective Subsidiary Guarantees, unconditionally guarantees to the Holder of the accompanying _____% Note Due June ___, 2018 (the "2018 Note") issued by AMB Property, L.P. (the "Operating Partnership") under an Indenture dated as of June ___, 1998 (together with the Second Supplemental Indenture thereto, the "Indenture") among the Operating Partnership, AMB Property Corporation, and State Street Bank and Trust Company of California, N.A., as trustee (the "Trustee"), (a) the full and prompt payment of the principal of and premium, if any, on such 2018 Note when and as the same shall become due and payable, whether at Stated Maturity, by acceleration, by redemption or otherwise, and (b) the full and prompt payment of the interest on such 2018 Note when and as the same shall become due and payable, according to the terms of such 2018 Note and of the Indenture. The undersigned hereby agrees, jointly and severally with the Parent Guarantor pursuant to the Parent Guarantee and any other Subsidiary Guarantors under their respective Subsidiary Guarantees, that its obligations hereunder shall be as principal and not merely as surety, and shall be absolute and unconditional, and shall not be affected, modified or impaired by the following: (a) the failure to give notice to the Guarantors of the occurrence of an Event of Default under the Indenture; (b) the waiver, surrender, compromise, settlement, release or termination of the payment, performance or observance by the Operating Partnership or the Guarantors of any or all of the obligations, covenants or agreements of either of them contained in the Indenture or the 2018 Notes; (c) the acceleration, extension or any other changes in the time for payment of any principal of or interest or any premium on any 2018 Note or for any other payment under the Indenture or of the time for performance of any other obligations, covenants or agreements under or arising out of the Indenture or the 2018 Notes; (d) the modification or amendment (whether material or otherwise) of any obligation, covenant or agreement set forth in the Indenture or the 2018 Notes; (e) the taking or the omission of any of the actions referred to in the Indenture and in any of the actions under the 2018 Notes; (f) any failure, omission, delay or lack on the part of the Trustee to enforce, assert or exercise any right, power or remedy conferred on the Trustee in the Indenture, or any other action or acts on the part of the Trustee or any of the Holders from time to time of the 2018 Notes; (g) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all the assets, marshaling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition with creditors or readjustment of, or other similar proceedings affecting the Guarantors or the Operating Partnership or any of the assets of any of them, or any allegation or contest of the validity of this Subsidiary Guarantee in any such proceeding; (h) to the extent permitted by law, the release or discharge by operation of law of the Guarantors from the performance or observance of any obligation, covenant or agreement contained in the Indenture; (i) to the extent permitted by law, the release or discharge by operation of law of the Operating Partnership from the performance or observance of any obligation, covenant or agreement contained in the Indenture; (j) the default or failure of the Operating Partnership or the Trustee fully to perform any of its obligations set forth in the Indenture or the 2018 Notes; (k) the invalidity, irregularity or unenforceability of the Indenture or the 2018 Notes or any part of any thereof; (l) any judicial or governmental action affecting the Operating Partnership or any 2018 Notes or consent or indulgence granted by the Operating Partnership by the Holders or by the Trustee; or (m) the recovery of any judgment against the Operating Partnership or any action to enforce the same or any other circumstance which might constitute a legal or equitable discharge of a surety or guarantor. The undersigned hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of merger, sale, lease or conveyance of all or substantially all of its assets, insolvency or bankruptcy of the Operating Partnership, any right to require a proceeding first against the Operating Partnership, protest or notice with respect to such Notice or the indebtedness evidenced thereby and all demands whatsoever, and covenants that this Subsidiary Guarantee will not be discharged except by complete performance of the obligations contained in such 2018 Note and in this Subsidiary Guarantee. No reference herein to such Indenture and no provision of this Subsidiary Guarantee or of such Indenture shall alter or impair the guarantee of the undersigned, which is absolute and unconditional, of the full and prompt payment of the principal of and premium, if any, and interest on the 2018 Note. THIS SUBSIDIARY GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. The validity and enforceability of this Subsidiary Guarantee shall not be affected by the fact that it is not affixed to any particular 2018 Note. An Event of Default under the Indenture or the 2018 Notes shall constitute an event of default under this Subsidiary Guarantee, and shall entitle the Holders of 2018 Notes to accelerate the obligations of the undersigned hereunder in the same manner and to the same extent as the obligations of the Operating Partnership. Notwithstanding any other provision of this Subsidiary Guarantee to the contrary, the undersigned hereby waives any claims or other rights which it may now have or hereafter acquire against the Operating Partnership that arise from the existence or performance of its obligations under this Subsidiary Guarantee (all such claims and rights are referred to as "Guarantor's Conditional Rights"), including, without limitation, any right of subrogation, reimbursement, exoneration, contribution, or indemnification, any right to participate in any claim or remedy against the Operating Partnership, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, by any payment made hereunder or otherwise, including without limitation, the right to take or receive from Operating Partnership, directly or indirectly, in cash or other property or by setoff or in any other manner, payment or security on account of such claim or other rights. The Subsidiary Guarantor hereby agrees not to exercise any rights which may be acquired by way of contribution under this Subsidiary Guarantee or any other agreement, by any payment made hereunder or otherwise, including, without limitation, the right to take or receive from any other guarantor, directly or indirectly, in cash or other property or by setoff or in any other manner, payment or security on account of such contribution rights. If, notwithstanding the foregoing provisions, any amount shall be paid to any of the undersigned on account of any such Guarantor's Conditional Rights and either (i) such amount is paid to such undersigned party at any time when the indebtedness shall not have been paid or performed in full, or (ii) regardless of when such amount is paid to such undersigned party, any payment made by Operating Partnership to a Holder that is at any time determined to be a Preferential Payment (as defined below), then such amount paid to the undersigned shall be held in trust for the benefit of the Holders and shall forthwith be paid such Holder to be credited and applied upon the indebtedness, whether matured or unmatured. Any such payment is herein referred to as a "Preferential Payment" to the extent the Operating Partnership makes any payment to Holder in connection with the Note, and any or all of such payment is subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid or paid over to a trustee, receiver or any other entity, whether under any bankruptcy act or otherwise. To the extent that any of the provisions of the immediately preceding paragraph shall not be enforceable, each of the undersigned agrees that until such time as the indebtedness has been paid and performed in full and the period of time has expired during which any payment made by the Operating Partnership or the undersigned to a Holder may be determined to be a Preferential Payment, Guarantor's Conditional Rights to the extent not validly waived shall be subordinate to Holders' right to full payment and performance of the indebtedness and each of the undersigned shall not enforce any of its respective portion of the Guarantors' Conditional Rights until such time as the indebtedness has been paid and performed in full and the period of time has expired during which any payment made by the Operating Partnership or the undersigned to Holders may be determined to be a Preferential Payment. The undersigned's liability (the "Base Guaranty Liability") shall be that amount from time to time equal to the aggregate liability of the undersigned hereunder, but shall be limited to the lesser of (A) the aggregate amount of the obligation as stated in the second sentence of Section 1401 of the Indenture, and (B) the amount, if any, which would not have (i) rendered the undersigned "insolvent" (as such term is defined in Section 101(29) of the Federal Bankruptcy Code and in Section 271 of the Debtor and Creditor Law of the State of New York, as each is in effect at the date of the Indenture) or (ii) left the undersigned with unreasonably small capital at the time its Guarantee was entered into, after giving effect to the incurrence of existing Debt (as defined in the Indenture) immediately prior to such time, provided that, it shall be a presumption in any lawsuit or other proceeding in which the undersigned is a party that the amount guaranteed is the amount set forth in (A) above unless a creditor, or representative of creditors of the undersigned or a trustee in bankruptcy of the undersigned, as debtor in possession, otherwise proves in such a lawsuit that the aggregate liability of the undersigned is limited to the amount set forth in (B). In making any determination as to the solvency or sufficiency of capital of the undersigned in accordance with the previous sentence, the right of the undersigned to contribution from other Guarantors, to subrogation and any other rights the undersigned may have, contractual or otherwise, shall be taken into account. The obligations of the undersigned to the Holders of the 2018 Notes and to the Trustee pursuant to the Subsidiary Guarantee and the Indenture are expressly set forth in Article 14 of the Indenture and reference is hereby made to the Indenture for the precise terms of the Subsidiary Guarantee and all of the other provisions of the Indenture to which this Subsidiary Guarantee relates. Capitalized terms in this Subsidiary Guarantee which are not defined herein shall have the meanings assigned to them in the Indenture.

Appears in 1 contract

Samples: Supplemental Indenture (Amb Property Corp)

Appears in 1 contract

Samples: Distribution Instructions (Salomon Brothers Mort Sec Vii Asset Backed Cert 1996-Lb2)

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Salomon Bros Mort Sec Vii Inc Ast Bk Fl Rte Cer Se 1997-Aq2)

Dated. ~~Notice~~Signature by or on behalf of assignor DISTRIBUTION INSTRUCTIONS The assignee should include the following for purposes of distribution: The signature to this assignment must correspond with the name as it appears upon the face of the within Note in every particular, without alteration or enlargement or any change whatever. ABBREVIATIONS The following abbreviations, when used in the inscription on the face of this instrument, Distributions shall be ~~construed as though they were written out~~ made, by wire transfer or otherwise, in ~~full according~~ immediately available funds to ~~applicable laws or regulations: TEN COM--as tenants in common UNIF GIFT MIN ACT--_____ Custodian~~_____~~_ TEN ENT--as tenants by the entireties (Cust) (Minor) JT TEN--as joint tenants with right Under Uniform Gifts to Minors of survivorship and not as Act~~________________________________________________________ tenants in common (State) Additional abbreviations may also be used though not in the above list. --------------------------- [FORM OF SCHEDULE FOR ENDORSEMENTS ON GLOBAL SECURITY TO REFLECT CHANGES IN PRINCIPAL AMOUNT] Schedule A Changes to Principal Amount of Global Security Principal Amount of Securities by which this Global Security is to be Reduced or Increased, and Reason for Remaining Principal Amount of Notation Date Reduction or Increase this Global Securities Made by ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- Exhibit B SUBSIDIARY GUARANTEE FOR VALUE RECEIVED, the undersigned hereby jointly and severally with the Parent Guarantor pursuant to the Parent Guarantee and any other subsidiary Guarantors under their respective Subsidiary Guarantees, unconditionally guarantees to the Holder of the accompanying _____~~% Note Due June~~ ___________________________________________________________________________ ________________________________________________________________________________ for the account of _____________________________________________________________ account number _______, ~~2018~~ or, if mailed by check, to _____________________________ Applicable statements should be mailed to ______________________________________ ________________________________________________________________________________ This information is provided by ________________________________________________ the assignee named above, or ___________________________________________________ as its agent. EXHIBIT B IF THIS CERTIFICATE IS A PHYSICAL CERTIFICATE, NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE PROPOSED TRANSFEROR DELIVERS TO THE TRUSTEE A TRANSFEROR LETTER (THE "TRANSFEROR LETTER") IN THE FORM OF EXHIBIT I TO THE AGREEMENT REFERRED TO HEREIN AND EITHER (I) THE TRUSTEE RECEIVES A RULE 144A LETTER (THE "144A LETTER") IN THE FORM OF EXHIBIT J TO THE AGREEMENT REFERRED TO HEREIN OR (II) THE TRUSTEE RECEIVES AN OPINION OF COUNSEL, DELIVERED AT THE EXPENSE OF THE TRANSFEROR, THAT SUCH TRANSFER MAY BE MADE WITHOUT REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED. IF THIS CERTIFICATE IS A BOOK-ENTRY CERTIFICATE, THE PROPOSED TRANSFEROR WILL BE DEEMED TO HAVE MADE EACH OF THE CERTIFICATIONS SET FORTH IN THE TRANSFEROR LETTER AND THE PROPOSED TRANSFEREE WILL BE DEEMED TO HAVE MADE EACH OF THE CERTIFICATIONS SET FORTH IN THE RULE 144A LETTER, IN EACH CASE AS IF SUCH CERTIFICATE WERE EVIDENCED BY A PHYSICAL CERTIFICATE IF THIS CERTIFICATE IS A PHYSICAL CERTIFICATE, NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE TRANSFEREE DELIVERS TO THE TRUSTEE A REPRESENTATION LETTER TO THE EFFECT THAT EITHER (I) SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN OR ARRANGEMENT SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR ANY FEDERAL, STATE OR LOCAL LAW MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH, A "PLAN"), AND IS NOT ACTING ON BEHALF OF ANY PLAN OR USING THE ASSETS OF ANY PLAN TO ACQUIRE THIS CERTIFICATE, OR (II) SUCH TRANSFEREE IS AN INSURANCE COMPANY AND IS PURCHASING THIS CERTIFICATE WITH FUNDS CONTAINED IN AN "INSURANCE COMPANY GENERAL ACCOUNT" (AS SUCH TERM IS DEFINED IN SECTION V(E) OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 ("PTCE 95-60")) AND THE CONDITIONS FOR EXEMPTIVE RELIEF UNDER SECTIONS I AND III OF PTCE 95-60 ARE SATISFIED WITH RESPECT TO ITS PURCHASE AND HOLDING OF THIS CERTIFICATE. IF THIS CERTIFICATE IS A BOOK-ENTRY CERTIFICATE, EACH TRANSFEREE WILL BE DEEMED TO HAVE MADE THE FOREGOING REPRESENTATION. Unless this Certificate is presented by an authorized representative of the Depository Trust Company, a New York corporation ("DTC"), to Issuer or its agent for registration of transfer, exchange, or payment, and any certificate issued is registered in the name of Cede & Co. or in such other name as is requested by an authorized representative of DTC (and any payment is made to Cede & Co. or to such other entity as is requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest herein. SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS OWNERSHIP OF 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 ASSETS. Certificate No. : B-4-1 Cut-off Date : May 1, 2005 First Distribution Date : June 25, 2005 Initial Certificate Balance of this Certificate ("Denomination") : Initial Certificate Balances of all $8,638,000 Certificates of this Class : CUSIP ISIN : XXXXXX XXXXXXX ABS CAPITAL I INC. IXIS Real Estate Capital Trust 2005-HE2 Mortgage Pass-Through Certificates, Series 2005-HE2 Class B-4 evidencing a percentage interest in the distributions allocable to the Certificates of the above-referenced Class. Principal in respect of this Certificate is distributable monthly as set forth herein. Accordingly, the Certificate Balance at any time may be less than the Certificate Balance as set forth herein. This Certificate does not evidence an obligation of, or an interest in, and is not guaranteed by the Depositor, the Unaffiliated Seller, any Originator, the Servicer or the Trustee referred to below or any of their respective affiliates. Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any governmental agency or instrumentality. This certifies that CEDE & CO., is the registered owner of the Percentage Interest evidenced by this Certificate (obtained by dividing the denomination of this Certificate by the aggregate of the denominations of all Certificates of the Class to which this Certificate belongs) in certain monthly distributions pursuant to a Pooling and Servicing Agreement dated as of the Cut-off Date specified above (the "~~2018 Note~~Agreement") ~~issued by AMB Property~~among Xxxxxx Xxxxxxx ABS Capital I Inc., ~~L.P.~~ as depositor (the "~~Operating Partnership~~Depositor"), Countrywide Home Loans Servicing LP, as servicer (the "Servicer"), IXIS Real Estate Capital Inc., as unaffiliated seller (the "Unaffiliated Seller"), Deutsche Bank National Trust Company, as custodian (the "Custodian") ~~under an Indenture dated as of June ___, 1998 (together with the Second Supplemental Indenture thereto, the "Indenture") among the Operating Partnership, AMB Property Corporation,~~ and ~~State Street Bank and Trust Company of California~~JPMorgan Chase Bank, N.A., as trustee (the "Trustee"), (a) the full and prompt payment of the principal of and premium, if any, on such 2018 Note when and as the same shall become due and payable, whether at Stated Maturity, by acceleration, by redemption or otherwise, and (b) the full and prompt payment of the interest on such 2018 Note when and as the same shall become due and payable, according to the terms of such 2018 Note and of the Indenture. The undersigned hereby agrees, jointly and severally with the Parent Guarantor pursuant to the Parent Guarantee and any other Subsidiary Guarantors under their respective Subsidiary Guarantees, that its obligations hereunder shall be as principal and not merely as surety, and shall be absolute and unconditional, and shall not be affected, modified or impaired by the following: (a) the failure to give notice to the Guarantors of the occurrence of an Event of Default under the Indenture; (b) the waiver, surrender, compromise, settlement, release or termination of the payment, performance or observance by the Operating Partnership or the Guarantors of any or all of the obligations, covenants or agreements of either of them contained in the Indenture or the 2018 Notes; (c) the acceleration, extension or any other changes in the time for payment of any principal of or interest or any premium on any 2018 Note or for any other payment under the Indenture or of the time for performance of any other obligations, covenants or agreements under or arising out of the Indenture or the 2018 Notes; (d) the modification or amendment (whether material or otherwise) of any obligation, covenant or agreement set forth in the Indenture or the 2018 Notes; (e) the taking or the omission of any of the actions referred to in the Indenture and in any of the actions under the 2018 Notes; (f) any failure, omission, delay or lack on the part of the Trustee to enforce, assert or exercise any right, power or remedy conferred on the Trustee in the Indenture, or any other action or acts on the part of the Trustee or any of the Holders from time to time of the 2018 Notes; (g) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all the assets, marshaling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition with creditors or readjustment of, or other similar proceedings affecting the Guarantors or the Operating Partnership or any of the assets of any of them, or any allegation or contest of the validity of this Subsidiary Guarantee in any such proceeding; (h) to the extent permitted by law, the release or discharge by operation of law of the Guarantors from the performance or observance of any obligation, covenant or agreement contained in the Indenture; (i) to the extent permitted by law, the release or discharge by operation of law of the Operating Partnership from the performance or observance of any obligation, covenant or agreement contained in the Indenture; (j) the default or failure of the Operating Partnership or the Trustee fully to perform any of its obligations set forth in the Indenture or the 2018 Notes; (k) the invalidity, irregularity or unenforceability of the Indenture or the 2018 Notes or any part of any thereof; (l) any judicial or governmental action affecting the Operating Partnership or any 2018 Notes or consent or indulgence granted by the Operating Partnership by the Holders or by the Trustee; or (m) the recovery of any judgment against the Operating Partnership or any action to enforce the same or any other circumstance which might constitute a legal or equitable discharge of a surety or guarantor. The undersigned hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of merger, sale, lease or conveyance of all or substantially all of its assets, insolvency or bankruptcy of the Operating Partnership, any right to require a proceeding first against the Operating Partnership, protest or notice with respect to such Notice or the indebtedness evidenced thereby and all demands whatsoever, and covenants that this Subsidiary Guarantee will not be discharged except by complete performance of the obligations contained in such 2018 Note and in this Subsidiary Guarantee. No reference herein to such Indenture and no provision of this Subsidiary Guarantee or of such Indenture shall alter or impair the guarantee of the undersigned, which is absolute and unconditional, of the full and prompt payment of the principal of and premium, if any, and interest on the 2018 Note. THIS SUBSIDIARY GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. The validity and enforceability of this Subsidiary Guarantee shall not be affected by the fact that it is not affixed to any particular 2018 Note. An Event of Default under the Indenture or the 2018 Notes shall constitute an event of default under this Subsidiary Guarantee, and shall entitle the Holders of 2018 Notes to accelerate the obligations of the undersigned hereunder in the same manner and to the same extent as the obligations of the Operating Partnership. Notwithstanding any other provision of this Subsidiary Guarantee to the contrary, the undersigned hereby waives any claims or other rights which it may now have or hereafter acquire against the Operating Partnership that arise from the existence or performance of its obligations under this Subsidiary Guarantee (all such claims and rights are referred to as "Guarantor's Conditional Rights"), including, without limitation, any right of subrogation, reimbursement, exoneration, contribution, or indemnification, any right to participate in any claim or remedy against the Operating Partnership, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, by any payment made hereunder or otherwise, including without limitation, the right to take or receive from Operating Partnership, directly or indirectly, in cash or other property or by setoff or in any other manner, payment or security on account of such claim or other rights. The Subsidiary Guarantor hereby agrees not to exercise any rights which may be acquired by way of contribution under this Subsidiary Guarantee or any other agreement, by any payment made hereunder or otherwise, including, without limitation, the right to take or receive from any other guarantor, directly or indirectly, in cash or other property or by setoff or in any other manner, payment or security on account of such contribution rights. If, notwithstanding the foregoing provisions, any amount shall be paid to any of the undersigned on account of any such Guarantor's Conditional Rights and either (i) such amount is paid to such undersigned party at any time when the indebtedness shall not have been paid or performed in full, or (ii) regardless of when such amount is paid to such undersigned party, any payment made by Operating Partnership to a Holder that is at any time determined to be a Preferential Payment (as defined below), then such amount paid to the undersigned shall be held in trust for the benefit of the Holders and shall forthwith be paid such Holder to be credited and applied upon the indebtedness, whether matured or unmatured. Any such payment is herein referred to as a "Preferential Payment" to the extent the Operating Partnership makes any payment to Holder in connection with the Note, and any or all of such payment is subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid or paid over to a trustee, receiver or any other entity, whether under any bankruptcy act or otherwise. To the extent ~~that any~~ not defined herein, the capitalized terms used herein have the meanings assigned in the Agreement. This Certificate is issued under and is subject to the terms, provisions and conditions of the ~~provisions~~ Agreement, to which Agreement the Holder of this Certificate by virtue of the ~~immediately preceding paragraph shall not be enforceable, each of the undersigned agrees that until~~ acceptance hereof assents and by which such ~~time as the indebtedness has been paid and performed in full and the period of time has expired during which any payment made by the Operating Partnership or the undersigned to a~~ Holder may be determined to be a Preferential Payment, Guarantor's Conditional Rights to the extent not validly waived shall be subordinate to Holders' right to full payment and performance of the indebtedness and each of the undersigned shall not enforce any of its respective portion of the Guarantors' Conditional Rights until such time as the indebtedness has been paid and performed in full and the period of time has expired during which any payment made by the Operating Partnership or the undersigned to Holders may be determined to be a Preferential Paymentis bound. The undersigned's liability (the "Base Guaranty Liability") shall be that amount from time to time equal to the aggregate liability of the undersigned hereunder, but shall be limited to the lesser of (A) the aggregate amount of the obligation as stated in the second sentence of Section 1401 of the Indenture, and (B) the amount, if any, which would not have (i) rendered the undersigned "insolvent" (as such term is defined in Section 101(29) of the Federal Bankruptcy Code and in Section 271 of the Debtor and Creditor Law of the State of New York, as each is in effect at the date of the Indenture) or (ii) left the undersigned with unreasonably small capital at the time its Guarantee was entered into, after giving effect to the incurrence of existing Debt (as defined in the Indenture) immediately prior to such time, provided that, it shall be a presumption in any lawsuit or other proceeding in which the undersigned is a party that the amount guaranteed is the amount set forth in (A) above unless a creditor, or representative of creditors of the undersigned or a trustee in bankruptcy of the undersigned, as debtor in possession, otherwise proves in such a lawsuit that the aggregate liability of the undersigned is limited to the amount set forth in (B). In making any determination as to the solvency or sufficiency of capital of the undersigned in accordance with the previous sentence, the right of the undersigned to contribution from other Guarantors, to subrogation and any other rights the undersigned may have, contractual or otherwise, shall be taken into account. The obligations of the undersigned to the Holders of the 2018 Notes and to the Trustee pursuant to the Subsidiary Guarantee and the Indenture are expressly set forth in Article 14 of the Indenture and reference Reference is hereby made to the ~~Indenture~~ further provisions of this Certificate set forth on the reverse hereof, which further provisions shall for all purposes have the ~~precise terms~~ same effect as if set forth at this place. This Certificate shall not be entitled to any benefit under the Agreement or be valid for any purpose unless manually authenticated by an authorized signatory of the ~~Subsidiary Guarantee and all of the other provisions of the Indenture to which this Subsidiary Guarantee relates~~Trustee. ~~Capitalized terms in this Subsidiary Guarantee which are not defined herein shall have the meanings assigned to them in the Indenture.~~* * *

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Morgan Stanley Abs Capital I Inc)

Dated. ~~Notice~~Signature by or on behalf of assignor DISTRIBUTION INSTRUCTIONS The assignee should include the following for purposes of distribution: The signature to this assignment must correspond with the name as it appears upon the face of the within Note in every particular, without alteration or enlargement or any change whatever. ABBREVIATIONS The following abbreviations, when used in the inscription on the face of this instrument, Distributions shall be ~~construed as though they were written out~~ made, by wire transfer or otherwise, in ~~full according~~ immediately available funds to applicable laws or regulations: TEN COM--as tenants in common UNIF GIFT MIN ACT--_____ Custodian______ TEN ENT--as tenants by the entireties (Cust) (Minor) JT TEN--as joint tenants with right Under Uniform Gifts to Minors of survivorship and not as Act__________________________ tenants in common (State) Additional abbreviations may also be used though not in the above list. --------------------------- [FORM OF SCHEDULE FOR ENDORSEMENTS ON GLOBAL SECURITY TO REFLECT CHANGES IN PRINCIPAL AMOUNT] Schedule A Changes to Principal Amount of Global Security Principal Amount of Securities by which this Global Security is to be Reduced or Increased, and Reason for Remaining Principal Amount of Notation Date Reduction or Increase this Global Securities Made by ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- Exhibit B SUBSIDIARY GUARANTEE FOR VALUE RECEIVED, the undersigned hereby jointly and severally with the Parent Guarantor pursuant to the Parent Guarantee and any other subsidiary Guarantors under their respective Subsidiary Guarantees, unconditionally guarantees to the Holder of the accompanying _____~~% Note Due June~~ __________________, ~~2018 (the "2018 Note") issued by AMB Property, L.P. (the "Operating Partnership") under an Indenture dated as of June~~ _______________________________________________________________________________, ~~1998 (together with~~ for the ~~Second Supplemental Indenture thereto~~account of_____________________________________________________________, account number_______________, or, if mailed by check, to______________________. Applicable statements should be mailed to______________________________________, _______________________________________________________________________________. This information is provided by____________________________________, the assignee named above, or___________________________________________________, as its agent. EXHIBIT E FORM OF CLASS X CERTIFICATE SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS TWO "~~Indenture~~REGULAR INTERESTS" 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 ASSETS. NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE PROPOSED TRANSFEROR DELIVERS TO THE TRUSTEE A TRANSFEROR CERTIFICATE IN THE FORM OF EXHIBIT I TO THE AGREEMENT REFERRED TO HEREIN AND EITHER (i) THE TRUSTEE RECEIVES A RULE 144A LETTER IN THE FORM OF EXHIBIT J TO THE AGREEMENT REFERRED TO HEREIN OR (ii) THE TRUSTEE RECEIVES AN OPINION OF COUNSEL, DELIVERED AT THE EXPENSE OF THE TRANSFEROR, THAT SUCH TRANSFER MAY BE MADE WITHOUT REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED. NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE TRANSFEREE DELIVERS TO THE TRUSTEE EITHER A REPRESENTATION LETTER TO THE EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO SECTION 4975 OF THE CODE, OR A PLAN SUBJECT TO APPLICABLE FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") ~~among~~ MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE OR A PERSON INVESTING ON BEHALF OF OR WITH PLAN ASSETS OF SUCH A PLAN, OR, IF THE TRANSFEREE IS AN INSURANCE COMPANY, A REPRESENTATION LETTER THAT IT IS USING THE ASSETS OF ITS GENERAL ACCOUNT AND THAT THE PURCHASE AND HOLDING OF THIS CERTIFICATE ARE COVERED UNDER SECTIONS I AND III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 OR AN OPINION OF COUNSEL SATISFACTORY TO THE TRUSTEE, TO THE EFFECT THAT THE PURCHASE OR HOLDING OF THIS CERTIFICATE WILL NOT CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION WITHIN THE MEANING OF ERISA, SECTION 4975 OF THE CODE OR ANY SIMILAR LAW AND WILL NOT SUBJECT THE TRUSTEE, THE DEPOSITOR OR THE SERVICER TO ANY OBLIGATION IN ADDITION TO THOSE EXPRESSLY UNDERTAKEN IN THIS AGREEMENT OR TO ANY LIABILITY. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, ANY PURPORTED TRANSFER OF THIS CERTIFICATE TO OR ON BEHALF OF AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF ERISA, SECTION 4975 OF THE CODE OR SIMILAR LAW WITHOUT THE REPRESENTATION LETTER OR OPINION OF COUNSEL SATISFACTORY TO THE TRUSTEE AS DESCRIBED ABOVE SHALL BE VOID AND OF NO EFFECT. Certificate No. : 1 Cut-off Date : November 1, 2005 First Distribution Date : December 27, 2005 Percentage Interest of this Certificate ("Denomination") : CUSIP : 362341 ZQ 5 ISIN: : US362341ZQ52 GS MORTGAGE SECURITIES CORP. GSAMP Trust 2005-HE5 Mortgage Pass-Through Certificates, Series 2005-HE5 Class X evidencing a percentage interest in the ~~Operating Partnership~~distributions allocable to the Certificates of the above-referenced Class. Distributions in respect of this Certificate are distributable monthly as set forth herein. This Class X Certificate has no Certificate Balance and is not entitled to distributions in respect of principal or interest. This Certificate does not evidence an obligation of, ~~AMB Property Corporation~~or an interest in, and ~~State Street~~ is not guaranteed by the Depositor, the Servicer, the Purchaser, the Original Loan Sellers, the Custodian or the Trustee referred to below or any of their respective affiliates. Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any governmental agency or instrumentality. This certifies that [_______________________] is the registered owner of the Percentage Interest evidenced by this Certificate in certain monthly distributions pursuant to a Pooling and Servicing Agreement, dated as of the Cut-off Date specified above (the "Agreement"), among GS Mortgage Securities Corp., as depositor (the "Depositor"), Litton Loan Servicing LP, as servicer (the "Servicer"), J.P. Morgan Truxx Xxxpany, National Association, as custodian (the "Cusxxxxxx"), xnd Deutsche Bank ~~and~~ National Trust ~~Company of California, N.A.~~Company, as trustee (the "Trustee"). To the extent not defined herein, ~~(a)~~ the ~~full~~ capitalized terms used herein have the meanings assigned in the Agreement. This Certificate is issued under and ~~prompt payment~~ is subject to the terms, provisions and conditions of the ~~principal~~ Agreement, to which Agreement the Holder of ~~and premium, if any, on such 2018 Note when and as the same shall become due and payable, whether at Stated Maturity,~~ this Certificate by ~~acceleration, by redemption or otherwise, and (b) the full and prompt payment~~ virtue of the ~~interest on~~ acceptance hereof assents and by which such ~~2018 Note when~~ Holder is bound. Any distribution of the proceeds of any remaining assets of the Trust Fund will be made only upon presentment and as surrender of this Class X Certificate at the ~~same~~ offices designated by the Trustee for such purposes or such other location specified in the notice to Certificateholders. No transfer of a Class X Certificate shall ~~become due~~ be made unless the Trustee shall have received either (i) a representation letter from the transferee of such Certificate, acceptable to and ~~payable, according~~ in form and substance satisfactory to the ~~terms~~ Trustee, to the effect that such transferee is not an employee benefit plan or arrangement subject to Section 406 of ~~such 2018 Note and~~ ERISA, a plan or arrangement subject to Section 4975 of the ~~Indenture. The undersigned hereby agrees~~Code or a plan subject to Similar Law, jointly and severally with the Parent Guarantor pursuant to the Parent Guarantee and any other Subsidiary Guarantors under their respective Subsidiary Guarantees, that its obligations hereunder shall be as principal and not merely as surety, and shall be absolute and unconditional, and shall not be affected, modified or impaired by the following: (a) the failure to give notice to the Guarantors of the occurrence of an Event of Default under the Indenture; (b) the waiver, surrender, compromise, settlement, release or termination of the payment, performance or observance by the Operating Partnership or the Guarantors a person acting on behalf of any such plan or all of the obligations, covenants or agreements of either of them contained in the Indenture or the 2018 Notes; (c) the acceleration, extension or any other changes in the time for payment of any principal of or interest or any premium on any 2018 Note or for any other payment under the Indenture or of the time for performance of any other obligations, covenants or agreements under or arising out of the Indenture or the 2018 Notes; (d) the modification or amendment (whether material or otherwise) of any obligation, covenant or agreement set forth in the Indenture or the 2018 Notes; (e) the taking or the omission of any of the actions referred to in the Indenture and in any of the actions under the 2018 Notes; (f) any failure, omission, delay or lack on the part of the Trustee to enforce, assert or exercise any right, power or remedy conferred on the Trustee in the Indenture, or any other action or acts on the part of the Trustee or any of the Holders from time to time of the 2018 Notes; (g) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all the assets, marshaling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition with creditors or readjustment of, or other similar proceedings affecting the Guarantors or the Operating Partnership or any of arrangement nor using the assets of any ~~of them,~~ such plan or ~~any allegation or contest of the validity of this Subsidiary Guarantee in any~~ arrangement to effect such proceeding; (h) to the extent permitted by law, the release or discharge by operation of law of the Guarantors from the performance or observance of any obligation, covenant or agreement contained in the Indenture; (i) to the extent permitted by law, the release or discharge by operation of law of the Operating Partnership from the performance or observance of any obligation, covenant or agreement contained in the Indenture; (j) the default or failure of the Operating Partnership or the Trustee fully to perform any of its obligations set forth in the Indenture or the 2018 Notes; (k) the invalidity, irregularity or unenforceability of the Indenture or the 2018 Notes or any part of any thereof; (l) any judicial or governmental action affecting the Operating Partnership or any 2018 Notes or consent or indulgence granted by the Operating Partnership by the Holders or by the Trustee; or (m) the recovery of any judgment against the Operating Partnership or any action to enforce the same or any other circumstance which might constitute a legal or equitable discharge of a surety or guarantor. The undersigned hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of merger, sale, lease or conveyance of all or substantially all of its assets, insolvency or bankruptcy of the Operating Partnership, any right to require a proceeding first against the Operating Partnership, protest or notice with respect to such Notice or the indebtedness evidenced thereby and all demands whatsoever, and covenants that this Subsidiary Guarantee will not be discharged except by complete performance of the obligations contained in such 2018 Note and in this Subsidiary Guarantee. No reference herein to such Indenture and no provision of this Subsidiary Guarantee or of such Indenture shall alter or impair the guarantee of the undersignedtransfer, which is absolute and unconditional, of the full and prompt payment of the principal of and premium, if any, and interest on the 2018 Note. THIS SUBSIDIARY GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. The validity and enforceability of this Subsidiary Guarantee representation letter shall not be ~~affected by~~ an expense of the ~~fact that it is not affixed to any particular 2018 Note. An Event of Default under~~ Trustee, the ~~Indenture~~ Depositor, the Servicer or the 2018 Notes shall constitute an event of default under this Subsidiary Guarantee, and shall entitle the Holders of 2018 Notes to accelerate the obligations of the undersigned hereunder in the same manner and to the same extent as the obligations of the Operating Partnership. Notwithstanding any other provision of this Subsidiary Guarantee to the contrary, the undersigned hereby waives any claims or other rights which it may now have or hereafter acquire against the Operating Partnership that arise from the existence or performance of its obligations under this Subsidiary Guarantee (all such claims and rights are referred to as "Guarantor's Conditional Rights"), including, without limitation, any right of subrogation, reimbursement, exoneration, contribution, or indemnification, any right to participate in any claim or remedy against the Operating Partnership, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, by any payment made hereunder or otherwise, including without limitation, the right to take or receive from Operating Partnership, directly or indirectly, in cash or other property or by setoff or in any other manner, payment or security on account of such claim or other rights. The Subsidiary Guarantor hereby agrees not to exercise any rights which may be acquired by way of contribution under this Subsidiary Guarantee or any other agreement, by any payment made hereunder or otherwise, including, without limitation, the right to take or receive from any other guarantor, directly or indirectly, in cash or other property or by setoff or in any other manner, payment or security on account of such contribution rights. If, notwithstanding the foregoing provisions, any amount shall be paid to any of the undersigned on account of any such Guarantor's Conditional Rights and either (i) such amount is paid to such undersigned party at any time when the indebtedness shall not have been paid or performed in fullTrust Fund, or (ii) ~~regardless~~ if the Class X Certificate has been the subject of ~~when~~ an ERISA Qualifying Underwriting and the transferee is an insurance company, a representation letter that it is purchasing such ~~amount~~ Certificates with the assets of its general account and that the purchase and holding of such Certificates are covered under Sections I and III of PTCE 95-60, or (iii) in the case of a Class X Certificate presented for registration in the name of an employee benefit plan subject to ERISA, or a plan or arrangement subject to Section 4975 of the Code (or comparable provisions of any subsequent enactments) or a plan subject to Similar Law, or a trustee of any such plan or any other person acting on behalf of any such plan or arrangement or using such plan's or arrangement's assets, an Opinion of Counsel satisfactory to the Trustee, which Opinion of Counsel shall not be an expense of the Trustee, the Depositor, the Servicer or the Trust Fund, addressed to the Trustee, to the effect that the purchase or holding of such Certificate will not constitute or result in a non-exempt prohibited transaction within the meaning of ERISA, Section 4975 of the Code or any Similar Law and will not subject the Trustee, the Depositor or the Servicer to any obligation in addition to those expressly undertaken in this Agreement or to any liability. In the event that such representation is ~~paid~~ violated, or any attempt is made to ~~such undersigned party, any payment made by Operating Partnership~~ transfer to a plan or arrangement subject to Section 406 of ERISA or a plan subject to Section 4975 of the Code or a plan subject to Similar Law, or a person acting on behalf of any such plan or arrangement or using the assets of any such plan or arrangement, such attempted transfer or acquisition shall be void and of no effect. Each Holder ~~that is at any time determined~~ of this Class X Certificate shall be deemed by the acceptance or acquisition an Ownership Interest in this Class X Certificate to have agreed to be ~~a Preferential Payment (as defined below)~~bound by the following provisions, ~~then such amount paid~~ and the rights of each Person acquiring any Ownership Interest in this Class X Certificate are expressly subject to the ~~undersigned~~ following provisions: (i) each Person holding or acquiring any Ownership Interest in this Class X Certificate shall be ~~held~~ a Permitted Transferee and shall promptly notify the Trustee of any change or impending change in ~~trust for~~ its status as a Permitted Transferee, (ii) no Ownership Interest in this Class X Certificate may be registered on the ~~benefit~~ Closing Date or thereafter transferred, and the Trustee shall not register the Transfer of this Certificate unless, in addition to the certificates required to be delivered to the Trustee under Section 5.02(b) of the ~~Holders and~~ Agreement, the Trustee shall ~~forthwith be paid such Holder to be credited and applied upon~~ have been furnished with a Transfer Affidavit of the ~~indebtedness, whether matured~~ initial owner or ~~unmatured. Any such payment is herein referred to~~ the proposed transferee in the form attached as ~~a "Preferential Payment"~~ Exhibit H to the ~~extent the Operating Partnership makes~~ Agreement, (iii) each Person holding or acquiring any ~~payment~~ Ownership Interest in this Class X Certificate shall agree (A) to ~~Holder~~ obtain a Transfer Affidavit from any other Person to whom such Person attempts to Transfer its Ownership Interest this Class X Certificate, (B) to obtain a Transfer Affidavit from any Person for whom such Person is acting as nominee, trustee or agent in connection with any Transfer of this Class X Certificate, (C) not to cause income with respect to the ~~Note~~Class X Certificate to be attributable to a foreign permanent establishment or fixed base, ~~and any or all~~ within the meaning of an applicable income tax treaty, of such ~~payment is subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid or paid over to a trustee, receiver~~ Person or any other ~~entity, whether under~~ U.S. Person and (D) not to Transfer the Ownership Interest in this Class X Certificate or to cause the Transfer of the Ownership Interest in this Class X Certificate to any ~~bankruptcy act~~ other Person if it has actual knowledge that such Person is not a Permitted Transferee and (iv) any attempted or ~~otherwise. To~~ purported Transfer of the ~~extent that any~~ Ownership Interest in this Class X Certificate in violation of the provisions of the immediately preceding paragraph shall not be enforceable, each of the undersigned agrees that until such time as the indebtedness has been paid and performed in full and the period of time has expired during which any payment made by the Operating Partnership or the undersigned to a Holder may be determined to be a Preferential Payment, Guarantor's Conditional Rights to the extent not validly waived herein shall be ~~subordinate to Holders' right to full payment~~ absolutely null and ~~performance of the indebtedness~~ void and ~~each of the undersigned~~ shall not enforce any of its respective portion of the Guarantors' Conditional Rights until such time as the indebtedness has been paid and performed in full and the period of time has expired during which any payment made by the Operating Partnership or the undersigned to Holders may be determined to be a Preferential Payment. The undersigned's liability (the "Base Guaranty Liability") shall be that amount from time to time equal to the aggregate liability of the undersigned hereunder, but shall be limited to the lesser of (A) the aggregate amount of the obligation as stated vest no rights in the second sentence of Section 1401 of the Indenture, and (B) the amount, if any, which would not have (i) rendered the undersigned "insolvent" (as such term is defined in Section 101(29) of the Federal Bankruptcy Code and in Section 271 of the Debtor and Creditor Law of the State of New York, as each is in effect at the date of the Indenture) or (ii) left the undersigned with unreasonably small capital at the time its Guarantee was entered into, after giving effect to the incurrence of existing Debt (as defined in the Indenture) immediately prior to such time, provided that, it shall be a presumption in any lawsuit or other proceeding in which the undersigned is a party that the amount guaranteed is the amount set forth in (A) above unless a creditor, or representative of creditors of the undersigned or a trustee in bankruptcy of the undersigned, as debtor in possession, otherwise proves in such a lawsuit that the aggregate liability of the undersigned is limited to the amount set forth in (B)purported Transferee. In making any determination as to the solvency or sufficiency of capital of the undersigned in accordance with the previous sentence, the right of the undersigned to contribution from other Guarantors, to subrogation and any other rights the undersigned may have, contractual or otherwise, shall be taken into account. The obligations of the undersigned to the Holders of the 2018 Notes and to the Trustee pursuant to the Subsidiary Guarantee and the Indenture are expressly set forth in Article 14 of the Indenture and reference Reference is hereby made to the ~~Indenture~~ further provisions of this Certificate set forth on the reverse hereof, which further provisions shall for all purposes have the ~~precise terms~~ same effect as if set forth at this place. This Certificate shall not be entitled to any benefit under the Agreement or be valid for any purpose unless manually authenticated by an authorized signatory of the Subsidiary Guarantee and all of the other provisions of the Indenture to which this Subsidiary Guarantee relates. Capitalized terms in this Subsidiary Guarantee which are not defined herein shall have the meanings assigned to them in the IndentureTrustee.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (GSAMP Trust 2005-He5)

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Merrill Lynch Alternative Note Asset Trust, Series 2007-Oar2)

Dated. ~~Notice~~Signature by or on behalf of assignor ---------------------------------------- Signature Guaranteed DISTRIBUTION INSTRUCTIONS The assignee should include the following for purposes of distribution: The signature to this assignment must correspond with the name as it appears upon the face of the within Note in every particular, without alteration or enlargement or any change whatever. ABBREVIATIONS The following abbreviations, when used in the inscription on the face of this instrument, Distributions shall be ~~construed as though they were written out~~ made, by wire transfer or otherwise, in ~~full according~~ immediately available funds to ~~applicable laws or regulations: TEN COM--as tenants in common UNIF GIFT MIN ACT--_____ Custodian~~_____~~_ TEN ENT--as tenants~~ _______________________________________________________, for the account of ____________________________________________________________, account number __________, or, if mailed by ~~the entireties (Cust) (Minor) JT TEN--as joint tenants with right Under Uniform Gifts~~ check, to ~~Minors of survivorship and not as Act~~_________________________, Applicable statements should be mailed to _____________________________________ tenants in common (State) Additional abbreviations may also be used though not in the above list. --------------------------- [FORM OF SCHEDULE FOR ENDORSEMENTS ON GLOBAL SECURITY TO REFLECT CHANGES IN PRINCIPAL AMOUNT] Schedule A Changes to Principal Amount of Global Security Principal Amount of Securities by which this Global Security is to be Reduced or Increased, and Reason for Remaining Principal Amount of Notation Date Reduction or Increase this Global Securities Made by ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- Exhibit B SUBSIDIARY GUARANTEE FOR VALUE RECEIVED, the undersigned hereby jointly and severally with the Parent Guarantor pursuant to the Parent Guarantee and any other subsidiary Guarantors under their respective Subsidiary Guarantees, unconditionally guarantees to the Holder of the accompanying _____~~% Note Due June~~ __________________________________________________________________________. This information is provided by _______________________________________________, ~~2018 (~~the ~~"2018 Note") issued by AMB Property~~assignee named above, ~~L.P. (the "Operating Partnership") under an Indenture dated as of June~~ or __________________________________________________, ~~1998~~ as its agent. XXXXXXX X-0 FORM OF CLASS M-6 CERTIFICATE UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (~~together with~~ "DTC"), TO THE TRUSTEE OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986 (THE "CODE"). THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A CERTIFICATES, THE CLASS M-1 CERTIFICATES, THE CLASS M-2 CERTIFICATES, THE CLASS M-3 CERTIFICATES, THE CLASS M-4 CERTIFICATES AND THE CLASS M-5 CERTIFICATES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN. Series 2005-NC5 Pass-Through Rate: Variable Cut-off Date and date of Pooling and Servicing Agreement: October 1, 2005 First Distribution Date: November 25, 2005 No. 1 Aggregate Certificate Principal Balance of the ~~Second Supplemental Indenture thereto,~~ Class M-6 Certificates as of the ~~"Indenture") among the Operating Partnership, AMB Property Corporation, and State Street~~ Issue Date: $[______].00 Denomination: $[________].00 Servicer: New Century Mortgage Corporation Trustee: Deutsche Bank ~~and~~ National Trust Company Issue Date: October 4, 2005 CUSIP: [______] [__] [_] DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE AS THE DENOMINATION OF THIS CERTIFICATE. ASSET BACKED PASS-THROUGH CERTIFICATE evidencing a beneficial ownership interest in a portion of ~~California, N.A., as trustee~~ a Trust Fund (the "~~Trustee~~Trust Fund") consisting primarily of a pool of conventional one- to four-family, adjustable-rate and fixed-rate, interest-only and fully-amortizing, first lien and second lien mortgage loans (the "Mortgage Loans") formed and sold by STANWICH ASSET ACCEPTANCE COMPANY, L.L.C. THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN STANWICH ASSET ACCEPTANCE COMPANY, L.L.C., THE SERVICER, THE TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES. This certifies that Cede & Co. is the registered owner of a Percentage Interest (obtained by dividing the denomination of this Certificate by the aggregate Certificate Principal Balance of the Class M-6 Certificates as of the Issue Date) in that certain beneficial ownership interest evidenced by all the Class M-6 Certificates in REMIC II created pursuant to a Pooling and Servicing Agreement, dated as specified above (the "Agreement"), among Stanwich Asset Acceptance Company, L.L.C. (a) hereinafter called the ~~full~~ "Depositor," which term includes any successor entity under the Agreement), the Servicer and ~~prompt payment~~ the Trustee, a summary of certain of the ~~principal~~ 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 Agreement. This Certificate is issued under and ~~premium~~is subject to the terms, ~~if any, on such 2018 Note when~~ provisions and ~~as the same shall become due and payable, whether at Stated Maturity, by acceleration, by redemption or otherwise, and (b) the full and prompt payment~~ conditions of the ~~interest on~~ Agreement, to which Agreement the Holder of this Certificate by virtue of the acceptance hereof assents and by which such ~~2018 Note when and as the same shall become due and payable, according~~ Holder is bound. Pursuant to the terms of the Agreement, distributions will be made on the 25th day of each month or, if such ~~2018 Note and~~ 25th day is not a Business Day, the Business Day immediately following (a "Distribution Date"), commencing on the First Distribution Date specified above, to the Person in whose name this Certificate is registered on the Record Date, in an amount equal to the product of the ~~Indenture. The undersigned hereby agrees, jointly~~ Percentage Interest evidenced by this Certificate and ~~severally with~~ the ~~Parent Guarantor~~ amount required to be distributed to the Holders of Class M-6 Certificates on such Distribution Date pursuant to the ~~Parent Guarantee and any other Subsidiary Guarantors~~ Agreement. All distributions to the Holder of this Certificate under ~~their respective Subsidiary Guarantees, that its obligations hereunder shall~~ the Agreement will be ~~as principal and not merely as surety, and shall~~ made or caused to be ~~absolute and unconditional, and shall not be affected, modified or impaired~~ made by the ~~following: (a) the failure to give notice~~ Trustee by wire transfer in immediately available funds to the ~~Guarantors~~ account of the occurrence of an Event of Default under the Indenture; (b) the waiver, surrender, compromise, settlement, release or termination of the payment, performance or observance by the Operating Partnership or the Guarantors of any or all of the obligations, covenants or agreements of either of them contained in the Indenture or the 2018 Notes; (c) the acceleration, extension or any other changes in the time for payment of any principal of or interest or any premium on any 2018 Note or for any other payment under the Indenture or of the time for performance of any other obligations, covenants or agreements under or arising out of the Indenture or the 2018 Notes; (d) the modification or amendment (whether material or otherwise) of any obligation, covenant or agreement set forth in the Indenture or the 2018 Notes; (e) the taking or the omission of any of the actions referred to in the Indenture and in any of the actions under the 2018 Notes; (f) any failure, omission, delay or lack on the part of the Trustee to enforce, assert or exercise any right, power or remedy conferred on Person entitled thereto if such Person shall have so notified the Trustee in writing at least five Business Days prior to the ~~Indenture~~Record Date immediately prior to such Distribution Date or otherwise by check mailed by first class mail to the address of the Person entitled thereto, ~~or any other action or acts~~ as such name and address shall appear on the ~~part~~ Certificate Register. Notwithstanding the above, the final distribution on this Certificate will be made after due notice by the Trustee of the ~~Trustee or any~~ pendency of ~~the Holders from time to time of the 2018 Notes; (g) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all the assets, marshaling of assets~~ such distribution and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition with creditors or readjustment of, or other similar proceedings affecting the Guarantors or the Operating Partnership or any of the assets of any of them, or any allegation or contest of the validity only upon presentation and surrender of this ~~Subsidiary Guarantee~~ Certificate at the office or agency appointed by the Trustee for that purpose as provided in ~~any such proceeding; (h)~~ the Agreement. The Pass-Through Rate applicable to the ~~extent permitted by law, the release or discharge by operation~~ calculation of law of the Guarantors from the performance or observance of any obligation, covenant or agreement contained in the Indenture; (i) to the extent permitted by law, the release or discharge by operation of law of the Operating Partnership from the performance or observance of any obligation, covenant or agreement contained in the Indenture; (j) the default or failure of the Operating Partnership or the Trustee fully to perform any of its obligations set forth in the Indenture or the 2018 Notes; (k) the invalidity, irregularity or unenforceability of the Indenture or the 2018 Notes or any part of any thereof; (l) any judicial or governmental action affecting the Operating Partnership or any 2018 Notes or consent or indulgence granted by the Operating Partnership by the Holders or by the Trustee; or (m) the recovery of any judgment against the Operating Partnership or any action to enforce the same or any other circumstance which might constitute a legal or equitable discharge of a surety or guarantor. The undersigned hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of merger, sale, lease or conveyance of all or substantially all of its assets, insolvency or bankruptcy of the Operating Partnership, any right to require a proceeding first against the Operating Partnership, protest or notice interest payable with respect to ~~such Notice or the indebtedness evidenced thereby and all demands whatsoever, and covenants that~~ this Subsidiary Guarantee will not be discharged except by complete performance of the obligations contained in such 2018 Note and in this Subsidiary Guarantee. No reference herein to such Indenture and no provision of this Subsidiary Guarantee or of such Indenture Certificate on any Distribution Date shall alter or impair the guarantee of the undersigned, which is absolute and unconditional, of the full and prompt payment of the principal of and premium, if any, and interest on the 2018 Note. THIS SUBSIDIARY GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. The validity and enforceability of this Subsidiary Guarantee shall not be affected by the fact that it is not affixed to any particular 2018 Note. An Event of Default under the Indenture or the 2018 Notes shall constitute an event of default under this Subsidiary Guarantee, and shall entitle the Holders of 2018 Notes to accelerate the obligations of the undersigned hereunder in the same manner and to the same extent as the obligations of the Operating Partnership. Notwithstanding any other provision of this Subsidiary Guarantee to the contrary, the undersigned hereby waives any claims or other rights which it may now have or hereafter acquire against the Operating Partnership that arise from the existence or performance of its obligations under this Subsidiary Guarantee (all such claims and rights are referred to as "Guarantor's Conditional Rights"), including, without limitation, any right of subrogation, reimbursement, exoneration, contribution, or indemnification, any right to participate in any claim or remedy against the Operating Partnership, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, by any payment made hereunder or otherwise, including without limitation, the right to take or receive from Operating Partnership, directly or indirectly, in cash or other property or by setoff or in any other manner, payment or security on account of such claim or other rights. The Subsidiary Guarantor hereby agrees not to exercise any rights which may be acquired by way of contribution under this Subsidiary Guarantee or any other agreement, by any payment made hereunder or otherwise, including, without limitation, the right to take or receive from any other guarantor, directly or indirectly, in cash or other property or by setoff or in any other manner, payment or security on account of such contribution rights. If, notwithstanding the foregoing provisions, any amount shall be paid to any of the undersigned on account of any such Guarantor's Conditional Rights and either (i) such amount is paid to such undersigned party at any time when the indebtedness shall not have been paid or performed in full, or (ii) regardless of when such amount is paid to such undersigned party, any payment made by Operating Partnership to equal a Holder that is at any time determined to be a Preferential Payment (as defined below), then such amount paid to the undersigned shall be held in trust for the benefit of the Holders and shall forthwith be paid such Holder to be credited and applied upon the indebtedness, whether matured or unmatured. Any such payment is herein referred to as a "Preferential Payment" to the extent the Operating Partnership makes any payment to Holder in connection with the Note, and any or all of such payment is subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid or paid over to a trustee, receiver or any other entity, whether under any bankruptcy act or otherwise. To the extent that any of the provisions of the immediately preceding paragraph shall not be enforceable, each of the undersigned agrees that until such time as the indebtedness has been paid and performed in full and the period of time has expired during which any payment made by the Operating Partnership or the undersigned to a Holder may be determined to be a Preferential Payment, Guarantor's Conditional Rights to the extent not validly waived shall be subordinate to Holders' right to full payment and performance of the indebtedness and each of the undersigned shall not enforce any of its respective portion of the Guarantors' Conditional Rights until such time as the indebtedness has been paid and performed in full and the period of time has expired during which any payment made by the Operating Partnership or the undersigned to Holders may be determined to be a Preferential Payment. The undersigned's liability (the "Base Guaranty Liability") shall be that amount from time to time rate per annum equal ~~to the aggregate liability of the undersigned hereunder, but shall be limited~~ to the lesser of (i) the related Formula Rate for such Distribution Date and (ii) the related Net WAC Pass-Through Rate for such Distribution Date. This Certificate is one of a duly authorized issue of Certificates designated as Asset Backed Pass-Through Certificates of the Series specified on the face hereof (herein called the "Certificates") and representing a Percentage Interest in the Class of Certificates specified on the face hereof equal to the denomination specified on the face hereof divided by the aggregate Certificate Principal Balance of the Class of Certificates specified on the face hereof. The 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 Agreement. As provided in the Agreement, withdrawals from the Collection Account and the Distribution Account may be made from time to time for purposes other than distributions to Certificateholders, such purposes including reimbursement of advances made, or certain expenses incurred, with respect to the Mortgage Loans. The Agreement permits, with certain exceptions therein provided, the amendment thereof and the modification of the rights and obligations of the Depositor, the Servicer, the Trustee and the rights of the Certificateholders under the Agreement at any time by the Depositor, the Servicer and the Trustee with the consent of the Holders of Certificates entitled to at least 66% of the Voting Rights. Any such consent by the Holder of this Certificate shall be conclusive and binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in exchange herefor or in lieu hereof whether or not notation of such consent is made upon this Certificate. The Agreement also permits the amendment thereof, in certain limited circumstances, without the consent of the Holders of any of the Certificates. As provided in the Agreement and subject to certain limitations therein set forth, the transfer of this Certificate is registrable in the Certificate Register upon surrender of this Certificate for registration of transfer at the offices or agencies appointed by the Trustee as provided in the Agreement, duly endorsed by, or accompanied by an assignment in the form below or other written instrument of transfer in form satisfactory to the Trustee duly executed by, the Holder hereof or such Holder's attorney duly authorized in writing, and thereupon one or more new Certificates of the same Class in authorized denominations evidencing the same aggregate Percentage Interest will be issued to the designated transferee or transferees. Each beneficial owner of this Certificate or any interest therein shall be deemed to have represented, by virtue of its acquisition or holding of such Certificate or interest therein, that either (A) ~~the aggregate amount~~ it is not an "employee benefit plan" as defined in Section 3(3) of the ~~obligation~~ Employee Retirement Income Security Act of 1974, as ~~stated~~ amended ("ERISA"), that is subject to Title I of ERISA, any "plan" as defined in ~~the second sentence of~~ Section ~~1401~~ 4975 of the ~~Indenture~~Internal Revenue Code of 1986, ~~and~~ as amended (the "Code"), that is subject to Section 4975 of the Code or any entity deemed to hold plan assets of any of the foregoing, (B) it has acquired and is holding this Certificate in reliance on the ~~amount~~underwriters' exemption, ~~if any~~and that it understands that there are certain conditions to the availability of the underwriters' exemption, ~~which would~~ including that this Certificate must be rated, at the time of purchase, not ~~have (i) rendered the undersigned~~ lower than "~~insolvent~~BBB-" (or its equivalent) by Fitch, S&P or Xxxxx'x and the Certificate is so rated, that it is an accredited investor as defined in Rule 501(a)(1) of Regulation D of the Securities Act of 1933, as amended, and that it will obtain a representation from any transferee that such transferee is an accredited investor, or (C)(1) it is an insurance company, (2) the source of funds used to acquire or hold this Certificate or interest therein is an "insurance company general account," as such term is defined in Prohibited Transaction Class Exemption ("PTCE") 95-60, and (3) the conditions in Sections I and III of PTCE 95-60 have been satisfied. If this Certificate or any interest therein is acquired or held in violation of the provisions of Section ~~101(29~~5.02(c) of the ~~Federal Bankruptcy Code and in Section 271~~ Agreement, the next preceding permitted beneficial owner will be treated as the beneficial owner of ~~the Debtor and Creditor Law of the State of New York, as each is in effect at~~ this Certificate retroactive to the date of transfer to the ~~Indenture~~purported beneficial owner. Any purported beneficial owner whose acquisition or holding of any this Certificate or interest therein was effected in violation of the provisions of Section 5.02(c) of the Agreement shall indemnify and hold harmless the Depositor, the Servicer, the Trustee and the Trust Fund from and against any and all liabilities, claims, costs or expenses incurred by those parties as a result of that acquisition or holding. The Certificates are issuable in fully registered form only without coupons in Classes and denominations representing Percentage Interests specified in the Agreement. As provided in the Agreement and subject to certain limitations therein set forth, the Certificates are exchangeable for new Certificates of the same Class in authorized denominations evidencing the same aggregate Percentage Interest, as requested by the Holder surrendering the same. No service charge will be made for any such registration of transfer or exchange of Certificates, but the Trustee 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 Servicer, the Trustee and any agent of the Depositor, the Servicer or 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 Servicer, the Trustee nor any such agent shall be affected by notice to the contrary. The obligations created by the Agreement and the Trust Fund created thereby shall terminate upon payment to the Certificateholders of all amounts held by the Trustee and required to be paid to them pursuant to the Agreement following the earlier of (i) the final payment or other liquidation (or any advance with respect thereto) of the last Mortgage Loan and REO Property remaining in REMIC I and (ii) ~~left~~ the ~~undersigned with unreasonably small capital~~ purchase by the party designated in the Agreement at a price determined as provided in the Agreement from REMIC I of all the Mortgage Loans and all property acquired in respect of such Mortgage Loans. The Agreement permits, but does not require, the party designated in the Agreement to purchase from REMIC I all the Mortgage Loans and all property acquired in respect of any Mortgage Loan at a price determined as provided in the Agreement. The exercise of such right will effect early retirement of the Certificates; however, such right to purchase is subject to the aggregate Stated Principal Balance of the Mortgage Loans at the time ~~its Guarantee was entered into, after giving effect to the incurrence~~ of existing Debt (as defined in the Indenture) immediately prior to such time, provided that, it shall be a presumption in any lawsuit or other proceeding in which the undersigned is a party that the amount guaranteed is the amount set forth in (A) above unless a creditor, or representative of creditors purchase being less than 10% of the ~~undersigned or a trustee in bankruptcy~~ aggregate Stated Principal Balance of the ~~undersigned,~~ Mortgage Loans as ~~debtor in possession, otherwise proves in such a lawsuit that the aggregate liability~~ of the ~~undersigned is limited to the amount set forth in (B)~~Cut-off Date. In making any determination as to the solvency or sufficiency of capital of the undersigned in accordance with the previous sentence, the right of the undersigned to contribution from other Guarantors, to subrogation and any other rights the undersigned may have, contractual or otherwise, The recitals contained herein shall be taken ~~into account. The obligations~~ as statements of the ~~undersigned to the Holders of the 2018 Notes~~ Depositor and to the Trustee ~~pursuant~~ assumes no responsibility for their correctness. Unless the certificate of authentication hereon has been executed by the Trustee, by manual signature, this Certificate shall not be entitled to any benefit under the ~~Subsidiary Guarantee and the Indenture are expressly set forth in Article 14 of the Indenture and reference is hereby made to the Indenture~~ Agreement or be valid for the precise terms of the Subsidiary Guarantee and all of the other provisions of the Indenture to which this Subsidiary Guarantee relates. Capitalized terms in this Subsidiary Guarantee which are not defined herein shall have the meanings assigned to them in the Indentureany purpose.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Carrington Mortgage Loan Trust, Series 2005-Nc5)

Dated. ~~Notice~~Signature by or on behalf of assignor DISTRIBUTION INSTRUCTIONS The assignee should include the following for purposes of distribution: The signature to this assignment must correspond with the name as it appears upon the face of the within Note in every particular, without alteration or enlargement or any change whatever. ABBREVIATIONS The following abbreviations, when used in the inscription on the face of this instrument, Distributions shall be ~~construed as though they were written out~~ made, by wire transfer or otherwise, in ~~full according~~ immediately available funds to applicable laws or regulations: TEN COM--as tenants in common UNIF GIFT MIN ACT--_____ Custodian______ TEN ENT--as tenants by the entireties (Cust) (Minor) JT TEN--as joint tenants with right Under Uniform Gifts to Minors of survivorship and not as Act__________________________ tenants in common (State) Additional abbreviations may also be used though not in the above list. --------------------------- [FORM OF SCHEDULE FOR ENDORSEMENTS ON GLOBAL SECURITY TO REFLECT CHANGES IN PRINCIPAL AMOUNT] Schedule A Changes to Principal Amount of Global Security Principal Amount of Securities by which this Global Security is to be Reduced or Increased, and Reason for Remaining Principal Amount of Notation Date Reduction or Increase this Global Securities Made by ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- Exhibit B SUBSIDIARY GUARANTEE FOR VALUE RECEIVED, the undersigned hereby jointly and severally with the Parent Guarantor pursuant to the Parent Guarantee and any other subsidiary Guarantors under their respective Subsidiary Guarantees, unconditionally guarantees to the Holder of the accompanying _____~~% Note Due June~~ ______________, ~~2018 (the "2018 Note") issued by AMB Property, L.P. (the "Operating Partnership") under an Indenture dated as of June~~ _______________________________________________________________________________, ~~1998 (together with~~ for the ~~Second Supplemental Indenture thereto~~account of ____________________________________________________________, account number _________, or, if mailed by check, to ________________________, Applicable statements should be mailed to ___________________________________, _______________________________________________________________________________. This information is provided by ________________________________, the assignee named above, or___________________________________________________, as its agent. EXHIBIT D SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "~~Indenture~~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"). NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE PROPOSED TRANSFEROR DELIVERS TO THE TRUSTEE A TRANSFEROR LETTER IN THE FORM OF EXHIBIT H TO THE AGREEMENT REFERRED TO HEREIN AND EITHER (I) THE TRUSTEE RECEIVES A RULE 144A LETTER IN THE FORM OF EXHIBIT I TO THE AGREEMENT REFERRED TO HEREIN OR (II) THE TRUSTEE RECEIVES AN OPINION OF COUNSEL, DELIVERED AT THE EXPENSE OF THE TRANSFEROR, THAT SUCH TRANSFER MAY BE MADE WITHOUT REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED. NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE TRANSFEREE DELIVERS TO THE TRUSTEE EITHER A REPRESENTATION LETTER TO THE EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO SECTION 4975 OF THE CODE, OR, IF THE TRANSFEREE IS AN INSURANCE COMPANY, A REPRESENTATION LETTER THAT IT IS USING THE ASSETS OF ITS GENERAL ACCOUNT AND THAT THE PURCHASE AND HOLDING OF THIS CERTIFICATE ARE COVERED UNDER SECTIONS I AND III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 OR AN OPINION OF COUNSEL SATISFACTORY TO THE TRUSTEE AND THE SERVICER, TO THE EFFECT THAT THE PURCHASE OR HOLDING OF THIS CERTIFICATE WILL NOT RESULT IN THE ASSETS OF THE TRUST FUND BEING DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE OR SIMILAR VIOLATION OF SIMILAR LAW AND WILL NOT SUBJECT THE TRUSTEE OR THE SERVICER TO ANY OBLIGATION IN ADDITION TO THOSE EXPRESSLY UNDERTAKEN IN THIS AGREEMENT OR TO ANY LIABILITY. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, ANY PURPORTED TRANSFER OF THIS CERTIFICATE TO OR ON BEHALF OF AN EMPLOYEE BENEFIT PLAN SUBJECT TO ERISA OR TO THE CODE WITHOUT THE REPRESENTATION LETTER AS DESCRIBED ABOVE SHALL BE VOID AND OF NO EFFECT. Certificate No. : 1 Cut-off Date : November 1, 2001 First Distribution Date : December 25, 2001 Percentage Interest of this Certificate ("DENOMINATION") : 100% CUSIP : MORGAN STANLEY DEAN WITTER CAPITAL I INC. Morgan Stanley Xxxx Wxxxxx Xxxxxxx X Xxx. Trust 2001-NC3 Xxxtxxxx Xxxx-Xxxxxxx Xertificates, Series 2001-NC3 Class X evidencing a percentage interest in the distributions allocable to the Certificates of the above-referenced Class. Distributions in respect of this Certificate are distributable monthly as set forth herein. This Certificate does not evidence an obligation of, or an interest in, and is not guaranteed by the Depositor, the Servicer, the Responsible Party or the Trustee referred to below or any of their respective affiliates. Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any governmental agency or instrumentality. This certifies that U.S. Bank National Association, as Indenture Trustee, is the registered owner of the Percentage Interest evidenced by this Certificate (obtained by dividing the denomination of this Certificate by the aggregate of the denominations of all Certificates of the Class to which this Certificate belongs) in certain monthly distributions pursuant to a Pooling and Servicing Agreement dated as of the Cut-off Date specified above (the "AGREEMENT") among Morgan Stanley Dean Witter Capital I Inc., as depositor (the ~~Operating Partnership~~"DEPOSITXX"), ~~AMB Property~~ Xxxxx Xxxxxxx Xxxx FSB, as servicer (the "SERVICER"), NC Capital Corporation, as responsible party (the "RESPONSIBLE PARTY") and ~~State Street~~ U.S. Bank ~~and Trust Company of California, N.A.~~National Association, as trustee (the "~~Trustee~~TRUSTEE"). To the extent not defined herein, ~~(a)~~ the ~~full~~ capitalized terms used herein have the meanings assigned in the Agreement. This Certificate is issued under and ~~prompt payment~~ is subject to the terms, provisions and conditions of the ~~principal~~ Agreement, to which Agreement the Holder of ~~and premium, if any, on such 2018 Note when and as the same shall become due and payable, whether at Stated Maturity,~~ this Certificate by ~~acceleration, by redemption or otherwise, and (b) the full and prompt payment~~ virtue of the ~~interest on~~ acceptance hereof assents and by which such ~~2018 Note when~~ Holder is bound. This Certificate does not have a Certificate Balance or Pass-Through Rate and ~~as the same shall become due and payable, according~~ will be entitled to distributions only to the terms of such 2018 Note and of the Indenture. The undersigned hereby agrees, jointly and severally with the Parent Guarantor pursuant to the Parent Guarantee and any other Subsidiary Guarantors under their respective Subsidiary Guarantees, that its obligations hereunder shall be as principal and not merely as surety, and shall be absolute and unconditional, and shall not be affected, modified or impaired by the following: (a) the failure to give notice to the Guarantors of the occurrence of an Event of Default under the Indenture; (b) the waiver, surrender, compromise, settlement, release or termination of the payment, performance or observance by the Operating Partnership or the Guarantors of any or all of the obligations, covenants or agreements of either of them contained in the Indenture or the 2018 Notes; (c) the acceleration, extension or any other changes in the time for payment of any principal of or interest or any premium on any 2018 Note or for any other payment under the Indenture or of the time for performance of any other obligations, covenants or agreements under or arising out of the Indenture or the 2018 Notes; (d) the modification or amendment (whether material or otherwise) of any obligation, covenant or agreement extent set forth in the ~~Indenture~~ Agreement. In addition, any distribution of the proceeds of any remaining assets of the Trust will be made only upon presentment and surrender of this Certificate at the offices designated by the Trustee for such purposes or the ~~2018 Notes; (e) the taking~~ office or the omission of any of the actions referred to in the Indenture and in any of the actions under the 2018 Notes; (f) any failure, omission, delay or lack on the part of the Trustee to enforce, assert or exercise any right, power or remedy conferred on the Trustee in the Indenture, or any other action or acts on the part of the Trustee or any of the Holders from time to time of the 2018 Notes; (g) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all the assets, marshaling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition with creditors or readjustment of, or other similar proceedings affecting the Guarantors or the Operating Partnership or any of the assets of any of them, or any allegation or contest of the validity of this Subsidiary Guarantee in any such proceeding; (h) to the extent permitted by law, the release or discharge by operation of law of the Guarantors from the performance or observance of any obligation, covenant or agreement contained in the Indenture; (i) to the extent permitted by law, the release or discharge by operation of law of the Operating Partnership from the performance or observance of any obligation, covenant or agreement contained in the Indenture; (j) the default or failure of the Operating Partnership or the Trustee fully to perform any of its obligations set forth in the Indenture or the 2018 Notes; (k) the invalidity, irregularity or unenforceability of the Indenture or the 2018 Notes or any part of any thereof; (l) any judicial or governmental action affecting the Operating Partnership or any 2018 Notes or consent or indulgence granted by the Operating Partnership by the Holders or agency maintained by the Trustee~~; or (m) the recovery of any judgment against the Operating Partnership or any action to enforce the same or any other circumstance which might constitute a legal or equitable discharge~~ . No transfer of a ~~surety~~ Certificate of this Class shall be made unless such disposition is exempt from the registration requirements of the Securities Act of 1933, as amended (the "1933 ACT"), and any applicable state securities laws or ~~guarantor~~is made in accordance with the 1933 Act and such laws. ~~The undersigned hereby waives diligence, presentment, demand of payment, filing of claims with a court in~~ In the event of ~~merger~~any such transfer, ~~sale, lease or conveyance of all or~~ the Trustee shall require the transferor to execute a transferor certificate (in substantially ~~all of its assets, insolvency or bankruptcy of~~ the Operating Partnership, any right to require a proceeding first against the Operating Partnership, protest or notice with respect to such Notice or the indebtedness evidenced thereby and all demands whatsoever, and covenants that this Subsidiary Guarantee will not be discharged except by complete performance of the obligations contained in such 2018 Note and in this Subsidiary Guarantee. No reference herein to such Indenture and no provision of this Subsidiary Guarantee or of such Indenture shall alter or impair the guarantee of the undersigned, which is absolute and unconditional, of the full and prompt payment of the principal of and premium, if any, and interest on the 2018 Note. THIS SUBSIDIARY GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. The validity and enforceability of this Subsidiary Guarantee shall not be affected by the fact that it is not affixed to any particular 2018 Note. An Event of Default under the Indenture or the 2018 Notes shall constitute an event of default under this Subsidiary Guarantee, and shall entitle the Holders of 2018 Notes to accelerate the obligations of the undersigned hereunder in the same manner and form attached to the same extent as the obligations of the Operating Partnership. Notwithstanding any other provision of this Subsidiary Guarantee to the contrary, the undersigned hereby waives any claims or other rights which it may now have or hereafter acquire against the Operating Partnership that arise from the existence or performance of its obligations under this Subsidiary Guarantee (all such claims Pooling and rights are referred to as "Guarantor's Conditional Rights"), including, without limitation, any right of subrogation, reimbursement, exoneration, contribution, or indemnification, any right to participate in any claim or remedy against the Operating Partnership, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, by any payment made hereunder or otherwise, including without limitation, the right to take or receive from Operating Partnership, directly or indirectly, in cash or other property or by setoff or in any other manner, payment or security on account of such claim or other rights. The Subsidiary Guarantor hereby agrees not to exercise any rights which may be acquired by way of contribution under this Subsidiary Guarantee or any other agreement, by any payment made hereunder or otherwise, including, without limitation, the right to take or receive from any other guarantor, directly or indirectly, in cash or other property or by setoff or in any other manner, payment or security on account of such contribution rights. If, notwithstanding the foregoing provisions, any amount shall be paid to any of the undersigned on account of any such Guarantor's Conditional Rights Servicing Agreement) and deliver either (i) ~~such amount is paid~~ a Rule 144A Letter, in either case substantially in the form attached to ~~such undersigned party at any time when~~ the ~~indebtedness shall not have been paid or performed in full~~Agreement, or (ii) ~~regardless~~ a written Opinion of when such amount is paid to such undersigned party, any payment made by Operating Partnership to a Holder that is at any time determined to be a Preferential Payment (as defined below), then such amount paid Counsel to the ~~undersigned~~ Trustee that such transfer may be made pursuant to an exemption, describing the applicable exemption and the basis therefor, from the 1933 Act or is being made pursuant to the 1933 Act, which Opinion of Counsel shall be ~~held in trust for the benefit~~ an expense of the ~~Holders~~ transferor. No transfer of a Certificate of this Class shall be made unless the Trustee shall have received either (i) a representation letter from the transferee of such Certificate, acceptable to and ~~shall forthwith be paid such Holder to be credited~~ in form and ~~applied upon the indebtedness, whether matured or unmatured. Any such payment is herein referred to as a "Preferential Payment"~~ substance satisfactory to the ~~extent~~ Trustee, to the ~~Operating Partnership makes any payment~~ effect that such transferee is not an employee benefit plan subject to ~~Holder in connection with~~ Section 406 of ERISA or Section 4975 of the ~~Note, and any or all of such payment is subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid or paid over to a trustee, receiver~~ Code or any ~~other entity, whether under any bankruptcy act or otherwise. To the extent that any of the~~ materially similar provisions of ~~the immediately preceding paragraph~~ applicable Federal, state or local law ("SIMILAR LAW") or a person acting on behalf of or investing plan assets of any such plan, which representation letter shall not be ~~enforceable, each~~ an expense of the undersigned agrees that until such time as the indebtedness has been paid and performed in full and the period of time has expired during which any payment made by the Operating Partnership or the undersigned to a Holder may be determined to be a Preferential PaymentTrustee, Guarantor's Conditional Rights to the extent not validly waived shall be subordinate to Holders' right to full payment and performance of the indebtedness and each of the undersigned shall not enforce any of its respective portion of the Guarantors' Conditional Rights until such time as the indebtedness has been paid and performed in full and the period of time has expired during which any payment made by the Operating Partnership or the undersigned to Holders may be determined to be a Preferential Payment. The undersigned's liability (the "Base Guaranty Liability") shall be that amount from time to time equal to the aggregate liability of the undersigned hereunder, but shall be limited to the lesser of (A) the aggregate amount of the obligation as stated in the second sentence of Section 1401 of the Indenture, and (B) the amount, if any, which would not have (i) rendered the undersigned "insolvent" (as such term is defined in Section 101(29) of the Federal Bankruptcy Code and in Section 271 of the Debtor and Creditor Law of the State of New York, as each is in effect at the date of the Indenture) or (ii) ~~left~~ if the ~~undersigned~~ transferee is an insurance company, a representation letter that it is purchasing such Certificates with ~~unreasonably small capital at~~ the ~~time~~ assets of its ~~Guarantee was entered into~~general account and that the purchase and holding of such Certificates are covered under Sections I and III of PTCE 95-60, ~~after giving effect to the incurrence of existing Debt~~ or (~~as defined~~ iii) in the ~~Indenture) immediately prior~~ case of a Certificate presented for registration in the name of an employee benefit plan subject to such time, provided that, it shall be a presumption in any lawsuit or other proceeding in which the undersigned is a party that the amount guaranteed is the amount set forth in (A) above unless a creditorERISA, or ~~representative of creditors~~ a plan or arrangement subject to Section 4975 of the ~~undersigned~~ Code (or comparable provisions of any subsequent enactments) or a plan subject to Similar Law, or a trustee ~~in bankruptcy~~ of ~~the undersigned, as debtor in possession, otherwise proves in~~ any such ~~a lawsuit that the aggregate liability of the undersigned is limited to the amount set forth in (B). In making any determination as to the solvency~~ plan or ~~sufficiency of capital of the undersigned in accordance with the previous sentence, the right of the undersigned to contribution from other Guarantors, to subrogation and~~ any other ~~rights the undersigned may have~~person acting on behalf of any such plan or arrangement or using such plan's or arrangement's assets, ~~contractual or otherwise, shall be taken into account. The obligations~~ an Opinion of ~~the undersigned to the Holders of the 2018 Notes and~~ Counsel satisfactory to the Trustee ~~pursuant~~ and the Servicer, which Opinion of Counsel shall not be an expense of the Trustee, the Servicer or the Trust Fund, addressed to the ~~Subsidiary Guarantee~~ Trustee, to the effect that the purchase or holding of such Certificate will not result in the assets of the Trust Fund being deemed to be "plan assets" and subject to the prohibited transaction provisions of ERISA and the ~~Indenture are~~ Code and will not subject the Trustee or the Servicer to any obligation in addition to those expressly ~~set forth~~ undertaken in ~~Article 14 of the Indenture and reference~~ this Agreement or to any liability. Reference is hereby made to the ~~Indenture~~ further provisions of this Certificate set forth on the reverse hereof, which further provisions shall for all purposes have the ~~precise terms~~ same effect as if set forth at this place. This Certificate shall not be entitled to any benefit under the Agreement or be valid for any purpose unless manually countersigned by an authorized signatory of the ~~Subsidiary Guarantee and all of the other provisions of the Indenture to which this Subsidiary Guarantee relates~~Trustee. ~~Capitalized terms in this Subsidiary Guarantee which are not defined herein shall have the meanings assigned to them in the Indenture.~~* * *

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Morgan Stanley Dean Witter Capital I Inc)

Dated. ~~Notice~~Signature by or on behalf of assignor DISTRIBUTION INSTRUCTIONS The assignee should include the following for purposes of distribution: The signature to this assignment must correspond with the name as it appears upon the face of the within Note in every particular, without alteration or enlargement or any change whatever. ABBREVIATIONS The following abbreviations, when used in the inscription on the face of this instrument, Distributions shall be ~~construed as though they were written out~~ made, by wire transfer or otherwise, in ~~full according~~ immediately available funds to ~~applicable laws or regulations: TEN COM--as tenants in common UNIF GIFT MIN ACT--_____ Custodian~~_____~~_ TEN ENT--as tenants~~ ___________________________________________, _______________________________________________________________________________, for the account of ____________________________________________________________, account number ______________, or, if mailed by ~~the entireties (Cust) (Minor) JT TEN--as joint tenants with right Under Uniform Gifts~~ check, to ~~Minors of survivorship and not as Act~~____________________. Applicable statements should be mailed to______________________________________, _______________________________________________________________________________. This information is provided by________________________________ tenants in common (State) Additional abbreviations may also be used though not in the above list. --------------------------- [FORM OF SCHEDULE FOR ENDORSEMENTS ON GLOBAL SECURITY TO REFLECT CHANGES IN PRINCIPAL AMOUNT] Schedule A Changes to Principal Amount of Global Security Principal Amount of Securities by which this Global Security is to be Reduced or Increased, and Reason for Remaining Principal Amount of Notation Date Reduction or Increase this Global Securities Made by ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- Exhibit B SUBSIDIARY GUARANTEE FOR VALUE RECEIVED, the ~~undersigned hereby jointly and severally with the Parent Guarantor pursuant to the Parent Guarantee and any other subsidiary Guarantors under their respective Subsidiary Guarantees~~assignee named above, ~~unconditionally guarantees to the Holder of the accompanying~~ or _____~~% Note Due June~~ _____________________________________________, ~~2018~~ as its agent. EXHIBIT D-3 FORM OF CLASS RX CERTIFICATE SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"). NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE PROPOSED TRANSFEREE DELIVERS TO THE SECURITIES ADMINISTRATOR A TRANSFER AFFIDAVIT IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN. NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE TRANSFEREE DELIVERS TO THE SECURITIES ADMINISTRATOR A REPRESENTATION LETTER TO THE EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO SECTION 4975 OF THE CODE OR A PLAN SUBJECT TO MATERIALLY SIMILAR PROVISIONS OF APPLICABLE FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") OR A PERSON INVESTING ON BEHALF OF OR WITH PLAN ASSETS OF SUCH A PLAN. IN THE EVENT THAT SUCH REPRESENTATION IS VIOLATED, OR ANY ATTEMPT IS MADE TO TRANSFER TO A PLAN OR ARRANGEMENT SUBJECT TO SECTION 406 OF ERISA, A PLAN SUBJECT TO SECTION 4975 OF THE CODE OR A PLAN SUBJECT TO SIMILAR LAW, OR A PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR ARRANGEMENT OR USING THE ASSETS OF ANY SUCH PLAN OR ARRANGEMENT, SUCH ATTEMPTED TRANSFER OR ACQUISITION SHALL BE VOID AND OF NO EFFECT. Certificate No. : 1 Cut-off Date : February 1, 2007 First Distribution Date : March 26, 2007 Initial Certificate Balance of this Certificate ("Denomination") : $ 50 Initial Certificate Balances of all Certificates of this Class : $ 50 CUSIP : 3622MHAS5 ISIN : US3622MHAS54 GS MORTGAGE SECURITIES CORP. GSAMP Trust 2007-FM2 Mortgage Pass-Through Certificates, Series 2007-FM2 Class RX evidencing a percentage interest in the distributions allocable to the Certificates of the above-referenced Class. Distributions in respect of this Certificate are distributable monthly as set forth herein. This Class RX Certificate is not entitled to distributions in respect of interest. This Certificate does not evidence an obligation of, or an interest in, and is not guaranteed by the Depositor, the Master Servicer, the Servicer, the Securities Administrator, the Sponsor, the Responsible Party or the Trustee or any other party to the Agreement referred to below or any of their respective affiliates. Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any governmental agency or instrumentality. This certifies that [_____________] is the registered owner of the Percentage Interest evidenced by this Certificate in certain monthly distributions pursuant to a Pooling and Servicing Agreement, dated as of the Cut-off Date specified above (the "~~2018 Note~~Agreement"~~) issued by AMB Property~~), ~~L.P.~~ among GS Mortgage Securities Corp., as depositor (the "~~Operating Partnership~~Depositor"~~) under an Indenture dated~~ ), Fremont Investment & Loan, as ~~of June ___, 1998~~ responsible party (~~together with the Second Supplemental Indenture thereto~~in such capacity, the "~~Indenture~~Responsible Party") ~~among~~ and as servicer (in such capacity, the ~~Operating Partnership~~"Servicer"), ~~AMB Property Corporation, and State Street~~ Deutsche Bank ~~and~~ National Trust ~~Company of California, N.A.~~Company, as trustee (the "Trustee") and Wells Fargo Bank, N.A., as master servicer (the "Master Servicer") and xxxxxities administrator (the "Securities Administrator"). To the extent not defined herein, ~~(a)~~ the ~~full~~ capitalized terms used herein have the meanings assigned in the Agreement. This Certificate is issued under and ~~prompt payment~~ is subject to the terms, provisions and conditions of the ~~principal~~ Agreement, to which Agreement the Holder of ~~and premium, if any, on such 2018 Note when and as the same shall become due and payable, whether at Stated Maturity,~~ this Certificate by ~~acceleration, by redemption or otherwise, and (b) the full and prompt payment~~ virtue of the ~~interest on~~ acceptance hereof assents and by which such ~~2018 Note when~~ Holder is bound. Any distribution of the proceeds of any remaining assets of the Trust Fund will be made only upon presentment and as surrender of this Class RX Certificate at the ~~same~~ offices designated by the Securities Administrator for such purposes or such other location specified in the notice to Certificateholders. No transfer of a Class RX Certificate shall ~~become due~~ be made unless the Securities Administrator shall have received a representation letter from the transferee of such Certificate, acceptable to and ~~payable, according~~ in form and substance satisfactory to the ~~terms~~ Securities Administrator, to the effect that such transferee is not an employee benefit plan or arrangement subject to Section 406 of ~~such 2018 Note and~~ ERISA, a plan or arrangement subject to Section 4975 of the ~~Indenture. The undersigned hereby agrees~~Code or a plan subject to Similar Law, jointly and severally with the Parent Guarantor pursuant to the Parent Guarantee and any other Subsidiary Guarantors under their respective Subsidiary Guarantees, that its obligations hereunder shall be as principal and not merely as surety, and shall be absolute and unconditional, and shall not be affected, modified or impaired by the following: (a) the failure to give notice to the Guarantors of the occurrence of an Event of Default under the Indenture; (b) the waiver, surrender, compromise, settlement, release or termination of the payment, performance or observance by the Operating Partnership or the Guarantors a person acting on behalf of any such plan or all of the obligations, covenants or agreements of either of them contained in the Indenture or the 2018 Notes; (c) the acceleration, extension or any other changes in the time for payment of any principal of or interest or any premium on any 2018 Note or for any other payment under the Indenture or of the time for performance of any other obligations, covenants or agreements under or arising out of the Indenture or the 2018 Notes; (d) the modification or amendment (whether material or otherwise) of any obligation, covenant or agreement set forth in the Indenture or the 2018 Notes; (e) the taking or the omission of any of the actions referred to in the Indenture and in any of the actions under the 2018 Notes; (f) any failure, omission, delay or lack on the part of the Trustee to enforce, assert or exercise any right, power or remedy conferred on the Trustee in the Indenture, or any other action or acts on the part of the Trustee or any of the Holders from time to time of the 2018 Notes; (g) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all the assets, marshaling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition with creditors or readjustment of, or other similar proceedings affecting the Guarantors or the Operating Partnership or any of arrangement nor using the assets of any such plan or arrangement to effect such transfer, which representation letter shall not be an expense of ~~them~~the Master Servicer, the Securities Administrator, the Servicer or the Trust Fund. In the event that such representation is violated, or any ~~allegation~~ attempt is made to transfer to a plan or ~~contest~~ arrangement subject to Section 406 of ERISA or a plan subject to Section 4975 of the ~~validity~~ Code or a plan subject to Similar Law, or a person acting on behalf of any such plan or arrangement or using the assets of any such plan or arrangement, such attempted transfer or acquisition shall be void and of no effect. Each Holder of this ~~Subsidiary Guarantee~~ Class RX Certificate shall be deemed by the acceptance or acquisition an Ownership Interest in this Class RX Certificate to have agreed to be bound by the following provisions, and the rights of each Person acquiring any ~~such proceeding; (h)~~ Ownership Interest in this Class RX Certificate are expressly subject to the ~~extent permitted by law, the release or discharge by operation of law of the Guarantors from the performance or observance of any obligation, covenant or agreement contained in the Indenture;~~ following provisions: (i) each Person holding or acquiring any Ownership Interest in this Class RX Certificate shall be a Permitted Transferee and shall promptly notify the Securities Administrator of any change or impending change in its status as a Permitted Transferee, (ii) no Ownership Interest in this Class RX Certificate may be registered on the Closing Date or thereafter transferred, and the Securities Administrator shall not register the Transfer of this Certificate unless, in addition to the ~~extent permitted by law~~certificates required to be delivered to the Securities Administrator under Section 5.02(b) of the Agreement, the ~~release or discharge by operation of law~~ Securities Administrator shall have been furnished with a Transfer Affidavit of the ~~Operating Partnership from~~ initial owner or the ~~performance or observance of any obligation, covenant or agreement contained~~ proposed transferee in the ~~Indenture;~~ form attached as Exhibit H to the Agreement, (jiii) each Person holding or acquiring any Ownership Interest in this Class RX Certificate shall agree (A) to obtain a Transfer Affidavit from any other Person to whom such Person attempts to Transfer its Ownership Interest this Class RX Certificate, (B) to obtain a Transfer Affidavit from any Person for whom such Person is acting as nominee, trustee or agent in connection with any Transfer of this Class RX Certificate, (C) not to cause income with respect to the ~~default~~ Class RX Certificate to be attributable to a foreign permanent establishment or ~~failure~~ fixed base, within the meaning of ~~the Operating Partnership or the Trustee fully to perform any~~ an applicable income tax treaty, of its obligations set forth in the Indenture or the 2018 Notes; (k) the invalidity, irregularity or unenforceability of the Indenture or the 2018 Notes or any part of any thereof; (l) any judicial or governmental action affecting the Operating Partnership or any 2018 Notes or consent or indulgence granted by the Operating Partnership by the Holders or by the Trustee; or (m) the recovery of any judgment against the Operating Partnership or any action to enforce the same such Person or any other ~~circumstance which might constitute a legal~~ U.S. Person and (D) not to Transfer the Ownership Interest in this Class RX Certificate or ~~equitable discharge of a surety or guarantor. The undersigned hereby waives diligence, presentment, demand of payment, filing of claims with a court in~~ to cause the ~~event of merger, sale, lease or conveyance of all or substantially all of its assets, insolvency or bankruptcy~~ Transfer of the ~~Operating Partnership,~~ Ownership Interest in this Class RX Certificate to any ~~right to require~~ other Person if it has actual knowledge that such Person is not a ~~proceeding first against the Operating Partnership, protest~~ Permitted Transferee and (iv) any attempted or ~~notice with respect to such Notice or the indebtedness evidenced thereby and all demands whatsoever, and covenants that this Subsidiary Guarantee will not be discharged except by complete performance~~ purported Transfer of the ~~obligations contained in such 2018 Note and~~ Ownership Interest in this Subsidiary Guarantee. No reference herein to such Indenture and no provision of this Subsidiary Guarantee or of such Indenture shall alter or impair the guarantee of the undersigned, which is absolute and unconditional, of the full and prompt payment of the principal of and premium, if any, and interest on the 2018 Note. THIS SUBSIDIARY GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. The validity and enforceability of this Subsidiary Guarantee shall not be affected by the fact that it is not affixed to any particular 2018 Note. An Event of Default under the Indenture or the 2018 Notes shall constitute an event of default under this Subsidiary Guarantee, and shall entitle the Holders of 2018 Notes to accelerate the obligations of the undersigned hereunder Class RX Certificate in the same manner and to the same extent as the obligations of the Operating Partnership. Notwithstanding any other provision of this Subsidiary Guarantee to the contrary, the undersigned hereby waives any claims or other rights which it may now have or hereafter acquire against the Operating Partnership that arise from the existence or performance of its obligations under this Subsidiary Guarantee (all such claims and rights are referred to as "Guarantor's Conditional Rights"), including, without limitation, any right of subrogation, reimbursement, exoneration, contribution, or indemnification, any right to participate in any claim or remedy against the Operating Partnership, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, by any payment made hereunder or otherwise, including without limitation, the right to take or receive from Operating Partnership, directly or indirectly, in cash or other property or by setoff or in any other manner, payment or security on account of such claim or other rights. The Subsidiary Guarantor hereby agrees not to exercise any rights which may be acquired by way of contribution under this Subsidiary Guarantee or any other agreement, by any payment made hereunder or otherwise, including, without limitation, the right to take or receive from any other guarantor, directly or indirectly, in cash or other property or by setoff or in any other manner, payment or security on account of such contribution rights. If, notwithstanding the foregoing provisions, any amount shall be paid to any of the undersigned on account of any such Guarantor's Conditional Rights and either (i) such amount is paid to such undersigned party at any time when the indebtedness shall not have been paid or performed in full, or (ii) regardless of when such amount is paid to such undersigned party, any payment made by Operating Partnership to a Holder that is at any time determined to be a Preferential Payment (as defined below), then such amount paid to the undersigned shall be held in trust for the benefit of the Holders and shall forthwith be paid such Holder to be credited and applied upon the indebtedness, whether matured or unmatured. Any such payment is herein referred to as a "Preferential Payment" to the extent the Operating Partnership makes any payment to Holder in connection with the Note, and any or all of such payment is subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid or paid over to a trustee, receiver or any other entity, whether under any bankruptcy act or otherwise. To the extent that any violation of the provisions of the immediately preceding paragraph shall not be enforceable, each of the undersigned agrees that until such time as the indebtedness has been paid and performed in full and the period of time has expired during which any payment made by the Operating Partnership or the undersigned to a Holder may be determined to be a Preferential Payment, Guarantor's Conditional Rights to the extent not validly waived herein shall be ~~subordinate to Holders' right to full payment~~ absolutely null and ~~performance of the indebtedness~~ void and ~~each of the undersigned~~ shall not enforce any of its respective portion of the Guarantors' Conditional Rights until such time as the indebtedness has been paid and performed in full and the period of time has expired during which any payment made by the Operating Partnership or the undersigned to Holders may be determined to be a Preferential Payment. The undersigned's liability (the "Base Guaranty Liability") shall be that amount from time to time equal to the aggregate liability of the undersigned hereunder, but shall be limited to the lesser of (A) the aggregate amount of the obligation as stated vest no rights in the second sentence of Section 1401 of the Indenture, and (B) the amount, if any, which would not have (i) rendered the undersigned "insolvent" (as such term is defined in Section 101(29) of the Federal Bankruptcy Code and in Section 271 of the Debtor and Creditor Law of the State of New York, as each is in effect at the date of the Indenture) or (ii) left the undersigned with unreasonably small capital at the time its Guarantee was entered into, after giving effect to the incurrence of existing Debt (as defined in the Indenture) immediately prior to such time, provided that, it shall be a presumption in any lawsuit or other proceeding in which the undersigned is a party that the amount guaranteed is the amount set forth in (A) above unless a creditor, or representative of creditors of the undersigned or a trustee in bankruptcy of the undersigned, as debtor in possession, otherwise proves in such a lawsuit that the aggregate liability of the undersigned is limited to the amount set forth in (B)purported Transferee. In making any determination as to the solvency or sufficiency of capital of the undersigned in accordance with the previous sentence, the right of the undersigned to contribution from other Guarantors, to subrogation and any other rights the undersigned may have, contractual or otherwise, shall be taken into account. The obligations of the undersigned to the Holders of the 2018 Notes and to the Trustee pursuant to the Subsidiary Guarantee and the Indenture are expressly set forth in Article 14 of the Indenture and reference Reference is hereby made to the ~~Indenture~~ further provisions of this Certificate set forth on the reverse hereof, which further provisions shall for all purposes have the ~~precise terms~~ same effect as if set forth at this place. This Certificate shall not be entitled to any benefit under the Agreement or be valid for any purpose unless manually authenticated by an authorized signatory of the Subsidiary Guarantee and all of the other provisions of the Indenture to which this Subsidiary Guarantee relates. Capitalized terms in this Subsidiary Guarantee which are not defined herein shall have the meanings assigned to them in the IndentureSecurities Administrator.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (GSAMP Trust 2007-Fm2)

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Merrill Lynch Alternative Note Asset Trust, Series 2007-Oar2)

Dated. ~~Notice~~Signature by or on behalf of assignor DISTRIBUTION INSTRUCTIONS The assignee should include the following for purposes of distribution: The signature to this assignment must correspond with the name as it appears upon the face of the within Note in every particular, without alteration or enlargement or any change whatever. ABBREVIATIONS The following abbreviations, when used in the inscription on the face of this instrument, Distributions shall be ~~construed as though they were written out~~ made, by wire transfer or otherwise, in ~~full according~~ immediately available funds to ~~applicable laws or regulations: TEN COM--as tenants in common UNIF GIFT MIN ACT--_____ Custodian~~_____~~_ TEN ENT--as tenants by the entireties (Cust) (Minor) JT TEN--as joint tenants with right Under Uniform Gifts to Minors of survivorship and not as Act~~________________________________________________________ tenants in common (State) Additional abbreviations may also be used though not in the above list. --------------------------- [FORM OF SCHEDULE FOR ENDORSEMENTS ON GLOBAL SECURITY TO REFLECT CHANGES IN PRINCIPAL AMOUNT] Schedule A Changes to Principal Amount of Global Security Principal Amount of Securities by which this Global Security is to be Reduced or Increased, and Reason for Remaining Principal Amount of Notation Date Reduction or Increase this Global Securities Made by ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- Exhibit B SUBSIDIARY GUARANTEE FOR VALUE RECEIVED, the undersigned hereby jointly and severally with the Parent Guarantor pursuant to the Parent Guarantee and any other subsidiary Guarantors under their respective Subsidiary Guarantees, unconditionally guarantees to the Holder of the accompanying _____~~% Note Due June~~ ___________________________________________________________________________ ________________________________________________________________________________ for the account of _____________________________________________________________ account number _______, ~~2018~~ or, if mailed by check, to _____________________________ Applicable statements should be mailed to ______________________________________ ________________________________________________________________________________ This information is provided by ________________________________________________ the assignee named above, or ___________________________________________________ as its agent. EXHIBIT B [RESERVED] EXHIBIT C NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE PROPOSED TRANSFEROR DELIVERS TO THE SECURITIES ADMINISTRATOR A TRANSFEROR LETTER IN THE FORM OF EXHIBIT H TO THE AGREEMENT REFERRED TO HEREIN AND EITHER (I) THE SECURITIES ADMINISTRATOR RECEIVES A RULE 144A LETTER IN THE FORM OF EXHIBIT I TO THE AGREEMENT REFERRED TO HEREIN OR (II) THE SECURITIES ADMINISTRATOR RECEIVES AN OPINION OF COUNSEL, DELIVERED AT THE EXPENSE OF THE TRANSFEROR, THAT SUCH TRANSFER MAY BE MADE WITHOUT REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED. EXCEPT AS PROVIDED IN THE AGREEMENT, NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE TRANSFEREE DELIVERS TO THE SECURITIES ADMINISTRATOR A REPRESENTATION LETTER TO THE EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN OR ARRANGEMENT SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR ANY FEDERAL, STATE OR LOCAL LAW MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE, (EACH, A "PLAN"), AND IS NOT ACTING ON BEHALF OF ANY PLAN OR USING THE ASSETS OF ANY PLAN TO EFFECT SUCH TRANSFER. ANY PURPORTED TRANSFER OF THIS CERTIFICATE IN VIOLATION OF THE TRANSFER RESTRICTIONS SET FORTH IN THE AGREEMENT SHALL BE VOID AND OF NO EFFECT. Certificate No. : P-1 Cut-off Date : February 1, 2006 First Distribution Date : March 25, 2006 Initial Certificate Balance of this Certificate ("Denomination") : $100 Initial Certificate Balance of all : $100 Certificates of this Class CUSIP : N/A XXXXXX XXXXXXX ABS CAPITAL I INC. IXIS Real Estate Capital Trust 2006-HE1 Mortgage Pass-Through Certificates, Series 2006-HE1 Class P evidencing a percentage interest in the distributions allocable to the Certificates of the above-referenced Class. Distributions in respect of this Certificate are distributable monthly as set forth herein. This Certificate does not evidence an obligation of, or an interest in, and is not guaranteed by the Depositor, the Unaffiliated Seller, the Securities Administrator, the Master Servicer, the Backup Servicer, any Originator, the Servicers or the Trustee referred to below or any of their respective affiliates. Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any governmental agency or instrumentality. This certifies that XXXXXX & CO. is the registered owner of the Percentage Interest evidenced by this Certificate (obtained by dividing the denomination of this Certificate by the aggregate of the denominations of all Certificates of the Class to which this Certificate belongs) in certain monthly distributions pursuant to a Pooling and Servicing Agreement dated as of the Cut-off Date specified above (the "~~2018 Note~~Agreement") ~~issued by AMB Property~~among Xxxxxx Xxxxxxx ABS Capital I Inc., ~~L.P.~~ as depositor (the "~~Operating Partnership~~Depositor"~~) under an Indenture dated~~ ), Master Financial, Inc., as ~~of June ___~~a servicer ("Master Financial"), ~~1998~~ Saxon Mortgage Services Inc., as a servicer ("Saxon" and together with ~~the Second Supplemental Indenture thereto~~Master Financial, the "~~Indenture~~Servicers"~~) among~~ ), IXIS Real Estate Capital Inc., as unaffiliated seller (the ~~Operating Partnership~~"Unaffiliated Seller"), ~~AMB Property Corporation, and State Street~~ Deutsche Bank ~~and~~ National Trust ~~Company of California, N.A.~~Company, as trustee and custodian (in each such capacity, respectively, the "Trustee" and the "Custodian") and JPMorgan Chase Bank, National Association, as securities administrator, master servicer and backup servicer (in each such capacity, respectively, the "Securities Administrator", the "Master Servicer" and the "Backup Servicer"). To the extent not defined herein, ~~(a)~~ the ~~full~~ capitalized terms used herein have the meanings assigned in the Agreement. This Certificate is issued under and ~~prompt payment~~ is subject to the terms, provisions and conditions of the ~~principal~~ Agreement, to which Agreement the Holder of ~~and premium, if any, on such 2018 Note when and as the same shall become due and payable, whether at Stated Maturity,~~ this Certificate by ~~acceleration, by redemption or otherwise, and (b) the full and prompt payment~~ virtue of the ~~interest on~~ acceptance hereof assents and by which such ~~2018 Note when~~ Holder is bound. This Certificate does not have a Pass-Through Rate and ~~as the same shall become due and payable, according~~ will be entitled to distributions only to the terms of such 2018 Note and of the Indenture. The undersigned hereby agrees, jointly and severally with the Parent Guarantor pursuant to the Parent Guarantee and any other Subsidiary Guarantors under their respective Subsidiary Guarantees, that its obligations hereunder shall be as principal and not merely as surety, and shall be absolute and unconditional, and shall not be affected, modified or impaired by the following: (a) the failure to give notice to the Guarantors of the occurrence of an Event of Default under the Indenture; (b) the waiver, surrender, compromise, settlement, release or termination of the payment, performance or observance by the Operating Partnership or the Guarantors of any or all of the obligations, covenants or agreements of either of them contained in the Indenture or the 2018 Notes; (c) the acceleration, extension or any other changes in the time for payment of any principal of or interest or any premium on any 2018 Note or for any other payment under the Indenture or of the time for performance of any other obligations, covenants or agreements under or arising out of the Indenture or the 2018 Notes; (d) the modification or amendment (whether material or otherwise) of any obligation, covenant or agreement extent set forth in the ~~Indenture or~~ Agreement. In addition, any distribution of the ~~2018 Notes; (e) the taking or the omission~~ proceeds of any remaining assets of the ~~actions referred to~~ Trust will be made only upon presentment and surrender of this Certificate at the offices designated by the Securities Administrator for such purposes, or such other location specified in the ~~Indenture and in any~~ notice to Certificateholders of such final distribution. No transfer of a Certificate of this Class shall be made unless such disposition is exempt from the registration requirements of the ~~actions under~~ Securities Act of 1933, as amended (the ~~2018 Notes; (f)~~ "1933 Act"), and any ~~failure, omission, delay~~ applicable state securities laws or ~~lack on~~ is made in accordance with the part of the Trustee to enforce, assert or exercise any right, power or remedy conferred on the Trustee in the Indenture, or any other action or acts on the part of the Trustee or any of the Holders from time to time of the 2018 Notes; (g) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all the assets, marshaling of assets 1933 Act and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition with creditors or readjustment of, or other similar proceedings affecting the Guarantors or the Operating Partnership or any of the assets of any of them, or any allegation or contest of the validity of this Subsidiary Guarantee in any such proceeding; (h) to the extent permitted by law, the release or discharge by operation of law of the Guarantors from the performance or observance of any obligation, covenant or agreement contained in the Indenture; (i) to the extent permitted by law, the release or discharge by operation of law of the Operating Partnership from the performance or observance of any obligation, covenant or agreement contained in the Indenture; (j) the default or failure of the Operating Partnership or the Trustee fully to perform any of its obligations set forth in the Indenture or the 2018 Notes; (k) the invalidity, irregularity or unenforceability of the Indenture or the 2018 Notes or any part of any thereof; (l) any judicial or governmental action affecting the Operating Partnership or any 2018 Notes or consent or indulgence granted by the Operating Partnership by the Holders or by the Trustee; or (m) the recovery of any judgment against the Operating Partnership or any action to enforce the same or any other circumstance which might constitute a legal or equitable discharge of a surety or guarantorlaws. ~~The undersigned hereby waives diligence, presentment, demand of payment, filing of claims with a court in~~ In the event of ~~merger~~any such transfer, ~~sale, lease or conveyance of all or~~ the Securities Administrator shall require the transferor to execute a transferor certificate (in substantially ~~all of its assets, insolvency or bankruptcy of~~ the Operating Partnership, any right to require a proceeding first against the Operating Partnership, protest or notice with respect to such Notice or the indebtedness evidenced thereby and all demands whatsoever, and covenants that this Subsidiary Guarantee will not be discharged except by complete performance of the obligations contained in such 2018 Note and in this Subsidiary Guarantee. No reference herein to such Indenture and no provision of this Subsidiary Guarantee or of such Indenture shall alter or impair the guarantee of the undersigned, which is absolute and unconditional, of the full and prompt payment of the principal of and premium, if any, and interest on the 2018 Note. THIS SUBSIDIARY GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. The validity and enforceability of this Subsidiary Guarantee shall not be affected by the fact that it is not affixed to any particular 2018 Note. An Event of Default under the Indenture or the 2018 Notes shall constitute an event of default under this Subsidiary Guarantee, and shall entitle the Holders of 2018 Notes to accelerate the obligations of the undersigned hereunder in the same manner and form attached to the same extent as the obligations of the Operating Partnership. Notwithstanding any other provision of this Subsidiary Guarantee to the contrary, the undersigned hereby waives any claims or other rights which it may now have or hereafter acquire against the Operating Partnership that arise from the existence or performance of its obligations under this Subsidiary Guarantee (all such claims Agreement) and rights are referred to as "Guarantor's Conditional Rights"), including, without limitation, any right of subrogation, reimbursement, exoneration, contribution, or indemnification, any right to participate in any claim or remedy against the Operating Partnership, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, by any payment made hereunder or otherwise, including without limitation, the right to take or receive from Operating Partnership, directly or indirectly, in cash or other property or by setoff or in any other manner, payment or security on account of such claim or other rights. The Subsidiary Guarantor hereby agrees not to exercise any rights which may be acquired by way of contribution under this Subsidiary Guarantee or any other agreement, by any payment made hereunder or otherwise, including, without limitation, the right to take or receive from any other guarantor, directly or indirectly, in cash or other property or by setoff or in any other manner, payment or security on account of such contribution rights. If, notwithstanding the foregoing provisions, any amount shall be paid to any of the undersigned on account of any such Guarantor's Conditional Rights and deliver either (i) ~~such amount is paid~~ a Rule 144A Letter, in either case substantially in the form attached to ~~such undersigned party at any time when~~ the ~~indebtedness shall not have been paid or performed in full~~Agreement, or (ii) ~~regardless~~ a written Opinion of when such amount is paid to such undersigned party, any payment made by Operating Partnership to a Holder that is at any time determined to be a Preferential Payment (as defined below), then such amount paid Counsel to the ~~undersigned~~ Securities Administrator that such transfer may be made pursuant to an exemption, describing the applicable exemption and the basis therefor, from the 1933 Act or is being made pursuant to the 1933 Act, which Opinion of Counsel shall be ~~held in trust for the benefit~~ an expense of the ~~Holders~~ transferor. Except as provided in the Agreement, no transfer of a Certificate of this Class shall be made unless the Securities Administrator shall have received a representation letter from the transferee of this Certificate, acceptable to and ~~shall forthwith be paid~~ in form and substance satisfactory to the Securities Administrator, to the effect that such ~~Holder~~ transferee is not a Plan, and is not acting on behalf of any Plan or using the assets of any Plan to ~~be credited and applied upon the indebtedness, whether matured or unmatured~~effect such transfer. Any ~~such payment is herein referred to as~~ purported transfer of a ~~"Preferential Payment" to the extent the Operating Partnership makes any payment to Holder~~ Certificate of this Class in connection with the Note, and any or all of such payment is subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid or paid over to a trustee, receiver or any other entity, whether under any bankruptcy act or otherwise. To the extent that any violation of the provisions of the immediately preceding paragraph shall not be enforceable, each of the undersigned agrees that until such time as the indebtedness has been paid and performed in full and the period of time has expired during which any payment made by the Operating Partnership or the undersigned to a Holder may be determined to be a Preferential Payment, Guarantor's Conditional Rights to the extent not validly waived shall be subordinate to Holders' right to full payment and performance of the indebtedness and each of the undersigned shall not enforce any of its respective portion of the Guarantors' Conditional Rights until such time as the indebtedness has been paid and performed in full and the period of time has expired during which any payment made by the Operating Partnership or the undersigned to Holders may be determined to be a Preferential Payment. The undersigned's liability (the "Base Guaranty Liability") shall be that amount from time to time equal to the aggregate liability of the undersigned hereunder, but shall be limited to the lesser of (A) the aggregate amount of the obligation as stated in the second sentence of Section 1401 of the Indenture, and (B) the amount, if any, which would not have (i) rendered the undersigned "insolvent" (as such term is defined in Section 101(29) of the Federal Bankruptcy Code and in Section 271 of the Debtor and Creditor Law of the State of New York, as each is in effect at the date of the Indenture) or (ii) left the undersigned with unreasonably small capital at the time its Guarantee was entered into, after giving effect to the incurrence of existing Debt (as defined in the Indenture) immediately prior to such time, provided that, it shall be a presumption in any lawsuit or other proceeding in which the undersigned is a party that the amount guaranteed is the amount transfer restrictions set forth in ~~(A) above unless a creditor, or representative of creditors of~~ the undersigned or a trustee in bankruptcy of the undersigned, as debtor in possession, otherwise proves in such a lawsuit that the aggregate liability of the undersigned is limited to the amount set forth in (B). In making any determination as to the solvency or sufficiency of capital of the undersigned in accordance with the previous sentence, the right of the undersigned to contribution from other Guarantors, to subrogation and any other rights the undersigned may have, contractual or otherwise, Agreement shall be ~~taken into account~~void and of no effect. The obligations of the undersigned to the Holders of the 2018 Notes and to the Trustee pursuant to the Subsidiary Guarantee and the Indenture are expressly set forth in Article 14 of the Indenture and reference Reference is hereby made to the ~~Indenture~~ further provisions of this Certificate set forth on the reverse hereof, which further provisions shall for all purposes have the ~~precise terms~~ same effect as if set forth at this place. This Certificate shall not be entitled to any benefit under the Agreement or be valid for any purpose unless manually authenticated by an authorized signatory of the ~~Subsidiary Guarantee and all of the other provisions of the Indenture to which this Subsidiary Guarantee relates~~Securities Administrator. ~~Capitalized terms in this Subsidiary Guarantee which are not defined herein shall have the meanings assigned to them in the Indenture.~~* * *

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Morgan Stanley ABS Capital I, Inc. IXIS Real Estate Capital Trust 2006-He1)

Dated. ~~Notice~~Signature by or on behalf of assignor ------------------------------- Signature Guaranteed DISTRIBUTION INSTRUCTIONS The assignee should include the following for purposes of distribution: The signature to this assignment must correspond with the name as it appears upon the face of the within Note in every particular, without alteration or enlargement or any change whatever. ABBREVIATIONS The following abbreviations, when used in the inscription on the face of this instrument, Distributions shall be ~~construed as though they were written out~~ made, by wire transfer or otherwise, in ~~full according~~ immediately available funds to ~~applicable laws or regulations: TEN COM--as tenants in common UNIF GIFT MIN ACT--_____ Custodian~~_____~~_ TEN ENT--as tenants by the entireties (Cust) (Minor) JT TEN--as joint tenants with right Under Uniform Gifts to Minors of survivorship and not as Act~~___________________________________________ tenants in common (State) Additional abbreviations may also be used though not in the above list. --------------------------- [FORM OF SCHEDULE FOR ENDORSEMENTS ON GLOBAL SECURITY TO REFLECT CHANGES IN PRINCIPAL AMOUNT] Schedule A Changes to Principal Amount of Global Security Principal Amount of Securities by which this Global Security is to be Reduced or Increased, and Reason for Remaining Principal Amount of Notation Date Reduction or Increase this Global Securities Made by ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- Exhibit B SUBSIDIARY GUARANTEE FOR VALUE RECEIVED, the undersigned hereby jointly and severally with the Parent Guarantor pursuant to the Parent Guarantee and any other subsidiary Guarantors under their respective Subsidiary Guarantees, unconditionally guarantees to the Holder of the accompanying _____~~% Note Due June~~ ___________________________________________________________ for the account of _______________________________, ~~2018 (the "2018 Note") issued by AMB Property, L.P. (the "Operating Partnership") under an Indenture dated as of June~~ account number ________________________, ~~1998 (together with the Second Supplemental Indenture thereto~~or, if mailed by check, to__________________________________________________________ _______________________________________________________________________________. Applicable statements should be mailed to_______________________________________ ________________________________________________________________________________ _______________________________________________. This information is provided by __________________________________________________, the assignee named above, or ________________________________________, as its agent. XXXXXXX X-0 ----------- FORM OF CLASS M-5 CERTIFICATE UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("~~Indenture~~DTC"~~) among~~ ), TO THE TRUST ADMINISTRATOR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986 (THE "CODE"). THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1 CERTIFICATES, THE CLASS A-2 CERTIFICATES, THE CLASS A-3 CERTIFICATES, THE CLASS A-4 CERTIFICATES, THE CLASS M-1 CERTIFICATES, THE CLASS M- 2 CERTIFICATES, THE CLASS M-3 AND THE CLASS M-4 CERTIFICATES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN. NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, OR THE CODE WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROCEDURES DESCRIBED HEREIN. Series: 2004-HE1 Xxxxxxxxx Xxxxxxxxxxx Xxxncipal Balance of the ~~Operating Partnership~~Class M-5 Certificates as of the Issue Date: Pass-Through Rate: Variable $6,014,000.00 Cut-off Date and date of Pooling and Denomination: $6,014,000.00 Servicing Agreement: September 1, ~~AMB Property Corporation, and State Street Bank~~ 2004 Master Servicer and Trust ~~Company~~ Administrator: First Distribution Date: October 25, 2004 Wells Fargo Bank, X.X. No. 1 Trustee: U.S. Bank National Association Issue Date: September 29, 2004 CUSIP: 57643L EN 2 DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE AS THE DENOMINATION OF THIS CERTIFICATE. MORTGAGE PASS-THROUGH CERTIFICATE evidencing a beneficial ownership interest in a portion of ~~California, N.A., as trustee~~ a Trust Fund (the "~~Trustee~~Trust Fund") consisting primarily of a pool of conventional one- to four-family, fixed-rate and adjustable-rate, first and second lien mortgage loans (the "Mortgage Loans") formed and sold by MORTGAGE ASSET SECURITIZATION TRANSACTIONS, INC. THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN MORTGAGE ASSET SECURITIZATION TRANSACTIONS, INC., THE MASTER SERVICER, THE TRUSTEE, THE TRUST ADMINISTRATOR OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES. This certifies that Cede & Co. is the registered owner of a Percentage Interest (obtained by dividing the denomination of this Certificate by the aggregate Certificate Principal Balance of the Class M-5 Certificates as of the Issue Date) in that certain beneficial ownership interest evidenced by all the Class M-5 Certificates in REMIC II created pursuant to a Pooling and Servicing Agreement, dated as specified above (the "Agreement"), among Mortgage Asset Securitization Transactions, Inc. (a) hereinafter called the ~~full~~ "Depositor," which term includes any successor entity under the Agreement), the Master Servicer, the Trust Administrator and ~~prompt payment~~ the Trustee, a summary of certain of the ~~principal~~ 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 Agreement. This Certificate is issued under and ~~premium~~is subject to the terms, ~~if any, on such 2018 Note when~~ provisions and ~~as the same shall become due and payable, whether at Stated Maturity, by acceleration, by redemption or otherwise, and (b) the full and prompt payment~~ conditions of the ~~interest on~~ Agreement, to which Agreement the Holder of this Certificate by virtue of the acceptance hereof assents and by which such ~~2018 Note when and as the same shall become due and payable, according~~ Holder is bound. Pursuant to the terms of the Agreement, distributions will be made on the 25th day of each month or, if such ~~2018 Note and~~ 25th day is not a Business Day, the Business Day immediately following (a "Distribution Date"), commencing on the First Distribution Date specified above, to the Person in whose name this Certificate is registered on the Record Date, in an amount equal to the product of the ~~Indenture. The undersigned hereby agrees, jointly~~ Percentage Interest evidenced by this Certificate and ~~severally with~~ the ~~Parent Guarantor~~ amount required to be distributed to the Holders of Class M-5 Certificates on such Distribution Date pursuant to the ~~Parent Guarantee~~ Agreement. All distributions to the Holder of this Certificate under the Agreement will be made or caused to be made by the Trust Administrator by wire transfer in immediately available funds to the account of the Person entitled thereto if such Person shall have so notified the Trust Administrator in writing at least five Business Days prior to the Record Date immediately prior to such Distribution Date and is the registered owner of Class M-5 Certificates the aggregate initial Certificate Principal Balance of which is in excess of the lesser of (i) $5,000,000 or (ii) two-thirds of the aggregate initial Certificate Principal Balance of the Class M-5 Certificates, or otherwise by check mailed by first class mail to the address of the Person entitled thereto, as such name and address shall appear on the Certificate Register. Notwithstanding the above, the final distribution on this Certificate will be made after due notice by the Trust Administrator of the pendency of such distribution and only upon presentation and surrender of this Certificate at the office or agency appointed by the Trust Administrator for that purpose as provided in the Agreement. The Pass-Through Rate applicable to the calculation of interest payable with respect to this Certificate on any Distribution Date shall equal a rate per annum equal to the lesser of (i) the related Formula Rate for such Distribution Date and (ii) the related Net WAC Rate for such Distribution Date. This Certificate is one of a duly authorized issue of Certificates designated as Mortgage Pass-Through Certificates of the Series specified on the face hereof (herein called the "Certificates") and representing a Percentage Interest in the Class of Certificates specified on the face hereof equal to the denomination specified on the face hereof divided by the aggregate Certificate Principal Balance of the Class of Certificates specified on the face hereof. The 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 Agreement. As provided in the Agreement, withdrawals from the Distribution Account may be made from time to time for purposes other ~~Subsidiary Guarantors~~ than distributions to Certificateholders, such purposes including reimbursement of advances made, or certain expenses incurred, with respect to the Mortgage Loans. The Agreement permits, with certain exceptions therein provided, the amendment thereof and the modification of the rights and obligations of the Depositor, the Master Servicer, the Trustee, the Trust Administrator and the rights of the Certificateholders under ~~their respective Subsidiary Guarantees~~the Agreement at any time by the Depositor, ~~that its obligations hereunder~~ the Master Servicer, the Trust Administrator and the Trustee with the consent of the Holders of Certificates entitled to at least 66% of the Voting Rights. Any such consent by the Holder of this Certificate shall be ~~as principal~~ conclusive and binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in exchange herefor or in lieu hereof whether or not ~~merely as surety~~notation of such consent is made upon this Certificate. The Agreement also permits the amendment thereof, ~~and shall be absolute and unconditional~~in certain limited circumstances, ~~and shall not be affected, modified or impaired by~~ without the ~~following: (a) the failure to give notice to the Guarantors~~ consent of the occurrence of an Event of Default under the Indenture; (b) the waiver, surrender, compromise, settlement, release or termination of the payment, performance or observance by the Operating Partnership or the Guarantors of any or all of the obligations, covenants or agreements of either of them contained in the Indenture or the 2018 Notes; (c) the acceleration, extension or any other changes in the time for payment of any principal of or interest or any premium on any 2018 Note or for any other payment under the Indenture or of the time for performance of any other obligations, covenants or agreements under or arising out of the Indenture or the 2018 Notes; (d) the modification or amendment (whether material or otherwise) of any obligation, covenant or agreement set forth in the Indenture or the 2018 Notes; (e) the taking or the omission Holders of any of the ~~actions referred to~~ Certificates. As provided in the ~~Indenture~~ Agreement and subject to certain limitations therein set forth, the transfer of this Certificate is registrable in ~~any~~ the Certificate Register upon surrender of this Certificate for registration of transfer at the offices or agencies appointed by the Trust Administrator as provided in the Agreement, duly endorsed by, or accompanied by an assignment in the form below or other written instrument of transfer in form satisfactory to the Trust 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 ~~actions under~~ same Class in authorized denominations evidencing the ~~2018 Notes; (f) any failure, omission, delay~~ same aggregate Percentage Interest will be issued to the designated transferee or ~~lack on the part~~ transferees. No transfer of this Certificate to a Plan subject to ERISA or Section 4975 of the Trustee to enforce, assert or exercise any right, power or remedy conferred on the Trustee in the Indenture, or any other action or acts on the part of the Trustee or any of the Holders from time to time of the 2018 Notes; (g) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all the assets, marshaling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition with creditors or readjustment of, or other similar proceedings affecting the Guarantors or the Operating Partnership or any of the assets of any of them, or any allegation or contest of the validity of this Subsidiary Guarantee in any such proceeding; (h) to the extent permitted by law, the release or discharge by operation of law of the Guarantors from the performance or observance of any obligation, covenant or agreement contained in the Indenture; (i) to the extent permitted by law, the release or discharge by operation of law of the Operating Partnership from the performance or observance of any obligation, covenant or agreement contained in the Indenture; (j) the default or failure of the Operating Partnership or the Trustee fully to perform any of its obligations set forth in the Indenture or the 2018 Notes; (k) the invalidity, irregularity or unenforceability of the Indenture or the 2018 Notes or any part of any thereof; (l) any judicial or governmental action affecting the Operating Partnership or any 2018 Notes or consent or indulgence granted by the Operating Partnership by the Holders or by the Trustee; or (m) the recovery of any judgment against the Operating Partnership or any action to enforce the same or any other circumstance which might constitute a legal or equitable discharge of a surety or guarantor. The undersigned hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of merger, sale, lease or conveyance of all or substantially all of its assets, insolvency or bankruptcy of the Operating PartnershipCode, any right to require a proceeding first against the Operating Partnership, protest or notice with respect to such Notice or the indebtedness evidenced thereby and all demands whatsoever, and covenants that this Subsidiary Guarantee will not be discharged except by complete performance of the obligations contained in such 2018 Note and in this Subsidiary Guarantee. No reference herein to such Indenture and no provision of this Subsidiary Guarantee or of such Indenture shall alter or impair the guarantee of the undersigned, which is absolute and unconditional, of the full and prompt payment of the principal of and premium, if any, and interest on the 2018 Note. THIS SUBSIDIARY GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. The validity and enforceability of this Subsidiary Guarantee shall not be affected by the fact that it is not affixed to any particular 2018 Note. An Event of Default under the Indenture or the 2018 Notes shall constitute an event of default under this Subsidiary Guarantee, and shall entitle the Holders of 2018 Notes to accelerate the obligations of the undersigned hereunder in the same manner and to the same extent as the obligations of the Operating Partnership. Notwithstanding any other provision of this Subsidiary Guarantee to the contrary, the undersigned hereby waives any claims or other rights which it may now have or hereafter acquire against the Operating Partnership that arise from the existence or performance of its obligations under this Subsidiary Guarantee (all such claims and rights are referred to as "Guarantor's Conditional Rights"), including, without limitation, any right of subrogation, reimbursement, exoneration, contribution, or indemnification, any right to participate in any claim or remedy against the Operating Partnership, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, by any payment made hereunder or otherwise, including without limitation, the right to take or receive from Operating PartnershipPerson acting, directly or indirectly, on behalf of any such Plan or any Person using "Plan Assets" to acquire this Certificate shall be made except in ~~cash~~ accordance with Section 5.02(c) of the Agreement. The Certificates are issuable in fully registered form only without coupons in Classes and denominations representing Percentage Interests specified in the Agreement. As provided in the Agreement and subject to certain limitations therein set forth, the Certificates are exchangeable for new Certificates of the same Class in authorized denominations evidencing the same aggregate Percentage Interest, as requested by the Holder surrendering the same. No service charge will be made for any such registration of transfer or exchange of Certificates, but the Trust Administrator may require payment of a sum sufficient to cover any tax or other ~~property~~ governmental charge that may be imposed in connection with any transfer or ~~by setoff or in any other manner, payment or security on account~~ exchange of ~~such claim or other rights~~Certificates. The Subsidiary Guarantor hereby agrees not to exercise any rights which may be acquired by way of contribution under this Subsidiary Guarantee or any other agreement, by any payment made hereunder or otherwise, including, without limitationDepositor, the ~~right~~ Master Servicer, the Trustee, the Trust Administrator and any agent of the Depositor, the Master Servicer, the Trust Administrator or 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 Trustee, the Trust Administrator nor any such agent shall be affected by notice to ~~take or receive from any other guarantor, directly or indirectly, in cash or other property or~~ the contrary. The obligations created by ~~setoff or in any other manner,~~ the Agreement and the Trust Fund created thereby shall terminate upon payment ~~or security on account~~ to the Certificateholders of ~~such contribution rights. If, notwithstanding~~ all amounts held by the ~~foregoing provisions, any amount shall~~ Trust Administrator and required to be paid to ~~any~~ them pursuant to the Agreement following the earlier of ~~the undersigned on account of any such Guarantor's Conditional Rights and either~~ (i) ~~such amount is paid to such undersigned party at~~ the final payment or other liquidation (or any ~~time when~~ advance with respect thereto) of the ~~indebtedness shall not have been paid or performed~~ last Mortgage Loan and REO Property remaining in ~~full, or~~ REMIC I and (ii) ~~regardless~~ the purchase by the party designated in the Agreement at a price determined as provided in the Agreement from REMIC I of ~~when~~ all the Mortgage Loans and all property acquired in respect of such ~~amount~~ Mortgage Loans. The Agreement permits, but does not require, the party designated in the Agreement to purchase from REMIC I all the Mortgage Loans and all property acquired in respect of any Mortgage Loan at a price determined as provided in the Agreement. The exercise of such right will effect early retirement of the Certificates; however, such right to purchase is ~~paid to such undersigned party, any payment made by Operating Partnership to a Holder that is at any time determined to be a Preferential Payment (as defined below), then such amount paid~~ subject to the ~~undersigned~~ aggregate Stated Principal Balance of the Mortgage Loans at the time of purchase being less than 10% of the aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-off Date. The recitals contained herein shall be ~~held in trust for the benefit~~ taken as statements of the ~~Holders~~ Depositor and ~~shall forthwith be paid such Holder to be credited and applied upon~~ the ~~indebtedness~~Trust Administrator assume no responsibility for their correctness. Unless the certificate of authentication hereon has been executed by the Trust Administrator, ~~whether matured or unmatured. Any such payment is herein referred to as a "Preferential Payment" to the extent the Operating Partnership makes any payment to Holder in connection with the Note~~by manual signature, and any or all of such payment is subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid or paid over to a trustee, receiver or any other entity, whether under any bankruptcy act or otherwise. To the extent that any of the provisions of the immediately preceding paragraph this Certificate shall not be ~~enforceable, each of~~ entitled to any benefit under the ~~undersigned agrees that until such time as the indebtedness has been paid and performed in full and the period of time has expired during which~~ Agreement or be valid for any payment made by the Operating Partnership or the undersigned to a Holder may be determined to be a Preferential Payment, Guarantor's Conditional Rights to the extent not validly waived shall be subordinate to Holders' right to full payment and performance of the indebtedness and each of the undersigned shall not enforce any of its respective portion of the Guarantors' Conditional Rights until such time as the indebtedness has been paid and performed in full and the period of time has expired during which any payment made by the Operating Partnership or the undersigned to Holders may be determined to be a Preferential Payment. The undersigned's liability (the "Base Guaranty Liability") shall be that amount from time to time equal to the aggregate liability of the undersigned hereunder, but shall be limited to the lesser of (A) the aggregate amount of the obligation as stated in the second sentence of Section 1401 of the Indenture, and (B) the amount, if any, which would not have (i) rendered the undersigned "insolvent" (as such term is defined in Section 101(29) of the Federal Bankruptcy Code and in Section 271 of the Debtor and Creditor Law of the State of New York, as each is in effect at the date of the Indenture) or (ii) left the undersigned with unreasonably small capital at the time its Guarantee was entered into, after giving effect to the incurrence of existing Debt (as defined in the Indenture) immediately prior to such time, provided that, it shall be a presumption in any lawsuit or other proceeding in which the undersigned is a party that the amount guaranteed is the amount set forth in (A) above unless a creditor, or representative of creditors of the undersigned or a trustee in bankruptcy of the undersigned, as debtor in possession, otherwise proves in such a lawsuit that the aggregate liability of the undersigned is limited to the amount set forth in (B). In making any determination as to the solvency or sufficiency of capital of the undersigned in accordance with the previous sentence, the right of the undersigned to contribution from other Guarantors, to subrogation and any other rights the undersigned may have, contractual or otherwise, shall be taken into account. The obligations of the undersigned to the Holders of the 2018 Notes and to the Trustee pursuant to the Subsidiary Guarantee and the Indenture are expressly set forth in Article 14 of the Indenture and reference is hereby made to the Indenture for the precise terms of the Subsidiary Guarantee and all of the other provisions of the Indenture to which this Subsidiary Guarantee relates. Capitalized terms in this Subsidiary Guarantee which are not defined herein shall have the meanings assigned to them in the Indenturepurpose.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (MASTR Asset Backed Securities Trust 2004-He1)

Dated. ~~Notice~~Signature by or on behalf of assignor DISTRIBUTION INSTRUCTIONS The assignee should include the following for purposes of distribution: The signature to this assignment must correspond with the name as it appears upon the face of the within Note in every particular, without alteration or enlargement or any change whatever. ABBREVIATIONS The following abbreviations, when used in the inscription on the face of this instrument, Distributions shall be ~~construed as though they were written out~~ made, by wire transfer or otherwise, in ~~full according~~ immediately available funds to ~~applicable laws or regulations: TEN COM--as tenants in common UNIF GIFT MIN ACT--_____ Custodian~~_____~~_ TEN ENT--as tenants~~ ___________________________________________, _______________________________________________________________________________, for the account of , account number ______________, or, if mailed by ~~the entireties (Cust) (Minor) JT TEN--as joint tenants with right Under Uniform Gifts~~ check, to ~~Minors of survivorship and not as Act~~____________________. Applicable statements should be mailed to______________________________________, _______________________________________________________________________________. This information is provided by________________________________ tenants in common (State) Additional abbreviations may also be used though not in the above list. --------------------------- [FORM OF SCHEDULE FOR ENDORSEMENTS ON GLOBAL SECURITY TO REFLECT CHANGES IN PRINCIPAL AMOUNT] Schedule A Changes to Principal Amount of Global Security Principal Amount of Securities by which this Global Security is to be Reduced or Increased, and Reason for Remaining Principal Amount of Notation Date Reduction or Increase this Global Securities Made by ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- Exhibit B SUBSIDIARY GUARANTEE FOR VALUE RECEIVED, the ~~undersigned hereby jointly and severally with the Parent Guarantor pursuant to the Parent Guarantee and any other subsidiary Guarantors under their respective Subsidiary Guarantees~~assignee named above, ~~unconditionally guarantees to the Holder of the accompanying~~ or _____~~% Note Due June~~ _____________________________________________, ~~2018~~ as its agent. EXHIBIT E FORM OF CLASS X CERTIFICATE SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS TWO "REGULAR INTERESTS" 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 ASSETS. NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE PROPOSED TRANSFEROR DELIVERS TO THE SECURITIES ADMINISTRATOR A TRANSFEROR CERTIFICATE IN THE FORM OF EXHIBIT I TO THE AGREEMENT REFERRED TO HEREIN AND EITHER (i) THE SECURITIES ADMINISTRATOR RECEIVES A RULE 144A LETTER IN THE FORM OF EXHIBIT J TO THE AGREEMENT REFERRED TO HEREIN OR (ii) THE SECURITIES ADMINISTRATOR RECEIVES AN OPINION OF COUNSEL, DELIVERED AT THE EXPENSE OF THE TRANSFEROR, THAT SUCH TRANSFER MAY BE MADE WITHOUT REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED. NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE TRANSFEREE DELIVERS TO THE SECURITIES ADMINISTRATOR EITHER A REPRESENTATION LETTER TO THE EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO SECTION 4975 OF THE CODE, OR A PLAN SUBJECT TO APPLICABLE FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE OR A PERSON INVESTING ON BEHALF OF OR WITH PLAN ASSETS OF SUCH A PLAN, OR, IF THE TRANSFEREE IS AN INSURANCE COMPANY, A REPRESENTATION LETTER THAT IT IS USING THE ASSETS OF ITS GENERAL ACCOUNT AND THE PURCHASE AND HOLDING OF THIS CERTIFICATE ARE COVERED UNDER SECTIONS I AND III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 OR AN OPINION OF COUNSEL SATISFACTORY TO THE SECURITIES ADMINISTRATOR, TO THE EFFECT THAT THE PURCHASE OR HOLDING OF THIS CERTIFICATE WILL NOT CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION WITHIN THE MEANING OF ERISA, SECTION 4975 OF THE CODE OR ANY SIMILAR LAW AND WILL NOT SUBJECT THE SECURITIES ADMINISTRATOR, THE DEPOSITOR, THE MASTER SERVICER OR THE SERVICERS TO ANY OBLIGATION IN ADDITION TO THOSE EXPRESSLY UNDERTAKEN IN THE AGREEMENT OR TO ANY LIABILITY. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, ANY PURPORTED TRANSFER OF THIS CERTIFICATE TO OR ON BEHALF OF AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF ERISA, SECTION 4975 OF THE CODE OR SIMILAR LAW WITHOUT THE REPRESENTATION LETTER OR OPINION OF COUNSEL SATISFACTORY TO THE SECURITIES ADMINISTRATOR AS DESCRIBED ABOVE SHALL BE VOID AND OF NO EFFECT. Certificate No. : 1 Cut-off Date : February 1, 2007 First Distribution Date : March 26, 2007 Percentage Interest of this Certificate ("Denomination") : [___]% CUSIP : 3622MHAW6 ISIN: : US3622MHAW66 GS MORTGAGE SECURITIES CORP. GSAMP Trust 2007-FM2 Mortgage Pass-Through Certificates, Series 2007-FM2 Class X evidencing a percentage interest in the distributions allocable to the Certificates of the above-referenced Class. Distributions in respect of this Certificate are distributable monthly as set forth herein. This Class X Certificate has no Certificate Balance and is not entitled to distributions in respect of principal or interest. This Certificate does not evidence an obligation of, or an interest in, and is not guaranteed by the Depositor, the Master Servicer, the Servicer, the Securities Administrator, the Sponsor, the Responsible Party or the Trustee referred to below or any of their respective affiliates. Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any governmental agency or instrumentality. This certifies that [_______________________] is the registered owner of the Percentage Interest evidenced by this Certificate in certain monthly distributions pursuant to a Pooling and Servicing Agreement, dated as of the Cut-off Date specified above (the "~~2018 Note~~Agreement"~~) issued by AMB Property~~), ~~L.P.~~ among GS Mortgage Securities Corp., as depositor (the "~~Operating Partnership~~Depositor"~~) under an Indenture dated~~ ), Fremont Investment & Loan, as ~~of June ___, 1998~~ responsible party (~~together with the Second Supplemental Indenture thereto~~in such capacity, the "~~Indenture~~Responsible Party") ~~among~~ and as servicer (in such capacity, the ~~Operating Partnership~~"Servicer"), ~~AMB Property Corporation, and State Street~~ Deutsche Bank ~~and~~ National Trust ~~Company of California, N.A.~~Company, as trustee (the "Trustee") and Wells Fargo Bank, N.A., as master servicer (the "Master Servicer") and xxxxxities administrator (the "Securities Administrator"). To the extent not defined herein, ~~(a)~~ the ~~full~~ capitalized terms used herein have the meanings assigned in the Agreement. This Certificate is issued under and ~~prompt payment~~ is subject to the terms, provisions and conditions of the ~~principal~~ Agreement, to which Agreement the Holder of ~~and premium, if any, on such 2018 Note when and as the same shall become due and payable, whether at Stated Maturity,~~ this Certificate by ~~acceleration, by redemption or otherwise, and (b) the full and prompt payment~~ virtue of the ~~interest on~~ acceptance hereof assents and by which such ~~2018 Note when~~ Holder is bound. Any distribution of the proceeds of any remaining assets of the Trust Fund will be made only upon presentment and as surrender of this Class X Certificate at the ~~same~~ offices designated by the Securities Administrator for such purposes or such other location specified in the notice to Certificateholders. No transfer of a Class X Certificate shall ~~become due~~ be made unless the Securities Administrator shall have received either (i) a representation letter from the transferee of such Certificate, acceptable to and ~~payable, according~~ in form and substance satisfactory to the ~~terms~~ Securities Administrator, to the effect that such transferee is not an employee benefit plan or arrangement subject to Section 406 of ~~such 2018 Note and~~ ERISA, a plan or arrangement subject to Section 4975 of the ~~Indenture. The undersigned hereby agrees~~Code or a plan subject to Similar Law, jointly and severally with the Parent Guarantor pursuant to the Parent Guarantee and any other Subsidiary Guarantors under their respective Subsidiary Guarantees, that its obligations hereunder shall be as principal and not merely as surety, and shall be absolute and unconditional, and shall not be affected, modified or impaired by the following: (a) the failure to give notice to the Guarantors of the occurrence of an Event of Default under the Indenture; (b) the waiver, surrender, compromise, settlement, release or termination of the payment, performance or observance by the Operating Partnership or the Guarantors a person acting on behalf of any such plan or all of the obligations, covenants or agreements of either of them contained in the Indenture or the 2018 Notes; (c) the acceleration, extension or any other changes in the time for payment of any principal of or interest or any premium on any 2018 Note or for any other payment under the Indenture or of the time for performance of any other obligations, covenants or agreements under or arising out of the Indenture or the 2018 Notes; (d) the modification or amendment (whether material or otherwise) of any obligation, covenant or agreement set forth in the Indenture or the 2018 Notes; (e) the taking or the omission of any of the actions referred to in the Indenture and in any of the actions under the 2018 Notes; (f) any failure, omission, delay or lack on the part of the Trustee to enforce, assert or exercise any right, power or remedy conferred on the Trustee in the Indenture, or any other action or acts on the part of the Trustee or any of the Holders from time to time of the 2018 Notes; (g) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all the assets, marshaling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition with creditors or readjustment of, or other similar proceedings affecting the Guarantors or the Operating Partnership or any of arrangement nor using the assets of any ~~of them,~~ such plan or ~~any allegation or contest of the validity of this Subsidiary Guarantee in any~~ arrangement to effect such proceeding; (h) to the extent permitted by law, the release or discharge by operation of law of the Guarantors from the performance or observance of any obligation, covenant or agreement contained in the Indenture; (i) to the extent permitted by law, the release or discharge by operation of law of the Operating Partnership from the performance or observance of any obligation, covenant or agreement contained in the Indenture; (j) the default or failure of the Operating Partnership or the Trustee fully to perform any of its obligations set forth in the Indenture or the 2018 Notes; (k) the invalidity, irregularity or unenforceability of the Indenture or the 2018 Notes or any part of any thereof; (l) any judicial or governmental action affecting the Operating Partnership or any 2018 Notes or consent or indulgence granted by the Operating Partnership by the Holders or by the Trustee; or (m) the recovery of any judgment against the Operating Partnership or any action to enforce the same or any other circumstance which might constitute a legal or equitable discharge of a surety or guarantor. The undersigned hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of merger, sale, lease or conveyance of all or substantially all of its assets, insolvency or bankruptcy of the Operating Partnership, any right to require a proceeding first against the Operating Partnership, protest or notice with respect to such Notice or the indebtedness evidenced thereby and all demands whatsoever, and covenants that this Subsidiary Guarantee will not be discharged except by complete performance of the obligations contained in such 2018 Note and in this Subsidiary Guarantee. No reference herein to such Indenture and no provision of this Subsidiary Guarantee or of such Indenture shall alter or impair the guarantee of the undersignedtransfer, which is absolute and unconditional, of the full and prompt payment of the principal of and premium, if any, and interest on the 2018 Note. THIS SUBSIDIARY GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. The validity and enforceability of this Subsidiary Guarantee representation letter shall not be ~~affected by~~ an expense of the ~~fact that it is not affixed to any particular 2018 Note. An Event of Default under~~ Trustee, the ~~Indenture~~ Master Servicer, the Securities Administrator, the Depositor, the Servicer or the 2018 Notes shall constitute an event of default under this Subsidiary Guarantee, and shall entitle the Holders of 2018 Notes to accelerate the obligations of the undersigned hereunder in the same manner and to the same extent as the obligations of the Operating Partnership. Notwithstanding any other provision of this Subsidiary Guarantee to the contrary, the undersigned hereby waives any claims or other rights which it may now have or hereafter acquire against the Operating Partnership that arise from the existence or performance of its obligations under this Subsidiary Guarantee (all such claims and rights are referred to as "Guarantor's Conditional Rights"), including, without limitation, any right of subrogation, reimbursement, exoneration, contribution, or indemnification, any right to participate in any claim or remedy against the Operating Partnership, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, by any payment made hereunder or otherwise, including without limitation, the right to take or receive from Operating Partnership, directly or indirectly, in cash or other property or by setoff or in any other manner, payment or security on account of such claim or other rights. The Subsidiary Guarantor hereby agrees not to exercise any rights which may be acquired by way of contribution under this Subsidiary Guarantee or any other agreement, by any payment made hereunder or otherwise, including, without limitation, the right to take or receive from any other guarantor, directly or indirectly, in cash or other property or by setoff or in any other manner, payment or security on account of such contribution rights. If, notwithstanding the foregoing provisions, any amount shall be paid to any of the undersigned on account of any such Guarantor's Conditional Rights and either (i) such amount is paid to such undersigned party at any time when the indebtedness shall not have been paid or performed in fullTrust Fund, or (ii) ~~regardless~~ if the Class X Certificate has been the subject of ~~when~~ an ERISA Qualifying Underwriting and the transferee is an insurance company, a representation letter that it is purchasing such ~~amount~~ Certificates with the assets of its general account and that the purchase and holding of such Certificates are covered under Sections I and III of PTCE 95-60, or (iii) in the case of a Class X Certificate presented for registration in the name of an employee benefit plan subject to ERISA, or a plan or arrangement subject to Section 4975 of the Code (or comparable provisions of any subsequent enactments) or a plan subject to Similar Law, or a trustee of any such plan or any other person acting on behalf of any such plan or arrangement or using such plan's or arrangement's assets, 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 Servicer or the Trust Fund, addressed to the Securities Administrator, to the effect that the purchase or holding of such Certificate will not constitute or result in a non-exempt prohibited transaction within the meaning of ERISA, Section 4975 of the Code or any Similar Law and will not subject the Securities Administrator, the Depositor or the Servicer to any obligation in addition to those expressly undertaken in the Agreement or to any liability. In the event that such representation is ~~paid~~ violated, or any attempt is made to ~~such undersigned party, any payment made by Operating Partnership~~ transfer to a plan or arrangement subject to Section 406 of ERISA or a plan subject to Section 4975 of the Code or a plan subject to Similar Law, or a person acting on behalf of any such plan or arrangement or using the assets of any such plan or arrangement, such attempted transfer or acquisition shall be void and of no effect. Each Holder ~~that is at any time determined~~ of this Class X Certificate shall be deemed by the acceptance or acquisition an Ownership Interest in this Class X Certificate to have agreed to be ~~a Preferential Payment (as defined below)~~bound by the following provisions, ~~then such amount paid~~ and the rights of each Person acquiring any Ownership Interest in this Class X Certificate are expressly subject to the ~~undersigned~~ following provisions: (i) each Person holding or acquiring any Ownership Interest in this Class X Certificate shall be ~~held~~ a Permitted Transferee and shall promptly notify the Securities Administrator of any change or impending change in ~~trust for~~ its status as a Permitted Transferee, (ii) no Ownership Interest in this Class X Certificate may be registered on the ~~benefit~~ Closing Date or thereafter transferred, and the Securities Administrator shall not register the Transfer of this Certificate unless, in addition to the certificates required to be delivered to the Securities Administrator under Section 5.02(b) of the ~~Holders and~~ Agreement, the Securities Administrator shall ~~forthwith be paid such Holder to be credited and applied upon~~ have been furnished with a Transfer Affidavit of the ~~indebtedness, whether matured~~ initial owner or ~~unmatured. Any such payment is herein referred to~~ the proposed transferee in the form attached as ~~a "Preferential Payment"~~ Exhibit I to the ~~extent the Operating Partnership makes~~ Agreement, (iii) each Person holding or acquiring any ~~payment~~ Ownership Interest in this Class X Certificate shall agree (A) to ~~Holder~~ obtain a Transfer Affidavit from any other Person to whom such Person attempts to Transfer its Ownership Interest this Class X Certificate, (B) to obtain a Transfer Affidavit from any Person for whom such Person is acting as nominee, trustee or agent in connection with any Transfer of this Class X Certificate, (C) not to cause income with respect to the ~~Note~~Class X Certificate to be attributable to a foreign permanent establishment or fixed base, ~~and any or all~~ within the meaning of an applicable income tax treaty, of such ~~payment is subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid or paid over to a trustee, receiver~~ Person or any other ~~entity, whether under~~ U.S. Person and (D) not to Transfer the Ownership Interest in this Class X Certificate or to cause the Transfer of the Ownership Interest in this Class X Certificate to any ~~bankruptcy act~~ other Person if it has actual knowledge that such Person is not a Permitted Transferee and (iv) any attempted or ~~otherwise. To~~ purported Transfer of the ~~extent that any~~ Ownership Interest in this Class X Certificate in violation of the provisions of the immediately preceding paragraph shall not be enforceable, each of the undersigned agrees that until such time as the indebtedness has been paid and performed in full and the period of time has expired during which any payment made by the Operating Partnership or the undersigned to a Holder may be determined to be a Preferential Payment, Guarantor's Conditional Rights to the extent not validly waived herein shall be ~~subordinate to Holders' right to full payment~~ absolutely null and ~~performance of the indebtedness~~ void and ~~each of the undersigned~~ shall not enforce any of its respective portion of the Guarantors' Conditional Rights until such time as the indebtedness has been paid and performed in full and the period of time has expired during which any payment made by the Operating Partnership or the undersigned to Holders may be determined to be a Preferential Payment. The undersigned's liability (the "Base Guaranty Liability") shall be that amount from time to time equal to the aggregate liability of the undersigned hereunder, but shall be limited to the lesser of (A) the aggregate amount of the obligation as stated vest no rights in the second sentence of Section 1401 of the Indenture, and (B) the amount, if any, which would not have (i) rendered the undersigned "insolvent" (as such term is defined in Section 101(29) of the Federal Bankruptcy Code and in Section 271 of the Debtor and Creditor Law of the State of New York, as each is in effect at the date of the Indenture) or (ii) left the undersigned with unreasonably small capital at the time its Guarantee was entered into, after giving effect to the incurrence of existing Debt (as defined in the Indenture) immediately prior to such time, provided that, it shall be a presumption in any lawsuit or other proceeding in which the undersigned is a party that the amount guaranteed is the amount set forth in (A) above unless a creditor, or representative of creditors of the undersigned or a trustee in bankruptcy of the undersigned, as debtor in possession, otherwise proves in such a lawsuit that the aggregate liability of the undersigned is limited to the amount set forth in (B)purported Transferee. In making any determination as to the solvency or sufficiency of capital of the undersigned in accordance with the previous sentence, the right of the undersigned to contribution from other Guarantors, to subrogation and any other rights the undersigned may have, contractual or otherwise, shall be taken into account. The obligations of the undersigned to the Holders of the 2018 Notes and to the Trustee pursuant to the Subsidiary Guarantee and the Indenture are expressly set forth in Article 14 of the Indenture and reference Reference is hereby made to the ~~Indenture~~ further provisions of this Certificate set forth on the reverse hereof, which further provisions shall for all purposes have the ~~precise terms~~ same effect as if set forth at this place. This Certificate shall not be entitled to any benefit under the Agreement or be valid for any purpose unless manually authenticated by an authorized signatory of the Subsidiary Guarantee and all of the other provisions of the Indenture to which this Subsidiary Guarantee relates. Capitalized terms in this Subsidiary Guarantee which are not defined herein shall have the meanings assigned to them in the IndentureSecurities Administrator.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (GSAMP Trust 2007-Fm2)

Dated. ~~Notice~~Signature by or on behalf of assignor ---------------------------------------- Signature Guaranteed DISTRIBUTION INSTRUCTIONS The assignee should include the following for purposes of distribution: The signature to this assignment must correspond with the name as it appears upon the face of the within Note in every particular, without alteration or enlargement or any change whatever. ABBREVIATIONS The following abbreviations, when used in the inscription on the face of this instrument, Distributions shall be ~~construed as though they were written out~~ made, by wire transfer or otherwise, in ~~full according~~ immediately available funds to ~~applicable laws or regulations: TEN COM--as tenants in common UNIF GIFT MIN ACT--_____ Custodian~~_____~~_ TEN ENT--as tenants~~ _______________________________________________________, for the account of ____________________________________________________________, account number ___________, or, if mailed by ~~the entireties (Cust) (Minor) JT TEN--as joint tenants with right Under Uniform Gifts~~ check, to ~~Minors of survivorship and not as Act~~________________________, Applicable statements should be mailed to ______________________________________ tenants in common (State) Additional abbreviations may also be used though not in the above list. --------------------------- [FORM OF SCHEDULE FOR ENDORSEMENTS ON GLOBAL SECURITY TO REFLECT CHANGES IN PRINCIPAL AMOUNT] Schedule A Changes to Principal Amount of Global Security Principal Amount of Securities by which this Global Security is to be Reduced or Increased, and Reason for Remaining Principal Amount of Notation Date Reduction or Increase this Global Securities Made by ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- Exhibit B SUBSIDIARY GUARANTEE FOR VALUE RECEIVED, the undersigned hereby jointly and severally with the Parent Guarantor pursuant to the Parent Guarantee and any other subsidiary Guarantors under their respective Subsidiary Guarantees, unconditionally guarantees to the Holder of the accompanying _____~~% Note Due June~~ __________________________________________________________________________. This information is provided by _______________________________________________, ~~2018 (~~the ~~"2018 Note") issued by AMB Property~~assignee named above, ~~L.P. (the "Operating Partnership") under an Indenture dated as of June~~ or __________________________________________________, ~~1998~~ as its agent. EXHIBIT A-14 FORM OF CLASS CE CERTIFICATE SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986 (~~together with~~ THE "CODE"). THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A CERTIFICATES, AND THE MEZZANINE CERTIFICATES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN. THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE RESOLD OR TRANSFERRED UNLESS IT IS REGISTERED PURSUANT TO SUCH ACT AND LAWS OR IS SOLD OR TRANSFERRED IN TRANSACTIONS THAT ARE EXEMPT FROM REGISTRATION UNDER SUCH ACT AND UNDER APPLICABLE STATE LAW AND IS TRANSFERRED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE AGREEMENT. NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, OR THE CODE WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROCEDURES DESCRIBED HEREIN. Series: 2005-NC5 Pass-Through Rate: Variable Cut-off Date and date of Pooling and Servicing Agreement: October 1, 2005 First Distribution Date: November 25, 2005 No. 1 Aggregate Notional Amount of the ~~Second Supplemental Indenture thereto,~~ Class CE Certificates as of the ~~"Indenture") among~~ Issue Date: $[_______________] Notional Amount: $[__________] Aggregate Certificate Principal Balance of the ~~Operating Partnership, AMB Property Corporation, and State Street~~ Class CE Certificates as of the Issue Date: $[__________] Denomination: $[__________] Servicer: New Century Mortgage Corporation Trustee: Deutsche Bank ~~and~~ National Trust Company Issue Date: October 4, 2005 DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE AS THE DENOMINATION OF THIS CERTIFICATE. ASSET BACKED PASS-THROUGH CERTIFICATE evidencing a beneficial ownership interest in a portion of ~~California, N.A., as trustee~~ a Trust Fund (the "~~Trustee~~Trust Fund") consisting primarily of a pool of conventional one- to four-family, adjustable-rate and fixed-rate, interest-only and fully-amortizing, first lien and second lien mortgage loans (the "Mortgage Loans") formed and sold by STANWICH ASSET ACCEPTANCE COMPANY, L.L.C. THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN STANWICH ASSET ACCEPTANCE COMPANY, L.L.C., THE SERVICER, THE TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES. This certifies that Deutsche Bank National Trust Company, as Indenture Trustee under the Indenture, dated October 4, 2005, relating to the Xxxxxxxxxx XXX Trust 2005-NC5 Notes is the registered owner of a Percentage Interest (obtained by dividing the denomination of this Certificate by the aggregate Certificate Principal Balance of the Class CE Certificates as of the Issue Date) in that certain beneficial ownership interest evidenced by all the Class CE Certificates in REMIC II created pursuant to a Pooling and Servicing Agreement, dated as specified above (the "Agreement"), among Stanwich Asset Acceptance Company, L.L.C. (a) hereinafter called the ~~full~~ "Depositor," which term includes any successor entity under the Agreement), the Servicer and ~~prompt payment~~ the Trustee, a summary of certain of the ~~principal~~ 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 Agreement. This Certificate is issued under and ~~premium~~is subject to the terms, ~~if any, on such 2018 Note when~~ provisions and ~~as the same shall become due and payable, whether at Stated Maturity, by acceleration, by redemption or otherwise, and (b) the full and prompt payment~~ conditions of the ~~interest on~~ Agreement, to which Agreement the Holder of this Certificate by virtue of the acceptance hereof assents and by which such ~~2018 Note when and as the same shall become due and payable, according~~ Holder is bound. Pursuant to the terms of the Agreement, distributions will be made on the 25th day of each month or, if such ~~2018 Note and~~ 25th day is not a Business Day, the Business Day immediately following (a "Distribution Date"), commencing on the First Distribution Date specified above, to the Person in whose name this Certificate is registered on the Record Date, in an amount equal to the product of the ~~Indenture. The undersigned hereby agrees, jointly~~ Percentage Interest evidenced by this Certificate and ~~severally with~~ the ~~Parent Guarantor~~ amount required to be distributed to the Holders of Class CE Certificates on such Distribution Date pursuant to the ~~Parent Guarantee~~ Agreement. All distributions to the Holder of this Certificate under the Agreement will be made or caused to be made by the Trustee by wire transfer in immediately available funds to the account of the Person entitled thereto if such Person shall have so notified the Trustee in writing at least five Business Days prior to the Record Date immediately prior to such Distribution Date or otherwise by check mailed by first class mail to the address of the Person entitled thereto, as such name and address shall appear on the Certificate Register. Notwithstanding the above, the final distribution on this Certificate will be made after due notice by the Trustee of the pendency of such distribution and only upon presentation and surrender of this Certificate at the office or agency appointed by the Trustee for that purpose as provided in the Agreement. This Certificate is one of a duly authorized issue of Certificates designated as Asset Backed Pass-Through Certificates of the Series specified on the face hereof (herein called the "Certificates") and representing a Percentage Interest in the Class of Certificates specified on the face hereof equal to the denomination specified on the face hereof divided by the aggregate Certificate Principal Balance of the Class of Certificates specified on the face hereof. The 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 Agreement. As provided in the Agreement, withdrawals from the Collection Account and the Distribution Account may be made from time to time for purposes other than distributions to Certificateholders, such purposes including reimbursement of advances made, or certain expenses incurred, with respect to the Mortgage Loans. The Agreement permits, with certain exceptions therein provided, the amendment thereof and the modification of the rights and obligations of the Depositor, the Servicer, the Trustee and the rights of the Certificateholders under the Agreement at any ~~other Subsidiary Guarantors under their respective Subsidiary Guarantees~~time by the Depositor, ~~that its obligations hereunder~~ the Servicer and the Trustee with the consent of the Holders of Certificates entitled to at least 66% of the Voting Rights. Any such consent by the Holder of this Certificate shall be ~~as principal~~ conclusive and binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in exchange herefor or in lieu hereof whether or not ~~merely as surety~~notation of such consent is made upon this Certificate. The Agreement also permits the amendment thereof, ~~and shall be absolute and unconditional~~in certain limited circumstances, ~~and shall not be affected, modified or impaired by~~ without the ~~following: (a) the failure to give notice to the Guarantors~~ consent of the occurrence of an Event of Default under the Indenture; (b) the waiver, surrender, compromise, settlement, release or termination of the payment, performance or observance by the Operating Partnership or the Guarantors of any or all of the obligations, covenants or agreements of either of them contained in the Indenture or the 2018 Notes; (c) the acceleration, extension or any other changes in the time for payment of any principal of or interest or any premium on any 2018 Note or for any other payment under the Indenture or of the time for performance of any other obligations, covenants or agreements under or arising out of the Indenture or the 2018 Notes; (d) the modification or amendment (whether material or otherwise) of any obligation, covenant or agreement set forth in the Indenture or the 2018 Notes; (e) the taking or the omission Holders of any of the ~~actions referred to~~ Certificates. As provided in the ~~Indenture~~ Agreement and subject to certain limitations therein set forth, the transfer of this Certificate is registrable in ~~any~~ the Certificate Register upon surrender of this Certificate for registration of transfer at the offices or agencies appointed by the Trustee as provided in the Agreement, duly endorsed by, or accompanied by an assignment in the form below or other written instrument of transfer in form satisfactory to the Trustee duly executed by, the Holder hereof or such Holder's attorney duly authorized in writing, and thereupon one or more new Certificates of the ~~actions~~ same Class in authorized denominations evidencing the same aggregate Percentage Interest will be issued to the designated transferee or transferees. No transfer of this Certificate shall be made unless the transfer is made pursuant to an effective registration statement under the ~~2018 Notes;~~ Securities Act of 1933, as amended (fthe "1933 Act"), and an effective registration or qualification under applicable state securities laws, or is made in a transaction that does not require such registration or qualification. In the event that such a transfer of this Certificate is to be made without registration or qualification, the Trustee shall require receipt of (i) ~~any failure~~if such transfer is purportedly being made in reliance upon Rule 144A under the 1933 Act, ~~omission~~written certifications from the Holder of the Certificate desiring to effect the transfer, ~~delay~~ and from such Holder's prospective transferee, substantially in the forms attached to the Agreement as Exhibit F-1, and (ii) in all other cases, an Opinion of Counsel satisfactory to it that such transfer may be made without such registration or ~~lack~~ qualification (which Opinion of Counsel shall not be an expense of the Trust Fund or of the Depositor, the Trustee or the Servicer in their respective capacities as such), together with copies of the written certification(s) of the Holder of the Certificate desiring to effect the transfer and/or such Holder's prospective transferee upon which such Opinion of Counsel is based. None of the Depositor or the Trustee is obligated to register or qualify the Class of Certificates specified on the ~~part of~~ face hereof under the ~~Trustee to enforce, assert or exercise any right, power or remedy conferred on the Trustee in the Indenture,~~ 1933 Act or any other securities law or to take any action not otherwise required under the Agreement to permit the transfer of such Certificates without registration or ~~acts on~~ qualification. Any Holder desiring to effect a transfer of this Certificate shall be required to indemnify the ~~part~~ Trustee, the Depositor and the Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such federal and state laws. No transfer of this Certificate or any interest therein shall be made to any "employee benefit plan" as defined in Section 3(3) of the ~~Trustee~~ Employee Retirement Income Security Act of 1974, as amended ("ERISA"), that is subject to Title I of ERISA, any "plan" as defined in Section 4975 of the Internal Revenue Code of 1986, as amended (the "Code"), that is subject to Section 4975 of the Code or any ~~of the Holders from time~~ entity deemed to time of the 2018 Notes; (g) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all the assets, marshaling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition with creditors or readjustment of, or other similar proceedings affecting the Guarantors or the Operating Partnership or any of the hold plan assets of any of ~~them~~the foregoing (each, or any allegation or contest of the validity of this Subsidiary Guarantee in any such proceeding; (h) to the extent permitted by law, the release or discharge by operation of law of the Guarantors from the performance or observance of any obligation, covenant or agreement contained in the Indenture; (i) to the extent permitted by law, the release or discharge by operation of law of the Operating Partnership from the performance or observance of any obligation, covenant or agreement contained in the Indenture; (j) the default or failure of the Operating Partnership or the Trustee fully to perform any of its obligations set forth in the Indenture or the 2018 Notes; (k) the invalidity, irregularity or unenforceability of the Indenture or the 2018 Notes or any part of any thereof; (l) any judicial or governmental action affecting the Operating Partnership or any 2018 Notes or consent or indulgence granted by the Operating Partnership by the Holders or by the Trustee; or (m) the recovery of any judgment against the Operating Partnership or any action to enforce the same or any other circumstance which might constitute a legal or equitable discharge of a surety or guarantor. The undersigned hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of merger, sale, lease or conveyance of all or substantially all of its assets, insolvency or bankruptcy of the Operating Partnership, any right to require a proceeding first against the Operating Partnership, protest or notice with respect to such Notice or the indebtedness evidenced thereby and all demands whatsoever, and covenants that this Subsidiary Guarantee will not be discharged except by complete performance of the obligations contained in such 2018 Note and in this Subsidiary Guarantee. No reference herein to such Indenture and no provision of this Subsidiary Guarantee or of such Indenture shall alter or impair the guarantee of the undersigned, which is absolute and unconditional, of the full and prompt payment of the principal of and premium, if any, and interest on the 2018 Note. THIS SUBSIDIARY GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. The validity and enforceability of this Subsidiary Guarantee shall not be affected by the fact that it is not affixed to any particular 2018 Note. An Event of Default under the Indenture or the 2018 Notes shall constitute an event of default under this Subsidiary Guarantee, and shall entitle the Holders of 2018 Notes to accelerate the obligations of the undersigned hereunder in the same manner and to the same extent as the obligations of the Operating Partnership. Notwithstanding any other provision of this Subsidiary Guarantee to the contrary, the undersigned hereby waives any claims or other rights which it may now have or hereafter acquire against the Operating Partnership that arise from the existence or performance of its obligations under this Subsidiary Guarantee (all such claims and rights are referred to as "~~Guarantor's Conditional Rights~~Plan"), ~~including, without limitation,~~ any right of subrogation, reimbursement, exoneration, contribution, or indemnification, any right to participate in any claim or remedy against the Operating Partnership, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, by any payment made hereunder or otherwise, including without limitation, the right to take or receive from Operating PartnershipPerson acting, directly or indirectly, ~~in cash or other property or by setoff or in any other manner, payment or security~~ on account of such claim or other rights. The Subsidiary Guarantor hereby agrees not to exercise any rights which may be acquired by way of contribution under this Subsidiary Guarantee or any other agreement, by any payment made hereunder or otherwise, including, without limitation, the right to take or receive from any other guarantor, directly or indirectly, in cash or other property or by setoff or in any other manner, payment or security on account of such contribution rights. If, notwithstanding the foregoing provisions, any amount shall be paid to any of the undersigned on account behalf of any such ~~Guarantor's Conditional Rights~~ Plan or any Person acquiring this Certificate with "plan assets" of a Plan (within the meaning of the Department of Labor regulation promulgated at 29 C. F. R. Section 2510.3-101 ("Plan Assets")), as certified by such transferee in the form of Exhibit G to the Agreement, unless the Trustee is provided with an Opinion of Counsel acceptable to and ~~either~~ in form and substance satisfactory to the Depositor, the Trustee and the Servicer to the effect that the purchase or holding of this Certificate is permissible under applicable law, will not constitute or result in any non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of the Code (ior comparable provisions of subsequent enactments) ~~such amount is paid~~ and will not subject the Depositor, the Servicer, the Trustee or the Trust Fund to ~~such undersigned party at~~ any ~~time when~~ obligation or liability (including obligations or liabilities under ERISA or Section 4975 of the ~~indebtedness~~ Code) in addition to those undertaken in the Agreement, which Opinion of Counsel shall not ~~have been paid~~ be an expense of the Depositor, the Servicer, the Trustee or ~~performed in full,~~ the Trust Fund. If this Certificate or ~~(ii) regardless of when such amount~~ any interest therein is paid to such undersigned party, any payment made by Operating Partnership to a Holder that is at any time determined to be a Preferential Payment (as defined below), then such amount paid to the undersigned shall be acquired or held in trust for the benefit of the Holders and shall forthwith be paid such Holder to be credited and applied upon the indebtedness, whether matured or unmatured. Any such payment is herein referred to as a "Preferential Payment" to the extent the Operating Partnership makes any payment to Holder in connection with the Note, and any or all of such payment is subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid or paid over to a trustee, receiver or any other entity, whether under any bankruptcy act or otherwise. To the extent that any violation of the provisions of Section 5.02(c) of the ~~immediately~~ Agreement, the next preceding ~~paragraph~~ permitted beneficial owner will be treated as the beneficial owner of this Certificate retroactive to the date of transfer to the purported beneficial owner. Any purported beneficial owner whose acquisition or holding of any this Certificate or interest therein was effected in violation of the provisions of Section 5.02(c) of the Agreement shall indemnify and hold harmless the Depositor, the Servicer, the Trustee and the Trust Fund from and against any and all liabilities, claims, costs or expenses incurred by those parties as a result of that acquisition or holding. The Certificates are issuable in fully registered form only without coupons in Classes and denominations representing Percentage Interests specified in the Agreement. As provided in the Agreement and subject to certain limitations therein set forth, the Certificates are exchangeable for new Certificates of the same Class in authorized denominations evidencing the same aggregate Percentage Interest, as requested by the Holder surrendering the same. No service charge will be made for any such registration of transfer or exchange of Certificates, but the Trustee 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 Servicer, the Trustee and any agent of the Depositor, the Servicer or 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 Servicer, the Trustee nor any such agent shall be affected by notice to the contrary. The obligations created by the Agreement and the Trust Fund created thereby shall terminate upon payment to the Certificateholders of all amounts held by the Trustee and required to be paid to them pursuant to the Agreement following the earlier of (i) the final payment or other liquidation (or any advance with respect thereto) of the last Mortgage Loan and REO Property remaining in REMIC I and (ii) the purchase by the party designated in the Agreement at a price determined as provided in the Agreement from REMIC I of all the Mortgage Loans and all property acquired in respect of such Mortgage Loans. The Agreement permits, but does not require, the party designated in the Agreement to purchase from REMIC I all the Mortgage Loans and all property acquired in respect of any Mortgage Loan at a price determined as provided in the Agreement. The exercise of such right will effect early retirement of the Certificates; however, such right to purchase is subject to the aggregate Stated Principal Balance of the Mortgage Loans at the time of purchase being less than 10% of the aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-off Date. The recitals contained herein shall be taken as statements of the Depositor and the Trustee assumes no responsibility for their correctness. Unless the certificate of authentication hereon has been executed by the Trustee, by manual signature, this Certificate shall not be ~~enforceable, each of~~ entitled to any benefit under the ~~undersigned agrees that until such time as the indebtedness has been paid and performed in full and the period of time has expired during which~~ Agreement or be valid for any payment made by the Operating Partnership or the undersigned to a Holder may be determined to be a Preferential Payment, Guarantor's Conditional Rights to the extent not validly waived shall be subordinate to Holders' right to full payment and performance of the indebtedness and each of the undersigned shall not enforce any of its respective portion of the Guarantors' Conditional Rights until such time as the indebtedness has been paid and performed in full and the period of time has expired during which any payment made by the Operating Partnership or the undersigned to Holders may be determined to be a Preferential Payment. The undersigned's liability (the "Base Guaranty Liability") shall be that amount from time to time equal to the aggregate liability of the undersigned hereunder, but shall be limited to the lesser of (A) the aggregate amount of the obligation as stated in the second sentence of Section 1401 of the Indenture, and (B) the amount, if any, which would not have (i) rendered the undersigned "insolvent" (as such term is defined in Section 101(29) of the Federal Bankruptcy Code and in Section 271 of the Debtor and Creditor Law of the State of New York, as each is in effect at the date of the Indenture) or (ii) left the undersigned with unreasonably small capital at the time its Guarantee was entered into, after giving effect to the incurrence of existing Debt (as defined in the Indenture) immediately prior to such time, provided that, it shall be a presumption in any lawsuit or other proceeding in which the undersigned is a party that the amount guaranteed is the amount set forth in (A) above unless a creditor, or representative of creditors of the undersigned or a trustee in bankruptcy of the undersigned, as debtor in possession, otherwise proves in such a lawsuit that the aggregate liability of the undersigned is limited to the amount set forth in (B). In making any determination as to the solvency or sufficiency of capital of the undersigned in accordance with the previous sentence, the right of the undersigned to contribution from other Guarantors, to subrogation and any other rights the undersigned may have, contractual or otherwise, shall be taken into account. The obligations of the undersigned to the Holders of the 2018 Notes and to the Trustee pursuant to the Subsidiary Guarantee and the Indenture are expressly set forth in Article 14 of the Indenture and reference is hereby made to the Indenture for the precise terms of the Subsidiary Guarantee and all of the other provisions of the Indenture to which this Subsidiary Guarantee relates. Capitalized terms in this Subsidiary Guarantee which are not defined herein shall have the meanings assigned to them in the Indenturepurpose.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Carrington Mortgage Loan Trust, Series 2005-Nc5)

Dated. ~~Notice~~Signature by or on behalf of assignor ---------------------------------------- Signature Guaranteed DISTRIBUTION INSTRUCTIONS The assignee should include the following for purposes of distribution: The signature to this assignment must correspond with the name as it appears upon the face of the within Note in every particular, without alteration or enlargement or any change whatever. ABBREVIATIONS The following abbreviations, when used in the inscription on the face of this instrument, Distributions shall be ~~construed as though they were written out~~ made, by wire transfer or otherwise, in ~~full according~~ immediately available funds to ~~applicable laws or regulations: TEN COM--as tenants in common UNIF GIFT MIN ACT--_____ Custodian~~_____~~_ TEN ENT--as tenants~~ _______________________________________________________, for the account of ____________________________________________________________, account number __________, or, if mailed by ~~the entireties (Cust) (Minor) JT TEN--as joint tenants with right Under Uniform Gifts~~ check, to ~~Minors of survivorship and not as Act~~_________________________, Applicable statements should be mailed to _____________________________________ tenants in common (State) Additional abbreviations may also be used though not in the above list. --------------------------- [FORM OF SCHEDULE FOR ENDORSEMENTS ON GLOBAL SECURITY TO REFLECT CHANGES IN PRINCIPAL AMOUNT] Schedule A Changes to Principal Amount of Global Security Principal Amount of Securities by which this Global Security is to be Reduced or Increased, and Reason for Remaining Principal Amount of Notation Date Reduction or Increase this Global Securities Made by ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- Exhibit B SUBSIDIARY GUARANTEE FOR VALUE RECEIVED, the undersigned hereby jointly and severally with the Parent Guarantor pursuant to the Parent Guarantee and any other subsidiary Guarantors under their respective Subsidiary Guarantees, unconditionally guarantees to the Holder of the accompanying _____~~% Note Due June~~ __________________________________________________________________________. This information is provided by _______________________________________________, ~~2018 (~~the ~~"2018 Note") issued by AMB Property~~assignee named above, ~~L.P. (the "Operating Partnership") under an Indenture dated as of June~~ or __________________________________________________, ~~1998~~ as its agent. XXXXXXX X-0 FORM OF CLASS M-3 CERTIFICATE UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (~~together with~~ "DTC"), TO THE TRUSTEE OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986 (THE "CODE"). THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A CERTIFICATES, THE CLASS M-1 CERTIFICATES AND THE CLASS M-2 CERTIFICATES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN. Series 2005-NC5 Pass-Through Rate: Variable Cut-off Date and date of Pooling and Servicing Agreement: October 1, 2005 First Distribution Date: November 25, 2005 No. 1 Aggregate Certificate Principal Balance of the ~~Second Supplemental Indenture thereto,~~ Class M-3 Certificates as of the ~~"Indenture") among the Operating Partnership, AMB Property Corporation, and State Street~~ Issue Date: $[______].00 Denomination: $[________].00 Servicer: New Century Mortgage Corporation Trustee: Deutsche Bank ~~and~~ National Trust Company Issue Date: October 4, 2005 CUSIP: [______] [__] [_] DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE AS THE DENOMINATION OF THIS CERTIFICATE. ASSET BACKED PASS-THROUGH CERTIFICATE evidencing a beneficial ownership interest in a portion of ~~California, N.A., as trustee~~ a Trust Fund (the "~~Trustee~~Trust Fund") consisting primarily of a pool of conventional one- to four-family, adjustable-rate and fixed-rate, interest-only and fully-amortizing, first lien and second lien mortgage loans (the "Mortgage Loans") formed and sold by STANWICH ASSET ACCEPTANCE COMPANY, L.L.C. THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN STANWICH ASSET ACCEPTANCE COMPANY, L.L.C., THE SERVICER, THE TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES. This certifies that Cede & Co. is the registered owner of a Percentage Interest (obtained by dividing the denomination of this Certificate by the aggregate Certificate Principal Balance of the Class M-3 Certificates as of the Issue Date) in that certain beneficial ownership interest evidenced by all the Class M-3 Certificates in REMIC II created pursuant to a Pooling and Servicing Agreement, dated as specified above (the "Agreement"), among Stanwich Asset Acceptance Company, L.L.C. (a) hereinafter called the ~~full~~ "Depositor," which term includes any successor entity under the Agreement), the Servicer and ~~prompt payment~~ the Trustee, a summary of certain of the ~~principal~~ 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 Agreement. This Certificate is issued under and ~~premium~~is subject to the terms, ~~if any, on such 2018 Note when~~ provisions and ~~as the same shall become due and payable, whether at Stated Maturity, by acceleration, by redemption or otherwise, and (b) the full and prompt payment~~ conditions of the ~~interest on~~ Agreement, to which Agreement the Holder of this Certificate by virtue of the acceptance hereof assents and by which such ~~2018 Note when and as the same shall become due and payable, according~~ Holder is bound. Pursuant to the terms of the Agreement, distributions will be made on the 25th day of each month or, if such ~~2018 Note and~~ 25th day is not a Business Day, the Business Day immediately following (a "Distribution Date"), commencing on the First Distribution Date specified above, to the Person in whose name this Certificate is registered on the Record Date, in an amount equal to the product of the ~~Indenture. The undersigned hereby agrees, jointly~~ Percentage Interest evidenced by this Certificate and ~~severally with~~ the ~~Parent Guarantor~~ amount required to be distributed to the Holders of Class M-3 Certificates on such Distribution Date pursuant to the ~~Parent Guarantee and any other Subsidiary Guarantors~~ Agreement. All distributions to the Holder of this Certificate under ~~their respective Subsidiary Guarantees, that its obligations hereunder shall~~ the Agreement will be ~~as principal and not merely as surety, and shall~~ made or caused to be ~~absolute and unconditional, and shall not be affected, modified or impaired~~ made by the ~~following: (a) the failure to give notice~~ Trustee by wire transfer in immediately available funds to the ~~Guarantors~~ account of the occurrence of an Event of Default under the Indenture; (b) the waiver, surrender, compromise, settlement, release or termination of the payment, performance or observance by the Operating Partnership or the Guarantors of any or all of the obligations, covenants or agreements of either of them contained in the Indenture or the 2018 Notes; (c) the acceleration, extension or any other changes in the time for payment of any principal of or interest or any premium on any 2018 Note or for any other payment under the Indenture or of the time for performance of any other obligations, covenants or agreements under or arising out of the Indenture or the 2018 Notes; (d) the modification or amendment (whether material or otherwise) of any obligation, covenant or agreement set forth in the Indenture or the 2018 Notes; (e) the taking or the omission of any of the actions referred to in the Indenture and in any of the actions under the 2018 Notes; (f) any failure, omission, delay or lack on the part of the Trustee to enforce, assert or exercise any right, power or remedy conferred on Person entitled thereto if such Person shall have so notified the Trustee in writing at least five Business Days prior to the ~~Indenture~~Record Date immediately prior to such Distribution Date or otherwise by check mailed by first class mail to the address of the Person entitled thereto, ~~or any other action or acts~~ as such name and address shall appear on the ~~part~~ Certificate Register. Notwithstanding the above, the final distribution on this Certificate will be made after due notice by the Trustee of the ~~Trustee or any~~ pendency of ~~the Holders from time to time of the 2018 Notes; (g) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all the assets, marshaling of assets~~ such distribution and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition with creditors or readjustment of, or other similar proceedings affecting the Guarantors or the Operating Partnership or any of the assets of any of them, or any allegation or contest of the validity only upon presentation and surrender of this ~~Subsidiary Guarantee~~ Certificate at the office or agency appointed by the Trustee for that purpose as provided in ~~any such proceeding; (h)~~ the Agreement. The Pass-Through Rate applicable to the ~~extent permitted by law, the release or discharge by operation~~ calculation of law of the Guarantors from the performance or observance of any obligation, covenant or agreement contained in the Indenture; (i) to the extent permitted by law, the release or discharge by operation of law of the Operating Partnership from the performance or observance of any obligation, covenant or agreement contained in the Indenture; (j) the default or failure of the Operating Partnership or the Trustee fully to perform any of its obligations set forth in the Indenture or the 2018 Notes; (k) the invalidity, irregularity or unenforceability of the Indenture or the 2018 Notes or any part of any thereof; (l) any judicial or governmental action affecting the Operating Partnership or any 2018 Notes or consent or indulgence granted by the Operating Partnership by the Holders or by the Trustee; or (m) the recovery of any judgment against the Operating Partnership or any action to enforce the same or any other circumstance which might constitute a legal or equitable discharge of a surety or guarantor. The undersigned hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of merger, sale, lease or conveyance of all or substantially all of its assets, insolvency or bankruptcy of the Operating Partnership, any right to require a proceeding first against the Operating Partnership, protest or notice interest payable with respect to ~~such Notice or the indebtedness evidenced thereby and all demands whatsoever, and covenants that~~ this Subsidiary Guarantee will not be discharged except by complete performance of the obligations contained in such 2018 Note and in this Subsidiary Guarantee. No reference herein to such Indenture and no provision of this Subsidiary Guarantee or of such Indenture Certificate on any Distribution Date shall alter or impair the guarantee of the undersigned, which is absolute and unconditional, of the full and prompt payment of the principal of and premium, if any, and interest on the 2018 Note. THIS SUBSIDIARY GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. The validity and enforceability of this Subsidiary Guarantee shall not be affected by the fact that it is not affixed to any particular 2018 Note. An Event of Default under the Indenture or the 2018 Notes shall constitute an event of default under this Subsidiary Guarantee, and shall entitle the Holders of 2018 Notes to accelerate the obligations of the undersigned hereunder in the same manner and to the same extent as the obligations of the Operating Partnership. Notwithstanding any other provision of this Subsidiary Guarantee to the contrary, the undersigned hereby waives any claims or other rights which it may now have or hereafter acquire against the Operating Partnership that arise from the existence or performance of its obligations under this Subsidiary Guarantee (all such claims and rights are referred to as "Guarantor's Conditional Rights"), including, without limitation, any right of subrogation, reimbursement, exoneration, contribution, or indemnification, any right to participate in any claim or remedy against the Operating Partnership, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, by any payment made hereunder or otherwise, including without limitation, the right to take or receive from Operating Partnership, directly or indirectly, in cash or other property or by setoff or in any other manner, payment or security on account of such claim or other rights. The Subsidiary Guarantor hereby agrees not to exercise any rights which may be acquired by way of contribution under this Subsidiary Guarantee or any other agreement, by any payment made hereunder or otherwise, including, without limitation, the right to take or receive from any other guarantor, directly or indirectly, in cash or other property or by setoff or in any other manner, payment or security on account of such contribution rights. If, notwithstanding the foregoing provisions, any amount shall be paid to any of the undersigned on account of any such Guarantor's Conditional Rights and either (i) such amount is paid to such undersigned party at any time when the indebtedness shall not have been paid or performed in full, or (ii) regardless of when such amount is paid to such undersigned party, any payment made by Operating Partnership to equal a Holder that is at any time determined to be a Preferential Payment (as defined below), then such amount paid to the undersigned shall be held in trust for the benefit of the Holders and shall forthwith be paid such Holder to be credited and applied upon the indebtedness, whether matured or unmatured. Any such payment is herein referred to as a "Preferential Payment" to the extent the Operating Partnership makes any payment to Holder in connection with the Note, and any or all of such payment is subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid or paid over to a trustee, receiver or any other entity, whether under any bankruptcy act or otherwise. To the extent that any of the provisions of the immediately preceding paragraph shall not be enforceable, each of the undersigned agrees that until such time as the indebtedness has been paid and performed in full and the period of time has expired during which any payment made by the Operating Partnership or the undersigned to a Holder may be determined to be a Preferential Payment, Guarantor's Conditional Rights to the extent not validly waived shall be subordinate to Holders' right to full payment and performance of the indebtedness and each of the undersigned shall not enforce any of its respective portion of the Guarantors' Conditional Rights until such time as the indebtedness has been paid and performed in full and the period of time has expired during which any payment made by the Operating Partnership or the undersigned to Holders may be determined to be a Preferential Payment. The undersigned's liability (the "Base Guaranty Liability") shall be that amount from time to time rate per annum equal ~~to the aggregate liability of the undersigned hereunder, but shall be limited~~ to the lesser of (i) the related Formula Rate for such Distribution Date and (ii) the related Net WAC Pass-Through Rate for such Distribution Date. This Certificate is one of a duly authorized issue of Certificates designated as Asset Backed Pass-Through Certificates of the Series specified on the face hereof (herein called the "Certificates") and representing a Percentage Interest in the Class of Certificates specified on the face hereof equal to the denomination specified on the face hereof divided by the aggregate Certificate Principal Balance of the Class of Certificates specified on the face hereof. The 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 Agreement. As provided in the Agreement, withdrawals from the Collection Account and the Distribution Account may be made from time to time for purposes other than distributions to Certificateholders, such purposes including reimbursement of advances made, or certain expenses incurred, with respect to the Mortgage Loans. The Agreement permits, with certain exceptions therein provided, the amendment thereof and the modification of the rights and obligations of the Depositor, the Servicer, the Trustee and the rights of the Certificateholders under the Agreement at any time by the Depositor, the Servicer and the Trustee with the consent of the Holders of Certificates entitled to at least 66% of the Voting Rights. Any such consent by the Holder of this Certificate shall be conclusive and binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in exchange herefor or in lieu hereof whether or not notation of such consent is made upon this Certificate. The Agreement also permits the amendment thereof, in certain limited circumstances, without the consent of the Holders of any of the Certificates. As provided in the Agreement and subject to certain limitations therein set forth, the transfer of this Certificate is registrable in the Certificate Register upon surrender of this Certificate for registration of transfer at the offices or agencies appointed by the Trustee as provided in the Agreement, duly endorsed by, or accompanied by an assignment in the form below or other written instrument of transfer in form satisfactory to the Trustee duly executed by, the Holder hereof or such Holder's attorney duly authorized in writing, and thereupon one or more new Certificates of the same Class in authorized denominations evidencing the same aggregate Percentage Interest will be issued to the designated transferee or transferees. Each beneficial owner of this Certificate or any interest therein shall be deemed to have represented, by virtue of its acquisition or holding of such Certificate or interest therein, that either (A) ~~the aggregate amount~~ it is not an "employee benefit plan" as defined in Section 3(3) of the ~~obligation~~ Employee Retirement Income Security Act of 1974, as ~~stated~~ amended ("ERISA"), that is subject to Title I of ERISA, any "plan" as defined in ~~the second sentence of~~ Section ~~1401~~ 4975 of the ~~Indenture~~Internal Revenue Code of 1986, ~~and~~ as amended (the "Code"), that is subject to Section 4975 of the Code or any entity deemed to hold plan assets of any of the foregoing, (B) it has acquired and is holding this Certificate in reliance on the ~~amount~~underwriters' exemption, ~~if any~~and that it understands that there are certain conditions to the availability of the underwriters' exemption, ~~which would~~ including that this Certificate must be rated, at the time of purchase, not ~~have (i) rendered the undersigned~~ lower than "~~insolvent~~BBB-" (or its equivalent) by Fitch, S&P or Xxxxx'x and the Certificate is so rated, that it is an accredited investor as defined in Rule 501(a)(1) of Regulation D of the Securities Act of 1933, as amended, and that it will obtain a representation from any transferee that such transferee is an accredited investor, or (C)(1) it is an insurance company, (2) the source of funds used to acquire or hold this Certificate or interest therein is an "insurance company general account," as such term is defined in Prohibited Transaction Class Exemption ("PTCE") 95-60, and (3) the conditions in Sections I and III of PTCE 95-60 have been satisfied. If this Certificate or any interest therein is acquired or held in violation of the provisions of Section ~~101(29~~5.02(c) of the ~~Federal Bankruptcy Code and in Section 271~~ Agreement, the next preceding permitted beneficial owner will be treated as the beneficial owner of ~~the Debtor and Creditor Law of the State of New York, as each is in effect at~~ this Certificate retroactive to the date of transfer to the ~~Indenture~~purported beneficial owner. Any purported beneficial owner whose acquisition or holding of any this Certificate or interest therein was effected in violation of the provisions of Section 5.02(c) of the Agreement shall indemnify and hold harmless the Depositor, the Servicer, the Trustee and the Trust Fund from and against any and all liabilities, claims, costs or expenses incurred by those parties as a result of that acquisition or holding. The Certificates are issuable in fully registered form only without coupons in Classes and denominations representing Percentage Interests specified in the Agreement. As provided in the Agreement and subject to certain limitations therein set forth, the Certificates are exchangeable for new Certificates of the same Class in authorized denominations evidencing the same aggregate Percentage Interest, as requested by the Holder surrendering the same. No service charge will be made for any such registration of transfer or exchange of Certificates, but the Trustee 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 Servicer, the Trustee and any agent of the Depositor, the Servicer or 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 Servicer, the Trustee nor any such agent shall be affected by notice to the contrary. The obligations created by the Agreement and the Trust Fund created thereby shall terminate upon payment to the Certificateholders of all amounts held by the Trustee and required to be paid to them pursuant to the Agreement following the earlier of (i) the final payment or other liquidation (or any advance with respect thereto) of the last Mortgage Loan and REO Property remaining in REMIC I and (ii) ~~left~~ the ~~undersigned with unreasonably small capital~~ purchase by the party designated in the Agreement at a price determined as provided in the Agreement from REMIC I of all the Mortgage Loans and all property acquired in respect of such Mortgage Loans. The Agreement permits, but does not require, the party designated in the Agreement to purchase from REMIC I all the Mortgage Loans and all property acquired in respect of any Mortgage Loan at a price determined as provided in the Agreement. The exercise of such right will effect early retirement of the Certificates; however, such right to purchase is subject to the aggregate Stated Principal Balance of the Mortgage Loans at the time ~~its Guarantee was entered into, after giving effect to the incurrence~~ of existing Debt (as defined in the Indenture) immediately prior to such time, provided that, it shall be a presumption in any lawsuit or other proceeding in which the undersigned is a party that the amount guaranteed is the amount set forth in (A) above unless a creditor, or representative of creditors purchase being less than 10% of the ~~undersigned or a trustee in bankruptcy~~ aggregate Stated Principal Balance of the ~~undersigned,~~ Mortgage Loans as ~~debtor in possession, otherwise proves in such a lawsuit that the aggregate liability~~ of the ~~undersigned is limited to the amount set forth in (B)~~Cut-off Date. In making any determination as to the solvency or sufficiency of capital of the undersigned in accordance with the previous sentence, the right of the undersigned to contribution from other Guarantors, to subrogation and any other rights the undersigned may have, contractual or otherwise, The recitals contained herein shall be taken ~~into account. The obligations~~ as statements of the ~~undersigned to the Holders of the 2018 Notes~~ Depositor and to the Trustee ~~pursuant~~ assumes no responsibility for their correctness. Unless the certificate of authentication hereon has been executed by the Trustee, by manual signature, this Certificate shall not be entitled to any benefit under the ~~Subsidiary Guarantee and the Indenture are expressly set forth in Article 14 of the Indenture and reference is hereby made to the Indenture~~ Agreement or be valid for the precise terms of the Subsidiary Guarantee and all of the other provisions of the Indenture to which this Subsidiary Guarantee relates. Capitalized terms in this Subsidiary Guarantee which are not defined herein shall have the meanings assigned to them in the Indentureany purpose.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Carrington Mortgage Loan Trust, Series 2005-Nc5)

Dated. ~~Notice~~Signature by or on behalf of assignor -------------------------------------- Signature Guaranteed DISTRIBUTION INSTRUCTIONS The assignee should include the following for purposes of distribution: The signature to this assignment must correspond with the name as it appears upon the face of the within Note in every particular, without alteration or enlargement or any change whatever. ABBREVIATIONS The following abbreviations, when used in the inscription on the face of this instrument, Distributions shall be ~~construed as though they were written out~~ made, by wire transfer or otherwise, in ~~full according~~ immediately available funds to ~~applicable laws or regulations: TEN COM--as tenants in common UNIF GIFT MIN ACT--_____ Custodian~~_____~~_ TEN ENT--as tenants by the entireties (Cust) (Minor) JT TEN--as joint tenants with right Under Uniform Gifts to Minors of survivorship and not as Act~~_________________________________________ tenants in common (State) Additional abbreviations may also be used though not in the above list. --------------------------- [FORM OF SCHEDULE FOR ENDORSEMENTS ON GLOBAL SECURITY TO REFLECT CHANGES IN PRINCIPAL AMOUNT] Schedule A Changes to Principal Amount of Global Security Principal Amount of Securities by which this Global Security is to be Reduced or Increased, and Reason for Remaining Principal Amount of Notation Date Reduction or Increase this Global Securities Made by ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- Exhibit B SUBSIDIARY GUARANTEE FOR VALUE RECEIVED, the undersigned hereby jointly and severally with the Parent Guarantor pursuant to the Parent Guarantee and any other subsidiary Guarantors under their respective Subsidiary Guarantees, unconditionally guarantees to the Holder of the accompanying _____~~% Note Due June~~ ________________________________________________________________________ for the account of ______________________, ~~2018 (the "2018 Note") issued by AMB Property, L.P. (the "Operating Partnership") under an Indenture dated as of June~~ account number ________________, ~~1998 (together with the Second Supplemental Indenture thereto~~or, if mailed by check, to ______________________________________________________ _____________________________________________________________________________. Applicable statements should be mailed to____________________________________ _____________________________________________________________________________. This information is provided by __________________________________________, the ~~"Indenture") among the Operating Partnership~~assignee named above, ~~AMB Property Corporation, and State Street Bank and Trust Company of California, N.A.~~or ___________________________________, as ~~trustee~~ its agent. XXXXXXX X-0 XXXX XX XXXSS M-[1][2][3][4][5][6] CERTIFICATE SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986 (THE "CODE"). UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE DEPOSITOR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A CERTIFICATES [,/AND] CLASS M-1 CERTIFICATES [,/AND] CLASS M-2 CERTIFICATES[,/AND] CLASS M-3 CERTIFICATES [,/AND] CLASS M-4 CERTIFICATES [,/AND] CLASS M-5 CERTIFICATES] TO THE EXTENT DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN. ANY TRANSFEREE OF THIS CERTIFICATE SHALL BE DEEMED TO MAKE THE REPRESENTATIONS SET FORTH IN SECTION 6.02(C) OF THE AGREEMENT REFERRED TO HEREIN. THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE WILL BE DECREASED BY THE PRINCIPAL PAYMENTS HEREON AND REALIZED LOSSES ALLOCABLE HERETO AS DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN. ACCORDINGLY, FOLLOWING THE INITIAL ISSUANCE OF THE CERTIFICATES, THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE WILL BE DIFFERENT FROM THE DENOMINATION SHOWN BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CERTIFICATE PRINCIPAL BALANCE BY INQUIRY OF THE SECURITIES ADMINISTRATOR NAMED HEREIN. Series 2004-HS1, Class M-[1][2][3][4][5][6] Aggregate Certificate Principal Balance of the Class M-[1][2][3][4][5][6] Certificates as of the Pass-Through Rate: Variable Issue Date: $______________ Date of Pooling and Servicing Agreement and Denomination: $______________ Cut-off Date: February 1, 2004 Master Servicer: Wells Fargo Bank, National Association First Distribution Date: March 25, 2004 Trustee: JPMorgan Chase Bank No.___ Issue Date: February 27, 2004 CUSIP:_________________ ACE SECURITIES CORP. HOME EQUITY LOAN TRUST, SERIES 2004-HS1 ASSET BACKED PASS-THROUGH CERTIFICATE evidencing a beneficial ownership interest in a Trust Fund (the "~~Trustee~~Trust Fund")) consisting primarily of a pool of conventional one- to four-family, fixed and adjustable-rate first lien mortgage loans (athe "Mortgage Loans") ~~the full~~ formed and ~~prompt payment~~ sold by ACE SECURITIES CORP. THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN ACE SECURITIES CORP., THE MASTER SERVICER, THE SECURITIES ADMINISTRATOR, THE SERVICER, THE TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES. Balance of which is in excess of the ~~principal~~ lesser of and premium, if any, on such 2018 Note when and as the same shall become due and payable, whether at Stated Maturity, by acceleration, by redemption or otherwise, and (b) the full and prompt payment of the interest on such 2018 Note when and as the same shall become due and payable, according to the terms of such 2018 Note and of the Indenture. The undersigned hereby agrees, jointly and severally with the Parent Guarantor pursuant to the Parent Guarantee and any other Subsidiary Guarantors under their respective Subsidiary Guarantees, that its obligations hereunder shall be as principal and not merely as surety, and shall be absolute and unconditional, and shall not be affected, modified or impaired by the following: (a) the failure to give notice to the Guarantors of the occurrence of an Event of Default under the Indenture; (b) the waiver, surrender, compromise, settlement, release or termination of the payment, performance or observance by the Operating Partnership or the Guarantors of any or all of the obligations, covenants or agreements of either of them contained in the Indenture or the 2018 Notes; (c) the acceleration, extension or any other changes in the time for payment of any principal of or interest or any premium on any 2018 Note or for any other payment under the Indenture or of the time for performance of any other obligations, covenants or agreements under or arising out of the Indenture or the 2018 Notes; (d) the modification or amendment (whether material or otherwise) of any obligation, covenant or agreement set forth in the Indenture or the 2018 Notes; (e) the taking or the omission of any of the actions referred to in the Indenture and in any of the actions under the 2018 Notes; (f) any failure, omission, delay or lack on the part of the Trustee to enforce, assert or exercise any right, power or remedy conferred on the Trustee in the Indenture, or any other action or acts on the part of the Trustee or any of the Holders from time to time of the 2018 Notes; (g) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all the assets, marshaling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition with creditors or readjustment of, or other similar proceedings affecting the Guarantors or the Operating Partnership or any of the assets of any of them, or any allegation or contest of the validity of this Subsidiary Guarantee in any such proceeding; (h) to the extent permitted by law, the release or discharge by operation of law of the Guarantors from the performance or observance of any obligation, covenant or agreement contained in the Indenture; (i) to the extent permitted by law, the release or discharge by operation of law of the Operating Partnership from the performance or observance of any obligation, covenant or agreement contained in the Indenture; (j) the default or failure of the Operating Partnership or the Trustee fully to perform any of its obligations set forth in the Indenture or the 2018 Notes; (k) the invalidity, irregularity or unenforceability of the Indenture or the 2018 Notes or any part of any thereof; (l) any judicial or governmental action affecting the Operating Partnership or any 2018 Notes or consent or indulgence granted by the Operating Partnership by the Holders or by the Trustee; or (m) the recovery of any judgment against the Operating Partnership or any action to enforce the same or any other circumstance which might constitute a legal or equitable discharge of a surety or guarantor. The undersigned hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of merger, sale, lease or conveyance of all or substantially all of its assets, insolvency or bankruptcy of the Operating Partnership, any right to require a proceeding first against the Operating Partnership, protest or notice with respect to such Notice or the indebtedness evidenced thereby and all demands whatsoever, and covenants that this Subsidiary Guarantee will not be discharged except by complete performance of the obligations contained in such 2018 Note and in this Subsidiary Guarantee. No reference herein to such Indenture and no provision of this Subsidiary Guarantee or of such Indenture shall alter or impair the guarantee of the undersigned, which is absolute and unconditional, of the full and prompt payment of the principal of and premium, if any, and interest on the 2018 Note. THIS SUBSIDIARY GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. The validity and enforceability of this Subsidiary Guarantee shall not be affected by the fact that it is not affixed to any particular 2018 Note. An Event of Default under the Indenture or the 2018 Notes shall constitute an event of default under this Subsidiary Guarantee, and shall entitle the Holders of 2018 Notes to accelerate the obligations of the undersigned hereunder in the same manner and to the same extent as the obligations of the Operating Partnership. Notwithstanding any other provision of this Subsidiary Guarantee to the contrary, the undersigned hereby waives any claims or other rights which it may now have or hereafter acquire against the Operating Partnership that arise from the existence or performance of its obligations under this Subsidiary Guarantee (all such claims and rights are referred to as "Guarantor's Conditional Rights"), including, without limitation, any right of subrogation, reimbursement, exoneration, contribution, or indemnification, any right to participate in any claim or remedy against the Operating Partnership, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, by any payment made hereunder or otherwise, including without limitation, the right to take or receive from Operating Partnership, directly or indirectly, in cash or other property or by setoff or in any other manner, payment or security on account of such claim or other rights. The Subsidiary Guarantor hereby agrees not to exercise any rights which may be acquired by way of contribution under this Subsidiary Guarantee or any other agreement, by any payment made hereunder or otherwise, including, without limitation, the right to take or receive from any other guarantor, directly or indirectly, in cash or other property or by setoff or in any other manner, payment or security on account of such contribution rights. If, notwithstanding the foregoing provisions, any amount shall be paid to any of the undersigned on account of any such Guarantor's Conditional Rights and either (i) such amount is paid to such undersigned party at any time when the indebtedness shall not have been paid or performed in full, $5,000,000 or (ii) ~~regardless~~ two-thirds of ~~when such amount is paid to such undersigned party~~the aggregate initial Certificate Principal Balance of the Class M-[1][2][3][4][5][6] Certificates, ~~any payment made~~ or otherwise by ~~Operating Partnership to a Holder that is at any time determined to be a Preferential Payment (as defined below), then such amount paid~~ check mailed by first class mail to the ~~undersigned shall be held in trust for the benefit~~ address of the ~~Holders~~ Person entitled thereto, as such name and address shall ~~forthwith~~ appear on the Certificate Register. Notwithstanding the above, the final distribution on this Certificate will be ~~paid~~ made after due notice by the Securities Administrator of the pendency of such ~~Holder to be credited~~ distribution and ~~applied~~ only upon presentation and surrender of this Certificate at the ~~indebtedness, whether matured~~ office or ~~unmatured~~agency appointed by the Securities Administrator for that purpose as provided in the Agreement. ~~Any such payment is herein referred to as a "Preferential Payment"~~ The Pass-Through Rate applicable to the ~~extent the Operating Partnership makes~~ calculation of interest payable with respect to this Certificate on any ~~payment to Holder in connection with the Note, and any or all of such payment is subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid or paid over to~~ Distribution Date shall equal a trustee, receiver or any other entity, whether under any bankruptcy act or otherwise. To the extent that any of the provisions of the immediately preceding paragraph shall not be enforceable, each of the undersigned agrees that until such time as the indebtedness has been paid and performed in full and the period of time has expired during which any payment made by the Operating Partnership or the undersigned to a Holder may be determined to be a Preferential Payment, Guarantor's Conditional Rights to the extent not validly waived shall be subordinate to Holders' right to full payment and performance of the indebtedness and each of the undersigned shall not enforce any of its respective portion of the Guarantors' Conditional Rights until such time as the indebtedness has been paid and performed in full and the period of time has expired during which any payment made by the Operating Partnership or the undersigned to Holders may be determined to be a Preferential Payment. The undersigned's liability (the "Base Guaranty Liability") shall be that amount from time to time rate per annum equal ~~to the aggregate liability of the undersigned hereunder, but shall be limited~~ to the lesser of (Ai) One-Month LIBOR plus [____]% , in the case of each Distribution Date through and including the Distribution Date on which the aggregate principal balance of the Mortgage Loans (and properties acquired in respect thereof) remaining in the Trust Fund is reduced to less than 10% of the aggregate principal balance of the Mortgage Loans as of the Cut-off Date, or One-Month LIBOR plus [____]%, in the case of any Distribution Date thereafter and (ii) the ~~aggregate amount~~ applicable Net WAC Pass-Through Rate for such Distribution Date. This Certificate is one of a duly authorized issue of Certificates designated as Asset Backed Pass-Through Certificate of the ~~obligation as stated~~ Series specified on the face hereof (herein called the "Certificates") and representing a Percentage Interest in the ~~second sentence~~ Class of ~~Section 1401~~ Certificates specified on the face hereof equal to the denomination specified on the face hereof divided by the aggregate Certificate Principal Balance of the ~~Indenture~~Class of Certificates specified on the face hereof. The 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 Agreement. As provided in the Agreement, withdrawals from the Collection Account and the Distribution Account may be made from time to time for purposes other than distributions to Certificateholders, such purposes including reimbursement of advances made, or certain expenses incurred, with respect to the Mortgage Loans. The Agreement permits, with certain exceptions therein provided, the amendment thereof and the modification of the rights and obligations of the Depositor, the Master Servicer, the Trustee, the Securities Administrator, the Servicer and the rights of the Certificateholders under the Agreement at any time by the Depositor, the Master Servicer, the Trustee, the Securities Administrator and the Servicer with the consent of the Holders of Certificates entitled to at least 66% of the Voting Rights. Any such consent by the Holder of this Certificate shall be conclusive and binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in exchange herefor or in lieu hereof whether or not notation of such consent is made upon this Certificate. The Agreement also permits the amendment thereof, in certain limited circumstances, without the consent of the Holders of any of the Certificates. As provided in the Agreement and subject to certain limitations therein set forth, the transfer of this Certificate is registrable in the Certificate Register upon surrender of this Certificate for registration of transfer at the offices or agencies appointed by the Securities Administrator as provided in the Agreement, duly endorsed by, or accompanied by an assignment in the form below 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 (Bthereupon one or more new Certificates of the same Class in authorized denominations evidencing the same aggregate Percentage Interest 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 Agreement. As provided in the Agreement and subject to certain limitations therein set forth, the Certificates are exchangeable for new Certificates of the same Class in authorized denominations evidencing the same aggregate Percentage Interest, as requested by the Holder surrendering the same. Any transferee of this Certificate shall be deemed to make the representations set forth in Section 6.02(c) of the ~~amount~~Agreement. No service charge will be made for any such registration of transfer or exchange of Certificates, ~~if any~~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, ~~which would not have~~ the Master Servicer, the Trustee, the Securities Administrator, the Servicer and any agent of the Depositor, the Master Servicer, the Trustee, the Securities Administrator or the Servicer 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 Trustee, the Securities Administrator, the Servicer nor any such agent shall be affected by notice to the contrary. The obligations created by the Agreement and the Trust Fund created thereby shall terminate upon payment to the Certificateholders of all amounts held by the Securities Administrator and required to be paid to them pursuant to the Agreement following the earlier of (i) ~~rendered~~ the ~~undersigned "insolvent"~~ final payment or other liquidation (~~as such term is defined in Section 101(29~~or any advance with respect thereto) of the ~~Federal Bankruptcy Code~~ last Mortgage Loan remaining in REMIC I and ~~in Section 271 of the Debtor and Creditor Law of the State of New York, as each is in effect at the date of the Indenture) or~~ (ii) ~~left~~ the ~~undersigned with unreasonably small capital~~ purchase by the party designated in the Agreement at a price determined as provided in the Agreement from REMIC I of all the Mortgage Loans and all property acquired in respect of such Mortgage Loans. The Agreement permits, but does not require, the party designated in the Agreement to purchase from REMIC I all the Mortgage Loans and all property acquired in respect of any Mortgage Loan at a price determined as provided in the Agreement. The exercise of such right will effect early retirement of the Certificates; however, such right to purchase is subject to the aggregate Stated Principal Balance of the Mortgage Loans at the time ~~its Guarantee was entered into, after giving effect to the incurrence~~ of existing Debt (as defined in the Indenture) immediately prior to such time, provided that, it shall be a presumption in any lawsuit or other proceeding in which the undersigned is a party that the amount guaranteed is the amount set forth in (A) above unless a creditor, or representative of creditors purchase being less than 10% of the ~~undersigned or a trustee in bankruptcy~~ aggregate principal balance of the ~~undersigned,~~ Mortgage Loans as ~~debtor in possession, otherwise proves in such a lawsuit that the aggregate liability~~ of the ~~undersigned is limited to the amount set forth in (B)~~Cut-off Date. In making any determination as to the solvency or sufficiency of capital of the undersigned in accordance with the previous sentence, the right of the undersigned to contribution from other Guarantors, to subrogation and any other rights the undersigned may have, contractual or otherwise, The recitals contained herein shall be taken ~~into account. The obligations~~ as statements of the ~~undersigned to the Holders of the 2018 Notes~~ Depositor and to neither the Trustee ~~pursuant~~ nor the Securities Administrator assume any responsibility for their correctness. Unless the certificate of authentication hereon has been executed by the Securities Administrator by manual signature, this Certificate shall not be entitled to any benefit under the ~~Subsidiary Guarantee and the Indenture are expressly set forth in Article 14 of the Indenture and reference is hereby made to the Indenture~~ Agreement or be valid for the precise terms of the Subsidiary Guarantee and all of the other provisions of the Indenture to which this Subsidiary Guarantee relates. Capitalized terms in this Subsidiary Guarantee which are not defined herein shall have the meanings assigned to them in the Indentureany purpose.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Home Equity Loan Trust Series 2004-Hs1)

Dated. ~~Notice~~Signature by or on behalf of assignor ------------------------------------- Signature Guaranteed DISTRIBUTION INSTRUCTIONS The assignee should include the following for purposes of distribution: The signature to this assignment must correspond with the name as it appears upon the face of the within Note in every particular, without alteration or enlargement or any change whatever. ABBREVIATIONS The following abbreviations, when used in the inscription on the face of this instrument, Distributions shall be ~~construed as though they were written out~~ made, by wire transfer or otherwise, in ~~full according~~ immediately available funds to ~~applicable laws or regulations: TEN COM--as tenants in common UNIF GIFT MIN ACT--_____ Custodian~~_____~~_ TEN ENT--as tenants~~ _______________________________________________________, for the account of ____________________________________________________________, account number __________, or, if mailed by ~~the entireties (Cust) (Minor) JT TEN--as joint tenants with right Under Uniform Gifts~~ check, to ~~Minors of survivorship and not as Act~~_________________________, Applicable statements should be mailed to _____________________________________ tenants in common (State) Additional abbreviations may also be used though not in the above list. --------------------------- [FORM OF SCHEDULE FOR ENDORSEMENTS ON GLOBAL SECURITY TO REFLECT CHANGES IN PRINCIPAL AMOUNT] Schedule A Changes to Principal Amount of Global Security Principal Amount of Securities by which this Global Security is to be Reduced or Increased, and Reason for Remaining Principal Amount of Notation Date Reduction or Increase this Global Securities Made by ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- Exhibit B SUBSIDIARY GUARANTEE FOR VALUE RECEIVED, the undersigned hereby jointly and severally with the Parent Guarantor pursuant to the Parent Guarantee and any other subsidiary Guarantors under their respective Subsidiary Guarantees, unconditionally guarantees to the Holder of the accompanying _____~~% Note Due June~~ __________________________________________________________________________. This information is provided by _______________________________________________, ~~2018 (~~the ~~"2018 Note") issued by AMB Property~~assignee named above, ~~L.P. (the "Operating Partnership") under an Indenture dated as of June~~ or __________________________________________________, ~~1998~~ as its agent. EXHIBIT A-13 FORM OF CLASS M-11 CERTIFICATE UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (~~together with~~ "DTC"), TO THE TRUSTEE OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986 (THE "CODE"). THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A CERTIFICATES, THE CLASS M-1 CERTIFICATES, THE CLASS M-2 CERTIFICATES, THE CLASS M-3 CERTIFICATES, THE CLASS M-4 CERTIFICATES, THE CLASS M-5 CERTIFICATES, THE CLASS M-6 CERTIFICATES, THE CLASS M-7 CERTIFICATES, THE CLASS M-8 CERTIFICATES, THE CLASS M-9 CERTIFICATES AND THE CLASS M-10 CERTIFICATES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN. THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE RESOLD OR TRANSFERRED UNLESS IT IS REGISTERED PURSUANT TO SUCH ACT AND LAWS OR IS SOLD OR TRANSFERRED IN TRANSACTIONS THAT ARE EXEMPT FROM REGISTRATION UNDER SUCH ACT AND UNDER APPLICABLE STATE LAW AND IS TRANSFERRED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE AGREEMENT. A-13-1 Series 2005-NC5 Pass-Through Rate: Variable Cut-off Date and date of Pooling and Servicing Agreement: October 1, 2005 First Distribution Date: November 25, 2005 No. 1 Aggregate Certificate Principal Balance of the ~~Second Supplemental Indenture thereto,~~ Class M-11 Certificates as of the ~~"Indenture") among the Operating Partnership, AMB Property Corporation, and State Street~~ Issue Date: $[______].00 Denomination: $[________].00 Servicer: New Century Mortgage Corporation Trustee: Deutsche Bank ~~and~~ National Trust Company Issue Date: October 4, 2005 CUSIP: [______] [__] [_] DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE AS THE DENOMINATION OF THIS CERTIFICATE. ASSET BACKED PASS-THROUGH CERTIFICATE evidencing a beneficial ownership interest in a portion of ~~California, N.A., as trustee~~ a Trust Fund (the "~~Trustee~~Trust Fund") consisting primarily of a pool of conventional one- to four-family, adjustable-rate and fixed-rate, interest-only and fully-amortizing, first lien and second lien mortgage loans (the "Mortgage Loans") formed and sold by STANWICH ASSET ACCEPTANCE COMPANY, L.L.C. THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN STANWICH ASSET ACCEPTANCE COMPANY, L.L.C., THE SERVICER, THE TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES. This certifies that Cede & Co. is the registered owner of a Percentage Interest (obtained by dividing the denomination of this Certificate by the aggregate Certificate Principal Balance of the Class M-11 Certificates as of the Issue Date) in that certain beneficial ownership interest evidenced by all the Class M-11 Certificates in REMIC II created pursuant to a Pooling and Servicing Agreement, dated as specified above (the "Agreement"), among Stanwich Asset Acceptance Company, L.L.C. (a) hereinafter called the ~~full~~ "Depositor," which term includes any successor entity under the Agreement), the Servicer and ~~prompt payment~~ the Trustee, a summary of certain of the ~~principal~~ 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 Agreement. This Certificate is issued under and ~~premium~~is subject to the terms, ~~if any, on such 2018 Note when~~ provisions and ~~as the same shall become due and payable, whether at Stated Maturity, by acceleration, by redemption or otherwise, and (b) the full and prompt payment~~ conditions of the ~~interest on~~ Agreement, to which Agreement the Holder of this Certificate by virtue of the acceptance hereof assents and by which such ~~2018 Note when and as the same shall become due and payable, according~~ Holder is bound. Pursuant to the terms of the Agreement, distributions will be made on the 25th day of each month or, if such ~~2018 Note and~~ 25th day is not a Business Day, the Business Day immediately following (a "Distribution Date"), commencing on the First Distribution Date specified above, to the Person in whose name this Certificate is registered on the Record Date, in an amount equal to the product of the ~~Indenture. The undersigned hereby agrees, jointly~~ Percentage Interest evidenced by this Certificate and ~~severally with~~ the ~~Parent Guarantor~~ amount required to be distributed to the Holders of Class M-11 Certificates on such Distribution Date pursuant to the ~~Parent Guarantee and any other Subsidiary Guarantors~~ Agreement. All distributions to the Holder of this Certificate under ~~their respective Subsidiary Guarantees, that its obligations hereunder shall~~ the Agreement will be ~~as principal and not merely as surety, and shall~~ made or caused to be ~~absolute and unconditional, and shall not be affected, modified or impaired~~ made by the ~~following: (a) the failure to give notice~~ Trustee by wire transfer in immediately available funds to the ~~Guarantors~~ account of the occurrence of an Event of Default under the Indenture; (b) the waiver, surrender, compromise, settlement, release or termination of the payment, performance or observance by the Operating Partnership or the Guarantors of any or all of the obligations, covenants or agreements of either of them contained in the Indenture or the 2018 Notes; (c) the acceleration, extension or any other changes in the time for payment of any principal of or interest or any premium on any 2018 Note or for any other payment under the Indenture or of the time for performance of any other obligations, covenants or agreements under or arising out of the Indenture or the 2018 Notes; (d) the modification or amendment (whether material or otherwise) of any obligation, covenant or agreement set forth in the Indenture or the 2018 Notes; (e) the taking or the omission of any of the actions referred to in the Indenture and in any of the actions under the 2018 Notes; (f) any failure, omission, delay or lack on the part of the Trustee to enforce, assert or exercise any right, power or remedy conferred on Person entitled thereto if such Person shall have so notified the Trustee in writing at least five Business Days prior to the ~~Indenture~~Record Date immediately prior to such Distribution Date or otherwise by check mailed by first class mail to the address of the Person entitled thereto, ~~or any other action or acts~~ as such name and address shall appear on the ~~part~~ Certificate Register. Notwithstanding the above, the final distribution on this Certificate will be made after due notice by the Trustee of the ~~Trustee or any~~ pendency of ~~the Holders from time to time of the 2018 Notes; (g) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all the assets, marshaling of assets~~ such distribution and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition with creditors or readjustment of, or other similar proceedings affecting the Guarantors or the Operating Partnership or any of the assets of any of them, or any allegation or contest of the validity only upon presentation and surrender of this ~~Subsidiary Guarantee~~ Certificate at the office or agency appointed by the Trustee for that purpose as provided in ~~any such proceeding; (h)~~ the Agreement. The Pass-Through Rate applicable to the ~~extent permitted by law, the release or discharge by operation~~ calculation of law of the Guarantors from the performance or observance of any obligation, covenant or agreement contained in the Indenture; (i) to the extent permitted by law, the release or discharge by operation of law of the Operating Partnership from the performance or observance of any obligation, covenant or agreement contained in the Indenture; (j) the default or failure of the Operating Partnership or the Trustee fully to perform any of its obligations set forth in the Indenture or the 2018 Notes; (k) the invalidity, irregularity or unenforceability of the Indenture or the 2018 Notes or any part of any thereof; (l) any judicial or governmental action affecting the Operating Partnership or any 2018 Notes or consent or indulgence granted by the Operating Partnership by the Holders or by the Trustee; or (m) the recovery of any judgment against the Operating Partnership or any action to enforce the same or any other circumstance which might constitute a legal or equitable discharge of a surety or guarantor. The undersigned hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of merger, sale, lease or conveyance of all or substantially all of its assets, insolvency or bankruptcy of the Operating Partnership, any right to require a proceeding first against the Operating Partnership, protest or notice interest payable with respect to ~~such Notice or the indebtedness evidenced thereby and all demands whatsoever, and covenants that~~ this Subsidiary Guarantee will not be discharged except by complete performance of the obligations contained in such 2018 Note and in this Subsidiary Guarantee. No reference herein to such Indenture and no provision of this Subsidiary Guarantee or of such Indenture Certificate on any Distribution Date shall alter or impair the guarantee of the undersigned, which is absolute and unconditional, of the full and prompt payment of the principal of and premium, if any, and interest on the 2018 Note. THIS SUBSIDIARY GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. The validity and enforceability of this Subsidiary Guarantee shall not be affected by the fact that it is not affixed to any particular 2018 Note. An Event of Default under the Indenture or the 2018 Notes shall constitute an event of default under this Subsidiary Guarantee, and shall entitle the Holders of 2018 Notes to accelerate the obligations of the undersigned hereunder in the same manner and to the same extent as the obligations of the Operating Partnership. Notwithstanding any other provision of this Subsidiary Guarantee to the contrary, the undersigned hereby waives any claims or other rights which it may now have or hereafter acquire against the Operating Partnership that arise from the existence or performance of its obligations under this Subsidiary Guarantee (all such claims and rights are referred to as "Guarantor's Conditional Rights"), including, without limitation, any right of subrogation, reimbursement, exoneration, contribution, or indemnification, any right to participate in any claim or remedy against the Operating Partnership, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, by any payment made hereunder or otherwise, including without limitation, the right to take or receive from Operating Partnership, directly or indirectly, in cash or other property or by setoff or in any other manner, payment or security on account of such claim or other rights. The Subsidiary Guarantor hereby agrees not to exercise any rights which may be acquired by way of contribution under this Subsidiary Guarantee or any other agreement, by any payment made hereunder or otherwise, including, without limitation, the right to take or receive from any other guarantor, directly or indirectly, in cash or other property or by setoff or in any other manner, payment or security on account of such contribution rights. If, notwithstanding the foregoing provisions, any amount shall be paid to any of the undersigned on account of any such Guarantor's Conditional Rights and either (i) such amount is paid to such undersigned party at any time when the indebtedness shall not have been paid or performed in full, or (ii) regardless of when such amount is paid to such undersigned party, any payment made by Operating Partnership to equal a Holder that is at any time determined to be a Preferential Payment (as defined below), then such amount paid to the undersigned shall be held in trust for the benefit of the Holders and shall forthwith be paid such Holder to be credited and applied upon the indebtedness, whether matured or unmatured. Any such payment is herein referred to as a "Preferential Payment" to the extent the Operating Partnership makes any payment to Holder in connection with the Note, and any or all of such payment is subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid or paid over to a trustee, receiver or any other entity, whether under any bankruptcy act or otherwise. To the extent that any of the provisions of the immediately preceding paragraph shall not be enforceable, each of the undersigned agrees that until such time as the indebtedness has been paid and performed in full and the period of time has expired during which any payment made by the Operating Partnership or the undersigned to a Holder may be determined to be a Preferential Payment, Guarantor's Conditional Rights to the extent not validly waived shall be subordinate to Holders' right to full payment and performance of the indebtedness and each of the undersigned shall not enforce any of its respective portion of the Guarantors' Conditional Rights until such time as the indebtedness has been paid and performed in full and the period of time has expired during which any payment made by the Operating Partnership or the undersigned to Holders may be determined to be a Preferential Payment. The undersigned's liability (the "Base Guaranty Liability") shall be that amount from time to time rate per annum equal ~~to the aggregate liability of the undersigned hereunder, but shall be limited~~ to the lesser of (i) the related Formula Rate for such Distribution Date and (ii) the related Net WAC Pass-Through Rate for such Distribution Date. This Certificate is one of a duly authorized issue of Certificates designated as Asset Backed Pass-Through Certificates of the Series specified on the face hereof (herein called the "Certificates") and representing a Percentage Interest in the Class of Certificates specified on the face hereof equal to the denomination specified on the face hereof divided by the aggregate Certificate Principal Balance of the Class of Certificates specified on the face hereof. The 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 Agreement. As provided in the Agreement, withdrawals from the Collection Account and the Distribution Account may be made from time to time for purposes other than distributions to Certificateholders, such purposes including reimbursement of advances made, or certain expenses incurred, with respect to the Mortgage Loans. The Agreement permits, with certain exceptions therein provided, the amendment thereof and the modification of the rights and obligations of the Depositor, the Servicer, the Trustee and the rights of the Certificateholders under the Agreement at any time by the Depositor, the Servicer and the Trustee with the consent of the Holders of Certificates entitled to at least 66% of the Voting Rights. Any such consent by the Holder of this Certificate shall be conclusive and binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in exchange herefor or in lieu hereof whether or not notation of such consent is made upon this Certificate. The Agreement also permits the amendment thereof, in certain limited circumstances, without the consent of the Holders of any of the Certificates. As provided in the Agreement and subject to certain limitations therein set forth, the transfer of this Certificate is registrable in the Certificate Register upon surrender of this Certificate for registration of transfer at the offices or agencies appointed by the Trustee as provided in the Agreement, duly endorsed by, or accompanied by an assignment in the form below or other written instrument of transfer in form satisfactory to the Trustee duly executed by, the Holder hereof or such Holder's attorney duly authorized in writing, and thereupon one or more new Certificates of the same Class in authorized denominations evidencing the same aggregate Percentage Interest will be issued to the designated transferee or transferees. No transfer of this Certificate shall be made unless the transfer is made pursuant to an effective registration statement under the Securities Act of 1933, as amended (the "1933 Act"), and an effective registration or qualification under applicable state securities laws, or is made in a transaction that does not require such registration or qualification. In the event that such a transfer of this Certificate is to be made without registration or qualification, the Trustee shall require receipt of written certifications from the Holder of the Certificate desiring to effect the transfer, and from such Holder's prospective transferee, substantially in the forms attached to the Agreement as Exhibit F-1. None of the Depositor or the Trustee is obligated to register or qualify the Class of Certificates specified on the face hereof under the 1933 Act or any other securities law or to take any action not otherwise required under the Agreement to permit the transfer of such Certificates without registration or qualification. Any Holder desiring to effect a transfer of this Certificate shall be required to indemnify the Trustee, the Depositor and the Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such federal and state laws. Each beneficial owner of this Certificate or any interest therein shall be deemed to have represented, by virtue of its acquisition or holding of such Certificate or interest therein, that either (A) ~~the aggregate amount~~ it is not an "employee benefit plan" as defined in Section 3(3) of the ~~obligation~~ Employee Retirement Income Security Act of 1974, as ~~stated~~ amended ("ERISA"), that is subject to Title I of ERISA, any "plan" as defined in ~~the second sentence of~~ Section ~~1401~~ 4975 of the ~~Indenture~~Internal Revenue Code of 1986, ~~and~~ as amended (the "Code"), that is subject to Section 4975 of the Code or any entity deemed to hold plan assets of any of the foregoing, (B) it has acquired and is holding this Certificate in reliance on the ~~amount~~underwriters' exemption, ~~if any~~and that it understands that there are certain conditions to the availability of the underwriters' exemption, ~~which would~~ including that this Certificate must be rated, at the time of purchase, not ~~have (i) rendered the undersigned~~ lower than "~~insolvent~~BBB-" (or its equivalent) by Fitch, S&P or Xxxxx'x and the Certificate is so rated, that it is an accredited investor as defined in Rule 501(a)(1) of Regulation D of the Securities Act of 1933, as amended, and that it will obtain a representation from any transferee that such transferee is an accredited investor, or (C)(1) it is an insurance company, (2) the source of funds used to acquire or hold this Certificate or interest therein is an "insurance company general account," as such term is defined in Prohibited Transaction Class Exemption ("PTCE") 95-60, and (3) the conditions in Sections I and III of PTCE 95-60 have been satisfied. If this Certificate or any interest therein is acquired or held in violation of the provisions of Section ~~101(29~~5.02(c) of the ~~Federal Bankruptcy Code and in Section 271~~ Agreement, the next preceding permitted beneficial owner will be treated as the beneficial owner of ~~the Debtor and Creditor Law of the State of New York, as each is in effect at~~ this Certificate retroactive to the date of transfer to the ~~Indenture~~purported beneficial owner. Any purported beneficial owner whose acquisition or holding of any this Certificate or interest therein was effected in violation of the provisions of Section 5.02(c) of the Agreement shall indemnify and hold harmless the Depositor, the Servicer, the Trustee and the Trust Fund from and against any and all liabilities, claims, costs or expenses incurred by those parties as a result of that acquisition or holding. The Certificates are issuable in fully registered form only without coupons in Classes and denominations representing Percentage Interests specified in the Agreement. As provided in the Agreement and subject to certain limitations therein set forth, the Certificates are exchangeable for new Certificates of the same Class in authorized denominations evidencing the same aggregate Percentage Interest, as requested by the Holder surrendering the same. No service charge will be made for any such registration of transfer or exchange of Certificates, but the Trustee 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 Servicer, the Trustee and any agent of the Depositor, the Servicer or 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 Servicer, the Trustee nor any such agent shall be affected by notice to the contrary. The obligations created by the Agreement and the Trust Fund created thereby shall terminate upon payment to the Certificateholders of all amounts held by the Trustee and required to be paid to them pursuant to the Agreement following the earlier of (i) the final payment or other liquidation (or any advance with respect thereto) of the last Mortgage Loan and REO Property remaining in REMIC I and (ii) ~~left~~ the ~~undersigned with unreasonably small capital~~ purchase by the party designated in the Agreement at a price determined as provided in the Agreement from REMIC I of all the Mortgage Loans and all property acquired in respect of such Mortgage Loans. The Agreement permits, but does not require, the party designated in the Agreement to purchase from REMIC I all the Mortgage Loans and all property acquired in respect of any Mortgage Loan at a price determined as provided in the Agreement. The exercise of such right will effect early retirement of the Certificates; however, such right to purchase is subject to the aggregate Stated Principal Balance of the Mortgage Loans at the time ~~its Guarantee was entered into, after giving effect to the incurrence~~ of existing Debt (as defined in the Indenture) immediately prior to such time, provided that, it shall be a presumption in any lawsuit or other proceeding in which the undersigned is a party that the amount guaranteed is the amount set forth in (A) above unless a creditor, or representative of creditors purchase being less than 10% of the ~~undersigned or a trustee in bankruptcy~~ aggregate Stated Principal Balance of the ~~undersigned,~~ Mortgage Loans as ~~debtor in possession, otherwise proves in such a lawsuit that the aggregate liability~~ of the ~~undersigned is limited to the amount set forth in (B)~~Cut-off Date. In making any determination as to the solvency or sufficiency of capital of the undersigned in accordance with the previous sentence, the right of the undersigned to contribution from other Guarantors, to subrogation and any other rights the undersigned may have, contractual or otherwise, The recitals contained herein shall be taken ~~into account. The obligations~~ as statements of the ~~undersigned to the Holders of the 2018 Notes~~ Depositor and to the Trustee ~~pursuant~~ assumes no responsibility for their correctness. Unless the certificate of authentication hereon has been executed by the Trustee, by manual signature, this Certificate shall not be entitled to any benefit under the ~~Subsidiary Guarantee and the Indenture are expressly set forth in Article 14 of the Indenture and reference is hereby made to the Indenture~~ Agreement or be valid for the precise terms of the Subsidiary Guarantee and all of the other provisions of the Indenture to which this Subsidiary Guarantee relates. Capitalized terms in this Subsidiary Guarantee which are not defined herein shall have the meanings assigned to them in the Indentureany purpose.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Carrington Mortgage Loan Trust, Series 2005-Nc5)

Dated. ~~Notice: The signature~~ Signature ---------------------------------- (Signature must conform in all respects to ~~this assignment must correspond with the~~ name of Holder as ~~it appears upon~~ specified on the face of the ~~within Note in every particular, without alteration~~ Warrant Certificate.) ------------------------------------------- (Insert Social Security or ~~enlargement~~ Other Identifying Number of Holder) FORM OF ASSIGNMENT (To be executed by the registered holder if such holder desires to transfer the Warrant Certificate or any ~~change whatever. ABBREVIATIONS The following abbreviations~~part thereof, ~~when used~~ such assignment to be subject to restrictions of the Warrant Agreement referred to in the ~~inscription on the face of this instrument~~Warrant Certificate.) FOR VALUE RECEIVED, ~~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~~__________________ ~~TEN ENT--as tenants by the entireties (Cust) (Minor) JT TEN--as joint tenants with right Under Uniform Gifts to Minors of survivorship~~ hereby sells, assigns and ~~not as Act~~transfers unto ______________________________________________________________________________ ~~tenants in common~~ (~~State~~Please print name and address of transferee) ~~Additional abbreviations may also be used though not in the above list. ---------------------------~~ [~~FORM OF SCHEDULE FOR ENDORSEMENTS ON GLOBAL SECURITY TO REFLECT CHANGES IN PRINCIPAL AMOUNT~~this Warrant Certificate] Schedule A Changes to Principal Amount of Global Security Principal Amount of Securities by which this Global Security is to be Reduced or Increased, and Reason for Remaining Principal Amount of Notation Date Reduction or Increase this Global Securities Made by ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- Exhibit B SUBSIDIARY GUARANTEE FOR VALUE RECEIVED, the undersigned hereby jointly and severally with the Parent Guarantor pursuant to the Parent Guarantee and any other subsidiary Guarantors under their respective Subsidiary Guarantees, unconditionally guarantees to the Holder of the accompanying [_____~~% Note Due June~~ ___ warrants exercisable pursuant to this Warrant Certificate], together with all right, title and interest therein. The undersigned requests that a certificate for such securities be registered in the name of ___~~, 2018 (the "2018 Note") issued by AMB Property, L.P. (the "Operating Partnership") under an Indenture dated as of June~~ ___, 1998 (together with the Second Supplemental Indenture thereto, the "Indenture") among the Operating Partnership, AMB Property Corporation, and State Street Bank and Trust Company of California, N.A., as trustee (the "Trustee"), (a) the full and prompt payment of the principal of and premium, if any, on ___________________whose address is_________________________________and that such 2018 Note when and as the same shall become due and payable, whether at Stated Maturity, by acceleration, by redemption or otherwise, and (b) the full and prompt payment of the interest on such 2018 Note when and as the same shall become due and payable, according certificate be delivered to ~~the terms of such 2018 Note and of the Indenture~~__________________ whose address is ________________________________________. The undersigned ~~hereby agrees, jointly~~ also requests that a certificate for the remaining number of unexercised warrants be registered in the name of ___________________ whose address is ______________________________________ and ~~severally with~~ that such certificate be delivered to ________________________ whose address is__________________________ ______________________________________________. Dated: Signature: -------------------------------- (Signature must conform in all respects to name of holder as specified on the Parent Guarantor pursuant to the Parent Guarantee and any other Subsidiary Guarantors under their respective Subsidiary Guarantees, that its obligations hereunder shall be as principal and not merely as surety, and shall be absolute and unconditional, and shall not be affected, modified or impaired by the following: (a) the failure to give notice to the Guarantors face of the ~~occurrence~~ Warrant Certificate.) ------------------------------------------ (Insert Social Security or Other Identifying Number of an Event of Default under the Indenture; (b) the waiver, surrender, compromise, settlement, release or termination of the payment, performance or observance by the Operating Partnership or the Guarantors of any or all of the obligations, covenants or agreements of either of them contained in the Indenture or the 2018 Notes; (c) the acceleration, extension or any other changes in the time for payment of any principal of or interest or any premium on any 2018 Note or for any other payment under the Indenture or of the time for performance of any other obligations, covenants or agreements under or arising out of the Indenture or the 2018 Notes; (d) the modification or amendment (whether material or otherwise) of any obligation, covenant or agreement set forth in the Indenture or the 2018 Notes; (e) the taking or the omission of any of the actions referred to in the Indenture and in any of the actions under the 2018 Notes; (f) any failure, omission, delay or lack on the part of the Trustee to enforce, assert or exercise any right, power or remedy conferred on the Trustee in the Indenture, or any other action or acts on the part of the Trustee or any of the Holders from time to time of the 2018 Notes; (g) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all the assets, marshaling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition with creditors or readjustment of, or other similar proceedings affecting the Guarantors or the Operating Partnership or any of the assets of any of them, or any allegation or contest of the validity of this Subsidiary Guarantee in any such proceeding; (h) to the extent permitted by law, the release or discharge by operation of law of the Guarantors from the performance or observance of any obligation, covenant or agreement contained in the Indenture; (i) to the extent permitted by law, the release or discharge by operation of law of the Operating Partnership from the performance or observance of any obligation, covenant or agreement contained in the Indenture; (j) the default or failure of the Operating Partnership or the Trustee fully to perform any of its obligations set forth in the Indenture or the 2018 Notes; (k) the invalidity, irregularity or unenforceability of the Indenture or the 2018 Notes or any part of any thereof; (l) any judicial or governmental action affecting the Operating Partnership or any 2018 Notes or consent or indulgence granted by the Operating Partnership by the Holders or by the Trustee; or (m) the recovery of any judgment against the Operating Partnership or any action to enforce the same or any other circumstance which might constitute a legal or equitable discharge of a surety or guarantor. The undersigned hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of merger, sale, lease or conveyance of all or substantially all of its assets, insolvency or bankruptcy of the Operating Partnership, any right to require a proceeding first against the Operating Partnership, protest or notice with respect to such Notice or the indebtedness evidenced thereby and all demands whatsoever, and covenants that this Subsidiary Guarantee will not be discharged except by complete performance of the obligations contained in such 2018 Note and in this Subsidiary Guarantee. No reference herein to such Indenture and no provision of this Subsidiary Guarantee or of such Indenture shall alter or impair the guarantee of the undersigned, which is absolute and unconditional, of the full and prompt payment of the principal of and premium, if any, and interest on the 2018 Note. THIS SUBSIDIARY GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. The validity and enforceability of this Subsidiary Guarantee shall not be affected by the fact that it is not affixed to any particular 2018 Note. An Event of Default under the Indenture or the 2018 Notes shall constitute an event of default under this Subsidiary Guarantee, and shall entitle the Holders of 2018 Notes to accelerate the obligations of the undersigned hereunder in the same manner and to the same extent as the obligations of the Operating Partnership. Notwithstanding any other provision of this Subsidiary Guarantee to the contrary, the undersigned hereby waives any claims or other rights which it may now have or hereafter acquire against the Operating Partnership that arise from the existence or performance of its obligations under this Subsidiary Guarantee (all such claims and rights are referred to as "Guarantor's Conditional Rights"Assignee), including, without limitation, any right of subrogation, reimbursement, exoneration, contribution, or indemnification, any right to participate in any claim or remedy against the Operating Partnership, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, by any payment made hereunder or otherwise, including without limitation, the right to take or receive from Operating Partnership, directly or indirectly, in cash or other property or by setoff or in any other manner, payment or security on account of such claim or other rights. The Subsidiary Guarantor hereby agrees not to exercise any rights which may be acquired by way of contribution under this Subsidiary Guarantee or any other agreement, by any payment made hereunder or otherwise, including, without limitation, the right to take or receive from any other guarantor, directly or indirectly, in cash or other property or by setoff or in any other manner, payment or security on account of such contribution rights. If, notwithstanding the foregoing provisions, any amount shall be paid to any of the undersigned on account of any such Guarantor's Conditional Rights and either (i) such amount is paid to such undersigned party at any time when the indebtedness shall not have been paid or performed in full, or (ii) regardless of when such amount is paid to such undersigned party, any payment made by Operating Partnership to a Holder that is at any time determined to be a Preferential Payment (as defined below), then such amount paid to the undersigned shall be held in trust for the benefit of the Holders and shall forthwith be paid such Holder to be credited and applied upon the indebtedness, whether matured or unmatured. Any such payment is herein referred to as a "Preferential Payment" to the extent the Operating Partnership makes any payment to Holder in connection with the Note, and any or all of such payment is subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid or paid over to a trustee, receiver or any other entity, whether under any bankruptcy act or otherwise. To the extent that any of the provisions of the immediately preceding paragraph shall not be enforceable, each of the undersigned agrees that until such time as the indebtedness has been paid and performed in full and the period of time has expired during which any payment made by the Operating Partnership or the undersigned to a Holder may be determined to be a Preferential Payment, Guarantor's Conditional Rights to the extent not validly waived shall be subordinate to Holders' right to full payment and performance of the indebtedness and each of the undersigned shall not enforce any of its respective portion of the Guarantors' Conditional Rights until such time as the indebtedness has been paid and performed in full and the period of time has expired during which any payment made by the Operating Partnership or the undersigned to Holders may be determined to be a Preferential Payment. The undersigned's liability (the "Base Guaranty Liability") shall be that amount from time to time equal to the aggregate liability of the undersigned hereunder, but shall be limited to the lesser of (A) the aggregate amount of the obligation as stated in the second sentence of Section 1401 of the Indenture, and (B) the amount, if any, which would not have (i) rendered the undersigned "insolvent" (as such term is defined in Section 101(29) of the Federal Bankruptcy Code and in Section 271 of the Debtor and Creditor Law of the State of New York, as each is in effect at the date of the Indenture) or (ii) left the undersigned with unreasonably small capital at the time its Guarantee was entered into, after giving effect to the incurrence of existing Debt (as defined in the Indenture) immediately prior to such time, provided that, it shall be a presumption in any lawsuit or other proceeding in which the undersigned is a party that the amount guaranteed is the amount set forth in (A) above unless a creditor, or representative of creditors of the undersigned or a trustee in bankruptcy of the undersigned, as debtor in possession, otherwise proves in such a lawsuit that the aggregate liability of the undersigned is limited to the amount set forth in (B). In making any determination as to the solvency or sufficiency of capital of the undersigned in accordance with the previous sentence, the right of the undersigned to contribution from other Guarantors, to subrogation and any other rights the undersigned may have, contractual or otherwise, shall be taken into account. The obligations of the undersigned to the Holders of the 2018 Notes and to the Trustee pursuant to the Subsidiary Guarantee and the Indenture are expressly set forth in Article 14 of the Indenture and reference is hereby made to the Indenture for the precise terms of the Subsidiary Guarantee and all of the other provisions of the Indenture to which this Subsidiary Guarantee relates. Capitalized terms in this Subsidiary Guarantee which are not defined herein shall have the meanings assigned to them in the Indenture.

Appears in 1 contract

Samples: Warrant Agreement (Cell Robotics International Inc)

Dated. ~~Notice~~Signature by or on behalf of assignor DISTRIBUTION INSTRUCTIONS The assignee should include the following for purposes of distribution: The signature to this assignment must correspond with the name as it appears upon the face of the within Note in every particular, without alteration or enlargement or any change whatever. ABBREVIATIONS The following abbreviations, when used in the inscription on the face of this instrument, Distributions shall be ~~construed as though they were written out~~ made, by wire transfer or otherwise, in ~~full according~~ immediately available funds to ~~applicable laws or regulations: TEN COM--as tenants in common UNIF GIFT MIN ACT--_____ Custodian~~_____~~_ TEN ENT--as tenants by the entireties (Cust) (Minor) JT TEN--as joint tenants with right Under Uniform Gifts to Minors of survivorship and not as Act~~________________________________________________________ tenants in common (State) Additional abbreviations may also be used though not in the above list. --------------------------- [FORM OF SCHEDULE FOR ENDORSEMENTS ON GLOBAL SECURITY TO REFLECT CHANGES IN PRINCIPAL AMOUNT] Schedule A Changes to Principal Amount of Global Security Principal Amount of Securities by which this Global Security is to be Reduced or Increased, and Reason for Remaining Principal Amount of Notation Date Reduction or Increase this Global Securities Made by ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- Exhibit B SUBSIDIARY GUARANTEE FOR VALUE RECEIVED, the undersigned hereby jointly and severally with the Parent Guarantor pursuant to the Parent Guarantee and any other subsidiary Guarantors under their respective Subsidiary Guarantees, unconditionally guarantees to the Holder of the accompanying _____~~% Note Due June~~ ___________________________________________________________________________ ________________________________________________________________________________ for the account of _____________________________________________________________ account number _______, ~~2018~~ or, if mailed by check, to _____________________________ Applicable statements should be mailed to ______________________________________ ________________________________________________________________________________ This information is provided by ________________________________________________ the assignee named above, or ___________________________________________________ as its agent. EXHIBIT B [RESERVED] EXHIBIT C NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE PROPOSED TRANSFEROR DELIVERS TO THE SECURITIES ADMINISTRATOR A TRANSFEROR LETTER IN THE FORM OF EXHIBIT H TO THE AGREEMENT REFERRED TO HEREIN AND EITHER (I) THE SECURITIES ADMINISTRATOR RECEIVES A RULE 144A LETTER IN THE FORM OF EXHIBIT I TO THE AGREEMENT REFERRED TO HEREIN OR (II) THE SECURITIES ADMINISTRATOR RECEIVES AN OPINION OF COUNSEL, DELIVERED AT THE EXPENSE OF THE TRANSFEROR, THAT SUCH TRANSFER MAY BE MADE WITHOUT REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED. EXCEPT AS PROVIDED IN THE AGREEMENT, NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE TRANSFEREE DELIVERS TO THE SECURITIES ADMINISTRATOR A REPRESENTATION LETTER TO THE EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN OR ARRANGEMENT SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR ANY FEDERAL, STATE OR LOCAL LAW MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE, (EACH, A "PLAN"), AND IS NOT ACTING ON BEHALF OF ANY PLAN OR USING THE ASSETS OF ANY PLAN TO EFFECT SUCH TRANSFER. ANY PURPORTED TRANSFER OF THIS CERTIFICATE IN VIOLATION OF THE TRANSFER RESTRICTIONS SET FORTH IN THE AGREEMENT SHALL BE VOID AND OF NO EFFECT. Certificate No. : P-1 Cut-off Date : May 1, 2006 First Distribution Date : June 26, 2006 Initial Certificate Balance of this Certificate ("Denomination") : $100 Initial Certificate Balance of all : $100 Certificates of this Class CUSIP : N/A MORGAN STANLEY ABS CAPITAL I INC. IXIS Real Esxxxx Xaxxxxx Xrust 2006-HE2 Mortgage Pass-Through Certificates, Series 2006-HE2 Class P evidencing a percentage interest in the distributions allocable to the Certificates of the above-referenced Class. Distributions in respect of this Certificate are distributable monthly as set forth herein. This Certificate does not evidence an obligation of, or an interest in, and is not guaranteed by the Depositor, the Unaffiliated Seller, the Securities Administrator, the Master Servicer, the Backup Servicer, any Originator, the Servicers or the Trustee referred to below or any of their respective affiliates. Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any governmental agency or instrumentality. This certifies that SIGLER & CO. is the registered owner of the Percentage Interest evixxxxxx by this Certificate (obtained by dividing the denomination of this Certificate by the aggregate of the denominations of all Certificates of the Class to which this Certificate belongs) in certain monthly distributions pursuant to a Pooling and Servicing Agreement dated as of the Cut-off Date specified above (the "~~2018 Note~~Agreement") ~~issued by AMB Property~~among Morgan Stanley ABS Capital I Inc., ~~L.P.~~ as depositor (the "~~Operating Partnership~~Depositor"~~) under an Indenture dated~~ ), Xxxxxx Xxxxxxxal, Inc., as ~~of June ___~~a servicer ("Master Financial"), ~~1998~~ Saxon Mortgage Services Inc., as a servicer ("Saxon" and together with ~~the Second Supplemental Indenture thereto~~Master Financial, the "~~Indenture~~Servicers"~~) among~~ ), IXIS Real Estate Capital Inc., as unaffiliated seller (the ~~Operating Partnership~~"Unaffiliated Seller"), ~~AMB Property Corporation, and State Street~~ Deutsche Bank ~~and~~ National Trust ~~Company of California, N.A.~~Company, as trustee and custodian (in each such capacity, respectively, the "Trustee" and the "Custodian") and JPMorgan Chase Bank, National Association, as securities administrator, master servicer and backup servicer (in each such capacity, respectively, the "Securities Administrator", the "Master Servicer" and the "Backup Servicer"). To the extent not defined herein, ~~(a)~~ the ~~full~~ capitalized terms used herein have the meanings assigned in the Agreement. This Certificate is issued under and ~~prompt payment~~ is subject to the terms, provisions and conditions of the ~~principal~~ Agreement, to which Agreement the Holder of ~~and premium, if any, on such 2018 Note when and as the same shall become due and payable, whether at Stated Maturity,~~ this Certificate by ~~acceleration, by redemption or otherwise, and (b) the full and prompt payment~~ virtue of the ~~interest on~~ acceptance hereof assents and by which such ~~2018 Note when~~ Holder is bound. This Certificate does not have a Pass-Through Rate and ~~as the same shall become due and payable, according~~ will be entitled to distributions only to the terms of such 2018 Note and of the Indenture. The undersigned hereby agrees, jointly and severally with the Parent Guarantor pursuant to the Parent Guarantee and any other Subsidiary Guarantors under their respective Subsidiary Guarantees, that its obligations hereunder shall be as principal and not merely as surety, and shall be absolute and unconditional, and shall not be affected, modified or impaired by the following: (a) the failure to give notice to the Guarantors of the occurrence of an Event of Default under the Indenture; (b) the waiver, surrender, compromise, settlement, release or termination of the payment, performance or observance by the Operating Partnership or the Guarantors of any or all of the obligations, covenants or agreements of either of them contained in the Indenture or the 2018 Notes; (c) the acceleration, extension or any other changes in the time for payment of any principal of or interest or any premium on any 2018 Note or for any other payment under the Indenture or of the time for performance of any other obligations, covenants or agreements under or arising out of the Indenture or the 2018 Notes; (d) the modification or amendment (whether material or otherwise) of any obligation, covenant or agreement extent set forth in the ~~Indenture or~~ Agreement. In addition, any distribution of the ~~2018 Notes; (e) the taking or the omission~~ proceeds of any remaining assets of the ~~actions referred to~~ Trust will be made only upon presentment and surrender of this Certificate at the offices designated by the Securities Administrator for such purposes, or such other location specified in the ~~Indenture and in any~~ notice to Certificateholders of such final distribution. No transfer of a Certificate of this Class shall be made unless such disposition is exempt from the registration requirements of the ~~actions under~~ Securities Act of 1933, as amended (the ~~2018 Notes; (f)~~ "1933 Act"), and any ~~failure, omission, delay~~ applicable state securities laws or ~~lack on~~ is made in accordance with the part of the Trustee to enforce, assert or exercise any right, power or remedy conferred on the Trustee in the Indenture, or any other action or acts on the part of the Trustee or any of the Holders from time to time of the 2018 Notes; (g) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all the assets, marshaling of assets 1933 Act and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition with creditors or readjustment of, or other similar proceedings affecting the Guarantors or the Operating Partnership or any of the assets of any of them, or any allegation or contest of the validity of this Subsidiary Guarantee in any such proceeding; (h) to the extent permitted by law, the release or discharge by operation of law of the Guarantors from the performance or observance of any obligation, covenant or agreement contained in the Indenture; (i) to the extent permitted by law, the release or discharge by operation of law of the Operating Partnership from the performance or observance of any obligation, covenant or agreement contained in the Indenture; (j) the default or failure of the Operating Partnership or the Trustee fully to perform any of its obligations set forth in the Indenture or the 2018 Notes; (k) the invalidity, irregularity or unenforceability of the Indenture or the 2018 Notes or any part of any thereof; (l) any judicial or governmental action affecting the Operating Partnership or any 2018 Notes or consent or indulgence granted by the Operating Partnership by the Holders or by the Trustee; or (m) the recovery of any judgment against the Operating Partnership or any action to enforce the same or any other circumstance which might constitute a legal or equitable discharge of a surety or guarantorlaws. ~~The undersigned hereby waives diligence, presentment, demand of payment, filing of claims with a court in~~ In the event of ~~merger~~any such transfer, ~~sale, lease or conveyance of all or~~ the Securities Administrator shall require the transferor to execute a transferor certificate (in substantially ~~all of its assets, insolvency or bankruptcy of~~ the Operating Partnership, any right to require a proceeding first against the Operating Partnership, protest or notice with respect to such Notice or the indebtedness evidenced thereby and all demands whatsoever, and covenants that this Subsidiary Guarantee will not be discharged except by complete performance of the obligations contained in such 2018 Note and in this Subsidiary Guarantee. No reference herein to such Indenture and no provision of this Subsidiary Guarantee or of such Indenture shall alter or impair the guarantee of the undersigned, which is absolute and unconditional, of the full and prompt payment of the principal of and premium, if any, and interest on the 2018 Note. THIS SUBSIDIARY GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. The validity and enforceability of this Subsidiary Guarantee shall not be affected by the fact that it is not affixed to any particular 2018 Note. An Event of Default under the Indenture or the 2018 Notes shall constitute an event of default under this Subsidiary Guarantee, and shall entitle the Holders of 2018 Notes to accelerate the obligations of the undersigned hereunder in the same manner and form attached to the same extent as the obligations of the Operating Partnership. Notwithstanding any other provision of this Subsidiary Guarantee to the contrary, the undersigned hereby waives any claims or other rights which it may now have or hereafter acquire against the Operating Partnership that arise from the existence or performance of its obligations under this Subsidiary Guarantee (all such claims Agreement) and rights are referred to as "Guarantor's Conditional Rights"), including, without limitation, any right of subrogation, reimbursement, exoneration, contribution, or indemnification, any right to participate in any claim or remedy against the Operating Partnership, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, by any payment made hereunder or otherwise, including without limitation, the right to take or receive from Operating Partnership, directly or indirectly, in cash or other property or by setoff or in any other manner, payment or security on account of such claim or other rights. The Subsidiary Guarantor hereby agrees not to exercise any rights which may be acquired by way of contribution under this Subsidiary Guarantee or any other agreement, by any payment made hereunder or otherwise, including, without limitation, the right to take or receive from any other guarantor, directly or indirectly, in cash or other property or by setoff or in any other manner, payment or security on account of such contribution rights. If, notwithstanding the foregoing provisions, any amount shall be paid to any of the undersigned on account of any such Guarantor's Conditional Rights and deliver either (i) ~~such amount is paid~~ a Rule 144A Letter, in either case substantially in the form attached to ~~such undersigned party at any time when~~ the ~~indebtedness shall not have been paid or performed in full~~Agreement, or (ii) ~~regardless~~ a written Opinion of when such amount is paid to such undersigned party, any payment made by Operating Partnership to a Holder that is at any time determined to be a Preferential Payment (as defined below), then such amount paid Counsel to the ~~undersigned~~ Securities Administrator that such transfer may be made pursuant to an exemption, describing the applicable exemption and the basis therefor, from the 1933 Act or is being made pursuant to the 1933 Act, which Opinion of Counsel shall be ~~held in trust for the benefit~~ an expense of the ~~Holders~~ transferor. Except as provided in the Agreement, no transfer of a Certificate of this Class shall be made unless the Securities Administrator shall have received a representation letter from the transferee of this Certificate, acceptable to and ~~shall forthwith be paid~~ in form and substance satisfactory to the Securities Administrator, to the effect that such ~~Holder~~ transferee is not a Plan, and is not acting on behalf of any Plan or using the assets of any Plan to ~~be credited and applied upon the indebtedness, whether matured or unmatured~~effect such transfer. Any ~~such payment is herein referred to as~~ purported transfer of a ~~"Preferential Payment" to the extent the Operating Partnership makes any payment to Holder~~ Certificate of this Class in connection with the Note, and any or all of such payment is subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid or paid over to a trustee, receiver or any other entity, whether under any bankruptcy act or otherwise. To the extent that any violation of the provisions of the immediately preceding paragraph shall not be enforceable, each of the undersigned agrees that until such time as the indebtedness has been paid and performed in full and the period of time has expired during which any payment made by the Operating Partnership or the undersigned to a Holder may be determined to be a Preferential Payment, Guarantor's Conditional Rights to the extent not validly waived shall be subordinate to Holders' right to full payment and performance of the indebtedness and each of the undersigned shall not enforce any of its respective portion of the Guarantors' Conditional Rights until such time as the indebtedness has been paid and performed in full and the period of time has expired during which any payment made by the Operating Partnership or the undersigned to Holders may be determined to be a Preferential Payment. The undersigned's liability (the "Base Guaranty Liability") shall be that amount from time to time equal to the aggregate liability of the undersigned hereunder, but shall be limited to the lesser of (A) the aggregate amount of the obligation as stated in the second sentence of Section 1401 of the Indenture, and (B) the amount, if any, which would not have (i) rendered the undersigned "insolvent" (as such term is defined in Section 101(29) of the Federal Bankruptcy Code and in Section 271 of the Debtor and Creditor Law of the State of New York, as each is in effect at the date of the Indenture) or (ii) left the undersigned with unreasonably small capital at the time its Guarantee was entered into, after giving effect to the incurrence of existing Debt (as defined in the Indenture) immediately prior to such time, provided that, it shall be a presumption in any lawsuit or other proceeding in which the undersigned is a party that the amount guaranteed is the amount transfer restrictions set forth in ~~(A) above unless a creditor, or representative of creditors of~~ the undersigned or a trustee in bankruptcy of the undersigned, as debtor in possession, otherwise proves in such a lawsuit that the aggregate liability of the undersigned is limited to the amount set forth in (B). In making any determination as to the solvency or sufficiency of capital of the undersigned in accordance with the previous sentence, the right of the undersigned to contribution from other Guarantors, to subrogation and any other rights the undersigned may have, contractual or otherwise, Agreement shall be ~~taken into account~~void and of no effect. The obligations of the undersigned to the Holders of the 2018 Notes and to the Trustee pursuant to the Subsidiary Guarantee and the Indenture are expressly set forth in Article 14 of the Indenture and reference Reference is hereby made to the ~~Indenture~~ further provisions of this Certificate set forth on the reverse hereof, which further provisions shall for all purposes have the ~~precise terms~~ same effect as if set forth at this place. This Certificate shall not be entitled to any benefit under the Agreement or be valid for any purpose unless manually authenticated by an authorized signatory of the ~~Subsidiary Guarantee and all of the other provisions of the Indenture to which this Subsidiary Guarantee relates~~Securities Administrator. ~~Capitalized terms in this Subsidiary Guarantee which are not defined herein shall have the meanings assigned to them in the Indenture.~~* * *

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Morgan Stanley ABS Capital I Inc. IXIS Real Estate Capital Trust 2006-He2)

Dated. ~~Notice~~Signature by or on behalf of assignor -------------------------------------- Signature Guaranteed DISTRIBUTION INSTRUCTIONS The assignee should include the following for purposes of distribution: The signature to this assignment must correspond with the name as it appears upon the face of the within Note in every particular, without alteration or enlargement or any change whatever. ABBREVIATIONS The following abbreviations, when used in the inscription on the face of this instrument, Distributions shall be ~~construed as though they were written out~~ made, by wire transfer or otherwise, in ~~full according~~ immediately available funds to ~~applicable laws or regulations: TEN COM--as tenants in common UNIF GIFT MIN ACT--_____ Custodian~~_____~~_ TEN ENT--as tenants by the entireties (Cust) (Minor) JT TEN--as joint tenants with right Under Uniform Gifts to Minors of survivorship and not as Act~~____________________________________________ tenants in common (State) Additional abbreviations may also be used though not in the above list. --------------------------- [FORM OF SCHEDULE FOR ENDORSEMENTS ON GLOBAL SECURITY TO REFLECT CHANGES IN PRINCIPAL AMOUNT] Schedule A Changes to Principal Amount of Global Security Principal Amount of Securities by which this Global Security is to be Reduced or Increased, and Reason for Remaining Principal Amount of Notation Date Reduction or Increase this Global Securities Made by ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- Exhibit B SUBSIDIARY GUARANTEE FOR VALUE RECEIVED, the undersigned hereby jointly and severally with the Parent Guarantor pursuant to the Parent Guarantee and any other subsidiary Guarantors under their respective Subsidiary Guarantees, unconditionally guarantees to the Holder of the accompanying _____~~% Note Due June~~ ___________________________________________________________________________ for the account of _________________________, ~~2018 (the "2018 Note") issued by AMB Property, L.P. (the "Operating Partnership") under an Indenture dated as of June~~ account number __________________, ~~1998 (together with the Second Supplemental Indenture thereto~~or, if mailed by check, to ____________________________________________________. Applicable statements should be mailed to ______________________________________ This information is provided by _______________________________________________, the assignee named above, or __________________________________________________, as its agent. EXHIBIT C-2 [FORM OF CLASS M-1 CERTIFICATE] UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("~~Indenture~~DTC"), TO THE TRUSTEE OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS A CERTIFICATES AS DESCRIBED IN THE POOLING AGREEMENT REFERRED TO HEREIN. THIS CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED TO ANY PERSON THAT HAS NOT DELIVERED A REPRESENTATION LETTER STATING EITHER (A) THAT THE TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN OR ARRANGEMENT SUBJECT TO SECTION 406 OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") ~~among~~ (EACH, A "PLAN"), AND IS NOT ACTING ON BEHALF OF OR INVESTING THE ASSETS OF A PLAN OR (B) THAT THE TRANSFEREE IS AN INSURANCE COMPANY THAT IS PURCHASING THIS CERTIFICATE WITH FUNDS CONTAINED IN AN "INSURANCE COMPANY GENERAL ACCOUNT" (AS SUCH TERM IS DEFINED IN SECTION V(E) OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 ("PTCE 95-60") AND THE CONDITIONS FOR EXEMPTIVE RELIEF UNDER SECTIONS I AND III OF PTCE 95-60 HAVE BEEN SATISFIED. EACH PERSON WHO ACQUIRES A BENEFICIAL INTEREST IN THIS CERTIFICATE SHALL BE DEEMED TO HAVE MADE THE REPRESENTATIONS REQUIRED BY THE REPRESENTATION LETTER REFERRED TO IN THE PRECEDING SENTENCE. THE POOLING 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 U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS BENEFICIAL OWNERSHIP OF A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE AND CERTAIN OTHER PROPERTY. XXXXXX XXXXXXX ABS CAPITAL I INC. MORTGAGE PASS-THROUGH CERTIFICATES SERIES 2004-SD2, CLASS M-1 evidencing a beneficial ownership interest in a portion of a Trust Fund consisting primarily of a pool of conventional fixed-rate and adjustable-rate one- to four-family first and second lien mortgage loans formed and sold by XXXXXX XXXXXXX ABS CAPITAL I INC. Series 2004-SD2, Class M-1 Original Class Certificate Principal Balance of the ~~Operating Partnership~~Class M-1 Certificates as of the Closing Date: $10,152,000 Pass-Through Rate: Variable Cut-off Date: May 1, ~~AMB Property Corporation~~2004 Initial Certificate Principal Balance: $10,152,000 First Distribution Date: June 25, ~~and State Street~~ 2004 Servicers: Bank ~~and Trust Company~~ of ~~California~~America, N.A., Washington Mutual Bank FA and Wilshire Credit Corporation No. Trustee: Deutsche Bank National Trust Company CUSIP: [__________] Closing Date: June 4, 2004 ISIN: [__________] DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE. THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN XXXXXX XXXXXXX ABS CAPITAL I INC., THE CUSTODIAN, THE TRUSTEE, THE SELLER OR ANY OF THEIR AFFILIATES. THIS CERTIFICATE IS NOT GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES. This certifies that _________________ is the registered owner of a Percentage Interest (obtained by dividing the Initial Certificate Principal Balance of this Certificate by the Original Class Certificate Principal Balance of the Class M-1 Certificates) in that certain beneficial ownership interest evidenced by all the Class M-1 Certificates in the Trust Fund created pursuant to a Pooling Agreement, dated as ~~trustee~~ specified above (the "~~Trustee~~Agreement"), among Xxxxxx Xxxxxxx ABS Capital I Inc. (a) hereinafter called the ~~full~~ "Depositor," which term includes any successor entity under the Agreement), the Seller, the Custodian and ~~prompt payment~~ the Trustee, a summary of certain of the ~~principal~~ 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 Agreement. This Certificate is issued under and ~~premium~~is subject to the terms, ~~if any, on such 2018 Note when~~ provisions and ~~as the same shall become due and payable, whether at Stated Maturity, by acceleration, by redemption or otherwise, and (b) the full and prompt payment~~ conditions of the ~~interest on~~ Agreement, to which Agreement the Holder of this Certificate by virtue of the acceptance hereof assents and by which such ~~2018 Note when and as the same shall become due and payable, according~~ Holder is bound. Pursuant to the terms of the Agreement, distributions will be made on the 25th calendar day of each month or, if such ~~2018 Note and~~ 25th calendar day is not a Business Day, the Business Day immediately following (a "Distribution Date"), commencing on the first Distribution Date specified above, to the Person in whose name this Certificate is registered on the Business Day immediately preceding such Distribution Date (the "Record Date"), from funds in the Distribution Account in an amount equal to the product of the ~~Indenture. The undersigned hereby agrees, jointly~~ Percentage Interest evidenced by this Certificate and ~~severally with~~ the ~~Parent Guarantor~~ amount required to be distributed to the Holders of Class M-1 Certificates on such Distribution Date pursuant to the ~~Parent Guarantee and any other Subsidiary Guarantors under their respective Subsidiary Guarantees~~Agreement provided, however, that ~~its obligations hereunder shall~~ if any Class M-1 Certificate becomes a Definitive Certificate, the Record Date for such Certificate will be ~~as principal and not merely as surety, and shall be absolute and unconditional, and shall not be affected, modified or impaired by~~ the ~~following: (a)~~ last Business Day of the ~~failure to give notice~~ month immediately preceding the month in which the related Distribution Date occurs. All distributions to the ~~Guarantors~~ Holder of ~~the occurrence of an Event of Default~~ this Certificate under the ~~Indenture; (b) the waiver, surrender, compromise, settlement, release~~ Agreement will be made or ~~termination of the payment, performance~~ caused to be made by or observance by the Operating Partnership or the Guarantors of any or all of the obligations, covenants or agreements of either of them contained in the Indenture or the 2018 Notes; (c) the acceleration, extension or any other changes in the time for payment of any principal of or interest or any premium on any 2018 Note or for any other payment under the Indenture or of the time for performance of any other obligations, covenants or agreements under or arising out of the Indenture or the 2018 Notes; (d) the modification or amendment (whether material or otherwise) of any obligation, covenant or agreement set forth in the Indenture or the 2018 Notes; (e) the taking or the omission of any of the actions referred to in the Indenture and in any of the actions under the 2018 Notes; (f) any failure, omission, delay or lack on the part behalf of the Trustee by wire transfer in immediately available funds to ~~enforce~~the account of the Person entitled thereto if such Person shall have so notified the Certificate Registrar in writing at least five Business Days prior to the Record Date immediately prior to such Distribution Date, ~~assert~~ or ~~exercise any right~~by check mailed by first class mail to the address of the Person entitled thereto, ~~power or remedy conferred~~ as such name and address shall appear on the ~~Trustee in~~ Certificate Register, provided that the ~~Indenture, or any other action or acts on the part of the Trustee or any of the Holders~~ Certificate Registrar may deduct a reasonable wire transfer fee from time to time of the 2018 Notes; (g) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all the assets, marshaling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition with creditors or readjustment of, or other similar proceedings affecting the Guarantors or the Operating Partnership or any of the assets of any of them, or any allegation or contest of the validity of this Subsidiary Guarantee in any such proceeding; (h) to the extent permitted by law, the release or discharge by operation of law of the Guarantors from the performance or observance of any obligation, covenant or agreement contained in the Indenture; (i) to the extent permitted by law, the release or discharge by operation of law of the Operating Partnership from the performance or observance of any obligation, covenant or agreement contained in the Indenture; (j) the default or failure of the Operating Partnership or the Trustee fully to perform any of its obligations set forth in the Indenture or the 2018 Notes; (k) the invalidity, irregularity or unenforceability of the Indenture or the 2018 Notes or any part of any thereof; (l) any judicial or governmental action affecting the Operating Partnership or any 2018 Notes or consent or indulgence granted by the Operating Partnership by the Holders or by the Trustee; or (m) the recovery of any judgment against the Operating Partnership or any action to enforce the same or any other circumstance which might constitute a legal or equitable discharge of a surety or guarantor. The undersigned hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of merger, sale, lease or conveyance of all or substantially all of its assets, insolvency or bankruptcy of the Operating Partnership, any right to require a proceeding first against the Operating Partnership, protest or notice with respect to such Notice or the indebtedness evidenced thereby and all demands whatsoever, and covenants that this Subsidiary Guarantee will not be discharged except by complete performance of the obligations contained in such 2018 Note and in this Subsidiary Guarantee. No reference herein to such Indenture and no provision of this Subsidiary Guarantee or of such Indenture shall alter or impair the guarantee of the undersigned, which is absolute and unconditional, of the full and prompt payment of the principal of and premium, if any, and interest on the 2018 Note. THIS SUBSIDIARY GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. The validity and enforceability of this Subsidiary Guarantee shall not be affected by the fact that it is not affixed to any particular 2018 Note. An Event of Default under the Indenture or the 2018 Notes shall constitute an event of default under this Subsidiary Guarantee, and shall entitle the Holders of 2018 Notes to accelerate the obligations of the undersigned hereunder in the same manner and to the same extent as the obligations of the Operating Partnership. Notwithstanding any other provision of this Subsidiary Guarantee to the contrary, the undersigned hereby waives any claims or other rights which it may now have or hereafter acquire against the Operating Partnership that arise from the existence or performance of its obligations under this Subsidiary Guarantee (all such claims and rights are referred to as "Guarantor's Conditional Rights"), including, without limitation, any right of subrogation, reimbursement, exoneration, contribution, or indemnification, any right to participate in any claim or remedy against the Operating Partnership, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, by any payment made hereunder or otherwise, including without limitation, the right to take or receive from Operating Partnership, directly or indirectly, in cash or other property or by setoff or in any other manner, payment or security on account of such claim or other rights. The Subsidiary Guarantor hereby agrees not to exercise any rights which may be acquired by way of contribution under this Subsidiary Guarantee or any other agreement, by any payment made hereunder or otherwise, including, without limitation, the right to take or receive from any other guarantor, directly or indirectly, in cash or other property or by setoff or in any other manner, payment or security on account of such contribution rights. If, notwithstanding the foregoing provisions, any amount shall be paid to any of the undersigned on account of any such Guarantor's Conditional Rights and either (i) such amount is paid to such undersigned party at any time when the indebtedness shall not have been paid or performed in full, or (ii) regardless of when such amount is paid to such undersigned party, any payment made by ~~Operating Partnership to a Holder~~ wire transfer. Notwithstanding the above, the final distribution on this Certificate will be made after due notice by the Trustee of the pendency of such distribution and only upon presentation and surrender of this Certificate at the office or agency appointed by the Trustee for that ~~is at any time determined to~~ purpose as provided in the Agreement. The Class M-1 Pass-Through Rate on each Distribution Date will be a Preferential Payment (as defined below), then such amount paid to the undersigned shall be held in trust for the benefit of the Holders and shall forthwith be paid such Holder to be credited and applied upon the indebtedness, whether matured or unmatured. Any such payment is herein referred to as a "Preferential Payment" to the extent the Operating Partnership makes any payment to Holder in connection with the Note, and any or all of such payment is subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid or paid over to a trustee, receiver or any other entity, whether under any bankruptcy act or otherwise. To the extent that any of the provisions of the immediately preceding paragraph shall not be enforceable, each of the undersigned agrees that until such time as the indebtedness has been paid and performed in full and the period of time has expired during which any payment made by the Operating Partnership or the undersigned to a Holder may be determined to be a Preferential Payment, Guarantor's Conditional Rights to the extent not validly waived shall be subordinate to Holders' right to full payment and performance of the indebtedness and each of the undersigned shall not enforce any of its respective portion of the Guarantors' Conditional Rights until such time as the indebtedness has been paid and performed in full and the period of time has expired during which any payment made by the Operating Partnership or the undersigned to Holders may be determined to be a Preferential Payment. The undersigned's liability (the "Base Guaranty Liability") shall be that amount from time to time rate per annum equal to the ~~aggregate liability~~ sum of one month LIBOR plus the ~~undersigned hereunder, but shall be limited~~ Class M-1 Certificate Margin. Interest will accrue on the Class M-1 Certificates during each Interest Accrual Period at a rate equal to the lesser of (Ai) the ~~aggregate amount~~ Class M-1 Pass-Through Rate and (ii) the WAC Cap for such Distribution Date. This Certificate is one of a duly authorized issue of Certificates designated as Xxxxxx Xxxxxxx ABS Capital I Inc. Trust Mortgage Pass-Through Certificates of the ~~obligation as stated~~ Series specified on the face hereof (herein called the "Certificates") and representing a Percentage Interest in the ~~second sentence~~ Class M-1 Certificates. The Class M-1 Certificates are limited in right of ~~Section 1401~~ payment to certain collections and recoveries respecting the Mortgage Loans, all as more specifically set forth herein and in the Agreement. As provided in the Agreement, withdrawals from the Collection Account and the Distribution Account may be made from time to time for purposes other than distributions to Certificateholders, such purposes including reimbursement of advances made, or certain expenses incurred, with respect to the Mortgage Loans. This certificate is subordinated in right of payment to the Class A Certificates as described in the Pooling Agreement referred to herein. The Agreement permits, with certain exceptions therein provided, the amendment thereof and the modification of the ~~Indenture~~rights and obligations of the Depositor, the Seller, the Custodian, the Trustee and the rights of the Certificateholders under the Agreement at any time by the Depositor, the Seller, the Custodian and the Trustee with the consent of the Holders of Certificates entitled to the Voting Rights identified in the agreement. Any such consent by the Holder of this Certificate shall be conclusive and binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in exchange herefor or in lieu hereof whether or not notation of such consent is made upon this Certificate. The Agreement also permits the amendment thereof, in certain limited circumstances, without the consent of the Holders of any of the Certificates. As provided in the Agreement and subject to certain limitations therein set forth, the transfer of this Certificate is registrable in the Certificate Register upon surrender of this Certificate for registration of transfer at the offices or agencies appointed by the Trustee as provided in the Agreement, duly endorsed by, or accompanied by an assignment in the form below or other written instrument of transfer in form satisfactory to the Trustee the Certificate Registrar duly executed by, the Holder hereof or such Holder's attorney duly authorized in writing, and thereupon one or more new Certificates of the same Class in authorized denominations evidencing the same aggregate Percentage Interest 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 Agreement. As provided in the Agreement and subject to certain limitations therein set forth, Certificates are exchangeable for new Certificates of the same Class in authorized denominations evidencing the same aggregate Percentage Interest, as requested by the Holder surrendering the same. No service charge will be made for any such registration of transfer or exchange of Certificates, but the Certificate Registrar 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 Seller, the Custodian, the Trustee and the Certificate Registrar and any agent of the Depositor, the Seller, the Custodian, the Trustee or the Certificate Registrar may treat the Person in whose name this Certificate is registered as the owner hereof for all purposes, and none of the Depositor, the Seller, the Custodian, the Trustee, the Certificate Registrar nor any such agent shall be affected by notice to the contrary. The obligations created by the Agreement and the Trust Fund created thereby shall terminate upon payment to the Certificateholders of all amounts held by or on behalf of the Trustee and required to be paid to them pursuant to the Agreement following the earlier of (i) the final payment or other liquidation (or any advance with respect thereto) of the last Mortgage Loan remaining in the Trust Fund, and (Bii) the ~~amount~~purchase by the party designated in the Agreement at a price determined as provided in the Agreement from the Trust Fund of all Mortgage Loans and all property acquired in respect of such Mortgage Loans. The Agreement permits, ~~if any~~but does not require, ~~which would not have (i) rendered~~ the ~~undersigned "insolvent" (~~party designated in the Agreement to purchase from the Trust Fund all Mortgage Loans and all property acquired in respect of any Mortgage Loan at a price determined as provided in the Agreement. The exercise of such ~~term is defined in Section 101(29)~~ right will effect early retirement of the ~~Federal Bankruptcy Code and in Section 271~~ Certificates; however, such right to purchase is subject to the aggregate Principal Balance of the ~~Debtor and Creditor Law of the State of New York, as each is in effect at the date of the Indenture) or (ii) left the undersigned with unreasonably small capital~~ Mortgage Loans at the time ~~its Guarantee was entered into, after giving effect to the incurrence~~ of ~~existing Debt (as defined in the Indenture) immediately prior to such time, provided that, it shall be a presumption in any lawsuit~~ purchase being 10% or ~~other proceeding in which the undersigned is a party that the amount guaranteed is the amount set forth in (A) above unless a creditor, or representative of creditors~~ less of the undersigned or a trustee in bankruptcy of the undersigned, as debtor in possession, otherwise proves in such a lawsuit that the aggregate liability of the undersigned is limited to the amount set forth in (B)Cut-off Date Aggregate Principal Balance. In making any determination as to the solvency or sufficiency of capital of the undersigned in accordance with the previous sentence, the right of the undersigned to contribution from other Guarantors, to subrogation and any other rights the undersigned may have, contractual or otherwise, The recitals contained herein shall be taken ~~into account. The obligations~~ as statements of the ~~undersigned to the Holders of the 2018 Notes~~ Depositor and to the Trustee ~~pursuant~~ assumes no responsibility for their correctness. Unless the certificate of authentication hereon has been executed by the Certificate Registrar, by manual signature, this Certificate shall not be entitled to any benefit under the ~~Subsidiary Guarantee and the Indenture are expressly set forth in Article 14 of the Indenture and reference is hereby made to the Indenture~~ Agreement or be valid for the precise terms of the Subsidiary Guarantee and all of the other provisions of the Indenture to which this Subsidiary Guarantee relates. Capitalized terms in this Subsidiary Guarantee which are not defined herein shall have the meanings assigned to them in the Indentureany purpose.

Appears in 1 contract

Samples: Pooling Agreement (Morgan Stanley ABS Capital I Inc. Trust, Series 2004-Sd2)

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Salomon Bros Mort Sec Vii Inc Ast Bk Fl Rte Cer Se 1997-Aq2)

Dated. ~~Notice~~Signature by or on behalf of assignor DISTRIBUTION INSTRUCTIONS The assignee should include the following for purposes of distribution: The signature to this assignment must correspond with the name as it appears upon the face of the within Note in every particular, without alteration or enlargement or any change whatever. ABBREVIATIONS The following abbreviations, when used in the inscription on the face of this instrument, Distributions shall be ~~construed as though they were written out~~ made, by wire transfer or otherwise, in ~~full according~~ immediately available funds to ~~applicable laws or regulations: TEN COM--as tenants in common UNIF GIFT MIN ACT--_____ Custodian~~_____~~_ TEN ENT--as tenants by the entireties (Cust) (Minor) JT TEN--as joint tenants with right Under Uniform Gifts to Minors of survivorship and not as Act~~________________________________________________________ tenants in common (State) Additional abbreviations may also be used though not in the above list. --------------------------- [FORM OF SCHEDULE FOR ENDORSEMENTS ON GLOBAL SECURITY TO REFLECT CHANGES IN PRINCIPAL AMOUNT] Schedule A Changes to Principal Amount of Global Security Principal Amount of Securities by which this Global Security is to be Reduced or Increased, and Reason for Remaining Principal Amount of Notation Date Reduction or Increase this Global Securities Made by ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- Exhibit B SUBSIDIARY GUARANTEE FOR VALUE RECEIVED, the undersigned hereby jointly and severally with the Parent Guarantor pursuant to the Parent Guarantee and any other subsidiary Guarantors under their respective Subsidiary Guarantees, unconditionally guarantees to the Holder of the accompanying _____~~% Note Due June~~ ___________________________________________________________________________ ________________________________________________________________________________ for the account of _____________________________________________________________ account number _______, ~~2018~~ or, if mailed by check, to _____________________________ Applicable statements should be mailed to ______________________________________ ________________________________________________________________________________ This information is provided by ________________________________________________ the assignee named above, or ___________________________________________________ as its agent. EXHIBIT B IF THIS CERTIFICATE IS A PHYSICAL CERTIFICATE, NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE PROPOSED TRANSFEROR DELIVERS TO THE TRUSTEE A TRANSFEROR LETTER (THE "TRANSFEROR LETTER") IN THE FORM OF EXHIBIT I TO THE AGREEMENT REFERRED TO HEREIN AND EITHER (I) THE TRUSTEE RECEIVES A RULE 144A LETTER (THE "144A LETTER") IN THE FORM OF EXHIBIT J TO THE AGREEMENT REFERRED TO HEREIN OR (II) THE TRUSTEE RECEIVES AN OPINION OF COUNSEL, DELIVERED AT THE EXPENSE OF THE TRANSFEROR, THAT SUCH TRANSFER MAY BE MADE WITHOUT REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED. IF THIS CERTIFICATE IS A BOOK-ENTRY CERTIFICATE, THE PROPOSED TRANSFEROR WILL BE DEEMED TO HAVE MADE EACH OF THE CERTIFICATIONS SET FORTH IN THE TRANSFEROR LETTER AND THE PROPOSED TRANSFEREE WILL BE DEEMED TO HAVE MADE EACH OF THE CERTIFICATIONS SET FORTH IN THE RULE 144A LETTER, IN EACH CASE AS IF SUCH CERTIFICATE WERE EVIDENCED BY A PHYSICAL CERTIFICATE IF THIS CERTIFICATE IS A PHYSICAL CERTIFICATE, NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE TRANSFEREE DELIVERS TO THE TRUSTEE A REPRESENTATION LETTER TO THE EFFECT THAT EITHER (I) SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN OR ARRANGEMENT SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR ANY FEDERAL, STATE OR LOCAL LAW MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH, A "PLAN"), AND IS NOT ACTING ON BEHALF OF ANY PLAN OR USING THE ASSETS OF ANY PLAN TO ACQUIRE THIS CERTIFICATE, OR (II) SUCH TRANSFEREE IS AN INSURANCE COMPANY AND IS PURCHASING THIS CERTIFICATE WITH FUNDS CONTAINED IN AN "INSURANCE COMPANY GENERAL ACCOUNT" (AS SUCH TERM IS DEFINED IN SECTION V(E) OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 ("PTCE 95-60")) AND THE CONDITIONS FOR EXEMPTIVE RELIEF UNDER SECTIONS I AND III OF PTCE 95-60 ARE SATISFIED WITH RESPECT TO ITS PURCHASE AND HOLDING OF THIS CERTIFICATE. IF THIS CERTIFICATE IS A BOOK-ENTRY CERTIFICATE, EACH TRANSFEREE WILL BE DEEMED TO HAVE MADE THE FOREGOING REPRESENTATION. Unless this Certificate is presented by an authorized representative of the Depository Trust Company, a New York corporation ("DTC"), to Issuer or its agent for registration of transfer, exchange, or payment, and any certificate issued is registered in the name of Cede & Co. or in such other name as is requested by an authorized representative of DTC (and any payment is made to Cede & Co. or to such other entity as is requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest herein. SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS OWNERSHIP OF 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 ASSETS. Certificate No. : B-4-1 Cut-off Date : November 1, 2004 First Distribution Date : December 27, 2004 Initial Certificate Balance of this Certificate ("Denomination") : Initial Certificate Balances of all Certificates of this Class : $7,096,000 CUSIP ISIN : XXXXXX XXXXXXX ABS CAPITAL I INC. IXIS Real Estate Capital Trust 2004-HE4 Mortgage Pass-Through Certificates, Series 2004-HE4 Class B-4 evidencing a percentage interest in the distributions allocable to the Certificates of the above-referenced Class. Principal in respect of this Certificate is distributable monthly as set forth herein. Accordingly, the Certificate Balance at any time may be less than the Certificate Balance as set forth herein. This Certificate does not evidence an obligation of, or an interest in, and is not guaranteed by the Depositor, the Unaffiliated Seller, any Originator, the Servicer or the Trustee referred to below or any of their respective affiliates. Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any governmental agency or instrumentality. This certifies that CEDE & CO., is the registered owner of the Percentage Interest evidenced by this Certificate (obtained by dividing the denomination of this Certificate by the aggregate of the denominations of all Certificates of the Class to which this Certificate belongs) in certain monthly distributions pursuant to a Pooling and Servicing Agreement dated as of the Cut-off Date specified above (the "~~2018 Note~~Agreement") ~~issued by AMB Property~~among Xxxxxx Xxxxxxx ABS Capital I Inc., ~~L.P.~~ as depositor (the "~~Operating Partnership~~Depositor"~~) under an Indenture dated~~ ), Countrywide Home Loans Servicing LP, as ~~of June ___, 1998~~ servicer (~~together with the Second Supplemental Indenture thereto,~~ the "~~Indenture~~Servicer"~~) among~~ ), IXIS Real Estate Capital Inc., as unaffiliated seller (the ~~Operating Partnership~~"Unaffiliated Seller"), ~~AMB Property Corporation~~Deutsche Bank National Trust Company, as custodian and ~~State Street Bank and Trust Company of California, N.A.,~~ as trustee (in such capacity, the "Trustee"), (a) the full and prompt payment of the principal of and premium, if any, on such 2018 Note when and as the same shall become due and payable, whether at Stated Maturity, by acceleration, by redemption or otherwise, and (b) the full and prompt payment of the interest on such 2018 Note when and as the same shall become due and payable, according to the terms of such 2018 Note and of the Indenture. The undersigned hereby agrees, jointly and severally with the Parent Guarantor pursuant to the Parent Guarantee and any other Subsidiary Guarantors under their respective Subsidiary Guarantees, that its obligations hereunder shall be as principal and not merely as surety, and shall be absolute and unconditional, and shall not be affected, modified or impaired by the following: (a) the failure to give notice to the Guarantors of the occurrence of an Event of Default under the Indenture; (b) the waiver, surrender, compromise, settlement, release or termination of the payment, performance or observance by the Operating Partnership or the Guarantors of any or all of the obligations, covenants or agreements of either of them contained in the Indenture or the 2018 Notes; (c) the acceleration, extension or any other changes in the time for payment of any principal of or interest or any premium on any 2018 Note or for any other payment under the Indenture or of the time for performance of any other obligations, covenants or agreements under or arising out of the Indenture or the 2018 Notes; (d) the modification or amendment (whether material or otherwise) of any obligation, covenant or agreement set forth in the Indenture or the 2018 Notes; (e) the taking or the omission of any of the actions referred to in the Indenture and in any of the actions under the 2018 Notes; (f) any failure, omission, delay or lack on the part of the Trustee to enforce, assert or exercise any right, power or remedy conferred on the Trustee in the Indenture, or any other action or acts on the part of the Trustee or any of the Holders from time to time of the 2018 Notes; (g) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all the assets, marshaling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition with creditors or readjustment of, or other similar proceedings affecting the Guarantors or the Operating Partnership or any of the assets of any of them, or any allegation or contest of the validity of this Subsidiary Guarantee in any such proceeding; (h) to the extent permitted by law, the release or discharge by operation of law of the Guarantors from the performance or observance of any obligation, covenant or agreement contained in the Indenture; (i) to the extent permitted by law, the release or discharge by operation of law of the Operating Partnership from the performance or observance of any obligation, covenant or agreement contained in the Indenture; (j) the default or failure of the Operating Partnership or the Trustee fully to perform any of its obligations set forth in the Indenture or the 2018 Notes; (k) the invalidity, irregularity or unenforceability of the Indenture or the 2018 Notes or any part of any thereof; (l) any judicial or governmental action affecting the Operating Partnership or any 2018 Notes or consent or indulgence granted by the Operating Partnership by the Holders or by the Trustee; or (m) the recovery of any judgment against the Operating Partnership or any action to enforce the same or any other circumstance which might constitute a legal or equitable discharge of a surety or guarantor. The undersigned hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of merger, sale, lease or conveyance of all or substantially all of its assets, insolvency or bankruptcy of the Operating Partnership, any right to require a proceeding first against the Operating Partnership, protest or notice with respect to such Notice or the indebtedness evidenced thereby and all demands whatsoever, and covenants that this Subsidiary Guarantee will not be discharged except by complete performance of the obligations contained in such 2018 Note and in this Subsidiary Guarantee. No reference herein to such Indenture and no provision of this Subsidiary Guarantee or of such Indenture shall alter or impair the guarantee of the undersigned, which is absolute and unconditional, of the full and prompt payment of the principal of and premium, if any, and interest on the 2018 Note. THIS SUBSIDIARY GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. The validity and enforceability of this Subsidiary Guarantee shall not be affected by the fact that it is not affixed to any particular 2018 Note. An Event of Default under the Indenture or the 2018 Notes shall constitute an event of default under this Subsidiary Guarantee, and shall entitle the Holders of 2018 Notes to accelerate the obligations of the undersigned hereunder in the same manner and to the same extent as the obligations of the Operating Partnership. Notwithstanding any other provision of this Subsidiary Guarantee to the contrary, the undersigned hereby waives any claims or other rights which it may now have or hereafter acquire against the Operating Partnership that arise from the existence or performance of its obligations under this Subsidiary Guarantee (all such claims and rights are referred to as "Guarantor's Conditional Rights"), including, without limitation, any right of subrogation, reimbursement, exoneration, contribution, or indemnification, any right to participate in any claim or remedy against the Operating Partnership, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, by any payment made hereunder or otherwise, including without limitation, the right to take or receive from Operating Partnership, directly or indirectly, in cash or other property or by setoff or in any other manner, payment or security on account of such claim or other rights. The Subsidiary Guarantor hereby agrees not to exercise any rights which may be acquired by way of contribution under this Subsidiary Guarantee or any other agreement, by any payment made hereunder or otherwise, including, without limitation, the right to take or receive from any other guarantor, directly or indirectly, in cash or other property or by setoff or in any other manner, payment or security on account of such contribution rights. If, notwithstanding the foregoing provisions, any amount shall be paid to any of the undersigned on account of any such Guarantor's Conditional Rights and either (i) such amount is paid to such undersigned party at any time when the indebtedness shall not have been paid or performed in full, or (ii) regardless of when such amount is paid to such undersigned party, any payment made by Operating Partnership to a Holder that is at any time determined to be a Preferential Payment (as defined below), then such amount paid to the undersigned shall be held in trust for the benefit of the Holders and shall forthwith be paid such Holder to be credited and applied upon the indebtedness, whether matured or unmatured. Any such payment is herein referred to as a "Preferential Payment" to the extent the Operating Partnership makes any payment to Holder in connection with the Note, and any or all of such payment is subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid or paid over to a trustee, receiver or any other entity, whether under any bankruptcy act or otherwise. To the extent ~~that any~~ not defined herein, the capitalized terms used herein have the meanings assigned in the Agreement. This Certificate is issued under and is subject to the terms, provisions and conditions of the ~~provisions~~ Agreement, to which Agreement the Holder of this Certificate by virtue of the ~~immediately preceding paragraph shall not be enforceable, each of the undersigned agrees that until~~ acceptance hereof assents and by which such ~~time as the indebtedness has been paid and performed in full and the period of time has expired during which any payment made by the Operating Partnership or the undersigned to a~~ Holder may be determined to be a Preferential Payment, Guarantor's Conditional Rights to the extent not validly waived shall be subordinate to Holders' right to full payment and performance of the indebtedness and each of the undersigned shall not enforce any of its respective portion of the Guarantors' Conditional Rights until such time as the indebtedness has been paid and performed in full and the period of time has expired during which any payment made by the Operating Partnership or the undersigned to Holders may be determined to be a Preferential Paymentis bound. The undersigned's liability (the "Base Guaranty Liability") shall be that amount from time to time equal to the aggregate liability of the undersigned hereunder, but shall be limited to the lesser of (A) the aggregate amount of the obligation as stated in the second sentence of Section 1401 of the Indenture, and (B) the amount, if any, which would not have (i) rendered the undersigned "insolvent" (as such term is defined in Section 101(29) of the Federal Bankruptcy Code and in Section 271 of the Debtor and Creditor Law of the State of New York, as each is in effect at the date of the Indenture) or (ii) left the undersigned with unreasonably small capital at the time its Guarantee was entered into, after giving effect to the incurrence of existing Debt (as defined in the Indenture) immediately prior to such time, provided that, it shall be a presumption in any lawsuit or other proceeding in which the undersigned is a party that the amount guaranteed is the amount set forth in (A) above unless a creditor, or representative of creditors of the undersigned or a trustee in bankruptcy of the undersigned, as debtor in possession, otherwise proves in such a lawsuit that the aggregate liability of the undersigned is limited to the amount set forth in (B). In making any determination as to the solvency or sufficiency of capital of the undersigned in accordance with the previous sentence, the right of the undersigned to contribution from other Guarantors, to subrogation and any other rights the undersigned may have, contractual or otherwise, shall be taken into account. The obligations of the undersigned to the Holders of the 2018 Notes and to the Trustee pursuant to the Subsidiary Guarantee and the Indenture are expressly set forth in Article 14 of the Indenture and reference Reference is hereby made to the ~~Indenture~~ further provisions of this Certificate set forth on the reverse hereof, which further provisions shall for all purposes have the ~~precise terms~~ same effect as if set forth at this place. This Certificate shall not be entitled to any benefit under the Agreement or be valid for any purpose unless manually authenticated by an authorized signatory of the ~~Subsidiary Guarantee and all of the other provisions of the Indenture to which this Subsidiary Guarantee relates~~Trustee. ~~Capitalized terms in this Subsidiary Guarantee which are not defined herein shall have the meanings assigned to them in the Indenture.~~* * *

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Morgan Stanley Abs Capital I Inc)

Appears in 1 contract

Samples: Pooling and Servicing Agreement (ACE Securities Corp Series 2004-Rm2)

Dated. ~~Notice~~Signature by or on behalf of assignor --------------------------------------- Signature Guaranteed DISTRIBUTION INSTRUCTIONS ------------------------- The assignee should include the following for purposes of distribution: The signature to this assignment must correspond with the name as it appears upon the face of the within Note in every particular, without alteration or enlargement or any change whatever. ABBREVIATIONS The following abbreviations, when used in the inscription on the face of this instrument, Distributions shall be ~~construed as though they were written out~~ made, by wire transfer or otherwise, in ~~full according~~ immediately available funds to applicable laws or regulations: TEN COM--as tenants in common UNIF GIFT MIN ACT--_____ Custodian______ TEN ENT--as tenants by the entireties (Cust) (Minor) JT TEN--as joint tenants with right Under Uniform Gifts to Minors of survivorship and not as Act__________________________ tenants in common (State) Additional abbreviations may also be used though not in the above list. --------------------------- [FORM OF SCHEDULE FOR ENDORSEMENTS ON GLOBAL SECURITY TO REFLECT CHANGES IN PRINCIPAL AMOUNT] Schedule A Changes to Principal Amount of Global Security Principal Amount of Securities by which this Global Security is to be Reduced or Increased, and Reason for Remaining Principal Amount of Notation Date Reduction or Increase this Global Securities Made by ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- Exhibit B SUBSIDIARY GUARANTEE FOR VALUE RECEIVED, the undersigned hereby jointly and severally with the Parent Guarantor pursuant to the Parent Guarantee and any other subsidiary Guarantors under their respective Subsidiary Guarantees, unconditionally guarantees to the Holder of the accompanying _____~~% Note Due June~~ __________________, ~~2018 (~~for the ~~"2018 Note") issued by AMB Property, L.P. (the "Operating Partnership") under an Indenture dated as~~ account of ~~June~~ ______________________________, ~~1998 (together with the Second Supplemental Indenture thereto~~account number _____________, or, if mailed by check, to ______________________________. Applicable statements should be mailed to ___________________________________________________________. This information is provided by ______________________________________, the assignee named above, or ____________________________________, as its agent. EXHIBIT A-13 ------------ FORM OF CLASS B-4 CERTIFICATE SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "~~Indenture~~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 (THE "CODE"). THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE U.S. FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") ~~among~~ RULES TO THIS CERTIFICATE. THE ISSUE DATE OF THIS CERTIFICATE IS FEBRUARY 25, 1999. BASED ON THE OID REGULATIONS AND ASSUMING THAT THE MORTGAGE LOANS PREPAY AT 275% OF THE STANDARD PREPAYMENT ASSUMPTION, USED SOLELY FOR THE PURPOSES OF APPLYING THE OID RULES TO THE CERTIFICATES (THE "PREPAYMENT ASSUMPTION"), THIS CERTIFICATE HAS BEEN ISSUED WITH NO MORE THAN $245.04 OF OID PER $1,000 OF INITIAL CERTIFICATE PRINCIPAL BALANCE, THE YIELD TO MATURITY IS 10.55% AND THE AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL PERIOD IS NO MORE THAN $1.22 PER $1,000 OF INITIAL CERTIFICATE PRINCIPAL BALANCE, COMPUTED UNDER THE EXACT METHOD. NO REPRESENTATION IS MADE THAT THE MORTGAGE LOANS WILL PREPAY AT A RATE BASED ON THE PREPAYMENT ASSUMPTION OR AT ANY OTHER RATE. THIS CERTIFICATE IS SUBORDINATE TO THE SENIOR CERTIFICATES, THE RESIDUAL CERTIFICATES, THE CLASS B-1 CERTIFICATES, THE CLASS B-2 CERTIFICATES AND THE CLASS B- 3 CERTIFICATES TO THE EXTENT DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN. THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE RESOLD OR TRANSFERRED UNLESS IT IS REGISTERED PURSUANT TO SUCH ACT AND LAWS OR IS SOLD OR TRANSFERRED IN TRANSACTIONS THAT ARE EXEMPT FROM REGISTRATION UNDER SUCH ACT AND UNDER APPLICABLE STATE LAW AND IS TRANSFERRED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE AGREEMENT. NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT (EACH A "PLAN") SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE CODE WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROCEDURES DESCRIBED HEREIN. Series 1999-2, Class B-4 Aggregate Certificate Principal Balance of Class B-4 Certificates as of the ~~Operating Partnership~~Pass-Through Rate: 6.50% per annum Issue Date: $782,000.00 Date of Agreement and Cut-off Date: Denomination: $______________ February 1, ~~AMB Property Corporation~~1999 Master Servicer: First Distribution Date: Cendant Mortgage Corporation March 25, ~~and State Street~~ 1999 No. _____ Trustee: The Chase Manhattan Bank ~~and~~ Issue Date: February 25, 1999 DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE AS THE DENOMINATION OF THIS CERTIFICATE. MORTGAGE PASS-THROUGH CERTIFICATE evidencing a beneficial ownership interest in a Trust ~~Company of California, N.A., as trustee~~ Fund (the "~~Trustee~~Trust Fund") consisting primarily of a pool of conventional, one- to four-family, fixed-rate, first lien mortgage loans (the "Mortgage Loans") formed and sold by SALOMON BROTHERS MORTGAGE SECURITIES VII, INC. THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN SALOMON BROTHERS MORTGAGE SECURITIES VII, INC., THE MASTER SERVICER, THE TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES. This certifies that ____________________ is the registered owner of a Percentage Interest (obtained by dividing the denomination of this Certificate by the aggregate Certificate Principal Balance of the Class B-4 Certificates as of the Issue Date) in that certain beneficial ownership interest evidenced by all the Class B-4 Certificates in REMIC II created pursuant to a Pooling and Servicing Agreement, dated as specified above (the "Agreement"), among Salomon Brothers Mortgage Securities VII, Inc. (a) hereinafter called the ~~full~~ "Depositor," which term includes any successor entity under the Agreement), the Master Servicer and ~~prompt payment~~ the Trustee, a summary of certain of the ~~principal~~ 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 Agreement. This Certificate is issued under and ~~premium~~is subject to the terms, ~~if any, on such 2018 Note when~~ provisions and ~~as the same shall become due and payable, whether at Stated Maturity, by acceleration, by redemption or otherwise, and (b) the full and prompt payment~~ conditions of the ~~interest on~~ Agreement, to which Agreement the Holder of this Certificate by virtue of the acceptance hereof assents and by which such ~~2018 Note when and as the same shall become due and payable, according~~ Holder is bound. Pursuant to the terms of the Agreement, distributions will be made on the 25th day of each month or, if such ~~2018 Note and~~ 25th day is not a Business Day, the Business Day immediately following (a "Distribution Date"), commencing on the First Distribution Date specified above, to the Person in whose name this Certificate is registered on Record Date, in an amount equal to the product of the ~~Indenture. The undersigned hereby agrees, jointly~~ Percentage Interest evidenced by this Certificate and ~~severally with~~ the ~~Parent Guarantor~~ amount required to be distributed to the Holders of Class B-4 Certificates on such Distribution Date pursuant to the ~~Parent Guarantee~~ Agreement. All distributions to the Holder of this Certificate under the Agreement will be made or caused to be made by or on behalf of the Trustee by wire transfer in immediately available funds to the account of the Person entitled thereto if such Person shall have so notified the Trustee in writing at least five Business Days prior to the Record Date immediately prior to such Distribution Date and is the registered owner of Class B-4 Certificates, the aggregate initial Certificate Principal Balance of which is in excess of the lesser of (i) $5,000,000 or (ii) two-thirds of the aggregate initial Certificate Principal Balance of the Class B-4 Certificates, or otherwise by check mailed by first class mail to the address of the Person entitled thereto, as such name and address shall appear on the Certificate Register. Notwithstanding the above, the final distribution on this Certificate will be made after due notice by the Trustee of the pendency of such distribution and only upon the presentation and surrender of this Certificate at the office or agency appointed by the Trustee for that purpose as provided in the Agreement. This Certificate is one of a duly authorized issue of Certificates designated as Mortgage Pass-Through Certificates of the Series specified on the face hereof (hereinafter called the "Certificates") and representing a Percentage Interest in the Class of Certificates specified on the face hereof equal to the denomination specified on the face hereof divided by the aggregate Certificate Principal Balance of the Class of Certificates specified on the face hereof. The 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 Agreement. As provided in the Agreement, withdrawals from the Collection Account and the Distribution Account may be made from time to time for purposes other than distributions to Holders of the Certificates, such purposes including reimbursement of advances made, or certain expenses incurred, with respect to the Mortgage Loans. The Agreement permits, with certain exceptions and conditions provided therein, the amendment thereof and the modification of the rights and obligations of the Depositor, the Master Servicer and the Trustee and the rights of the Holders of the Certificates under the Agreement at any ~~other Subsidiary Guarantors under their respective Subsidiary Guarantees~~time by the Depositor, ~~that its obligations hereunder~~ the Master Servicer and the Trustee, with the consent of the Holders of Certificates entitled to at least 66% of the Voting Rights. Any such consent by the Holder of this Certificate shall be ~~as principal~~ conclusive and binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in exchange herefor or in lieu hereof whether or not ~~merely as surety~~notation of such consent is made upon this Certificate. The Agreement also permits the amendment thereof, ~~and shall be absolute and unconditional~~in certain limited circumstances, ~~and shall not be affected, modified or impaired by~~ without the ~~following: (a) the failure to give notice to the Guarantors~~ consent of the occurrence of an Event of Default under the Indenture; (b) the waiver, surrender, compromise, settlement, release or termination of the payment, performance or observance by the Operating Partnership or the Guarantors of any or all of the obligations, covenants or agreements of either of them contained in the Indenture or the 2018 Notes; (c) the acceleration, extension or any other changes in the time for payment of any principal of or interest or any premium on any 2018 Note or for any other payment under the Indenture or of the time for performance of any other obligations, covenants or agreements under or arising out of the Indenture or the 2018 Notes; (d) the modification or amendment (whether material or otherwise) of any obligation, covenant or agreement set forth in the Indenture or the 2018 Notes; (e) the taking or the omission Holders of any of the ~~actions referred to~~ Certificates. As provided in the ~~Indenture~~ Agreement and subject to certain limitations set forth therein, the transfer of this Certificate is registrable in ~~any~~ the Certificate Register upon surrender of this Certificate for registration of transfer at the offices or agencies appointed by the Trustee as provided in the Agreement, duly endorsed by, or accompanied by an assignment in the form below or other written instrument of transfer in form satisfactory to the Trustee and the Certificate Registrar duly executed by, the Holder hereof or such Holder's attorney duly authorized in writing, and thereupon one or more new Certificates of the ~~actions~~ same Class in authorized denominations evidencing the same aggregate Percentage Interest 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 Agreement. As provided in the Agreement and subject to certain limitations set forth therein, Certificates are exchangeable for new Certificates of the same Class in authorized denominations evidencing the same aggregate Percentage Interest, as requested by the Holder surrendering the same. No transfer of this Certificate shall be made unless the transfer is made pursuant to an effective registration statement under the ~~2018 Notes;~~ Securities Act of 1933, as amended (fthe "1933 Act"), and an effective registration or qualification under applicable state securities laws, or is made in a transaction that does not require such registration or qualification. In the event that such a transfer of this Certificate is to be made without registration or qualification, the Trustee and the Certificate Registrar shall require receipt of (i) ~~any failure~~if such transfer is purportedly being made in reliance upon Rule 144A under the 1933 Act, ~~omission~~written certifications from the Holder of the Certificate desiring to effect the transfer, ~~delay~~ and from such Holder's prospective transferee, substantially in the forms attached to the Agreement as Exhibit F-1, and (ii) in all other cases, an Opinion of Counsel satisfactory to it that such transfer may be made without such registration or ~~lack~~ qualification (which Opinion of Counsel shall not be an expense of the Trust Fund or of the Depositor, the Trustee or the Master Servicer in their respective capacities as such), together with copies of the written certification(s) of the Holder of the Certificate desiring to effect the transfer and/or such Holder's prospective transferee upon which such Opinion of Counsel is based. None of the Depositor, the Certificate Registrar or the Trustee is obligated to register or qualify the Class of Certificates specified on the ~~part of~~ face hereof under the ~~Trustee to enforce, assert or exercise any right, power or remedy conferred on the Trustee in the Indenture,~~ 1933 Act or any other securities law or to take any action not otherwise required under the Agreement to permit the transfer of such Certificates without registration or ~~acts on~~ qualification. Any Holder desiring to effect a transfer of this Certificate shall be required to indemnify the ~~part~~ Trustee, the Depositor, the Certificate Registrar and the Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such federal and state laws. No transfer of this Certificate to a Plan subject to ERISA or Section 4975 of the Trustee or any of the Holders from time to time of the 2018 Notes; (g) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all the assets, marshaling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition with creditors or readjustment of, or other similar proceedings affecting the Guarantors or the Operating Partnership or any of the assets of any of them, or any allegation or contest of the validity of this Subsidiary Guarantee in any such proceeding; (h) to the extent permitted by law, the release or discharge by operation of law of the Guarantors from the performance or observance of any obligation, covenant or agreement contained in the Indenture; (i) to the extent permitted by law, the release or discharge by operation of law of the Operating Partnership from the performance or observance of any obligation, covenant or agreement contained in the Indenture; (j) the default or failure of the Operating Partnership or the Trustee fully to perform any of its obligations set forth in the Indenture or the 2018 Notes; (k) the invalidity, irregularity or unenforceability of the Indenture or the 2018 Notes or any part of any thereof; (l) any judicial or governmental action affecting the Operating Partnership or any 2018 Notes or consent or indulgence granted by the Operating Partnership by the Holders or by the Trustee; or (m) the recovery of any judgment against the Operating Partnership or any action to enforce the same or any other circumstance which might constitute a legal or equitable discharge of a surety or guarantor. The undersigned hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of merger, sale, lease or conveyance of all or substantially all of its assets, insolvency or bankruptcy of the Operating PartnershipCode, any right to require a proceeding first against the Operating Partnership, protest or notice with respect to such Notice or the indebtedness evidenced thereby and all demands whatsoever, and covenants that this Subsidiary Guarantee will not be discharged except by complete performance of the obligations contained in such 2018 Note and in this Subsidiary Guarantee. No reference herein to such Indenture and no provision of this Subsidiary Guarantee or of such Indenture shall alter or impair the guarantee of the undersigned, which is absolute and unconditional, of the full and prompt payment of the principal of and premium, if any, and interest on the 2018 Note. THIS SUBSIDIARY GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. The validity and enforceability of this Subsidiary Guarantee shall not be affected by the fact that it is not affixed to any particular 2018 Note. An Event of Default under the Indenture or the 2018 Notes shall constitute an event of default under this Subsidiary Guarantee, and shall entitle the Holders of 2018 Notes to accelerate the obligations of the undersigned hereunder in the same manner and to the same extent as the obligations of the Operating Partnership. Notwithstanding any other provision of this Subsidiary Guarantee to the contrary, the undersigned hereby waives any claims or other rights which it may now have or hereafter acquire against the Operating Partnership that arise from the existence or performance of its obligations under this Subsidiary Guarantee (all such claims and rights are referred to as "Guarantor's Conditional Rights"), including, without limitation, any right of subrogation, reimbursement, exoneration, contribution, or indemnification, any right to participate in any claim or remedy against the Operating Partnership, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, by any payment made hereunder or otherwise, including without limitation, the right to take or receive from Operating PartnershipPerson acting, directly or indirectly, ~~in cash or other property or by setoff or in any other manner, payment or security~~ on account of such claim or other rights. The Subsidiary Guarantor hereby agrees not to exercise any rights which may be acquired by way of contribution under this Subsidiary Guarantee or any other agreement, by any payment made hereunder or otherwise, including, without limitation, the right to take or receive from any other guarantor, directly or indirectly, in cash or other property or by setoff or in any other manner, payment or security on account of such contribution rights. If, notwithstanding the foregoing provisions, any amount shall be paid to any of the undersigned on account behalf of any such ~~Guarantor's Conditional Rights and either (i) such amount is paid~~ Plan or any person using Plan Assets to such undersigned party at any time when the indebtedness shall not have been paid or performed in full, or (ii) regardless of when such amount is paid to such undersigned party, any payment made by Operating Partnership to a Holder that is at any time determined to be a Preferential Payment (as defined below), then such amount paid to the undersigned acquire this Certificate shall be ~~held~~ made except in ~~trust for the benefit~~ accordance with Section 5.02(c) of the ~~Holders and shall forthwith~~ Agreement. No service charge will be ~~paid~~ made for any such ~~Holder~~ registration of transfer or exchange of Certificates, but the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be credited and applied upon the indebtedness, whether matured or unmatured. Any such payment is herein referred to as a "Preferential Payment" to the extent the Operating Partnership makes any payment to Holder imposed in connection with any transfer or exchange of Certificates. The Depositor, the ~~Note~~Master Servicer, the Trustee and the Certificate Registrar and any agent of the Depositor, the Master Servicer, the Trustee or the Certificate Registrar may treat the Person in whose name this Certificate is registered as the owner hereof for all purposes, and any or all of such payment is subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid or paid over to a trustee, receiver or any other entity, whether under any bankruptcy act or otherwise. To the extent that any none of the ~~provisions of~~ Depositor, the ~~immediately preceding paragraph~~ Master Servicer, the Trustee, the Certificate Registrar nor any such agent shall ~~not~~ be ~~enforceable, each of the undersigned agrees that until such time as the indebtedness has been paid and performed in full and the period of time has expired during which any payment made~~ affected by ~~the Operating Partnership or the undersigned to a Holder may be determined to be a Preferential Payment, Guarantor's Conditional Rights~~ notice to the extent not validly waived shall be subordinate to Holders' right to full payment and performance of the indebtedness and each of the undersigned shall not enforce any of its respective portion of the Guarantors' Conditional Rights until such time as the indebtedness has been paid and performed in full and the period of time has expired during which any payment made by the Operating Partnership or the undersigned to Holders may be determined to be a Preferential Payment. The undersigned's liability (the "Base Guaranty Liability") shall be that amount from time to time equal to the aggregate liability of the undersigned hereunder, but shall be limited to the lesser of (A) the aggregate amount of the obligation as stated in the second sentence of Section 1401 of the Indenture, and (B) the amount, if any, which would not have (i) rendered the undersigned "insolvent" (as such term is defined in Section 101(29) of the Federal Bankruptcy Code and in Section 271 of the Debtor and Creditor Law of the State of New York, as each is in effect at the date of the Indenture) or (ii) left the undersigned with unreasonably small capital at the time its Guarantee was entered into, after giving effect to the incurrence of existing Debt (as defined in the Indenture) immediately prior to such time, provided that, it shall be a presumption in any lawsuit or other proceeding in which the undersigned is a party that the amount guaranteed is the amount set forth in (A) above unless a creditor, or representative of creditors of the undersigned or a trustee in bankruptcy of the undersigned, as debtor in possession, otherwise proves in such a lawsuit that the aggregate liability of the undersigned is limited to the amount set forth in (B). In making any determination as to the solvency or sufficiency of capital of the undersigned in accordance with the previous sentence, the right of the undersigned to contribution from other Guarantors, to subrogation and any other rights the undersigned may have, contractual or otherwise, shall be taken into accountcontrary. The obligations of created by the ~~undersigned~~ Agreement and the Trust Fund created thereby shall terminate upon payment (or provision for payment) to the Holders of the ~~2018 Notes and to~~ Certificates of all amounts held by or on behalf of the Trustee and required to be paid to them pursuant to the ~~Subsidiary Guarantee~~ Agreement following the earlier of (i) the final payment (or any advance with respect thereto) on or other liquidation of the last Mortgage Loan remaining in REMIC I, and (ii) the purchase by the party designated in the Agreement at a price determined as provided in the Agreement from REMIC I of all the Mortgage Loans and all property acquired in respect of such Mortgage Loans remaining therein. The Agreement permits, but does not require, the party designated in the Agreement to purchase from REMIC I all the Mortgage Loans and all property acquired in respect of any Mortgage Loan remaining therein at a price determined as provided in the Agreement. The exercise of such right will effect early retirement of the Certificates; however, such right to purchase is subject to the aggregate Stated Principal Balance of the Mortgage Loans at the time of purchase being less than 10% of the aggregate principal balance of the Mortgage Loans as of the Cut-off Date. The recitals contained herein shall be taken as statements of the Depositor and the ~~Indenture are expressly set forth in Article 14~~ Trustee assumes no responsibility for their correctness. Unless the certificate of authentication hereon has been executed by the ~~Indenture and reference is hereby made~~ Certificate Registrar, by manual signature, this Certificate shall not be entitled to any benefit under the ~~Indenture~~ Agreement or be valid for the precise terms of the Subsidiary Guarantee and all of the other provisions of the Indenture to which this Subsidiary Guarantee relates. Capitalized terms in this Subsidiary Guarantee which are not defined herein shall have the meanings assigned to them in the Indentureany purpose.

Appears in 1 contract

Samples: Distribution Instructions (Salomon Brothers MRT Sec Vii Inc MRT Ps THR Cert 1999-2)

Dated. ~~Notice~~Signature by or on behalf of assignor ------------------------------- Signature Guaranteed DISTRIBUTION INSTRUCTIONS The assignee should include the following for purposes of distribution: The signature to this assignment must correspond with the name as it appears upon the face of the within Note in every particular, without alteration or enlargement or any change whatever. ABBREVIATIONS The following abbreviations, when used in the inscription on the face of this instrument, Distributions shall be ~~construed as though they were written out~~ made, by wire transfer or otherwise, in ~~full according~~ immediately available funds to ~~applicable laws or regulations: TEN COM--as tenants in common UNIF GIFT MIN ACT--_____ Custodian~~_____~~_ TEN ENT--as tenants by the entireties (Cust) (Minor) JT TEN--as joint tenants with right Under Uniform Gifts to Minors of survivorship and not as Act~~____________________________________________ tenants in common (State) Additional abbreviations may also be used though not in the above list. --------------------------- [FORM OF SCHEDULE FOR ENDORSEMENTS ON GLOBAL SECURITY TO REFLECT CHANGES IN PRINCIPAL AMOUNT] Schedule A Changes to Principal Amount of Global Security Principal Amount of Securities by which this Global Security is to be Reduced or Increased, and Reason for Remaining Principal Amount of Notation Date Reduction or Increase this Global Securities Made by ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- Exhibit B SUBSIDIARY GUARANTEE FOR VALUE RECEIVED, the undersigned hereby jointly and severally with the Parent Guarantor pursuant to the Parent Guarantee and any other subsidiary Guarantors under their respective Subsidiary Guarantees, unconditionally guarantees to the Holder of the accompanying _____~~% Note Due June~~ ___________________________________________________________________________ _____________________________________________________________ for the account of _______________________________, ~~2018 (the "2018 Note") issued by AMB Property, L.P. (the "Operating Partnership") under an Indenture dated as of June~~ account number ___________________________, ~~1998 (together with the Second Supplemental Indenture thereto~~or, if mailed by check, to ________________________________________________________________________________ __________________________________________________________.Applicable statements should be mailed to ________________________________________________________________________________ ___________________________.This information is provided by ___________________________________________, the ~~"Indenture") among the Operating Partnership~~assignee named above, ~~AMB Property Corporation, and State Street Bank and Trust Company of California, N.A.~~or ________________________________________, as ~~trustee~~ its agent. XXXXXXX X-0 FORM OF CLASS M-1 CERTIFICATE SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986 (THE "CODE"). THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A CERTIFICATES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN. Series 2002-1 Xxxxxxxxx Xxxxxxxxxxx Xxxxxxxxx Balance of the Class M-1 Certificates as of the Issue Date: Pass-Through Rate: Variable $____________ Cut-off Date and date of Pooling and Denomination: $______________ Servicing Agreement: February 1, 2002 Master Servicer: Ocwen Federal Bank FSB First Distribution Date: March 25, 2002 Trustee: National City Bank No. __ Trust Administrator: U.S. Bank National Association Issue Date: February 26, 2002 CUSIP: ___________ DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE AS THE DENOMINATION OF THIS CERTIFICATE. ASSET BACKED PASS-THROUGH CERTIFICATE evidencing a beneficial ownership interest in a Trust Fund (the "~~Trustee~~Trust Fund") consisting primarily of a pool of conventional one- to four-family, adjustable-rate and fixed-rate, first lien mortgage loans (the "Mortgage Loans") formed and sold by NEW CENTURY MORTGAGE SECURITIES, INC. THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN NEW CENTURY MORTGAGE SECURITIES, INC., THE MASTER SERVICER, THE TRUSTEE, THE TRUST ADMINISTRATOR OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES. This certifies that ___________ is the registered owner of a Percentage Interest (obtained by dividing the denomination of this Certificate by the aggregate Certificate Principal Balance of the Class M-1 Certificates as of the Issue Date) in that certain beneficial ownership interest evidenced by all the Class M-1 Certificates in REMIC III created pursuant to a Pooling and Servicing Agreement, dated as specified above (the "Agreement"), among New Century Mortgage Securities, Inc. (a) hereinafter called the ~~full~~ "Depositor," which term includes any successor entity under the Agreement), the Master Servicer, the Trustee and ~~prompt payment~~ the Trust Administrator, a summary of certain of the ~~principal~~ 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 Agreement. This Certificate is issued under and ~~premium~~is subject to the terms, ~~if any, on such 2018 Note when~~ provisions and ~~as the same shall become due and payable, whether at Stated Maturity, by acceleration, by redemption or otherwise, and (b) the full and prompt payment~~ conditions of the ~~interest on~~ Agreement, to which Agreement the Holder of this Certificate by virtue of the acceptance hereof assents and by which such ~~2018 Note when and as the same shall become due and payable, according~~ Holder is bound. Pursuant to the terms of the Agreement, distributions will be made on the 25th day of each month or, if such ~~2018 Note and~~ 25th day is not a Business Day, the Business Day immediately following (a "Distribution Date"), commencing on the First Distribution Date specified above, to the Person in whose name this Certificate is registered on the Record Date, in an amount equal to the product of the ~~Indenture. The undersigned hereby agrees, jointly~~ Percentage Interest evidenced by this Certificate and ~~severally with~~ the ~~Parent Guarantor~~ amount required to be distributed to the Holders of Class M-1 Certificates on such Distribution Date pursuant to the ~~Parent Guarantee and any other Subsidiary Guarantors~~ Agreement. All distributions to the Holder of this Certificate under ~~their respective Subsidiary Guarantees, that its obligations hereunder shall~~ the Agreement will be ~~as principal and not merely as surety, and shall~~ made or caused to be ~~absolute and unconditional, and shall not be affected, modified or impaired~~ made by the ~~following: (a) the failure to give notice~~ Trust Administrator by wire transfer in immediately available funds to the ~~Guarantors~~ account of the ~~occurrence~~ Person entitled thereto if such Person shall have so notified the Trust Administrator in writing at least five Business Days prior to the Record Date immediately prior to such Distribution Date and is the registered owner of ~~an Event~~ Class M-1 Certificates the aggregate initial Certificate Principal Balance of ~~Default under the Indenture; (b) the waiver, surrender, compromise, settlement, release or termination~~ which is in excess of the ~~payment, performance or observance by the Operating Partnership or the Guarantors~~ lesser of any or all of the obligations, covenants or agreements of either of them contained in the Indenture or the 2018 Notes; (c) the acceleration, extension or any other changes in the time for payment of any principal of or interest or any premium on any 2018 Note or for any other payment under the Indenture or of the time for performance of any other obligations, covenants or agreements under or arising out of the Indenture or the 2018 Notes; (d) the modification or amendment (whether material or otherwise) of any obligation, covenant or agreement set forth in the Indenture or the 2018 Notes; (e) the taking or the omission of any of the actions referred to in the Indenture and in any of the actions under the 2018 Notes; (f) any failure, omission, delay or lack on the part of the Trustee to enforce, assert or exercise any right, power or remedy conferred on the Trustee in the Indenture, or any other action or acts on the part of the Trustee or any of the Holders from time to time of the 2018 Notes; (g) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all the assets, marshaling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition with creditors or readjustment of, or other similar proceedings affecting the Guarantors or the Operating Partnership or any of the assets of any of them, or any allegation or contest of the validity of this Subsidiary Guarantee in any such proceeding; (h) to the extent permitted by law, the release or discharge by operation of law of the Guarantors from the performance or observance of any obligation, covenant or agreement contained in the Indenture; (i) to the extent permitted by law, the release or discharge by operation of law of the Operating Partnership from the performance or observance of any obligation, covenant or agreement contained in the Indenture; (j) the default or failure of the Operating Partnership or the Trustee fully to perform any of its obligations set forth in the Indenture or the 2018 Notes; (k) the invalidity, irregularity or unenforceability of the Indenture or the 2018 Notes or any part of any thereof; (l) any judicial or governmental action affecting the Operating Partnership or any 2018 Notes or consent or indulgence granted by the Operating Partnership by the Holders or by the Trustee; or (m) the recovery of any judgment against the Operating Partnership or any action to enforce the same or any other circumstance which might constitute a legal or equitable discharge of a surety or guarantor. The undersigned hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of merger, sale, lease or conveyance of all or substantially all of its assets, insolvency or bankruptcy of the Operating Partnership, any right to require a proceeding first against the Operating Partnership, protest or notice with respect to such Notice or the indebtedness evidenced thereby and all demands whatsoever, and covenants that this Subsidiary Guarantee will not be discharged except by complete performance of the obligations contained in such 2018 Note and in this Subsidiary Guarantee. No reference herein to such Indenture and no provision of this Subsidiary Guarantee or of such Indenture shall alter or impair the guarantee of the undersigned, which is absolute and unconditional, of the full and prompt payment of the principal of and premium, if any, and interest on the 2018 Note. THIS SUBSIDIARY GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. The validity and enforceability of this Subsidiary Guarantee shall not be affected by the fact that it is not affixed to any particular 2018 Note. An Event of Default under the Indenture or the 2018 Notes shall constitute an event of default under this Subsidiary Guarantee, and shall entitle the Holders of 2018 Notes to accelerate the obligations of the undersigned hereunder in the same manner and to the same extent as the obligations of the Operating Partnership. Notwithstanding any other provision of this Subsidiary Guarantee to the contrary, the undersigned hereby waives any claims or other rights which it may now have or hereafter acquire against the Operating Partnership that arise from the existence or performance of its obligations under this Subsidiary Guarantee (all such claims and rights are referred to as "Guarantor's Conditional Rights"), including, without limitation, any right of subrogation, reimbursement, exoneration, contribution, or indemnification, any right to participate in any claim or remedy against the Operating Partnership, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, by any payment made hereunder or otherwise, including without limitation, the right to take or receive from Operating Partnership, directly or indirectly, in cash or other property or by setoff or in any other manner, payment or security on account of such claim or other rights. The Subsidiary Guarantor hereby agrees not to exercise any rights which may be acquired by way of contribution under this Subsidiary Guarantee or any other agreement, by any payment made hereunder or otherwise, including, without limitation, the right to take or receive from any other guarantor, directly or indirectly, in cash or other property or by setoff or in any other manner, payment or security on account of such contribution rights. If, notwithstanding the foregoing provisions, any amount shall be paid to any of the undersigned on account of any such Guarantor's Conditional Rights and either (i) such amount is paid to such undersigned party at any time when the indebtedness shall not have been paid or performed in full, $5,000,000 or (ii) ~~regardless~~ two-thirds of ~~when such amount is paid to such undersigned party~~the aggregate initial Certificate Principal Balance of the Class M-1 Certificates, ~~any payment made~~ or otherwise by ~~Operating Partnership to a Holder that is at any time determined to be a Preferential Payment (as defined below), then such amount paid~~ check mailed by first class mail to the ~~undersigned shall be held in trust for the benefit~~ address of the ~~Holders~~ Person entitled thereto, as such name and address shall ~~forthwith~~ appear on the Certificate Register. Notwithstanding the above, the final distribution on this Certificate will be ~~paid~~ made after due notice by the Trust Administrator of the pendency of such ~~Holder to be credited~~ distribution and ~~applied~~ only upon presentation and surrender of this Certificate at the ~~indebtedness, whether matured~~ office or ~~unmatured~~agency appointed by the Trust Administrator for that purpose as provided in the Agreement. ~~Any such payment is herein referred to as a "Preferential Payment"~~ The Pass-Through Rate applicable to the ~~extent the Operating Partnership makes~~ calculation of interest payable with respect to this Certificate on any ~~payment to Holder in connection with the Note, and any or all of such payment is subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid or paid over to~~ Distribution Date shall equal a trustee, receiver or any other entity, whether under any bankruptcy act or otherwise. To the extent that any of the provisions of the immediately preceding paragraph shall not be enforceable, each of the undersigned agrees that until such time as the indebtedness has been paid and performed in full and the period of time has expired during which any payment made by the Operating Partnership or the undersigned to a Holder may be determined to be a Preferential Payment, Guarantor's Conditional Rights to the extent not validly waived shall be subordinate to Holders' right to full payment and performance of the indebtedness and each of the undersigned shall not enforce any of its respective portion of the Guarantors' Conditional Rights until such time as the indebtedness has been paid and performed in full and the period of time has expired during which any payment made by the Operating Partnership or the undersigned to Holders may be determined to be a Preferential Payment. The undersigned's liability (the "Base Guaranty Liability") shall be that amount from time to time rate per annum equal ~~to the aggregate liability of the undersigned hereunder, but shall be limited~~ to the lesser of (Ai) One-Month LIBOR plus ____%, in the case of each Distribution Date through and including the Distribution Date on which the aggregate principal balance of the Mortgage Loans (and properties acquired in respect thereof) remaining in the Trust Fund is reduced to less than 10% of the aggregate principal balance of the Mortgage Loans as of the Cut-off Date, or One- Month LIBOR plus ____% per annum, in the case of any Distribution Date thereafter and (ii) the ~~aggregate amount~~ Net WAC Pass-Through Rate for such Distribution Date. This Certificate is one of a duly authorized issue of Certificates designated as Asset Backed Pass-Through Certificates of the ~~obligation as stated~~ Series specified on the face hereof (herein called the "Certificates") and representing a Percentage Interest in the ~~second sentence~~ Class of ~~Section 1401~~ Certificates specified on the face hereof equal to the denomination specified on the face hereof divided by the aggregate Certificate Principal Balance of the ~~Indenture~~Class of Certificates specified on the face hereof. The 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 Agreement. As provided in the Agreement, withdrawals from the Collection Account and the Distribution Account may be made from time to time for purposes other than distributions to Certificateholders, such purposes including reimbursement of advances made, or certain expenses incurred, with respect to the Mortgage Loans. The Agreement permits, with certain exceptions therein provided, the amendment thereof and the modification of the rights and obligations of the Depositor, the Master Servicer, the Trustee, the Trust Administrator and the rights of the Certificateholders under the Agreement at any time by the Depositor, the Master Servicer, the Trustee and the Trust Administrator with the consent of the Holders of Certificates entitled to at least 66% of the Voting Rights. Any such consent by the Holder of this Certificate shall be conclusive and binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in exchange herefor or in lieu hereof whether or not notation of such consent is made upon this Certificate. The Agreement also permits the amendment thereof, in certain limited circumstances, without the consent of the Holders of any of the Certificates. As provided in the Agreement and subject to certain limitations therein set forth, the transfer of this Certificate is registrable in the Certificate Register upon surrender of this Certificate for registration of transfer at the offices or agencies appointed by the Trust Administrator as provided in the Agreement, duly endorsed by, or accompanied by an assignment in the form below or other written instrument of transfer in form satisfactory to the Trust Administrator duly executed by, the Holder hereof or such Holder's attorney duly authorized in writing, and ~~(B)~~ thereupon one or more new Certificates of the ~~amount~~same Class in authorized denominations evidencing the same aggregate Percentage Interest 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 Agreement. As provided in the Agreement and subject to certain limitations therein set forth, ~~if any~~the Certificates are exchangeable for new Certificates of the same Class in authorized denominations evidencing the same aggregate Percentage Interest, ~~which would not have~~ as requested by the Holder surrendering the same. No service charge will be made for any such registration of transfer or exchange of Certificates, but the Trust 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 Trustee, the Trust Administrator and any agent of the Depositor, the Master Servicer, the Trustee or the Trust Administrator may treat the Person in whose name this Certificate is registered as the owner hereof for all purposes, and none of the Depositor, the Master Servicer, the Trustee, the Trust Administrator nor any such agent shall be affected by notice to the contrary. The obligations created by the Agreement and the Trust Fund created thereby shall terminate upon payment to the Certificateholders of all amounts held by the Trust Administrator and required to be paid to them pursuant to the Agreement following the earlier of (i) ~~rendered~~ the ~~undersigned "insolvent"~~ final payment or other liquidation (~~as such term is defined in Section 101(29~~or any advance with respect thereto) of the ~~Federal Bankruptcy Code~~ last Mortgage Loan remaining in REMIC I and ~~in Section 271 of the Debtor and Creditor Law of the State of New York, as each is in effect at the date of the Indenture) or~~ (ii) ~~left~~ the ~~undersigned with unreasonably small capital~~ purchase by the party designated in the Agreement at a price determined as provided in the Agreement from REMIC I of all the Mortgage Loans and all property acquired in respect of such Mortgage Loans. The Agreement permits, but does not require, the party designated in the Agreement to purchase from REMIC I all the Mortgage Loans and all property acquired in respect of any Mortgage Loan at a price determined as provided in the Agreement. The exercise of such right will effect early retirement of the Certificates; however, such right to purchase is subject to the aggregate Stated Principal Balance of the Mortgage Loans at the time ~~its Guarantee was entered into, after giving effect to the incurrence~~ of existing Debt (as defined in the Indenture) immediately prior to such time, provided that, it shall be a presumption in any lawsuit or other proceeding in which the undersigned is a party that the amount guaranteed is the amount set forth in (A) above unless a creditor, or representative of creditors purchase being less than 10% of the ~~undersigned or a trustee in bankruptcy~~ aggregate principal balance of the ~~undersigned,~~ Mortgage Loans as ~~debtor in possession, otherwise proves in such a lawsuit that the aggregate liability~~ of the ~~undersigned is limited to the amount set forth in (B)~~Cut-off Date. In making any determination as to the solvency or sufficiency of capital of the undersigned in accordance with the previous sentence, the right of the undersigned to contribution from other Guarantors, to subrogation and any other rights the undersigned may have, contractual or otherwise, The recitals contained herein shall be taken ~~into account. The obligations~~ as statements of the ~~undersigned to the Holders of the 2018 Notes and to~~ Depositor, the Trustee ~~pursuant to the Subsidiary Guarantee~~ and the ~~Indenture are expressly set forth in Article 14~~ Trust Administrator assume no responsibility for their correctness. Unless the certificate of authentication hereon has been executed by the ~~Indenture and reference is hereby made~~ Trust Administrator, by manual signature, this Certificate shall not be entitled to any benefit under the ~~Indenture~~ Agreement or be valid for the precise terms of the Subsidiary Guarantee and all of the other provisions of the Indenture to which this Subsidiary Guarantee relates. Capitalized terms in this Subsidiary Guarantee which are not defined herein shall have the meanings assigned to them in the Indentureany purpose.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (New Century Home Equity Loan Trust Series 2002-1)

Dated. ~~Notice~~Signature by or on behalf of assignor DISTRIBUTION INSTRUCTIONS The assignee should include the following for purposes of distribution: The signature to this assignment must correspond with the name as it appears upon the face of the within Note in every particular, without alteration or enlargement or any change whatever. ABBREVIATIONS The following abbreviations, when used in the inscription on the face of this instrument, Distributions shall be ~~construed as though they were written out~~ made, by wire transfer or otherwise, in ~~full according~~ immediately available funds to ~~applicable laws or regulations: TEN COM--as tenants in common UNIF GIFT MIN ACT--_____ Custodian~~_____~~_ TEN ENT--as tenants~~ ___________________________________________, _______________________________________________________________________________, for the account of ____________________________________________________________, account number ______________, or, if mailed by ~~the entireties (Cust) (Minor) JT TEN--as joint tenants with right Under Uniform Gifts~~ check, to ~~Minors of survivorship and not as Act~~____________________. Applicable statements should be mailed to______________________________________, _______________________________________________________________________________. This information is provided by________________________________ tenants in common (State) Additional abbreviations may also be used though not in the above list. --------------------------- [FORM OF SCHEDULE FOR ENDORSEMENTS ON GLOBAL SECURITY TO REFLECT CHANGES IN PRINCIPAL AMOUNT] Schedule A Changes to Principal Amount of Global Security Principal Amount of Securities by which this Global Security is to be Reduced or Increased, and Reason for Remaining Principal Amount of Notation Date Reduction or Increase this Global Securities Made by ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- Exhibit B SUBSIDIARY GUARANTEE FOR VALUE RECEIVED, the ~~undersigned hereby jointly and severally with the Parent Guarantor pursuant to the Parent Guarantee and any other subsidiary Guarantors under their respective Subsidiary Guarantees~~assignee named above, ~~unconditionally guarantees to the Holder of the accompanying~~ or _____~~% Note Due June~~ _____________________________________________, ~~2018~~ as its agent. EXHIBIT C FORM OF CLASS C CERTIFICATE NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE PROPOSED TRANSFEROR DELIVERS TO THE TRUSTEE A TRANSFEROR CERTIFICATE IN THE FORM OF EXHIBIT I TO THE AGREEMENT REFERRED TO HEREIN AND EITHER (I) THE TRUSTEE RECEIVES A RULE 144A LETTER IN THE FORM OF EXHIBIT J TO THE AGREEMENT REFERRED TO HEREIN OR (II) THE TRUSTEE RECEIVES AN OPINION OF COUNSEL, DELIVERED AT THE EXPENSE OF THE TRANSFEROR, THAT SUCH TRANSFER MAY BE MADE WITHOUT REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED. NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE TRANSFEREE DELIVERS TO THE TRUSTEE A REPRESENTATION LETTER TO THE EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO SECTION 4975 OF THE CODE, OR A PLAN SUBJECT TO APPLICABLE FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE OR A PERSON INVESTING ON BEHALF OF OR WITH PLAN ASSETS OF SUCH A PLAN. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, ANY PURPORTED TRANSFER OF THIS CERTIFICATE TO OR ON BEHALF OF AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF ERISA, SECTION 4975 OF THE CODE OR SIMILAR LAW WITHOUT THE REPRESENTATION LETTER SATISFACTORY TO THE TRUSTEE AS DESCRIBED ABOVE SHALL BE VOID AND OF NO EFFECT. Certificate No. : C-1 Cut-off Date : February 1, 2007 First Distribution Date : March 26, 2007 Percentage Interest of this Certificate ("Denomination") : [___]% CUSIP : 3622MHAT3 ISIN : US3622MHAT38 GS MORTGAGE SECURITIES CORP. GSAMP Trust 2007-FM2 Mortgage Pass-Through Certificates, Series 2007-FM2 Class C evidencing a percentage interest in the distributions allocable to the Certificates of the above-referenced Class. This Certificate does not evidence an obligation of, or an interest in, and is not guaranteed by the Depositor, the Master Servicer, the Servicer, the Securities Administrator, the Sponsor, the Responsible Party or the Trustee or any other party to the Agreement referred to below or any of their respective affiliates. Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any governmental agency or instrumentality. This certifies that [_____________] is the registered owner of the Percentage Interest evidenced by this Certificate (obtained by dividing the denomination of this Certificate by the aggregate of the denominations of all Certificates of the Class to which this Certificate belongs) in certain monthly distributions pursuant to a Pooling and Servicing Agreement, dated as of the Cut-off Date specified above (the "~~2018 Note~~Agreement"~~) issued by AMB Property~~), ~~L.P.~~ among GS Mortgage Securities Corp., as depositor (the "~~Operating Partnership~~Depositor"~~) under an Indenture dated~~ ), Fremont Investment & Loan, as ~~of June ___, 1998~~ responsible party (~~together with the Second Supplemental Indenture thereto~~in such capacity, the "~~Indenture~~Responsible Party") ~~among~~ and as servicer (in such capacity, the ~~Operating Partnership~~"Servicer"), ~~AMB Property Corporation, and State Street~~ Deutsche Bank ~~and~~ National Trust ~~Company of California, N.A.~~Company, as trustee (the "Trustee") and Wells Fargo Bank, N.A., as master servicer (the "Master Servicer") and xxxxxities administrator (the "Securities Administrator"). To the extent not defined herein, ~~(a)~~ the ~~full~~ capitalized terms used herein have the meanings assigned in the Agreement. This Certificate is issued under and ~~prompt payment~~ is subject to the terms, provisions and conditions of the ~~principal~~ Agreement, to which Agreement the Holder of ~~and premium, if any, on such 2018 Note when and as the same shall become due and payable, whether at Stated Maturity,~~ this Certificate by ~~acceleration, by redemption or otherwise, and (b) the full and prompt payment~~ virtue of the ~~interest on~~ acceptance hereof assents and by which such ~~2018 Note when~~ Holder is bound. This Certificate does not have a Pass-Through Rate and ~~as the same shall become due and payable, according~~ will be entitled to distributions only to the terms of such 2018 Note and of the Indenture. The undersigned hereby agrees, jointly and severally with the Parent Guarantor pursuant to the Parent Guarantee and any other Subsidiary Guarantors under their respective Subsidiary Guarantees, that its obligations hereunder shall be as principal and not merely as surety, and shall be absolute and unconditional, and shall not be affected, modified or impaired by the following: (a) the failure to give notice to the Guarantors of the occurrence of an Event of Default under the Indenture; (b) the waiver, surrender, compromise, settlement, release or termination of the payment, performance or observance by the Operating Partnership or the Guarantors of any or all of the obligations, covenants or agreements of either of them contained in the Indenture or the 2018 Notes; (c) the acceleration, extension or any other changes in the time for payment of any principal of or interest or any premium on any 2018 Note or for any other payment under the Indenture or of the time for performance of any other obligations, covenants or agreements under or arising out of the Indenture or the 2018 Notes; (d) the modification or amendment (whether material or otherwise) of any obligation, covenant or agreement extent set forth in the ~~Indenture or the 2018 Notes; (e) the taking or the omission~~ Agreement. The only rights of ~~any of the actions referred to in the Indenture and in any of the actions~~ this Class under the ~~2018 Notes; (f) any failure, omission, delay or lack on the part of the Trustee~~ Agreement is to enforce, assert or exercise any right, power or remedy conferred on the Trustee in the Indenture, or any other action or acts on the part of the Trustee or any of the Holders from time to time of the 2018 Notes; (g) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all the assets, marshaling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition with creditors or readjustment of, or other similar proceedings affecting the Guarantors or the Operating Partnership or any of the assets of any of them, or any allegation or contest of the validity of this Subsidiary Guarantee in any such proceeding; (h) to the extent permitted by law, the release or discharge by operation of law of the Guarantors from the performance or observance of any obligation, covenant or agreement contained in the Indenture; (i) to the extent permitted by law, the release or discharge by operation of law of the Operating Partnership from the performance or observance of any obligation, covenant or agreement contained in the Indenture; (j) the default or failure of the Operating Partnership or the Trustee fully to perform any of its obligations make a request as set forth in ~~the Indenture or the 2018 Notes; (k) the invalidity, irregularity or unenforceability~~ Article XI of the Indenture or the 2018 Notes or any part of any thereof; (l) any judicial or governmental action affecting the Operating Partnership or any 2018 Notes or consent or indulgence granted by the Operating Partnership by the Holders or by the Trustee; or (m) the recovery of any judgment against the Operating Partnership or any action to enforce the same or any other circumstance which might constitute a legal or equitable discharge Agreement. No transfer of a ~~surety~~ Certificate of this Class shall be made unless such disposition is exempt from the registration requirements of the Securities Act of 1933, as amended (the "1933 Act"), and any applicable state securities laws or ~~guarantor~~is made in accordance with the 1933 Act and such laws. ~~The undersigned hereby waives diligence, presentment, demand of payment, filing of claims with a court in~~ In the event of ~~merger~~any such transfer, ~~sale, lease or conveyance of all or~~ the Securities Administrator shall require the transferor to execute a transferor certificate (in substantially ~~all of its assets, insolvency or bankruptcy of~~ the Operating Partnership, any right to require a proceeding first against the Operating Partnership, protest or notice with respect to such Notice or the indebtedness evidenced thereby and all demands whatsoever, and covenants that this Subsidiary Guarantee will not be discharged except by complete performance of the obligations contained in such 2018 Note and in this Subsidiary Guarantee. No reference herein to such Indenture and no provision of this Subsidiary Guarantee or of such Indenture shall alter or impair the guarantee of the undersigned, which is absolute and unconditional, of the full and prompt payment of the principal of and premium, if any, and interest on the 2018 Note. THIS SUBSIDIARY GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. The validity and enforceability of this Subsidiary Guarantee shall not be affected by the fact that it is not affixed to any particular 2018 Note. An Event of Default under the Indenture or the 2018 Notes shall constitute an event of default under this Subsidiary Guarantee, and shall entitle the Holders of 2018 Notes to accelerate the obligations of the undersigned hereunder in the same manner and form attached to the same extent as the obligations of the Operating Partnership. Notwithstanding any other provision of this Subsidiary Guarantee to the contrary, the undersigned hereby waives any claims or other rights which it may now have or hereafter acquire against the Operating Partnership that arise from the existence or performance of its obligations under this Subsidiary Guarantee (all such claims Agreement) and rights are referred to as "Guarantor's Conditional Rights"), including, without limitation, any right of subrogation, reimbursement, exoneration, contribution, or indemnification, any right to participate in any claim or remedy against the Operating Partnership, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, by any payment made hereunder or otherwise, including without limitation, the right to take or receive from Operating Partnership, directly or indirectly, in cash or other property or by setoff or in any other manner, payment or security on account of such claim or other rights. The Subsidiary Guarantor hereby agrees not to exercise any rights which may be acquired by way of contribution under this Subsidiary Guarantee or any other agreement, by any payment made hereunder or otherwise, including, without limitation, the right to take or receive from any other guarantor, directly or indirectly, in cash or other property or by setoff or in any other manner, payment or security on account of such contribution rights. If, notwithstanding the foregoing provisions, any amount shall be paid to any of the undersigned on account of any such Guarantor's Conditional Rights and deliver either (i) ~~such amount is paid~~ a Rule 144A Letter, in either case substantially in the form attached to ~~such undersigned party at any time when~~ the ~~indebtedness shall not have been paid or performed in full~~Agreement, or (ii) ~~regardless~~ a written Opinion of when such amount is paid to such undersigned party, any payment made by Operating Partnership to a Holder that is at any time determined to be a Preferential Payment (as defined below), then such amount paid Counsel to the ~~undersigned shall~~ Securities Administrator that such transfer may be ~~held in trust for~~ made pursuant to an exemption, describing the benefit of the Holders and shall forthwith be paid such Holder to be credited and applied upon the indebtedness, whether matured or unmatured. Any such payment is herein referred to as a "Preferential Payment" to the extent the Operating Partnership makes any payment to Holder in connection with the Note, and any or all of such payment is subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid or paid over to a trustee, receiver or any other entity, whether under any bankruptcy act or otherwise. To the extent that any of the provisions of the immediately preceding paragraph shall not be enforceable, each of the undersigned agrees that until such time as the indebtedness has been paid and performed in full applicable exemption and the ~~period of time has expired during which any payment~~ basis therefor, from the 1933 Act or is being made by the Operating Partnership or the undersigned to a Holder may be determined to be a Preferential Payment, Guarantor's Conditional Rights to the extent not validly waived shall be subordinate to Holders' right to full payment and performance of the indebtedness and each of the undersigned shall not enforce any of its respective portion of the Guarantors' Conditional Rights until such time as the indebtedness has been paid and performed in full and the period of time has expired during which any payment made by the Operating Partnership or the undersigned to Holders may be determined to be a Preferential Payment. The undersigned's liability (the "Base Guaranty Liability") shall be that amount from time to time equal to the aggregate liability of the undersigned hereunder, but shall be limited to the lesser of (A) the aggregate amount of the obligation as stated in the second sentence of Section 1401 of the Indenture, and (B) the amount, if any, which would not have (i) rendered the undersigned "insolvent" (as such term is defined in Section 101(29) of the Federal Bankruptcy Code and in Section 271 of the Debtor and Creditor Law of the State of New York, as each is in effect at the date of the Indenture) or (ii) left the undersigned with unreasonably small capital at the time its Guarantee was entered into, after giving effect to the incurrence of existing Debt (as defined in the Indenture) immediately prior to such time, provided that, it shall be a presumption in any lawsuit or other proceeding in which the undersigned is a party that the amount guaranteed is the amount set forth in (A) above unless a creditor, or representative of creditors of the undersigned or a trustee in bankruptcy of the undersigned, as debtor in possession, otherwise proves in such a lawsuit that the aggregate liability of the undersigned is limited to the amount set forth in (B). In making any determination as to the solvency or sufficiency of capital of the undersigned in accordance with the previous sentence, the right of the undersigned to contribution from other Guarantors, to subrogation and any other rights the undersigned may have, contractual or otherwise, shall be taken into account. The obligations of the undersigned to the Holders of the 2018 Notes and to the Trustee pursuant to the ~~Subsidiary Guarantee and the Indenture are expressly set forth in Article 14~~ 1933 Act, which Opinion of Counsel shall be an expense of the ~~Indenture and reference~~ transferor. Reference is hereby made to the ~~Indenture~~ further provisions of this Certificate set forth on the reverse hereof, which further provisions shall for all purposes have the ~~precise terms~~ same effect as if set forth at this place. This Certificate shall not be entitled to any benefit under the Agreement or be valid for any purpose unless manually authenticated by an authorized signatory of the ~~Subsidiary Guarantee and all of the other provisions of the Indenture to which this Subsidiary Guarantee relates~~Securities Administrator. ~~Capitalized terms in this Subsidiary Guarantee which are not defined herein shall have the meanings assigned to them in the Indenture.~~***

Appears in 1 contract

Samples: Pooling and Servicing Agreement (GSAMP Trust 2007-Fm2)

Dated. ~~Notice~~Signature by or on behalf of assignor ------------------------------- Signature Guaranteed DISTRIBUTION INSTRUCTIONS The assignee should include the following for purposes of distribution: The signature to this assignment must correspond with the name as it appears upon the face of the within Note in every particular, without alteration or enlargement or any change whatever. ABBREVIATIONS The following abbreviations, when used in the inscription on the face of this instrument, Distributions shall be ~~construed as though they were written out~~ made, by wire transfer or otherwise, in ~~full according~~ immediately available funds to ~~applicable laws or regulations: TEN COM--as tenants in common UNIF GIFT MIN ACT--_____ Custodian~~_____~~_ TEN ENT--as tenants by the entireties (Cust) (Minor) JT TEN--as joint tenants with right Under Uniform Gifts to Minors of survivorship and not as Act~~___________________________________________ tenants in common (State) Additional abbreviations may also be used though not in the above list. --------------------------- [FORM OF SCHEDULE FOR ENDORSEMENTS ON GLOBAL SECURITY TO REFLECT CHANGES IN PRINCIPAL AMOUNT] Schedule A Changes to Principal Amount of Global Security Principal Amount of Securities by which this Global Security is to be Reduced or Increased, and Reason for Remaining Principal Amount of Notation Date Reduction or Increase this Global Securities Made by ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- Exhibit B SUBSIDIARY GUARANTEE FOR VALUE RECEIVED, the undersigned hereby jointly and severally with the Parent Guarantor pursuant to the Parent Guarantee and any other subsidiary Guarantors under their respective Subsidiary Guarantees, unconditionally guarantees to the Holder of the accompanying _____~~% Note Due June~~ ___________________________________________________________ for the account of _______________________________, ~~2018 (the "2018 Note") issued by AMB Property, L.P. (the "Operating Partnership") under an Indenture dated as of June~~ account number ________________________, ~~1998 (together with the Second Supplemental Indenture thereto~~or, if mailed by check, to__________________________________________________________ _______________________________________________________________________________. Applicable statements should be mailed to_______________________________________ ________________________________________________________________________________ _______________________________________________. This information is provided by __________________________________________________, the assignee named above, or ________________________________________, as its agent. EXHIBIT A-15 ------------ FORM OF CLASS M-11 CERTIFICATE UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("~~Indenture~~DTC"~~) among~~ ), TO THE TRUST ADMINISTRATOR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986 (THE "CODE"). THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1 CERTIFICATES, THE CLASS A-2 CERTIFICATES, THE CLASS A-3 CERTIFICATES, THE CLASS A-4 CERTIFICATES, THE CLASS M-1 CERTIFICATES, THE CLASS M- 2 CERTIFICATES, THE CLASS M-3 CERTIFICATES, THE CLASS M-4 CERTIFICATES, THE CLASS M-5 CERTIFICATES, THE CLASS M-6 CERTIFICATES, THE CLASS M-7 CERTIFICATES, THE CLASS M-8 CERTIFICATES, THE CLASS M-9 CERTIFICATES AND THE CLASS M-10 CERTIFICATES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN. NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, OR THE CODE WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROCEDURES DESCRIBED HEREIN. Series: 2004-HE1 Xxxxxxxxx Xxxxxxxxxxx Xxxncipal Balance of the ~~Operating Partnership~~Class M-11 Certificates as of the Issue Date: Pass-Through Rate: Variable $4,009,000.00 Cut-off Date and date of Pooling and Denomination: $4,009,000.00 Servicing Agreement: September 1, ~~AMB Property Corporation, and State Street Bank~~ 2004 Master Servicer and Trust ~~Company~~ Administrator: First Distribution Date: October 25, 2004 Wells Fargo Bank, X.X. No. 1 Trustee: U.S. Bank National Association Issue Date: September 29, 2004 CUSIP: 57643L EU 6 DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE AS THE DENOMINATION OF THIS CERTIFICATE. MORTGAGE PASS-THROUGH CERTIFICATE evidencing a beneficial ownership interest in a portion of ~~California, N.A., as trustee~~ a Trust Fund (the "~~Trustee~~Trust Fund") consisting primarily of a pool of conventional one- to four-family, fixed-rate and adjustable-rate, first and second lien mortgage loans (the "Mortgage Loans") formed and sold by MORTGAGE ASSET SECURITIZATION TRANSACTIONS, INC. THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN MORTGAGE ASSET SECURITIZATION TRANSACTIONS, INC., THE MASTER SERVICER, THE TRUSTEE, THE TRUST ADMINISTRATOR OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES. This certifies that Cede & Co. is the registered owner of a Percentage Interest (obtained by dividing the denomination of this Certificate by the aggregate Certificate Principal Balance of the Class M-11 Certificates as of the Issue Date) in that certain beneficial ownership interest evidenced by all the Class M-11 Certificates in REMIC II created pursuant to a Pooling and Servicing Agreement, dated as specified above (the "Agreement"), among Mortgage Asset Securitization Transactions, Inc. (a) hereinafter called the ~~full~~ "Depositor," which term includes any successor entity under the Agreement), the Master Servicer, the Trust Administrator and ~~prompt payment~~ the Trustee, a summary of certain of the ~~principal~~ 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 Agreement. This Certificate is issued under and ~~premium~~is subject to the terms, ~~if any, on such 2018 Note when~~ provisions and ~~as the same shall become due and payable, whether at Stated Maturity, by acceleration, by redemption or otherwise, and (b) the full and prompt payment~~ conditions of the ~~interest on~~ Agreement, to which Agreement the Holder of this Certificate by virtue of the acceptance hereof assents and by which such ~~2018 Note when and as the same shall become due and payable, according~~ Holder is bound. Pursuant to the terms of the Agreement, distributions will be made on the 25th day of each month or, if such ~~2018 Note and~~ 25th day is not a Business Day, the Business Day immediately following (a "Distribution Date"), commencing on the First Distribution Date specified above, to the Person in whose name this Certificate is registered on the Record Date, in an amount equal to the product of the ~~Indenture. The undersigned hereby agrees, jointly~~ Percentage Interest evidenced by this Certificate and ~~severally with~~ the ~~Parent Guarantor~~ amount required to be distributed to the Holders of Class M-11 Certificates on such Distribution Date pursuant to the ~~Parent Guarantee~~ Agreement. All distributions to the Holder of this Certificate under the Agreement will be made or caused to be made by the Trust Administrator by wire transfer in immediately available funds to the account of the Person entitled thereto if such Person shall have so notified the Trust Administrator in writing at least five Business Days prior to the Record Date immediately prior to such Distribution Date and is the registered owner of Class M-11 Certificates the aggregate initial Certificate Principal Balance of which is in excess of the lesser of (i) $5,000,000 or (ii) two-thirds of the aggregate initial Certificate Principal Balance of the Class M-11 Certificates, or otherwise by check mailed by first class mail to the address of the Person entitled thereto, as such name and address shall appear on the Certificate Register. Notwithstanding the above, the final distribution on this Certificate will be made after due notice by the Trust Administrator of the pendency of such distribution and only upon presentation and surrender of this Certificate at the office or agency appointed by the Trust Administrator for that purpose as provided in the Agreement. The Pass-Through Rate applicable to the calculation of interest payable with respect to this Certificate on any Distribution Date shall equal a rate per annum equal to the lesser of (i) the related Formula Rate for such Distribution Date and (ii) the related Net WAC Rate for such Distribution Date. This Certificate is one of a duly authorized issue of Certificates designated as Mortgage Pass-Through Certificates of the Series specified on the face hereof (herein called the "Certificates") and representing a Percentage Interest in the Class of Certificates specified on the face hereof equal to the denomination specified on the face hereof divided by the aggregate Certificate Principal Balance of the Class of Certificates specified on the face hereof. The 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 Agreement. As provided in the Agreement, withdrawals from the Distribution Account may be made from time to time for purposes other ~~Subsidiary Guarantors~~ than distributions to Certificateholders, such purposes including reimbursement of advances made, or certain expenses incurred, with respect to the Mortgage Loans. The Agreement permits, with certain exceptions therein provided, the amendment thereof and the modification of the rights and obligations of the Depositor, the Master Servicer, the Trust Administrator, the Trustee and the rights of the Certificateholders under ~~their respective Subsidiary Guarantees~~the Agreement at any time by the Depositor, ~~that its obligations hereunder~~ the Master Servicer, the Trust Administrator and the Trustee with the consent of the Holders of Certificates entitled to at least 66% of the Voting Rights. Any such consent by the Holder of this Certificate shall be ~~as principal~~ conclusive and binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in exchange herefor or in lieu hereof whether or not ~~merely as surety~~notation of such consent is made upon this Certificate. The Agreement also permits the amendment thereof, ~~and shall be absolute and unconditional~~in certain limited circumstances, ~~and shall not be affected, modified or impaired by~~ without the ~~following: (a) the failure to give notice to the Guarantors~~ consent of the occurrence of an Event of Default under the Indenture; (b) the waiver, surrender, compromise, settlement, release or termination of the payment, performance or observance by the Operating Partnership or the Guarantors of any or all of the obligations, covenants or agreements of either of them contained in the Indenture or the 2018 Notes; (c) the acceleration, extension or any other changes in the time for payment of any principal of or interest or any premium on any 2018 Note or for any other payment under the Indenture or of the time for performance of any other obligations, covenants or agreements under or arising out of the Indenture or the 2018 Notes; (d) the modification or amendment (whether material or otherwise) of any obligation, covenant or agreement set forth in the Indenture or the 2018 Notes; (e) the taking or the omission Holders of any of the ~~actions referred to~~ Certificates. As provided in the ~~Indenture~~ Agreement and subject to certain limitations therein set forth, the transfer of this Certificate is registrable in ~~any~~ the Certificate Register upon surrender of this Certificate for registration of transfer at the offices or agencies appointed by the Trust Administrator as provided in the Agreement, duly endorsed by, or accompanied by an assignment in the form below or other written instrument of transfer in form satisfactory to the Trust 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 ~~actions under~~ same Class in authorized denominations evidencing the ~~2018 Notes; (f) any failure, omission, delay~~ same aggregate Percentage Interest will be issued to the designated transferee or ~~lack on the part~~ transferees. No transfer of this Certificate to a Plan subject to ERISA or Section 4975 of the Trustee to enforce, assert or exercise any right, power or remedy conferred on the Trustee in the Indenture, or any other action or acts on the part of the Trustee or any of the Holders from time to time of the 2018 Notes; (g) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all the assets, marshaling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition with creditors or readjustment of, or other similar proceedings affecting the Guarantors or the Operating Partnership or any of the assets of any of them, or any allegation or contest of the validity of this Subsidiary Guarantee in any such proceeding; (h) to the extent permitted by law, the release or discharge by operation of law of the Guarantors from the performance or observance of any obligation, covenant or agreement contained in the Indenture; (i) to the extent permitted by law, the release or discharge by operation of law of the Operating Partnership from the performance or observance of any obligation, covenant or agreement contained in the Indenture; (j) the default or failure of the Operating Partnership or the Trustee fully to perform any of its obligations set forth in the Indenture or the 2018 Notes; (k) the invalidity, irregularity or unenforceability of the Indenture or the 2018 Notes or any part of any thereof; (l) any judicial or governmental action affecting the Operating Partnership or any 2018 Notes or consent or indulgence granted by the Operating Partnership by the Holders or by the Trustee; or (m) the recovery of any judgment against the Operating Partnership or any action to enforce the same or any other circumstance which might constitute a legal or equitable discharge of a surety or guarantor. The undersigned hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of merger, sale, lease or conveyance of all or substantially all of its assets, insolvency or bankruptcy of the Operating PartnershipCode, any right to require a proceeding first against the Operating Partnership, protest or notice with respect to such Notice or the indebtedness evidenced thereby and all demands whatsoever, and covenants that this Subsidiary Guarantee will not be discharged except by complete performance of the obligations contained in such 2018 Note and in this Subsidiary Guarantee. No reference herein to such Indenture and no provision of this Subsidiary Guarantee or of such Indenture shall alter or impair the guarantee of the undersigned, which is absolute and unconditional, of the full and prompt payment of the principal of and premium, if any, and interest on the 2018 Note. THIS SUBSIDIARY GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. The validity and enforceability of this Subsidiary Guarantee shall not be affected by the fact that it is not affixed to any particular 2018 Note. An Event of Default under the Indenture or the 2018 Notes shall constitute an event of default under this Subsidiary Guarantee, and shall entitle the Holders of 2018 Notes to accelerate the obligations of the undersigned hereunder in the same manner and to the same extent as the obligations of the Operating Partnership. Notwithstanding any other provision of this Subsidiary Guarantee to the contrary, the undersigned hereby waives any claims or other rights which it may now have or hereafter acquire against the Operating Partnership that arise from the existence or performance of its obligations under this Subsidiary Guarantee (all such claims and rights are referred to as "Guarantor's Conditional Rights"), including, without limitation, any right of subrogation, reimbursement, exoneration, contribution, or indemnification, any right to participate in any claim or remedy against the Operating Partnership, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, by any payment made hereunder or otherwise, including without limitation, the right to take or receive from Operating PartnershipPerson acting, directly or indirectly, on behalf of any such Plan or any Person using "Plan Assets" to acquire this Certificate shall be made except in ~~cash~~ accordance with Section 5.02(c) of the Agreement. The Certificates are issuable in fully registered form only without coupons in Classes and denominations representing Percentage Interests specified in the Agreement. As provided in the Agreement and subject to certain limitations therein set forth, the Certificates are exchangeable for new Certificates of the same Class in authorized denominations evidencing the same aggregate Percentage Interest, as requested by the Holder surrendering the same. No service charge will be made for any such registration of transfer or exchange of Certificates, but the Trust Administrator may require payment of a sum sufficient to cover any tax or other ~~property~~ governmental charge that may be imposed in connection with any transfer or ~~by setoff or in any other manner, payment or security on account~~ exchange of ~~such claim or other rights~~Certificates. The Subsidiary Guarantor hereby agrees not to exercise any rights which may be acquired by way of contribution under this Subsidiary Guarantee or any other agreement, by any payment made hereunder or otherwise, including, without limitationDepositor, the ~~right~~ Master Servicer, the Trustee, the Trust Administrator and any agent of the Depositor, the Master Servicer, the Trust Administrator or 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 Trustee, the Trust Administrator nor any such agent shall be affected by notice to ~~take or receive from any other guarantor, directly or indirectly, in cash or other property or~~ the contrary. The obligations created by ~~setoff or in any other manner,~~ the Agreement and the Trust Fund created thereby shall terminate upon payment ~~or security on account~~ to the Certificateholders of ~~such contribution rights. If, notwithstanding~~ all amounts held by the ~~foregoing provisions, any amount shall~~ Trust Administrator and required to be paid to ~~any~~ them pursuant to the Agreement following the earlier of ~~the undersigned on account of any such Guarantor's Conditional Rights and either~~ (i) ~~such amount is paid to such undersigned party at~~ the final payment or other liquidation (or any ~~time when~~ advance with respect thereto) of the ~~indebtedness shall not have been paid or performed~~ last Mortgage Loan and REO Property remaining in ~~full, or~~ REMIC I and (ii) ~~regardless~~ the purchase by the party designated in the Agreement at a price determined as provided in the Agreement from REMIC I of ~~when~~ all the Mortgage Loans and all property acquired in respect of such ~~amount~~ Mortgage Loans. The Agreement permits, but does not require, the party designated in the Agreement to purchase from REMIC I all the Mortgage Loans and all property acquired in respect of any Mortgage Loan at a price determined as provided in the Agreement. The exercise of such right will effect early retirement of the Certificates; however, such right to purchase is ~~paid to such undersigned party, any payment made by Operating Partnership to a Holder that is at any time determined to be a Preferential Payment (as defined below), then such amount paid~~ subject to the ~~undersigned~~ aggregate Stated Principal Balance of the Mortgage Loans at the time of purchase being less than 10% of the aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-off Date. The recitals contained herein shall be ~~held in trust for the benefit~~ taken as statements of the ~~Holders~~ Depositor and ~~shall forthwith be paid such Holder to be credited and applied upon~~ the ~~indebtedness~~Trust Administrator assume no responsibility for their correctness. Unless the certificate of authentication hereon has been executed by the Trust Administrator, ~~whether matured or unmatured. Any such payment is herein referred to as a "Preferential Payment" to the extent the Operating Partnership makes any payment to Holder in connection with the Note~~by manual signature, and any or all of such payment is subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid or paid over to a trustee, receiver or any other entity, whether under any bankruptcy act or otherwise. To the extent that any of the provisions of the immediately preceding paragraph this Certificate shall not be ~~enforceable, each of~~ entitled to any benefit under the ~~undersigned agrees that until such time as the indebtedness has been paid and performed in full and the period of time has expired during which~~ Agreement or be valid for any payment made by the Operating Partnership or the undersigned to a Holder may be determined to be a Preferential Payment, Guarantor's Conditional Rights to the extent not validly waived shall be subordinate to Holders' right to full payment and performance of the indebtedness and each of the undersigned shall not enforce any of its respective portion of the Guarantors' Conditional Rights until such time as the indebtedness has been paid and performed in full and the period of time has expired during which any payment made by the Operating Partnership or the undersigned to Holders may be determined to be a Preferential Payment. The undersigned's liability (the "Base Guaranty Liability") shall be that amount from time to time equal to the aggregate liability of the undersigned hereunder, but shall be limited to the lesser of (A) the aggregate amount of the obligation as stated in the second sentence of Section 1401 of the Indenture, and (B) the amount, if any, which would not have (i) rendered the undersigned "insolvent" (as such term is defined in Section 101(29) of the Federal Bankruptcy Code and in Section 271 of the Debtor and Creditor Law of the State of New York, as each is in effect at the date of the Indenture) or (ii) left the undersigned with unreasonably small capital at the time its Guarantee was entered into, after giving effect to the incurrence of existing Debt (as defined in the Indenture) immediately prior to such time, provided that, it shall be a presumption in any lawsuit or other proceeding in which the undersigned is a party that the amount guaranteed is the amount set forth in (A) above unless a creditor, or representative of creditors of the undersigned or a trustee in bankruptcy of the undersigned, as debtor in possession, otherwise proves in such a lawsuit that the aggregate liability of the undersigned is limited to the amount set forth in (B). In making any determination as to the solvency or sufficiency of capital of the undersigned in accordance with the previous sentence, the right of the undersigned to contribution from other Guarantors, to subrogation and any other rights the undersigned may have, contractual or otherwise, shall be taken into account. The obligations of the undersigned to the Holders of the 2018 Notes and to the Trustee pursuant to the Subsidiary Guarantee and the Indenture are expressly set forth in Article 14 of the Indenture and reference is hereby made to the Indenture for the precise terms of the Subsidiary Guarantee and all of the other provisions of the Indenture to which this Subsidiary Guarantee relates. Capitalized terms in this Subsidiary Guarantee which are not defined herein shall have the meanings assigned to them in the Indenturepurpose.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (MASTR Asset Backed Securities Trust 2004-He1)

Dated. ~~Notice~~Signature by or on behalf of assignor DISTRIBUTION INSTRUCTIONS The assignee should include the following for purposes of distribution: The signature to this assignment must correspond with the name as it appears upon the face of the within Note in every particular, without alteration or enlargement or any change whatever. ABBREVIATIONS The following abbreviations, when used in the inscription on the face of this instrument, Distributions shall be ~~construed as though they were written out~~ made, by wire transfer or otherwise, in ~~full according~~ immediately available funds to ~~applicable laws or regulations: TEN COM--as tenants in common UNIF GIFT MIN ACT--_____ Custodian~~_____~~_ TEN ENT--as tenants~~ ___________________________________________, _______________________________________________________________________________, for the account of ____________________________________________________________, account number ______________, or, if mailed by ~~the entireties (Cust) (Minor) JT TEN--as joint tenants with right Under Uniform Gifts~~ check, to ~~Minors of survivorship and not as Act~~____________________. Applicable statements should be mailed to______________________________________, _______________________________________________________________________________. This information is provided by________________________________ tenants in common (State) Additional abbreviations may also be used though not in the above list. --------------------------- [FORM OF SCHEDULE FOR ENDORSEMENTS ON GLOBAL SECURITY TO REFLECT CHANGES IN PRINCIPAL AMOUNT] Schedule A Changes to Principal Amount of Global Security Principal Amount of Securities by which this Global Security is to be Reduced or Increased, and Reason for Remaining Principal Amount of Notation Date Reduction or Increase this Global Securities Made by ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- Exhibit B SUBSIDIARY GUARANTEE FOR VALUE RECEIVED, the ~~undersigned hereby jointly and severally with the Parent Guarantor pursuant to the Parent Guarantee and any other subsidiary Guarantors under their respective Subsidiary Guarantees~~assignee named above, ~~unconditionally guarantees to the Holder of the accompanying~~ or _____~~% Note Due June~~ _____________________________________________, ~~2018~~ as its agent. EXHIBIT D-1 FORM OF CLASS R CERTIFICATE SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL INTEREST" IN THREE "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"). NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE PROPOSED TRANSFEREE DELIVERS TO THE SECURITIES ADMINISTRATOR A TRANSFER AFFIDAVIT IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN. NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE TRANSFEREE DELIVERS TO THE SECURITIES ADMINISTRATOR A REPRESENTATION LETTER TO THE EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO SECTION 4975 OF THE CODE OR A PLAN SUBJECT TO MATERIALLY SIMILAR PROVISIONS OF APPLICABLE FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") OR A PERSON INVESTING ON BEHALF OF OR WITH PLAN ASSETS OF SUCH A PLAN. IN THE EVENT THAT SUCH REPRESENTATION IS VIOLATED, OR ANY ATTEMPT IS MADE TO TRANSFER TO A PLAN OR ARRANGEMENT SUBJECT TO SECTION 406 OF ERISA, A PLAN SUBJECT TO SECTION 4975 OF THE CODE OR A PLAN SUBJECT TO SIMILAR LAW, OR A PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR ARRANGEMENT OR USING THE ASSETS OF ANY SUCH PLAN OR ARRANGEMENT, SUCH ATTEMPTED TRANSFER OR ACQUISITION SHALL BE VOID AND OF NO EFFECT. Certificate No. : 1 Cut-off Date : February 1, 2007 First Distribution Date : March 26, 2007 Initial Certificate Balance of this Certificate ("Denomination") : $ 50 Initial Certificate Balance of all Certificates of this Class : $ 50 CUSIP : 3622MHAQ9 ISIN : US3622MHAQ98 GS MORTGAGE SECURITIES CORP. GSAMP Trust 2007-FM2 Mortgage Pass-Through Certificates, Series 2007-FM2 Class R evidencing a percentage interest in the distributions allocable to the Certificates of the above-referenced Class. Distributions in respect of this Certificate are distributable monthly as set forth herein. This Class R Certificate is not entitled to distributions in respect of interest. This Certificate does not evidence an obligation of, or an interest in, and is not guaranteed by the Depositor, the Master Servicer, the Servicer, the Securities Administrator, the Sponsor, the Responsible Party or the Trustee or any other party to the Agreement referred to below or any of their respective affiliates. Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any governmental agency or instrumentality. This certifies that [_____________] is the registered owner of the Percentage Interest evidenced by this Certificate in certain monthly distributions pursuant to a Pooling and Servicing Agreement, dated as of the Cut-off Date specified above (the "~~2018 Note~~Agreement"~~) issued by AMB Property~~), ~~L.P.~~ among GS Mortgage Securities Corp., as depositor (the "~~Operating Partnership~~Depositor"~~) under an Indenture dated~~ ), Fremont Investment & Loan, as ~~of June ___, 1998~~ responsible party (~~together with the Second Supplemental Indenture thereto~~in such capacity, the "~~Indenture~~Responsible Party") ~~among~~ and as servicer (in such capacity, the ~~Operating Partnership~~"Servicer"), ~~AMB Property Corporation, and State Street~~ Deutsche Bank ~~and~~ National Trust ~~Company of California, N.A.~~Company, as trustee (the "Trustee") and Wells Fargo Bank, N.A., as master servicer (the "Master Servicer") and xxxxxities administrator (the "Securities Administrator"). To the extent not defined herein, ~~(a)~~ the ~~full~~ capitalized terms used herein have the meanings assigned in the Agreement. This Certificate is issued under and ~~prompt payment~~ is subject to the terms, provisions and conditions of the ~~principal~~ Agreement, to which Agreement the Holder of ~~and premium, if any, on such 2018 Note when and as the same shall become due and payable, whether at Stated Maturity,~~ this Certificate by ~~acceleration, by redemption or otherwise, and (b) the full and prompt payment~~ virtue of the ~~interest on~~ acceptance hereof assents and by which such ~~2018 Note when~~ Holder is bound. Any distribution of the proceeds of any remaining assets of the Trust Fund will be made only upon presentment and as surrender of this Class R Certificate at the ~~same~~ offices designated by the Securities Administrator for such purposes or such other location specified in the notice to Certificateholders. No transfer of a Class R Certificate shall ~~become due~~ be made unless the Securities Administrator shall have received a representation letter from the transferee of such Certificate, acceptable to and ~~payable, according~~ in form and substance satisfactory to the ~~terms~~ Securities Administrator, to the effect that such transferee is not an employee benefit plan or arrangement subject to Section 406 of ~~such 2018 Note and~~ ERISA, a plan or arrangement subject to Section 4975 of the ~~Indenture. The undersigned hereby agrees~~Code or a plan subject to Similar Law, jointly and severally with the Parent Guarantor pursuant to the Parent Guarantee and any other Subsidiary Guarantors under their respective Subsidiary Guarantees, that its obligations hereunder shall be as principal and not merely as surety, and shall be absolute and unconditional, and shall not be affected, modified or impaired by the following: (a) the failure to give notice to the Guarantors of the occurrence of an Event of Default under the Indenture; (b) the waiver, surrender, compromise, settlement, release or termination of the payment, performance or observance by the Operating Partnership or the Guarantors a person acting on behalf of any such plan or all of the obligations, covenants or agreements of either of them contained in the Indenture or the 2018 Notes; (c) the acceleration, extension or any other changes in the time for payment of any principal of or interest or any premium on any 2018 Note or for any other payment under the Indenture or of the time for performance of any other obligations, covenants or agreements under or arising out of the Indenture or the 2018 Notes; (d) the modification or amendment (whether material or otherwise) of any obligation, covenant or agreement set forth in the Indenture or the 2018 Notes; (e) the taking or the omission of any of the actions referred to in the Indenture and in any of the actions under the 2018 Notes; (f) any failure, omission, delay or lack on the part of the Trustee to enforce, assert or exercise any right, power or remedy conferred on the Trustee in the Indenture, or any other action or acts on the part of the Trustee or any of the Holders from time to time of the 2018 Notes; (g) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all the assets, marshaling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition with creditors or readjustment of, or other similar proceedings affecting the Guarantors or the Operating Partnership or any of arrangement nor using the assets of any such plan or arrangement to effect such transfer, which representation letter shall not be an expense of ~~them~~the Securities Administrator, the Servicer or the Trust Fund. In the event that such representation is violated, or any ~~allegation~~ attempt is made to transfer to a plan or ~~contest~~ arrangement subject to Section 406 of ERISA or a plan subject to Section 4975 of the ~~validity~~ Code or a plan subject to Similar Law, or a person acting on behalf of any such plan or arrangement or using the assets of any such plan or arrangement, such attempted transfer or acquisition shall be void and of no effect. Each Holder of this ~~Subsidiary Guarantee~~ Class R Certificate shall be deemed by the acceptance or acquisition an Ownership Interest in this Class R Certificate to have agreed to be bound by the following provisions, and the rights of each Person acquiring any ~~such proceeding; (h)~~ Ownership Interest in this Class R Certificate are expressly subject to the ~~extent permitted by law, the release or discharge by operation of law of the Guarantors from the performance or observance of any obligation, covenant or agreement contained in the Indenture;~~ following provisions: (i) each Person holding or acquiring any Ownership Interest in this Class R Certificate shall be a Permitted Transferee and shall promptly notify the Securities Administrator of any change or impending change in its status as a Permitted Transferee, (ii) no Ownership Interest in this Class R Certificate may be registered on the Closing Date or thereafter transferred, and the Securities Administrator shall not register the Transfer of this Certificate unless, in addition to the ~~extent permitted by law~~certificates required to be delivered to the Securities Administrator under Section 5.02(b) of the Agreement, the ~~release or discharge by operation of law~~ Securities Administrator shall have been furnished with a Transfer Affidavit of the ~~Operating Partnership from~~ initial owner or the ~~performance or observance of any obligation, covenant or agreement contained~~ proposed transferee in the ~~Indenture;~~ form attached as Exhibit H to the Agreement, (jiii) each Person holding or acquiring any Ownership Interest in this Class R Certificate shall agree (A) to obtain a Transfer Affidavit from any other Person to whom such Person attempts to Transfer its Ownership Interest this Class R Certificate, (B) to obtain a Transfer Affidavit from any Person for whom such Person is acting as nominee, trustee or agent in connection with any Transfer of this Class R Certificate, (C) not to cause income with respect to the ~~default~~ Class R Certificate to be attributable to a foreign permanent establishment or ~~failure~~ fixed base, within the meaning of ~~the Operating Partnership or the Trustee fully to perform any~~ an applicable income tax treaty, of its obligations set forth in the Indenture or the 2018 Notes; (k) the invalidity, irregularity or unenforceability of the Indenture or the 2018 Notes or any part of any thereof; (l) any judicial or governmental action affecting the Operating Partnership or any 2018 Notes or consent or indulgence granted by the Operating Partnership by the Holders or by the Trustee; or (m) the recovery of any judgment against the Operating Partnership or any action to enforce the same such Person or any other ~~circumstance which might constitute a legal~~ U.S. Person and (D) not to Transfer the Ownership Interest in this Class R Certificate or ~~equitable discharge of a surety or guarantor. The undersigned hereby waives diligence, presentment, demand of payment, filing of claims with a court in~~ to cause the ~~event of merger, sale, lease or conveyance of all or substantially all of its assets, insolvency or bankruptcy~~ Transfer of the ~~Operating Partnership,~~ Ownership Interest in this Class R Certificate to any ~~right to require~~ other Person if it has actual knowledge that such Person is not a ~~proceeding first against the Operating Partnership, protest~~ Permitted Transferee and (iv) any attempted or ~~notice with respect to such Notice or the indebtedness evidenced thereby and all demands whatsoever, and covenants that this Subsidiary Guarantee will not be discharged except by complete performance~~ purported Transfer of the ~~obligations contained in such 2018 Note and~~ Ownership Interest in this Subsidiary Guarantee. No reference herein to such Indenture and no provision of this Subsidiary Guarantee or of such Indenture shall alter or impair the guarantee of the undersigned, which is absolute and unconditional, of the full and prompt payment of the principal of and premium, if any, and interest on the 2018 Note. THIS SUBSIDIARY GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. The validity and enforceability of this Subsidiary Guarantee shall not be affected by the fact that it is not affixed to any particular 2018 Note. An Event of Default under the Indenture or the 2018 Notes shall constitute an event of default under this Subsidiary Guarantee, and shall entitle the Holders of 2018 Notes to accelerate the obligations of the undersigned hereunder Class R Certificate in the same manner and to the same extent as the obligations of the Operating Partnership. Notwithstanding any other provision of this Subsidiary Guarantee to the contrary, the undersigned hereby waives any claims or other rights which it may now have or hereafter acquire against the Operating Partnership that arise from the existence or performance of its obligations under this Subsidiary Guarantee (all such claims and rights are referred to as "Guarantor's Conditional Rights"), including, without limitation, any right of subrogation, reimbursement, exoneration, contribution, or indemnification, any right to participate in any claim or remedy against the Operating Partnership, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, by any payment made hereunder or otherwise, including without limitation, the right to take or receive from Operating Partnership, directly or indirectly, in cash or other property or by setoff or in any other manner, payment or security on account of such claim or other rights. The Subsidiary Guarantor hereby agrees not to exercise any rights which may be acquired by way of contribution under this Subsidiary Guarantee or any other agreement, by any payment made hereunder or otherwise, including, without limitation, the right to take or receive from any other guarantor, directly or indirectly, in cash or other property or by setoff or in any other manner, payment or security on account of such contribution rights. If, notwithstanding the foregoing provisions, any amount shall be paid to any of the undersigned on account of any such Guarantor's Conditional Rights and either (i) such amount is paid to such undersigned party at any time when the indebtedness shall not have been paid or performed in full, or (ii) regardless of when such amount is paid to such undersigned party, any payment made by Operating Partnership to a Holder that is at any time determined to be a Preferential Payment (as defined below), then such amount paid to the undersigned shall be held in trust for the benefit of the Holders and shall forthwith be paid such Holder to be credited and applied upon the indebtedness, whether matured or unmatured. Any such payment is herein referred to as a "Preferential Payment" to the extent the Operating Partnership makes any payment to Holder in connection with the Note, and any or all of such payment is subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid or paid over to a trustee, receiver or any other entity, whether under any bankruptcy act or otherwise. To the extent that any violation of the provisions of the immediately preceding paragraph shall not be enforceable, each of the undersigned agrees that until such time as the indebtedness has been paid and performed in full and the period of time has expired during which any payment made by the Operating Partnership or the undersigned to a Holder may be determined to be a Preferential Payment, Guarantor's Conditional Rights to the extent not validly waived herein shall be ~~subordinate to Holders' right to full payment~~ absolutely null and ~~performance of the indebtedness~~ void and ~~each of the undersigned~~ shall not enforce any of its respective portion of the Guarantors' Conditional Rights until such time as the indebtedness has been paid and performed in full and the period of time has expired during which any payment made by the Operating Partnership or the undersigned to Holders may be determined to be a Preferential Payment. The undersigned's liability (the "Base Guaranty Liability") shall be that amount from time to time equal to the aggregate liability of the undersigned hereunder, but shall be limited to the lesser of (A) the aggregate amount of the obligation as stated vest no rights in the second sentence of Section 1401 of the Indenture, and (B) the amount, if any, which would not have (i) rendered the undersigned "insolvent" (as such term is defined in Section 101(29) of the Federal Bankruptcy Code and in Section 271 of the Debtor and Creditor Law of the State of New York, as each is in effect at the date of the Indenture) or (ii) left the undersigned with unreasonably small capital at the time its Guarantee was entered into, after giving effect to the incurrence of existing Debt (as defined in the Indenture) immediately prior to such time, provided that, it shall be a presumption in any lawsuit or other proceeding in which the undersigned is a party that the amount guaranteed is the amount set forth in (A) above unless a creditor, or representative of creditors of the undersigned or a trustee in bankruptcy of the undersigned, as debtor in possession, otherwise proves in such a lawsuit that the aggregate liability of the undersigned is limited to the amount set forth in (B)purported Transferee. In making any determination as to the solvency or sufficiency of capital of the undersigned in accordance with the previous sentence, the right of the undersigned to contribution from other Guarantors, to subrogation and any other rights the undersigned may have, contractual or otherwise, shall be taken into account. The obligations of the undersigned to the Holders of the 2018 Notes and to the Trustee pursuant to the Subsidiary Guarantee and the Indenture are expressly set forth in Article 14 of the Indenture and reference Reference is hereby made to the ~~Indenture~~ further provisions of this Certificate set forth on the reverse hereof, which further provisions shall for all purposes have the ~~precise terms~~ same effect as if set forth at this place. This Certificate shall not be entitled to any benefit under the Agreement or be valid for any purpose unless manually authenticated by an authorized signatory of the Subsidiary Guarantee and all of the other provisions of the Indenture to which this Subsidiary Guarantee relates. Capitalized terms in this Subsidiary Guarantee which are not defined herein shall have the meanings assigned to them in the IndentureSecurities Administrator.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (GSAMP Trust 2007-Fm2)

Dated. ~~Notice~~Signature by or on behalf of assignor DISTRIBUTION INSTRUCTIONS The assignee should include the following for purposes of distribution: The signature to this assignment must correspond with the name as it appears upon the face of the within Note in every particular, without alteration or enlargement or any change whatever. ABBREVIATIONS The following abbreviations, when used in the inscription on the face of this instrument, Distributions shall be ~~construed as though they were written out~~ made, by wire transfer or otherwise, in ~~full according~~ immediately available funds to ~~applicable laws or regulations: TEN COM--as tenants in common UNIF GIFT MIN ACT--_____ Custodian______ TEN ENT--as tenants by~~ , -------------------------------------------------------------------------------- , -------------------------------------------------------------------------------- for the ~~entireties (Cust) (Minor) JT TEN--as joint tenants with right Under Uniform Gifts to Minors~~ account of ~~survivorship and not as Act~~, ------------------------------------------------------------- account number _______~~___________________ tenants in common~~ , or, if mailed by check, to ----------------------------- Applicable statements should be mailed to , -------------------------------------- , ------------------------------------------------------------------------------- This information is provided by , ------------------------------ the assignee named above, or , ---------------------------------------------------- as its agent. EXHIBIT C SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (~~State~~THE "CODE"). NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE PROPOSED TRANSFEREE DELIVERS TO THE TRUSTEE A TRANSFER AFFIDAVIT IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN. NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS (i) ~~Additional abbreviations may also be used though not~~ TO A PERMITTED TRANSFEREE AND THE TRANSFER IS MADE IN COMPLIANCE WITH SECTION 5.02(c) OF THE AGREEMENT, AND (ii) THE TRANSFEREE DELIVERS TO THE TRUSTEE EITHER A REPRESENTATION LETTER TO THE EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, OR A PLAN SUBJECT TO SECTION 4975 OF THE CODE OR A PLAN SUBJECT TO MATERIALLY SIMILAR PROVISIONS OF APPLICABLE FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") OR A PERSON INVESTING ON BEHALF OF OR WITH PLAN ASSETS OF SUCH A PLAN. IN THE EVENT THAT SUCH REPRESENTATION IS VIOLATED, OR ANY ATTEMPT IS MADE TO TRANSFER TO A PLAN OR ARRANGEMENT SUBJECT TO SECTION 406 OF ERISA, A PLAN SUBJECT TO SECTION 4975 OF THE CODE OR A PLAN SUBJECT TO SIMILAR LAW, OR A PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR ARRANGEMENT OR USING THE ASSETS OF ANY SUCH PLAN OR ARRANGEMENT, SUCH ATTEMPTED TRANSFER OR ACQUISITION SHALL BE VOID AND OF NO EFFECT. Certificate No. : 1 Cut-off Date : April 1, 2002 First Distribution Date : May 28, 2002 Percentage Interest of this Certificate ("DENOMINATION") : 100% ------------ CUSIP : N/A MORGAN STANLEY ABS CAPITAL I INC. CDC Mortgage Xxxxxxl Xxxxx 2002-HE1 Mortgage Pass-Through Certificates, Series 2002-HE1 Class R evidencing a percentage interest in the ~~above list~~distributions allocable to the Certificates of the above-referenced Class. ~~--------------------------- [FORM OF SCHEDULE FOR ENDORSEMENTS ON GLOBAL SECURITY TO REFLECT CHANGES IN PRINCIPAL AMOUNT] Schedule A Changes~~ Distributions in respect of this Certificate is distributable monthly as set forth herein. This Class R Certificate has no Certificate Balance and is not entitled to ~~Principal Amount~~ distributions in respect of ~~Global Security Principal Amount of Securities by which this Global Security is to be Reduced~~ principal or ~~Increased~~interest. This Certificate does not evidence an obligation of, or an interest in, and ~~Reason for Remaining Principal Amount of Notation Date Reduction or Increase this Global Securities Made~~ is not guaranteed by ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- Exhibit B SUBSIDIARY GUARANTEE FOR VALUE RECEIVEDthe Depositor, the ~~undersigned hereby jointly and severally~~ Servicer, the Unaffiliated Seller or the Trustee referred to below or any of their respective affiliates. Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any governmental agency or instrumentality (other than the Superior Mortgage Loans in accordance with the ~~Parent Guarantor~~ FDIC Guaranty). This certifies that CDC Mortgage Capital Inc. is the registered owner of the Percentage Interest specified above of any monthly distributions due to the Class R Certificates pursuant to ~~the Parent Guarantee~~ a Pooling and ~~any other subsidiary Guarantors under their respective Subsidiary Guarantees, unconditionally guarantees to the Holder~~ Servicing Agreement dated as of the ~~accompanying _____% Note Due June ___, 2018~~ Cut-off Date specified above (the "~~2018 Note~~AGREEMENT") ~~issued by AMB Property~~among MORGAN STANLEY ABS CAPITAL I INC., ~~L.P.~~ as depositor (the "~~Operating Partnership~~DEPOSITOR"), Xxwex Xxxxxal Bank FSB, as servicer (the "SERVICER"), CDC Mortgage Capital Inc., as unaffiliated seller (the "UNAFFILIATED SELLER") ~~under an Indenture dated as of June ___, 1998 (together with the Second Supplemental Indenture thereto, the "Indenture") among the Operating Partnership, AMB Property Corporation,~~ and ~~State Street~~ Deutsche Bank ~~and~~ National Trust ~~Company of California, N.A.~~Company, as trustee (the "~~Trustee~~TRUSTEE"). To the extent not defined herein, ~~(a)~~ the ~~full~~ capitalized terms used herein have the meanings assigned in the Agreement. This Certificate is issued under and ~~prompt payment~~ is subject to the terms, provisions and conditions of the ~~principal~~ Agreement, to which Agreement the Holder of ~~and premium, if any, on such 2018 Note when and as the same shall become due and payable, whether at Stated Maturity,~~ this Certificate by ~~acceleration, by redemption or otherwise, and (b) the full and prompt payment~~ virtue of the ~~interest on~~ acceptance hereof assents and by which such ~~2018 Note when and as the same shall become due and payable, according to the terms of such 2018 Note and~~ Holder is bound. Any distribution of the ~~Indenture. The undersigned hereby agrees, jointly~~ proceeds of any remaining assets of the Trust Fund will be made only upon presentment and ~~severally with~~ surrender of this Class R Certificate at the Parent Guarantor pursuant to the Parent Guarantee and any other Subsidiary Guarantors under their respective Subsidiary Guarantees, that its obligations hereunder shall be as principal and not merely as surety, and shall be absolute and unconditional, and shall not be affected, modified or impaired offices designated by the following: (a) the failure to give notice to the Guarantors of the occurrence of an Event of Default under the Indenture; (b) the waiver, surrender, compromise, settlement, release or termination of the payment, performance or observance by the Operating Partnership Trustee for such purposes or the ~~Guarantors of any~~ office or all of the obligations, covenants or agreements of either of them contained in the Indenture or the 2018 Notes; (c) the acceleration, extension or any other changes in the time for payment of any principal of or interest or any premium on any 2018 Note or for any other payment under the Indenture or of the time for performance of any other obligations, covenants or agreements under or arising out of the Indenture or the 2018 Notes; (d) the modification or amendment (whether material or otherwise) of any obligation, covenant or agreement set forth in the Indenture or the 2018 Notes; (e) the taking or the omission of any of the actions referred to in the Indenture and in any of the actions under the 2018 Notes; (f) any failure, omission, delay or lack on the part of the Trustee to enforce, assert or exercise any right, power or remedy conferred on agency maintained by the Trustee in California. No transfer of a Class R Certificate shall be made unless the ~~Indenture~~Trustee shall have received a representation letter from the transferee of such Certificate, acceptable to and in form and substance satisfactory to the Trustee, to the effect that such transferee is not an employee benefit plan or arrangement subject to Section 406 of ERISA, a plan or arrangement subject to Section 4975 of the Code or a plan subject to Similar Law, or a person acting on behalf of any ~~other action~~ such plan or acts on the part of the Trustee or any of the Holders from time to time of the 2018 Notes; (g) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all the assets, marshaling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition with creditors or readjustment of, or other similar proceedings affecting the Guarantors or the Operating Partnership or any of arrangement nor using the assets of any such plan or arrangement to effect such transfer, which representation letter shall not be an expense of ~~them~~the Trustee, the Servicer or the Trust Fund. In the event that such representation is violated, or any ~~allegation~~ attempt is made to transfer to a plan or ~~contest~~ arrangement subject to Section 406 of ERISA or a plan subject to Section 4975 of the ~~validity~~ Code or a plan subject to Similar Law, or a person acting on behalf of any such plan or arrangement or using the assets of any such plan or arrangement, such attempted transfer or acquisition shall be void and of no effect. Each Holder of this ~~Subsidiary Guarantee~~ Class R Certificate shall be deemed by the acceptance or acquisition an Ownership Interest in this Class R Certificate to have agreed to be bound by the following provisions, and the rights of each Person acquiring any ~~such proceeding; (h)~~ Ownership Interest in this Class R Certificate are expressly subject to the ~~extent permitted by law, the release or discharge by operation of law of the Guarantors from the performance or observance of any obligation, covenant or agreement contained in the Indenture;~~ following provisions: (i) each Person holding or acquiring any Ownership Interest in this Class R Certificate shall be a Permitted Transferee and shall promptly notify the Trustee of any change or impending change in its status as a Permitted Transferee, (ii) no Ownership Interest in this Class R Certificate may be registered on the Closing Date or thereafter transferred, and the Trustee shall not register the Transfer of this Certificate unless, in addition to the ~~extent permitted by law~~certificates required to be delivered to the Trustee under Section 5.02(b) of the Agreement, the ~~release or discharge by operation of law~~ Trustee shall have been furnished with a Transfer Affidavit of the ~~Operating Partnership from~~ initial owner or the ~~performance or observance of any obligation, covenant or agreement contained~~ proposed transferee in the ~~Indenture;~~ form attached as Exhibit G to the Agreement, (jiii) ~~the default~~ each Person holding or ~~failure of the Operating Partnership or the Trustee fully to perform~~ acquiring any of its obligations set forth in the Indenture or the 2018 Notes; (k) the invalidity, irregularity or unenforceability of the Indenture or the 2018 Notes or any part of any thereof; (l) any judicial or governmental action affecting the Operating Partnership or any 2018 Notes or consent or indulgence granted by the Operating Partnership by the Holders or by the Trustee; or (m) the recovery of any judgment against the Operating Partnership or any action to enforce the same or any other circumstance which might constitute a legal or equitable discharge of a surety or guarantor. The undersigned hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of merger, sale, lease or conveyance of all or substantially all of its assets, insolvency or bankruptcy of the Operating Partnership, any right to require a proceeding first against the Operating Partnership, protest or notice with respect to such Notice or the indebtedness evidenced thereby and all demands whatsoever, and covenants that this Subsidiary Guarantee will not be discharged except by complete performance of the obligations contained in such 2018 Note and Ownership Interest in this ~~Subsidiary Guarantee. No reference herein~~ Class R Certificate shall agree (A) to such Indenture and no provision of this Subsidiary Guarantee or of such Indenture shall alter or impair the guarantee of the undersigned, which is absolute and unconditional, of the full and prompt payment of the principal of and premium, if any, and interest on the 2018 Note. THIS SUBSIDIARY GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. The validity and enforceability of this Subsidiary Guarantee shall not be affected by the fact that it is not affixed to any particular 2018 Note. An Event of Default under the Indenture or the 2018 Notes shall constitute an event of default under this Subsidiary Guarantee, and shall entitle the Holders of 2018 Notes to accelerate the obligations of the undersigned hereunder in the same manner and to the same extent as the obligations of the Operating Partnership. Notwithstanding any other provision of this Subsidiary Guarantee to the contrary, the undersigned hereby waives any claims or other rights which it may now have or hereafter acquire against the Operating Partnership that arise from the existence or performance of its obligations under this Subsidiary Guarantee (all such claims and rights are referred to as "Guarantor's Conditional Rights"), including, without limitation, any right of subrogation, reimbursement, exoneration, contribution, or indemnification, any right to participate in any claim or remedy against the Operating Partnership, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, by any payment made hereunder or otherwise, including without limitation, the right to take or receive from Operating Partnership, directly or indirectly, in cash or other property or by setoff or in any other manner, payment or security on account of such claim or other rights. The Subsidiary Guarantor hereby agrees not to exercise any rights which may be acquired by way of contribution under this Subsidiary Guarantee or any other agreement, by any payment made hereunder or otherwise, including, without limitation, the right to take or receive obtain a Transfer Affidavit from any other ~~guarantor~~Person to whom such Person attempts to Transfer its Ownership Interest this Class R Certificate, ~~directly~~ (B) to obtain a Transfer Affidavit from any Person for whom such Person is acting as nominee, trustee or indirectly, in cash or other property or by setoff or in any other manner, payment or security on account of such contribution rights. If, notwithstanding the foregoing provisions, any amount shall be paid to any of the undersigned on account of any such Guarantor's Conditional Rights and either (i) such amount is paid to such undersigned party at any time when the indebtedness shall not have been paid or performed in full, or (ii) regardless of when such amount is paid to such undersigned party, any payment made by Operating Partnership to a Holder that is at any time determined to be a Preferential Payment (as defined below), then such amount paid to the undersigned shall be held in trust for the benefit of the Holders and shall forthwith be paid such Holder to be credited and applied upon the indebtedness, whether matured or unmatured. Any such payment is herein referred to as a "Preferential Payment" to the extent the Operating Partnership makes any payment to Holder agent in connection with any Transfer of this Class R Certificate and (C) not to Transfer the ~~Note, and any~~ Ownership Interest in this Class R Certificate or ~~all~~ to cause the Transfer of ~~such payment is subsequently invalidated, declared~~ the Ownership Interest in this Class R Certificate to ~~be fraudulent or preferential, set aside or required to be repaid or paid over to a trustee, receiver or~~ any other ~~entity, whether under~~ Person if it has actual knowledge that such Person is not a Permitted Transferee and (iv) any ~~bankruptcy act~~ attempted or ~~otherwise. To~~ purported Transfer of the ~~extent that any~~ Ownership Interest in this Class R Certificate in violation of the provisions of the immediately preceding paragraph shall not be enforceable, each of the undersigned agrees that until such time as the indebtedness has been paid and performed in full and the period of time has expired during which any payment made by the Operating Partnership or the undersigned to a Holder may be determined to be a Preferential Payment, Guarantor's Conditional Rights to the extent not validly waived herein shall be ~~subordinate to Holders' right to full payment~~ absolutely null and ~~performance of the indebtedness~~ void and ~~each of the undersigned~~ shall not enforce any of its respective portion of the Guarantors' Conditional Rights until such time as the indebtedness has been paid and performed in full and the period of time has expired during which any payment made by the Operating Partnership or the undersigned to Holders may be determined to be a Preferential Payment. The undersigned's liability (the "Base Guaranty Liability") shall be that amount from time to time equal to the aggregate liability of the undersigned hereunder, but shall be limited to the lesser of (A) the aggregate amount of the obligation as stated vest no rights in the second sentence of Section 1401 of the Indenture, and (B) the amount, if any, which would not have (i) rendered the undersigned "insolvent" (as such term is defined in Section 101(29) of the Federal Bankruptcy Code and in Section 271 of the Debtor and Creditor Law of the State of New York, as each is in effect at the date of the Indenture) or (ii) left the undersigned with unreasonably small capital at the time its Guarantee was entered into, after giving effect to the incurrence of existing Debt (as defined in the Indenture) immediately prior to such time, provided that, it shall be a presumption in any lawsuit or other proceeding in which the undersigned is a party that the amount guaranteed is the amount set forth in (A) above unless a creditor, or representative of creditors of the undersigned or a trustee in bankruptcy of the undersigned, as debtor in possession, otherwise proves in such a lawsuit that the aggregate liability of the undersigned is limited to the amount set forth in (B)purported Transferee. In making any determination as to the solvency or sufficiency of capital of the undersigned in accordance with the previous sentence, the right of the undersigned to contribution from other Guarantors, to subrogation and any other rights the undersigned may have, contractual or otherwise, shall be taken into account. The obligations of the undersigned to the Holders of the 2018 Notes and to the Trustee pursuant to the Subsidiary Guarantee and the Indenture are expressly set forth in Article 14 of the Indenture and reference Reference is hereby made to the ~~Indenture~~ further provisions of this Certificate set forth on the reverse hereof, which further provisions shall for all purposes have the ~~precise terms~~ same effect as if set forth at this place. This Certificate shall not be entitled to any benefit under the Agreement or be valid for any purpose unless manually countersigned by an authorized signatory of the Subsidiary Guarantee and all of the other provisions of the Indenture to which this Subsidiary Guarantee relates. Capitalized terms in this Subsidiary Guarantee which are not defined herein shall have the meanings assigned to them in the IndentureTrustee.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Morgan Stanley Abs Capital I Inc)

Dated. ~~Notice~~Signature by or on behalf of assignor ----------------------------------------------- Signature Guaranteed DISTRIBUTION INSTRUCTIONS The assignee should include the following for purposes of distribution: The signature to this assignment must correspond with the name as it appears upon the face of the within Note in every particular, without alteration or enlargement or any change whatever. ABBREVIATIONS The following abbreviations, when used in the inscription on the face of this instrument, Distributions shall be ~~construed as though they were written out~~ made, by wire transfer or otherwise, in ~~full according~~ immediately available funds to ~~applicable laws or regulations: TEN COM--as tenants in common UNIF GIFT MIN ACT--_____ Custodian~~_____~~_ TEN ENT--as tenants~~ ___________________________________________, for the account of_____________________________________________________________, account number __________, or, if mailed by ~~the entireties (Cust) (Minor) JT TEN--as joint tenants with right Under Uniform Gifts~~ check, to ~~Minors of survivorship and not as Act~~_________________________, Applicable statements should be mailed to ______________________________________ tenants in common (State) Additional abbreviations may also be used though not in the above list. --------------------------- [FORM OF SCHEDULE FOR ENDORSEMENTS ON GLOBAL SECURITY TO REFLECT CHANGES IN PRINCIPAL AMOUNT] Schedule A Changes to Principal Amount of Global Security Principal Amount of Securities by which this Global Security is to be Reduced or Increased, and Reason for Remaining Principal Amount of Notation Date Reduction or Increase this Global Securities Made by ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- Exhibit B SUBSIDIARY GUARANTEE FOR VALUE RECEIVED, the undersigned hereby jointly and severally with the Parent Guarantor pursuant to the Parent Guarantee and any other subsidiary Guarantors under their respective Subsidiary Guarantees, unconditionally guarantees to the Holder of the accompanying _____~~% Note Due June~~ __________________________________________________________________________. This information is provided by _______________________________________________, ~~2018 (~~the ~~"2018 Note") issued by AMB Property~~assignee named above, ~~L.P. (the "Operating Partnership") under an Indenture dated as of June~~ or __________________________________________________, ~~1998~~ as its agent. EXHIBIT A-12 FORM OF CLASS M-9 CERTIFICATE UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (~~together with~~ "DTC"), TO THE TRUSTEE OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986 (THE "CODE"). THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A CERTIFICATES, THE CLASS M-1 CERTIFICATES, THE CLASS M-2 CERTIFICATES, THE CLASS M-3 CERTIFICATES, THE CLASS M-4 CERTIFICATES, THE CLASS M-5 CERTIFICATES, THE CLASS M-6 CERTIFICATES, THE CLASS M-7 CERTIFICATES AND CLASS M-8 CERTIFICATES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN. THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE RESOLD OR TRANSFERRED UNLESS IT IS REGISTERED PURSUANT TO SUCH ACT AND LAWS OR IS SOLD OR TRANSFERRED IN TRANSACTIONS THAT ARE EXEMPT FROM REGISTRATION UNDER SUCH ACT AND UNDER APPLICABLE STATE LAW AND IS TRANSFERRED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE AGREEMENT. <TABLE> Series 0000-XX0 Xxxxxxxxx Certificate Principal Balance of the ~~Second Supplemental Indenture thereto~~Class M-9 Certificates as of the Issue Pass-Through Rate: Variable Date: $[________].00 Cut-off Date and date of Pooling and Denomination: $[________].00 Servicing Agreement: August 1, ~~the "Indenture") among the Operating Partnership~~2005 Servicer: New Century Mortgage Corporation First Distribution Date: September 26, ~~AMB Property Corporation~~2005 Trustee: Deutsche Bank National Trust No. 1 Company Issue Date: August 16, ~~and State Street Bank and~~ 2005 CUSIP: [______] [__] [_] </TABLE> DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE AS THE DENOMINATION OF THIS CERTIFICATE. ASSET BACKED PASS-THROUGH CERTIFICATE evidencing a beneficial ownership interest in a portion of a Trust ~~Company of California, N.A., as trustee~~ Fund (the "~~Trustee~~Trust Fund") consisting primarily of a pool of conventional one- to four-family, adjustable-rate, first lien mortgage loans (the "Mortgage Loans") formed and sold by STANWICH ASSET ACCEPTANCE COMPANY, L.L.C. THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN STANWICH ASSET ACCEPTANCE COMPANY, L.L.C., THE SERVICER, THE TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES. This certifies that Cede & Co. is the registered owner of a Percentage Interest (obtained by dividing the denomination of this Certificate by the aggregate Certificate Principal Balance of the Class M-9 Certificates as of the Issue Date) in that certain beneficial ownership interest evidenced by all the Class M-9 Certificates in REMIC II created pursuant to a Pooling and Servicing Agreement, dated as specified above (the "Agreement"), among Stanwich Asset Acceptance Company, L.L.C. (a) hereinafter called the ~~full~~ "Depositor," which term includes any successor entity under the Agreement), the Servicer and ~~prompt payment~~ the Trustee, a summary of certain of the ~~principal~~ 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 Agreement. This Certificate is issued under and ~~premium~~is subject to the terms, ~~if any, on such 2018 Note when~~ provisions and ~~as the same shall become due and payable, whether at Stated Maturity, by acceleration, by redemption or otherwise, and (b) the full and prompt payment~~ conditions of the ~~interest on~~ Agreement, to which Agreement the Holder of this Certificate by virtue of the acceptance hereof assents and by which such ~~2018 Note when and as the same shall become due and payable, according~~ Holder is bound. Pursuant to the terms of the Agreement, distributions will be made on the 25th day of each month or, if such ~~2018 Note and~~ 25th day is not a Business Day, the Business Day immediately following (a "Distribution Date"), commencing on the First Distribution Date specified above, to the Person in whose name this Certificate is registered on the Record Date, in an amount equal to the product of the ~~Indenture. The undersigned hereby agrees, jointly~~ Percentage Interest evidenced by this Certificate and ~~severally with~~ the ~~Parent Guarantor~~ amount required to be distributed to the Holders of Class M-9 Certificates on such Distribution Date pursuant to the ~~Parent Guarantee and any other Subsidiary Guarantors~~ Agreement. All distributions to the Holder of this Certificate under ~~their respective Subsidiary Guarantees, that its obligations hereunder shall~~ the Agreement will be ~~as principal and not merely as surety, and shall~~ made or caused to be ~~absolute and unconditional, and shall not be affected, modified or impaired~~ made by the ~~following: (a) the failure to give notice~~ Trustee by wire transfer in immediately available funds to the ~~Guarantors~~ account of the occurrence of an Event of Default under the Indenture; (b) the waiver, surrender, compromise, settlement, release or termination of the payment, performance or observance by the Operating Partnership or the Guarantors of any or all of the obligations, covenants or agreements of either of them contained in the Indenture or the 2018 Notes; (c) the acceleration, extension or any other changes in the time for payment of any principal of or interest or any premium on any 2018 Note or for any other payment under the Indenture or of the time for performance of any other obligations, covenants or agreements under or arising out of the Indenture or the 2018 Notes; (d) the modification or amendment (whether material or otherwise) of any obligation, covenant or agreement set forth in the Indenture or the 2018 Notes; (e) the taking or the omission of any of the actions referred to in the Indenture and in any of the actions under the 2018 Notes; (f) any failure, omission, delay or lack on the part of the Trustee to enforce, assert or exercise any right, power or remedy conferred on Person entitled thereto if such Person shall have so notified the Trustee in writing at least five Business Days prior to the ~~Indenture~~Record Date immediately prior to such Distribution Date or otherwise by check mailed by first class mail to the address of the Person entitled thereto, ~~or any other action or acts~~ as such name and address shall appear on the ~~part~~ Certificate Register. Notwithstanding the above, the final distribution on this Certificate will be made after due notice by the Trustee of the ~~Trustee or any~~ pendency of ~~the Holders from time to time of the 2018 Notes; (g) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all the assets, marshaling of assets~~ such distribution and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition with creditors or readjustment of, or other similar proceedings affecting the Guarantors or the Operating Partnership or any of the assets of any of them, or any allegation or contest of the validity only upon presentation and surrender of this ~~Subsidiary Guarantee~~ Certificate at the office or agency appointed by the Trustee for that purpose as provided in ~~any such proceeding; (h)~~ the Agreement. The Pass-Through Rate applicable to the ~~extent permitted by law, the release or discharge by operation~~ calculation of law of the Guarantors from the performance or observance of any obligation, covenant or agreement contained in the Indenture; (i) to the extent permitted by law, the release or discharge by operation of law of the Operating Partnership from the performance or observance of any obligation, covenant or agreement contained in the Indenture; (j) the default or failure of the Operating Partnership or the Trustee fully to perform any of its obligations set forth in the Indenture or the 2018 Notes; (k) the invalidity, irregularity or unenforceability of the Indenture or the 2018 Notes or any part of any thereof; (l) any judicial or governmental action affecting the Operating Partnership or any 2018 Notes or consent or indulgence granted by the Operating Partnership by the Holders or by the Trustee; or (m) the recovery of any judgment against the Operating Partnership or any action to enforce the same or any other circumstance which might constitute a legal or equitable discharge of a surety or guarantor. The undersigned hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of merger, sale, lease or conveyance of all or substantially all of its assets, insolvency or bankruptcy of the Operating Partnership, any right to require a proceeding first against the Operating Partnership, protest or notice interest payable with respect to ~~such Notice or the indebtedness evidenced thereby and all demands whatsoever, and covenants that~~ this Subsidiary Guarantee will not be discharged except by complete performance of the obligations contained in such 2018 Note and in this Subsidiary Guarantee. No reference herein to such Indenture and no provision of this Subsidiary Guarantee or of such Indenture Certificate on any Distribution Date shall alter or impair the guarantee of the undersigned, which is absolute and unconditional, of the full and prompt payment of the principal of and premium, if any, and interest on the 2018 Note. THIS SUBSIDIARY GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. The validity and enforceability of this Subsidiary Guarantee shall not be affected by the fact that it is not affixed to any particular 2018 Note. An Event of Default under the Indenture or the 2018 Notes shall constitute an event of default under this Subsidiary Guarantee, and shall entitle the Holders of 2018 Notes to accelerate the obligations of the undersigned hereunder in the same manner and to the same extent as the obligations of the Operating Partnership. Notwithstanding any other provision of this Subsidiary Guarantee to the contrary, the undersigned hereby waives any claims or other rights which it may now have or hereafter acquire against the Operating Partnership that arise from the existence or performance of its obligations under this Subsidiary Guarantee (all such claims and rights are referred to as "Guarantor's Conditional Rights"), including, without limitation, any right of subrogation, reimbursement, exoneration, contribution, or indemnification, any right to participate in any claim or remedy against the Operating Partnership, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, by any payment made hereunder or otherwise, including without limitation, the right to take or receive from Operating Partnership, directly or indirectly, in cash or other property or by setoff or in any other manner, payment or security on account of such claim or other rights. The Subsidiary Guarantor hereby agrees not to exercise any rights which may be acquired by way of contribution under this Subsidiary Guarantee or any other agreement, by any payment made hereunder or otherwise, including, without limitation, the right to take or receive from any other guarantor, directly or indirectly, in cash or other property or by setoff or in any other manner, payment or security on account of such contribution rights. If, notwithstanding the foregoing provisions, any amount shall be paid to any of the undersigned on account of any such Guarantor's Conditional Rights and either (i) such amount is paid to such undersigned party at any time when the indebtedness shall not have been paid or performed in full, or (ii) regardless of when such amount is paid to such undersigned party, any payment made by Operating Partnership to equal a Holder that is at any time determined to be a Preferential Payment (as defined below), then such amount paid to the undersigned shall be held in trust for the benefit of the Holders and shall forthwith be paid such Holder to be credited and applied upon the indebtedness, whether matured or unmatured. Any such payment is herein referred to as a "Preferential Payment" to the extent the Operating Partnership makes any payment to Holder in connection with the Note, and any or all of such payment is subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid or paid over to a trustee, receiver or any other entity, whether under any bankruptcy act or otherwise. To the extent that any of the provisions of the immediately preceding paragraph shall not be enforceable, each of the undersigned agrees that until such time as the indebtedness has been paid and performed in full and the period of time has expired during which any payment made by the Operating Partnership or the undersigned to a Holder may be determined to be a Preferential Payment, Guarantor's Conditional Rights to the extent not validly waived shall be subordinate to Holders' right to full payment and performance of the indebtedness and each of the undersigned shall not enforce any of its respective portion of the Guarantors' Conditional Rights until such time as the indebtedness has been paid and performed in full and the period of time has expired during which any payment made by the Operating Partnership or the undersigned to Holders may be determined to be a Preferential Payment. The undersigned's liability (the "Base Guaranty Liability") shall be that amount from time to time rate per annum equal ~~to the aggregate liability of the undersigned hereunder, but shall be limited~~ to the lesser of (i) the related Formula Rate for such Distribution Date and (ii) the related Net WAC Pass-Through Rate for such Distribution Date. This Certificate is one of a duly authorized issue of Certificates designated as Asset Backed Pass-Through Certificates of the Series specified on the face hereof (herein called the "Certificates") and representing a Percentage Interest in the Class of Certificates specified on the face hereof equal to the denomination specified on the face hereof divided by the aggregate Certificate Principal Balance of the Class of Certificates specified on the face hereof. The 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 Agreement. As provided in the Agreement, withdrawals from the Collection Account and the Distribution Account may be made from time to time for purposes other than distributions to Certificateholders, such purposes including reimbursement of advances made, or certain expenses incurred, with respect to the Mortgage Loans. The Agreement permits, with certain exceptions therein provided, the amendment thereof and the modification of the rights and obligations of the Depositor, the Servicer, the Trustee and the rights of the Certificateholders under the Agreement at any time by the Depositor, the Servicer and the Trustee with the consent of the Holders of Certificates entitled to at least 66% of the Voting Rights. Any such consent by the Holder of this Certificate shall be conclusive and binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in exchange herefor or in lieu hereof whether or not notation of such consent is made upon this Certificate. The Agreement also permits the amendment thereof, in certain limited circumstances, without the consent of the Holders of any of the Certificates. As provided in the Agreement and subject to certain limitations therein set forth, the transfer of this Certificate is registrable in the Certificate Register upon surrender of this Certificate for registration of transfer at the offices or agencies appointed by the Trustee as provided in the Agreement, duly endorsed by, or accompanied by an assignment in the form below or other written instrument of transfer in form satisfactory to the Trustee duly executed by, the Holder hereof or such Holder's attorney duly authorized in writing, and thereupon one or more new Certificates of the same Class in authorized denominations evidencing the same aggregate Percentage Interest will be issued to the designated transferee or transferees. No transfer of this Certificate shall be made unless the transfer is made pursuant to an effective registration statement under the Securities Act of 1933, as amended (the "1933 Act"), and an effective registration or qualification under applicable state securities laws, or is made in a transaction that does not require such registration or qualification. In the event that such a transfer of this Certificate is to be made without registration or qualification, the Trustee shall require receipt of written certifications from the Holder of the Certificate desiring to effect the transfer, and from such Holder's prospective transferee, substantially in the forms attached to the Agreement as Exhibit F-1. None of the Depositor or the Trustee is obligated to register or qualify the Class of Certificates specified on the face hereof under the 1933 Act or any other securities law or to take any action not otherwise required under the Agreement to permit the transfer of such Certificates without registration or qualification. Any Holder desiring to effect a transfer of this Certificate shall be required to indemnify the Trustee, the Depositor and the Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such federal and state laws. Each beneficial owner of this Certificate or any interest therein shall be deemed to have represented, by virtue of its acquisition or holding of such Certificate or interest therein, that either (A) ~~the aggregate amount~~ it is not an "employee benefit plan" as defined in Section 3(3) of the ~~obligation~~ Employee Retirement Income Security Act of 1974, as ~~stated~~ amended ("ERISA"), that is subject to Title I of ERISA, any "plan" as defined in ~~the second sentence of~~ Section ~~1401~~ 4975 of the ~~Indenture~~Internal Revenue Code of 1986, ~~and~~ as amended (the "Code"), that is subject to Section 4975 of the Code or any entity deemed to hold plan assets of any of the foregoing, (B) it has acquired and is holding this Certificate in reliance on the ~~amount~~underwriters' exemption, ~~if any~~and that it understands that there are certain conditions to the availability of the underwriters' exemption, ~~which would~~ including that this Certificate must be rated, at the time of purchase, not ~~have (i) rendered the undersigned~~ lower than "~~insolvent~~BBB-" (or its equivalent) by Fitch, S&P or Xxxxx'x and the Certificate is so rated, that it is an accredited investor as defined in Rule 501(a)(1) of Regulation D of the Securities Act of 1933, as amended, and that it will obtain a representation from any transferee that such transferee is an accredited investor, or (C)(1) it is an insurance company, (2) the source of funds used to acquire or hold this Certificate or interest therein is an "insurance company general account," as such term is defined in Prohibited Transaction Class Exemption ("PTCE") 95-60, and (3) the conditions in Sections I and III of PTCE 95-60 have been satisfied. If this Certificate or any interest therein is acquired or held in violation of the provisions of Section ~~101(29~~5.02(c) of the ~~Federal Bankruptcy Code and in Section 271~~ Agreement, the next preceding permitted beneficial owner will be treated as the beneficial owner of ~~the Debtor and Creditor Law of the State of New York, as each is in effect at~~ this Certificate retroactive to the date of transfer to the ~~Indenture~~purported beneficial owner. Any purported beneficial owner whose acquisition or holding of any this Certificate or interest therein was effected in violation of the provisions of Section 5.02(c) of the Agreement shall indemnify and hold harmless the Depositor, the Servicer, the Trustee and the Trust Fund from and against any and all liabilities, claims, costs or expenses incurred by those parties as a result of that acquisition or holding. The Certificates are issuable in fully registered form only without coupons in Classes and denominations representing Percentage Interests specified in the Agreement. As provided in the Agreement and subject to certain limitations therein set forth, the Certificates are exchangeable for new Certificates of the same Class in authorized denominations evidencing the same aggregate Percentage Interest, as requested by the Holder surrendering the same. No service charge will be made for any such registration of transfer or exchange of Certificates, but the Trustee 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 Servicer, the Trustee and any agent of the Depositor, the Servicer or 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 Servicer, the Trustee nor any such agent shall be affected by notice to the contrary. The obligations created by the Agreement and the Trust Fund created thereby shall terminate upon payment to the Certificateholders of all amounts held by the Trustee and required to be paid to them pursuant to the Agreement following the earlier of (i) the final payment or other liquidation (or any advance with respect thereto) of the last Mortgage Loan and REO Property remaining in REMIC I and (ii) ~~left~~ the ~~undersigned with unreasonably small capital~~ purchase by the party designated in the Agreement at a price determined as provided in the Agreement from REMIC I of all the Mortgage Loans and all property acquired in respect of such Mortgage Loans. The Agreement permits, but does not require, the party designated in the Agreement to purchase from REMIC I all the Mortgage Loans and all property acquired in respect of any Mortgage Loan at a price determined as provided in the Agreement. The exercise of such right will effect early retirement of the Certificates; however, such right to purchase is subject to the aggregate Stated Principal Balance of the Mortgage Loans at the time ~~its Guarantee was entered into, after giving effect to the incurrence~~ of existing Debt (as defined in the Indenture) immediately prior to such time, provided that, it shall be a presumption in any lawsuit or other proceeding in which the undersigned is a party that the amount guaranteed is the amount set forth in (A) above unless a creditor, or representative of creditors purchase being less than 10% of the ~~undersigned or a trustee in bankruptcy~~ aggregate Stated Principal Balance of the ~~undersigned,~~ Mortgage Loans as ~~debtor in possession, otherwise proves in such a lawsuit that the aggregate liability~~ of the ~~undersigned is limited to the amount set forth in (B)~~Cut-off Date. In making any determination as to the solvency or sufficiency of capital of the undersigned in accordance with the previous sentence, the right of the undersigned to contribution from other Guarantors, to subrogation and any other rights the undersigned may have, contractual or otherwise, The recitals contained herein shall be taken ~~into account. The obligations~~ as statements of the ~~undersigned to the Holders of the 2018 Notes~~ Depositor and to the Trustee ~~pursuant~~ assumes no responsibility for their correctness. Unless the certificate of authentication hereon has been executed by the Trustee, by manual signature, this Certificate shall not be entitled to any benefit under the ~~Subsidiary Guarantee and the Indenture are expressly set forth in Article 14 of the Indenture and reference is hereby made to the Indenture~~ Agreement or be valid for the precise terms of the Subsidiary Guarantee and all of the other provisions of the Indenture to which this Subsidiary Guarantee relates. Capitalized terms in this Subsidiary Guarantee which are not defined herein shall have the meanings assigned to them in the Indentureany purpose.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Carrington Home Equity Loan Trust, Series 2005-Nc4 Asset-Backed Pass-Through Certificates)

Appears in 1 contract

Samples: Distribution Instructions (Salomon Brothers Mort Sec Vii Inc Asst Back Cert Se 1997-Lb2)

Dated. ~~Notice~~Signature by or on behalf of assignor DISTRIBUTION INSTRUCTIONS The assignee should include the following for purposes of distribution: The signature to this assignment must correspond with the name as it appears upon the face of the within Note in every particular, without alteration or enlargement or any change whatever. ABBREVIATIONS The following abbreviations, when used in the inscription on the face of this instrument, Distributions shall be ~~construed as though they were written out~~ made, by wire transfer or otherwise, in ~~full according~~ immediately available funds to applicable laws or regulations: TEN COM--as tenants in common UNIF GIFT MIN ACT--_____ Custodian______ TEN ENT--as tenants by the entireties (Cust) (Minor) JT TEN--as joint tenants with right Under Uniform Gifts to Minors of survivorship and not as Act__________________________ tenants in common (State) Additional abbreviations may also be used though not in the above list. --------------------------- [FORM OF SCHEDULE FOR ENDORSEMENTS ON GLOBAL SECURITY TO REFLECT CHANGES IN PRINCIPAL AMOUNT] Schedule A Changes to Principal Amount of Global Security Principal Amount of Securities by which this Global Security is to be Reduced or Increased, and Reason for Remaining Principal Amount of Notation Date Reduction or Increase this Global Securities Made by ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- Exhibit B SUBSIDIARY GUARANTEE FOR VALUE RECEIVED, the undersigned hereby jointly and severally with the Parent Guarantor pursuant to the Parent Guarantee and any other subsidiary Guarantors under their respective Subsidiary Guarantees, unconditionally guarantees to the Holder of the accompanying _____~~% Note Due June~~ __________________, ~~2018 (the "2018 Note") issued by AMB Property, L.P. (the "Operating Partnership") under an Indenture dated as of June~~ _______________________________________________________________________________, ~~1998 (together with~~ for the ~~Second Supplemental Indenture thereto~~account of_____________________________________________________________, account number_______________, or, if mailed by check, to______________________. Applicable statements should be mailed to______________________________________, _______________________________________________________________________________. This information is provided by____________________________________, the assignee named above, or___________________________________________________, as its agent. EXHIBIT D-3 FORM OF CLASS R-3 CERTIFICATE SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "~~Indenture~~RESIDUAL INTEREST" IN FOUR "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"). NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE PROPOSED TRANSFEREE DELIVERS TO THE TRUSTEE A TRANSFER AFFIDAVIT IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN. NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE TRANSFEREE DELIVERS TO THE TRUSTEE A REPRESENTATION LETTER TO THE EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO SECTION 4975 OF THE CODE OR A PLAN SUBJECT TO MATERIALLY SIMILAR PROVISIONS OF APPLICABLE FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") ~~among~~ OR A PERSON INVESTING ON BEHALF OF OR WITH PLAN ASSETS OF SUCH A PLAN. IN THE EVENT THAT SUCH REPRESENTATION IS VIOLATED, OR ANY ATTEMPT IS MADE TO TRANSFER TO A PLAN OR ARRANGEMENT SUBJECT TO SECTION 406 OF ERISA, A PLAN SUBJECT TO SECTION 4975 OF THE CODE OR A PLAN SUBJECT TO SIMILAR LAW, OR A PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR ARRANGEMENT OR USING THE ASSETS OF ANY SUCH PLAN OR ARRANGEMENT, SUCH ATTEMPTED TRANSFER OR ACQUISITION SHALL BE VOID AND OF NO EFFECT. Certificate No. : 1 Cut-off Date : November 1, 2005 First Distribution Date : December 27, 2005 Initial Certificate Balance of this Certificate ("Denomination") : $50 Initial Certificate Balances of all Certificates of this Class : $50 CUSIP : 362341 B7 3 ISIN : US362341B732 GS MORTGAGE SECURITIES CORP. GSAMP Trust 2005-HE5 Mortgage Pass-Through Certificates, Series 2005-HE5 Class R-3 evidencing a percentage interest in the ~~Operating Partnership~~distributions allocable to the Certificates of the above-referenced Class. Distributions in respect of this Certificate are distributable monthly as set forth herein. This Class R-3 Certificate is not entitled to distributions in respect of interest. This Certificate does not evidence an obligation of, ~~AMB Property Corporation~~or an interest in, and ~~State Street~~ is not guaranteed by the Depositor, the Servicer, or the Trustee referred to below or any of their respective affiliates. Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any governmental agency or instrumentality. This certifies that [_____________] is the registered owner of the Percentage Interest evidenced by this Certificate in certain monthly distributions pursuant to a Pooling and Servicing Agreement, dated as of the Cut-off Date specified above (the "Agreement"), among GS Mortgage Securities Corp., as depositor (the "Depositor"), Litton Loan Servicing LP, as servicer (the "Servicer"), J.P. Morgan Truxx Xxxpany, National Association, as custodian (the "Cusxxxxxx"), xnd Deutsche Bank ~~and~~ National Trust ~~Company of California, N.A.~~Company, as trustee (the "Trustee"). To the extent not defined herein, ~~(a)~~ the ~~full~~ capitalized terms used herein have the meanings assigned in the Agreement. This Certificate is issued under and ~~prompt payment~~ is subject to the terms, provisions and conditions of the ~~principal~~ Agreement, to which Agreement the Holder of ~~and premium, if any, on such 2018 Note when and as the same shall become due and payable, whether at Stated Maturity,~~ this Certificate by ~~acceleration, by redemption or otherwise, and (b) the full and prompt payment~~ virtue of the ~~interest on~~ acceptance hereof assents and by which such ~~2018 Note when~~ Holder is bound. Any distribution of the proceeds of any remaining assets of the Trust Fund will be made only upon presentment and as surrender of this Class R-3 Certificate at the ~~same~~ offices designated by the Trustee for such purposes or such other location specified in the notice to Certificateholders. No transfer of a Class R-3 Certificate shall ~~become due~~ be made unless the Trustee shall have received a representation letter from the transferee of such Certificate, acceptable to and ~~payable, according~~ in form and substance satisfactory to the ~~terms~~ Trustee, to the effect that such transferee is not an employee benefit plan or arrangement subject to Section 406 of ~~such 2018 Note and~~ ERISA, a plan or arrangement subject to Section 4975 of the ~~Indenture. The undersigned hereby agrees~~Code or a plan subject to Similar Law, jointly and severally with the Parent Guarantor pursuant to the Parent Guarantee and any other Subsidiary Guarantors under their respective Subsidiary Guarantees, that its obligations hereunder shall be as principal and not merely as surety, and shall be absolute and unconditional, and shall not be affected, modified or impaired by the following: (a) the failure to give notice to the Guarantors of the occurrence of an Event of Default under the Indenture; (b) the waiver, surrender, compromise, settlement, release or termination of the payment, performance or observance by the Operating Partnership or the Guarantors a person acting on behalf of any such plan or all of the obligations, covenants or agreements of either of them contained in the Indenture or the 2018 Notes; (c) the acceleration, extension or any other changes in the time for payment of any principal of or interest or any premium on any 2018 Note or for any other payment under the Indenture or of the time for performance of any other obligations, covenants or agreements under or arising out of the Indenture or the 2018 Notes; (d) the modification or amendment (whether material or otherwise) of any obligation, covenant or agreement set forth in the Indenture or the 2018 Notes; (e) the taking or the omission of any of the actions referred to in the Indenture and in any of the actions under the 2018 Notes; (f) any failure, omission, delay or lack on the part of the Trustee to enforce, assert or exercise any right, power or remedy conferred on the Trustee in the Indenture, or any other action or acts on the part of the Trustee or any of the Holders from time to time of the 2018 Notes; (g) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all the assets, marshaling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition with creditors or readjustment of, or other similar proceedings affecting the Guarantors or the Operating Partnership or any of arrangement nor using the assets of any such plan or arrangement to effect such transfer, which representation letter shall not be an expense of ~~them~~the Trustee, the Servicer or the Trust Fund. In the event that such representation is violated, or any ~~allegation~~ attempt is made to transfer to a plan or ~~contest~~ arrangement subject to Section 406 of ERISA or a plan subject to Section 4975 of the ~~validity~~ Code or a plan subject to Similar Law, or a person acting on behalf of any such plan or arrangement or using the assets of any such plan or arrangement, such attempted transfer or acquisition shall be void and of no effect. Each Holder of this ~~Subsidiary Guarantee~~ Class R-3 Certificate shall be deemed by the acceptance or acquisition an Ownership Interest in this Class R-3 Certificate to have agreed to be bound by the following provisions, and the rights of each Person acquiring any ~~such proceeding; (h)~~ Ownership Interest in this Class R-3 Certificate are expressly subject to the ~~extent permitted by law, the release or discharge by operation of law of the Guarantors from the performance or observance of any obligation, covenant or agreement contained in the Indenture;~~ following provisions: (i) each Person holding or acquiring any Ownership Interest in this Class R-3 Certificate shall be a Permitted Transferee and shall promptly notify the Trustee of any change or impending change in its status as a Permitted Transferee, (ii) no Ownership Interest in this Class R-3 Certificate may be registered on the Closing Date or thereafter transferred, and the Trustee shall not register the Transfer of this Certificate unless, in addition to the ~~extent permitted by law~~certificates required to be delivered to the Trustee under Section 5.02(b) of the Agreement, the ~~release or discharge by operation of law~~ Trustee shall have been furnished with a Transfer Affidavit of the ~~Operating Partnership from~~ initial owner or the ~~performance or observance of any obligation, covenant or agreement contained~~ proposed transferee in the ~~Indenture;~~ form attached as Exhibit H to the Agreement, (jiii) each Person holding or acquiring any Ownership Interest in this Class R-3 Certificate shall agree (A) to obtain a Transfer Affidavit from any other Person to whom such Person attempts to Transfer its Ownership Interest this Class R-3 Certificate, (B) to obtain a Transfer Affidavit from any Person for whom such Person is acting as nominee, trustee or agent in connection with any Transfer of this Class R-3 Certificate, (C) not to cause income with respect to the ~~default~~ Class R-3 Certificate to be attributable to a foreign permanent establishment or ~~failure~~ fixed base, within the meaning of ~~the Operating Partnership or the Trustee fully to perform any~~ an applicable income tax treaty, of its obligations set forth in the Indenture or the 2018 Notes; (k) the invalidity, irregularity or unenforceability of the Indenture or the 2018 Notes or any part of any thereof; (l) any judicial or governmental action affecting the Operating Partnership or any 2018 Notes or consent or indulgence granted by the Operating Partnership by the Holders or by the Trustee; or (m) the recovery of any judgment against the Operating Partnership or any action to enforce the same such Person or any other ~~circumstance which might constitute a legal~~ U.S. Person and (D) not to Transfer the Ownership Interest in this Class R-3 Certificate or ~~equitable discharge of a surety or guarantor. The undersigned hereby waives diligence, presentment, demand of payment, filing of claims with a court in~~ to cause the ~~event of merger, sale, lease or conveyance of all or substantially all of its assets, insolvency or bankruptcy~~ Transfer of the ~~Operating Partnership,~~ Ownership Interest in this Class R-3 Certificate to any ~~right to require~~ other Person if it has actual knowledge that such Person is not a ~~proceeding first against the Operating Partnership, protest~~ Permitted Transferee and (iv) any attempted or ~~notice with respect to such Notice or the indebtedness evidenced thereby and all demands whatsoever, and covenants that this Subsidiary Guarantee will not be discharged except by complete performance~~ purported Transfer of the ~~obligations contained in such 2018 Note and~~ Ownership Interest in this Subsidiary Guarantee. No reference herein to such Indenture and no provision of this Subsidiary Guarantee or of such Indenture shall alter or impair the guarantee of the undersigned, which is absolute and unconditional, of the full and prompt payment of the principal of and premium, if any, and interest on the 2018 Note. THIS SUBSIDIARY GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. The validity and enforceability of this Subsidiary Guarantee shall not be affected by the fact that it is not affixed to any particular 2018 Note. An Event of Default under the Indenture or the 2018 Notes shall constitute an event of default under this Subsidiary Guarantee, and shall entitle the Holders of 2018 Notes to accelerate the obligations of the undersigned hereunder Class R-3 Certificate in the same manner and to the same extent as the obligations of the Operating Partnership. Notwithstanding any other provision of this Subsidiary Guarantee to the contrary, the undersigned hereby waives any claims or other rights which it may now have or hereafter acquire against the Operating Partnership that arise from the existence or performance of its obligations under this Subsidiary Guarantee (all such claims and rights are referred to as "Guarantor's Conditional Rights"), including, without limitation, any right of subrogation, reimbursement, exoneration, contribution, or indemnification, any right to participate in any claim or remedy against the Operating Partnership, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, by any payment made hereunder or otherwise, including without limitation, the right to take or receive from Operating Partnership, directly or indirectly, in cash or other property or by setoff or in any other manner, payment or security on account of such claim or other rights. The Subsidiary Guarantor hereby agrees not to exercise any rights which may be acquired by way of contribution under this Subsidiary Guarantee or any other agreement, by any payment made hereunder or otherwise, including, without limitation, the right to take or receive from any other guarantor, directly or indirectly, in cash or other property or by setoff or in any other manner, payment or security on account of such contribution rights. If, notwithstanding the foregoing provisions, any amount shall be paid to any of the undersigned on account of any such Guarantor's Conditional Rights and either (i) such amount is paid to such undersigned party at any time when the indebtedness shall not have been paid or performed in full, or (ii) regardless of when such amount is paid to such undersigned party, any payment made by Operating Partnership to a Holder that is at any time determined to be a Preferential Payment (as defined below), then such amount paid to the undersigned shall be held in trust for the benefit of the Holders and shall forthwith be paid such Holder to be credited and applied upon the indebtedness, whether matured or unmatured. Any such payment is herein referred to as a "Preferential Payment" to the extent the Operating Partnership makes any payment to Holder in connection with the Note, and any or all of such payment is subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid or paid over to a trustee, receiver or any other entity, whether under any bankruptcy act or otherwise. To the extent that any violation of the provisions of the immediately preceding paragraph shall not be enforceable, each of the undersigned agrees that until such time as the indebtedness has been paid and performed in full and the period of time has expired during which any payment made by the Operating Partnership or the undersigned to a Holder may be determined to be a Preferential Payment, Guarantor's Conditional Rights to the extent not validly waived herein shall be ~~subordinate to Holders' right to full payment~~ absolutely null and ~~performance of the indebtedness~~ void and ~~each of the undersigned~~ shall not enforce any of its respective portion of the Guarantors' Conditional Rights until such time as the indebtedness has been paid and performed in full and the period of time has expired during which any payment made by the Operating Partnership or the undersigned to Holders may be determined to be a Preferential Payment. The undersigned's liability (the "Base Guaranty Liability") shall be that amount from time to time equal to the aggregate liability of the undersigned hereunder, but shall be limited to the lesser of (A) the aggregate amount of the obligation as stated vest no rights in the second sentence of Section 1401 of the Indenture, and (B) the amount, if any, which would not have (i) rendered the undersigned "insolvent" (as such term is defined in Section 101(29) of the Federal Bankruptcy Code and in Section 271 of the Debtor and Creditor Law of the State of New York, as each is in effect at the date of the Indenture) or (ii) left the undersigned with unreasonably small capital at the time its Guarantee was entered into, after giving effect to the incurrence of existing Debt (as defined in the Indenture) immediately prior to such time, provided that, it shall be a presumption in any lawsuit or other proceeding in which the undersigned is a party that the amount guaranteed is the amount set forth in (A) above unless a creditor, or representative of creditors of the undersigned or a trustee in bankruptcy of the undersigned, as debtor in possession, otherwise proves in such a lawsuit that the aggregate liability of the undersigned is limited to the amount set forth in (B)purported Transferee. In making any determination as to the solvency or sufficiency of capital of the undersigned in accordance with the previous sentence, the right of the undersigned to contribution from other Guarantors, to subrogation and any other rights the undersigned may have, contractual or otherwise, shall be taken into account. The obligations of the undersigned to the Holders of the 2018 Notes and to the Trustee pursuant to the Subsidiary Guarantee and the Indenture are expressly set forth in Article 14 of the Indenture and reference Reference is hereby made to the ~~Indenture~~ further provisions of this Certificate set forth on the reverse hereof, which further provisions shall for all purposes have the ~~precise terms~~ same effect as if set forth at this place. This Certificate shall not be entitled to any benefit under the Agreement or be valid for any purpose unless manually authenticated by an authorized signatory of the Subsidiary Guarantee and all of the other provisions of the Indenture to which this Subsidiary Guarantee relates. Capitalized terms in this Subsidiary Guarantee which are not defined herein shall have the meanings assigned to them in the IndentureTrustee.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (GSAMP Trust 2005-He5)

Appears in 1 contract

Samples: Distribution Instructions (Salomon Brothers MRT Sec Vii Inc MRT Ps THR Cert 1999-2)

Dated. ~~Notice~~Signature by or on behalf of assignor ------------------------------------- Signature Guaranteed DISTRIBUTION INSTRUCTIONS The assignee should include the following for purposes of distribution: The signature to this assignment must correspond with the name as it appears upon the face of the within Note in every particular, without alteration or enlargement or any change whatever. ABBREVIATIONS The following abbreviations, when used in the inscription on the face of this instrument, Distributions shall be ~~construed as though they were written out~~ made, by wire transfer or otherwise, in ~~full according~~ immediately available funds to ~~applicable laws or regulations: TEN COM--as tenants in common UNIF GIFT MIN ACT--_____ Custodian~~_____~~_ TEN ENT--as tenants~~ _______________________________________________________, for the account of ____________________________________________________________, account number___________, or, if mailed by ~~the entireties (Cust) (Minor) JT TEN--as joint tenants with right Under Uniform Gifts~~ check, to ~~Minors of survivorship and not as Act~~_________________________, Applicable statements should be mailed to______________________________________ tenants in common (State) Additional abbreviations may also be used though not in the above list. --------------------------- [FORM OF SCHEDULE FOR ENDORSEMENTS ON GLOBAL SECURITY TO REFLECT CHANGES IN PRINCIPAL AMOUNT] Schedule A Changes to Principal Amount of Global Security Principal Amount of Securities by which this Global Security is to be Reduced or Increased, and Reason for Remaining Principal Amount of Notation Date Reduction or Increase this Global Securities Made by ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- Exhibit B SUBSIDIARY GUARANTEE FOR VALUE RECEIVED, the undersigned hereby jointly and severally with the Parent Guarantor pursuant to the Parent Guarantee and any other subsidiary Guarantors under their respective Subsidiary Guarantees, unconditionally guarantees to the Holder of the accompanying _____~~% Note Due June~~ __________________________________________________________________________. This information is provided by _______________________________________________, ~~2018 (~~the ~~"2018 Note") issued by AMB Property~~assignee named above, ~~L.P. (the "Operating Partnership") under an Indenture dated as of June~~ or __________________________________________________, ~~1998~~ as its agent. XXXXXXX X-0 FORM OF CLASS M-4 CERTIFICATE UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (~~together with~~ "DTC"), TO THE TRUSTEE OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986 (THE "CODE"). THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A CERTIFICATES, THE CLASS M-1 CERTIFICATES, THE CLASS M-2 CERTIFICATES AND THE CLASS M-3 CERTIFICATES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN. <TABLE> Series 0000-XX0 Xxxxxxxxx Certificate Principal Balance of the ~~Second Supplemental Indenture thereto~~Class M-4 Certificates as of the Pass-Through Rate: Variable Issue Date: $[______].00 Cut-off Date and date of Pooling and Denomination: $[_______].00 Servicing Agreement: August 1, ~~the "Indenture") among the Operating Partnership~~2005 Servicer: New Century Mortgage Corporation First Distribution Date: September 26, ~~AMB Property Corporation~~2005 Trustee: Deutsche Bank National Trust No. 1 Company Issue Date: August 16, ~~and State Street Bank and~~ 2005 CUSIP: [_______] [__] [_] </TABLE> DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE AS THE DENOMINATION OF THIS CERTIFICATE. ASSET BACKED PASS-THROUGH CERTIFICATE evidencing a beneficial ownership interest in a portion of a Trust ~~Company of California, N.A., as trustee~~ Fund (the "~~Trustee~~Trust Fund") consisting primarily of a pool of conventional one- to four-family, adjustable-rate, first lien mortgage loans (the "Mortgage Loans") formed and sold by STANWICH ASSET ACCEPTANCE COMPANY, L.L.C. THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN STANWICH ASSET ACCEPTANCE COMPANY, L.L.C., THE SERVICER, THE TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES. This certifies that Cede & Co. is the registered owner of a Percentage Interest (obtained by dividing the denomination of this Certificate by the aggregate Certificate Principal Balance of the Class M-4 Certificates as of the Issue Date) in that certain beneficial ownership interest evidenced by all the Class M-4 Certificates in REMIC II created pursuant to a Pooling and Servicing Agreement, dated as specified above (the "Agreement"), among Stanwich Asset Acceptance Company, L.L.C. (a) hereinafter called the ~~full~~ "Depositor," which term includes any successor entity under the Agreement), the Servicer and ~~prompt payment~~ the Trustee, a summary of certain of the ~~principal~~ 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 Agreement. This Certificate is issued under and ~~premium~~is subject to the terms, ~~if any, on such 2018 Note when~~ provisions and ~~as the same shall become due and payable, whether at Stated Maturity, by acceleration, by redemption or otherwise, and (b) the full and prompt payment~~ conditions of the ~~interest on~~ Agreement, to which Agreement the Holder of this Certificate by virtue of the acceptance hereof assents and by which such ~~2018 Note when and as the same shall become due and payable, according~~ Holder is bound. Pursuant to the terms of the Agreement, distributions will be made on the 25th day of each month or, if such ~~2018 Note and~~ 25th day is not a Business Day, the Business Day immediately following (a "Distribution Date"), commencing on the First Distribution Date specified above, to the Person in whose name this Certificate is registered on the Record Date, in an amount equal to the product of the ~~Indenture. The undersigned hereby agrees, jointly~~ Percentage Interest evidenced by this Certificate and ~~severally with~~ the ~~Parent Guarantor~~ amount required to be distributed to the Holders of Class M-4 Certificates on such Distribution Date pursuant to the ~~Parent Guarantee and any other Subsidiary Guarantors~~ Agreement. All distributions to the Holder of this Certificate under ~~their respective Subsidiary Guarantees, that its obligations hereunder shall~~ the Agreement will be ~~as principal and not merely as surety, and shall~~ made or caused to be ~~absolute and unconditional, and shall not be affected, modified or impaired~~ made by the ~~following: (a) the failure to give notice~~ Trustee by wire transfer in immediately available funds to the ~~Guarantors~~ account of the occurrence of an Event of Default under the Indenture; (b) the waiver, surrender, compromise, settlement, release or termination of the payment, performance or observance by the Operating Partnership or the Guarantors of any or all of the obligations, covenants or agreements of either of them contained in the Indenture or the 2018 Notes; (c) the acceleration, extension or any other changes in the time for payment of any principal of or interest or any premium on any 2018 Note or for any other payment under the Indenture or of the time for performance of any other obligations, covenants or agreements under or arising out of the Indenture or the 2018 Notes; (d) the modification or amendment (whether material or otherwise) of any obligation, covenant or agreement set forth in the Indenture or the 2018 Notes; (e) the taking or the omission of any of the actions referred to in the Indenture and in any of the actions under the 2018 Notes; (f) any failure, omission, delay or lack on the part of the Trustee to enforce, assert or exercise any right, power or remedy conferred on Person entitled thereto if such Person shall have so notified the Trustee in writing at least five Business Days prior to the ~~Indenture~~Record Date immediately prior to such Distribution Date or otherwise by check mailed by first class mail to the address of the Person entitled thereto, ~~or any other action or acts~~ as such name and address shall appear on the ~~part~~ Certificate Register. Notwithstanding the above, the final distribution on this Certificate will be made after due notice by the Trustee of the ~~Trustee or any~~ pendency of ~~the Holders from time to time of the 2018 Notes; (g) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all the assets, marshaling of assets~~ such distribution and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition with creditors or readjustment of, or other similar proceedings affecting the Guarantors or the Operating Partnership or any of the assets of any of them, or any allegation or contest of the validity only upon presentation and surrender of this ~~Subsidiary Guarantee~~ Certificate at the office or agency appointed by the Trustee for that purpose as provided in ~~any such proceeding; (h)~~ the Agreement. The Pass-Through Rate applicable to the ~~extent permitted by law, the release or discharge by operation~~ calculation of law of the Guarantors from the performance or observance of any obligation, covenant or agreement contained in the Indenture; (i) to the extent permitted by law, the release or discharge by operation of law of the Operating Partnership from the performance or observance of any obligation, covenant or agreement contained in the Indenture; (j) the default or failure of the Operating Partnership or the Trustee fully to perform any of its obligations set forth in the Indenture or the 2018 Notes; (k) the invalidity, irregularity or unenforceability of the Indenture or the 2018 Notes or any part of any thereof; (l) any judicial or governmental action affecting the Operating Partnership or any 2018 Notes or consent or indulgence granted by the Operating Partnership by the Holders or by the Trustee; or (m) the recovery of any judgment against the Operating Partnership or any action to enforce the same or any other circumstance which might constitute a legal or equitable discharge of a surety or guarantor. The undersigned hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of merger, sale, lease or conveyance of all or substantially all of its assets, insolvency or bankruptcy of the Operating Partnership, any right to require a proceeding first against the Operating Partnership, protest or notice interest payable with respect to ~~such Notice or the indebtedness evidenced thereby and all demands whatsoever, and covenants that~~ this Subsidiary Guarantee will not be discharged except by complete performance of the obligations contained in such 2018 Note and in this Subsidiary Guarantee. No reference herein to such Indenture and no provision of this Subsidiary Guarantee or of such Indenture Certificate on any Distribution Date shall alter or impair the guarantee of the undersigned, which is absolute and unconditional, of the full and prompt payment of the principal of and premium, if any, and interest on the 2018 Note. THIS SUBSIDIARY GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. The validity and enforceability of this Subsidiary Guarantee shall not be affected by the fact that it is not affixed to any particular 2018 Note. An Event of Default under the Indenture or the 2018 Notes shall constitute an event of default under this Subsidiary Guarantee, and shall entitle the Holders of 2018 Notes to accelerate the obligations of the undersigned hereunder in the same manner and to the same extent as the obligations of the Operating Partnership. Notwithstanding any other provision of this Subsidiary Guarantee to the contrary, the undersigned hereby waives any claims or other rights which it may now have or hereafter acquire against the Operating Partnership that arise from the existence or performance of its obligations under this Subsidiary Guarantee (all such claims and rights are referred to as "Guarantor's Conditional Rights"), including, without limitation, any right of subrogation, reimbursement, exoneration, contribution, or indemnification, any right to participate in any claim or remedy against the Operating Partnership, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, by any payment made hereunder or otherwise, including without limitation, the right to take or receive from Operating Partnership, directly or indirectly, in cash or other property or by setoff or in any other manner, payment or security on account of such claim or other rights. The Subsidiary Guarantor hereby agrees not to exercise any rights which may be acquired by way of contribution under this Subsidiary Guarantee or any other agreement, by any payment made hereunder or otherwise, including, without limitation, the right to take or receive from any other guarantor, directly or indirectly, in cash or other property or by setoff or in any other manner, payment or security on account of such contribution rights. If, notwithstanding the foregoing provisions, any amount shall be paid to any of the undersigned on account of any such Guarantor's Conditional Rights and either (i) such amount is paid to such undersigned party at any time when the indebtedness shall not have been paid or performed in full, or (ii) regardless of when such amount is paid to such undersigned party, any payment made by Operating Partnership to equal a Holder that is at any time determined to be a Preferential Payment (as defined below), then such amount paid to the undersigned shall be held in trust for the benefit of the Holders and shall forthwith be paid such Holder to be credited and applied upon the indebtedness, whether matured or unmatured. Any such payment is herein referred to as a "Preferential Payment" to the extent the Operating Partnership makes any payment to Holder in connection with the Note, and any or all of such payment is subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid or paid over to a trustee, receiver or any other entity, whether under any bankruptcy act or otherwise. To the extent that any of the provisions of the immediately preceding paragraph shall not be enforceable, each of the undersigned agrees that until such time as the indebtedness has been paid and performed in full and the period of time has expired during which any payment made by the Operating Partnership or the undersigned to a Holder may be determined to be a Preferential Payment, Guarantor's Conditional Rights to the extent not validly waived shall be subordinate to Holders' right to full payment and performance of the indebtedness and each of the undersigned shall not enforce any of its respective portion of the Guarantors' Conditional Rights until such time as the indebtedness has been paid and performed in full and the period of time has expired during which any payment made by the Operating Partnership or the undersigned to Holders may be determined to be a Preferential Payment. The undersigned's liability (the "Base Guaranty Liability") shall be that amount from time to time rate per annum equal ~~to the aggregate liability of the undersigned hereunder, but shall be limited~~ to the lesser of (i) the related Formula Rate for such Distribution Date and (ii) the related Net WAC Pass-Through Rate for such Distribution Date. This Certificate is one of a duly authorized issue of Certificates designated as Asset Backed Pass-Through Certificates of the Series specified on the face hereof (herein called the "Certificates") and representing a Percentage Interest in the Class of Certificates specified on the face hereof equal to the denomination specified on the face hereof divided by the aggregate Certificate Principal Balance of the Class of Certificates specified on the face hereof. The 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 Agreement. As provided in the Agreement, withdrawals from the Collection Account and the Distribution Account may be made from time to time for purposes other than distributions to Certificateholders, such purposes including reimbursement of advances made, or certain expenses incurred, with respect to the Mortgage Loans. The Agreement permits, with certain exceptions therein provided, the amendment thereof and the modification of the rights and obligations of the Depositor, the Servicer, the Trustee and the rights of the Certificateholders under the Agreement at any time by the Depositor, the Servicer and the Trustee with the consent of the Holders of Certificates entitled to at least 66% of the Voting Rights. Any such consent by the Holder of this Certificate shall be conclusive and binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in exchange herefor or in lieu hereof whether or not notation of such consent is made upon this Certificate. The Agreement also permits the amendment thereof, in certain limited circumstances, without the consent of the Holders of any of the Certificates. As provided in the Agreement and subject to certain limitations therein set forth, the transfer of this Certificate is registrable in the Certificate Register upon surrender of this Certificate for registration of transfer at the offices or agencies appointed by the Trustee as provided in the Agreement, duly endorsed by, or accompanied by an assignment in the form below or other written instrument of transfer in form satisfactory to the Trustee duly executed by, the Holder hereof or such Holder's attorney duly authorized in writing, and thereupon one or more new Certificates of the same Class in authorized denominations evidencing the same aggregate Percentage Interest will be issued to the designated transferee or transferees. Each beneficial owner of this Certificate or any interest therein shall be deemed to have represented, by virtue of its acquisition or holding of such Certificate or interest therein, that either (A) ~~the aggregate amount~~ it is not an "employee benefit plan" as defined in Section 3(3) of the ~~obligation~~ Employee Retirement Income Security Act of 1974, as ~~stated~~ amended ("ERISA"), that is subject to Title I of ERISA, any "plan" as defined in ~~the second sentence of~~ Section ~~1401~~ 4975 of the ~~Indenture~~Internal Revenue Code of 1986, ~~and~~ as amended (the "Code"), that is subject to Section 4975 of the Code or any entity deemed to hold plan assets of any of the foregoing, (B) it has acquired and is holding this Certificate in reliance on the ~~amount~~underwriters' exemption, ~~if any~~and that it understands that there are certain conditions to the availability of the underwriters' exemption, ~~which would~~ including that this Certificate must be rated, at the time of purchase, not ~~have (i) rendered the undersigned~~ lower than "~~insolvent~~BBB-" (or its equivalent) by Fitch, S&P or Xxxxx'x and the Certificate is so rated, that it is an accredited investor as defined in Rule 501(a)(1) of Regulation D of the Securities Act of 1933, as amended, and that it will obtain a representation from any transferee that such transferee is an accredited investor, or (C)(1) it is an insurance company, (2) the source of funds used to acquire or hold this Certificate or interest therein is an "insurance company general account," as such term is defined in Prohibited Transaction Class Exemption ("PTCE") 95-60, and (3) the conditions in Sections I and III of PTCE 95-60 have been satisfied. If this Certificate or any interest therein is acquired or held in violation of the provisions of Section ~~101(29~~5.02(c) of the ~~Federal Bankruptcy Code and in Section 271~~ Agreement, the next preceding permitted beneficial owner will be treated as the beneficial owner of ~~the Debtor and Creditor Law of the State of New York, as each is in effect at~~ this Certificate retroactive to the date of transfer to the ~~Indenture~~purported beneficial owner. Any purported beneficial owner whose acquisition or holding of any this Certificate or interest therein was effected in violation of the provisions of Section 5.02(c) of the Agreement shall indemnify and hold harmless the Depositor, the Servicer, the Trustee and the Trust Fund from and against any and all liabilities, claims, costs or expenses incurred by those parties as a result of that acquisition or holding. The Certificates are issuable in fully registered form only without coupons in Classes and denominations representing Percentage Interests specified in the Agreement. As provided in the Agreement and subject to certain limitations therein set forth, the Certificates are exchangeable for new Certificates of the same Class in authorized denominations evidencing the same aggregate Percentage Interest, as requested by the Holder surrendering the same. No service charge will be made for any such registration of transfer or exchange of Certificates, but the Trustee 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 Servicer, the Trustee and any agent of the Depositor, the Servicer or 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 Servicer, the Trustee nor any such agent shall be affected by notice to the contrary. The obligations created by the Agreement and the Trust Fund created thereby shall terminate upon payment to the Certificateholders of all amounts held by the Trustee and required to be paid to them pursuant to the Agreement following the earlier of (i) the final payment or other liquidation (or any advance with respect thereto) of the last Mortgage Loan and REO Property remaining in REMIC I and (ii) ~~left~~ the ~~undersigned with unreasonably small capital~~ purchase by the party designated in the Agreement at a price determined as provided in the Agreement from REMIC I of all the Mortgage Loans and all property acquired in respect of such Mortgage Loans. The Agreement permits, but does not require, the party designated in the Agreement to purchase from REMIC I all the Mortgage Loans and all property acquired in respect of any Mortgage Loan at a price determined as provided in the Agreement. The exercise of such right will effect early retirement of the Certificates; however, such right to purchase is subject to the aggregate Stated Principal Balance of the Mortgage Loans at the time ~~its Guarantee was entered into, after giving effect to the incurrence~~ of existing Debt (as defined in the Indenture) immediately prior to such time, provided that, it shall be a presumption in any lawsuit or other proceeding in which the undersigned is a party that the amount guaranteed is the amount set forth in (A) above unless a creditor, or representative of creditors purchase being less than 10% of the ~~undersigned or a trustee in bankruptcy~~ aggregate Stated Principal Balance of the ~~undersigned,~~ Mortgage Loans as ~~debtor in possession, otherwise proves in such a lawsuit that the aggregate liability~~ of the ~~undersigned is limited to the amount set forth in (B)~~Cut-off Date. In making any determination as to the solvency or sufficiency of capital of the undersigned in accordance with the previous sentence, the right of the undersigned to contribution from other Guarantors, to subrogation and any other rights the undersigned may have, contractual or otherwise, The recitals contained herein shall be taken ~~into account. The obligations~~ as statements of the ~~undersigned to the Holders of the 2018 Notes~~ Depositor and to the Trustee ~~pursuant~~ assumes no responsibility for their correctness. Unless the certificate of authentication hereon has been executed by the Trustee, by manual signature, this Certificate shall not be entitled to any benefit under the ~~Subsidiary Guarantee and the Indenture are expressly set forth in Article 14 of the Indenture and reference is hereby made to the Indenture~~ Agreement or be valid for the precise terms of the Subsidiary Guarantee and all of the other provisions of the Indenture to which this Subsidiary Guarantee relates. Capitalized terms in this Subsidiary Guarantee which are not defined herein shall have the meanings assigned to them in the Indentureany purpose.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Carrington Home Equity Loan Trust, Series 2005-Nc4 Asset-Backed Pass-Through Certificates)

Dated. ~~Notice~~Signature by or on behalf of assignor DISTRIBUTION INSTRUCTIONS The assignee should include the following for purposes of distribution: The signature to this assignment must correspond with the name as it appears upon the face of the within Note in every particular, without alteration or enlargement or any change whatever. ABBREVIATIONS The following abbreviations, when used in the inscription on the face of this instrument, Distributions shall be ~~construed as though they were written out~~ made, by wire transfer or otherwise, in ~~full according~~ immediately available funds to applicable laws or regulations: TEN COM--as tenants in common UNIF GIFT MIN ACT--_____ Custodian______ TEN ENT--as tenants by the entireties (Cust) (Minor) JT TEN--as joint tenants with right Under Uniform Gifts to Minors of survivorship and not as Act__________________________ tenants in common (State) Additional abbreviations may also be used though not in the above list. --------------------------- [FORM OF SCHEDULE FOR ENDORSEMENTS ON GLOBAL SECURITY TO REFLECT CHANGES IN PRINCIPAL AMOUNT] Schedule A Changes to Principal Amount of Global Security Principal Amount of Securities by which this Global Security is to be Reduced or Increased, and Reason for Remaining Principal Amount of Notation Date Reduction or Increase this Global Securities Made by ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- Exhibit B SUBSIDIARY GUARANTEE FOR VALUE RECEIVED, the undersigned hereby jointly and severally with the Parent Guarantor pursuant to the Parent Guarantee and any other subsidiary Guarantors under their respective Subsidiary Guarantees, unconditionally guarantees to the Holder of the accompanying _____~~% Note Due June~~ __________________, ~~2018 (the "2018 Note") issued by AMB Property, L.P. (the "Operating Partnership") under an Indenture dated as of June~~ _______________________________________________________________________________, ~~1998~~ for the account of ____________________________________________________________, account number ______________, or, if mailed by check, to ______________________ _______________________________________________________________________________. Applicable statements should be mailed to _____________________________________, _______________________________________________________________________________. This information is provided by ________________________________, the assignee named above, or __________________________________________________, as its agent. EXHIBIT D-3 FORM OF CLASS RX CERTIFICATE SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"). NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE PROPOSED TRANSFEREE DELIVERS TO THE SECURITIES ADMINISTRATOR A TRANSFER AFFIDAVIT IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN. NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE TRANSFEREE DELIVERS TO THE SECURITIES ADMINISTRATOR A REPRESENTATION LETTER TO THE EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO SECTION 4975 OF THE CODE OR A PLAN SUBJECT TO MATERIALLY SIMILAR PROVISIONS OF APPLICABLE FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") OR A PERSON INVESTING ON BEHALF OF OR WITH PLAN ASSETS OF SUCH A PLAN. IN THE EVENT THAT SUCH REPRESENTATION IS VIOLATED, OR ANY ATTEMPT IS MADE TO TRANSFER TO A PLAN OR ARRANGEMENT SUBJECT TO SECTION 406 OF ERISA, A PLAN SUBJECT TO SECTION 4975 OF THE CODE OR A PLAN SUBJECT TO SIMILAR LAW, OR A PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR ARRANGEMENT OR USING THE ASSETS OF ANY SUCH PLAN OR ARRANGEMENT, SUCH ATTEMPTED TRANSFER OR ACQUISITION SHALL BE VOID AND OF NO EFFECT. Certificate No. : 1 Cut-off Date : December 1, 2006 First Distribution Date : January 25, 2007 Initial Certificate Balance of this Certificate ("Denomination") : $50 Initial Certificate Balances of all Certificates of this Class : $50 CUSIP : 3622M8 AS 5 ISIN : US3622M8AS57 GS MORTGAGE SECURITIES CORP. GSAMP Trust 2006-HE8 Mortgage Pass-Through Certificates, Series 2006-HE8 Class RX evidencing a percentage interest in the distributions allocable to the Certificates of the above-referenced Class. Distributions in respect of this Certificate are distributable monthly as set forth herein. This Class RX Certificate is not entitled to distributions in respect of interest. This Certificate does not evidence an obligation of, or an interest in, and is not guaranteed by the Depositor, the Master Servicer, the Servicers, the Securities Administrator, the Custodians, the Sponsor, the applicable Original Loan Seller or the Trustee or any other party to the Agreement referred to below or any of their respective affiliates. Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any governmental agency or instrumentality. This certifies that [_____________] is the registered owner of the Percentage Interest evidenced by this Certificate in certain monthly distributions pursuant to a Pooling and Servicing Agreement, dated as of the Cut-off Date specified above (the "Agreement"), among GS Mortgage Securities Corp., as depositor (the "Depositor"), Litton Loan Servicing LP, as a servicer ("Litton"), Avelo Mortgage, L.L.X., xs a servicer (together with ~~the Second Supplemental Indenture thereto~~Litton, xxx "Xervicers"), The Bank of New York Trust Company, National Xxxxxxation, as a custodian ("The Bank of New York"), U.S. Bank National Association ("U.S. Bank"), as a custodian, Deutsche Bank National Trust Company, as a custodian (together with The Bank of New York and U.S. Bank, the "~~Indenture~~Custodians") ~~among the Operating Partnership, AMB Property Corporation,~~ and ~~State Street~~ LaSalle Bank ~~and Trust Company of California, N.A.~~National Association, as trustee (the "Trustee") and Wells Fargo Bank, N.A., as master servicer (the "Master Servicer") and xxxxxities administrator (the "Securities Administrator"). To the extent not defined herein, ~~(a)~~ the ~~full~~ capitalized terms used herein have the meanings assigned in the Agreement. This Certificate is issued under and ~~prompt payment~~ is subject to the terms, provisions and conditions of the ~~principal~~ Agreement, to which Agreement the Holder of ~~and premium, if any, on such 2018 Note when and as the same shall become due and payable, whether at Stated Maturity,~~ this Certificate by ~~acceleration, by redemption or otherwise, and (b) the full and prompt payment~~ virtue of the ~~interest on~~ acceptance hereof assents and by which such ~~2018 Note when~~ Holder is bound. Any distribution of the proceeds of any remaining assets of the Trust Fund will be made only upon presentment and as surrender of this Class RX Certificate at the ~~same~~ offices designated by the Securities Administrator for such purposes or such other location specified in the notice to Certificateholders. No transfer of a Class RX Certificate shall ~~become due~~ be made unless the Securities Administrator shall have received a representation letter from the transferee of such Certificate, acceptable to and ~~payable, according~~ in form and substance satisfactory to the ~~terms~~ Securities Administrator, to the effect that such transferee is not an employee benefit plan or arrangement subject to Section 406 of ~~such 2018 Note and~~ ERISA, a plan or arrangement subject to Section 4975 of the ~~Indenture. The undersigned hereby agrees~~Code or a plan subject to Similar Law, jointly and severally with the Parent Guarantor pursuant to the Parent Guarantee and any other Subsidiary Guarantors under their respective Subsidiary Guarantees, that its obligations hereunder shall be as principal and not merely as surety, and shall be absolute and unconditional, and shall not be affected, modified or impaired by the following: (a) the failure to give notice to the Guarantors of the occurrence of an Event of Default under the Indenture; (b) the waiver, surrender, compromise, settlement, release or termination of the payment, performance or observance by the Operating Partnership or the Guarantors a person acting on behalf of any such plan or all of the obligations, covenants or agreements of either of them contained in the Indenture or the 2018 Notes; (c) the acceleration, extension or any other changes in the time for payment of any principal of or interest or any premium on any 2018 Note or for any other payment under the Indenture or of the time for performance of any other obligations, covenants or agreements under or arising out of the Indenture or the 2018 Notes; (d) the modification or amendment (whether material or otherwise) of any obligation, covenant or agreement set forth in the Indenture or the 2018 Notes; (e) the taking or the omission of any of the actions referred to in the Indenture and in any of the actions under the 2018 Notes; (f) any failure, omission, delay or lack on the part of the Trustee to enforce, assert or exercise any right, power or remedy conferred on the Trustee in the Indenture, or any other action or acts on the part of the Trustee or any of the Holders from time to time of the 2018 Notes; (g) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all the assets, marshaling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition with creditors or readjustment of, or other similar proceedings affecting the Guarantors or the Operating Partnership or any of arrangement nor using the assets of any such plan or arrangement to effect such transfer, which representation letter shall not be an expense of ~~them~~the Master Servicer, the Securities Administrator, the Servicers or the Trust Fund. In the event that such representation is violated, or any ~~allegation~~ attempt is made to transfer to a plan or ~~contest~~ arrangement subject to Section 406 of ERISA or a plan subject to Section 4975 of the ~~validity~~ Code or a plan subject to Similar Law, or a person acting on behalf of any such plan or arrangement or using the assets of any such plan or arrangement, such attempted transfer or acquisition shall be void and of no effect. Each Holder of this ~~Subsidiary Guarantee~~ Class RX Certificate shall be deemed by the acceptance or acquisition an Ownership Interest in this Class RX Certificate to have agreed to be bound by the following provisions, and the rights of each Person acquiring any ~~such proceeding; (h)~~ Ownership Interest in this Class RX Certificate are expressly subject to the ~~extent permitted by law, the release or discharge by operation of law of the Guarantors from the performance or observance of any obligation, covenant or agreement contained in the Indenture;~~ following provisions: (i) each Person holding or acquiring any Ownership Interest in this Class RX Certificate shall be a Permitted Transferee and shall promptly notify the Securities Administrator of any change or impending change in its status as a Permitted Transferee, (ii) no Ownership Interest in this Class RX Certificate may be registered on the Closing Date or thereafter transferred, and the Securities Administrator shall not register the Transfer of this Certificate unless, in addition to the ~~extent permitted by law~~certificates required to be delivered to the Securities Administrator under Section 5.02(b) of the Agreement, the ~~release or discharge by operation of law~~ Securities Administrator shall have been furnished with a Transfer Affidavit of the ~~Operating Partnership from~~ initial owner or the ~~performance or observance of any obligation, covenant or agreement contained~~ proposed transferee in the ~~Indenture;~~ form attached as Exhibit H to the Agreement, (jiii) each Person holding or acquiring any Ownership Interest in this Class RX Certificate shall agree (A) to obtain a Transfer Affidavit from any other Person to whom such Person attempts to Transfer its Ownership Interest this Class RX Certificate, (B) to obtain a Transfer Affidavit from any Person for whom such Person is acting as nominee, trustee or agent in connection with any Transfer of this Class RX Certificate, (C) not to cause income with respect to the ~~default~~ Class RX Certificate to be attributable to a foreign permanent establishment or ~~failure~~ fixed base, within the meaning of ~~the Operating Partnership or the Trustee fully to perform any~~ an applicable income tax treaty, of its obligations set forth in the Indenture or the 2018 Notes; (k) the invalidity, irregularity or unenforceability of the Indenture or the 2018 Notes or any part of any thereof; (l) any judicial or governmental action affecting the Operating Partnership or any 2018 Notes or consent or indulgence granted by the Operating Partnership by the Holders or by the Trustee; or (m) the recovery of any judgment against the Operating Partnership or any action to enforce the same such Person or any other ~~circumstance which might constitute a legal~~ U.S. Person and (D) not to Transfer the Ownership Interest in this Class RX Certificate or ~~equitable discharge of a surety or guarantor. The undersigned hereby waives diligence, presentment, demand of payment, filing of claims with a court in~~ to cause the ~~event of merger, sale, lease or conveyance of all or substantially all of its assets, insolvency or bankruptcy~~ Transfer of the ~~Operating Partnership,~~ Ownership Interest in this Class RX Certificate to any ~~right to require~~ other Person if it has actual knowledge that such Person is not a ~~proceeding first against the Operating Partnership, protest~~ Permitted Transferee and (iv) any attempted or ~~notice with respect to such Notice or the indebtedness evidenced thereby and all demands whatsoever, and covenants that this Subsidiary Guarantee will not be discharged except by complete performance~~ purported Transfer of the ~~obligations contained in such 2018 Note and~~ Ownership Interest in this Subsidiary Guarantee. No reference herein to such Indenture and no provision of this Subsidiary Guarantee or of such Indenture shall alter or impair the guarantee of the undersigned, which is absolute and unconditional, of the full and prompt payment of the principal of and premium, if any, and interest on the 2018 Note. THIS SUBSIDIARY GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. The validity and enforceability of this Subsidiary Guarantee shall not be affected by the fact that it is not affixed to any particular 2018 Note. An Event of Default under the Indenture or the 2018 Notes shall constitute an event of default under this Subsidiary Guarantee, and shall entitle the Holders of 2018 Notes to accelerate the obligations of the undersigned hereunder Class RX Certificate in the same manner and to the same extent as the obligations of the Operating Partnership. Notwithstanding any other provision of this Subsidiary Guarantee to the contrary, the undersigned hereby waives any claims or other rights which it may now have or hereafter acquire against the Operating Partnership that arise from the existence or performance of its obligations under this Subsidiary Guarantee (all such claims and rights are referred to as "Guarantor's Conditional Rights"), including, without limitation, any right of subrogation, reimbursement, exoneration, contribution, or indemnification, any right to participate in any claim or remedy against the Operating Partnership, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, by any payment made hereunder or otherwise, including without limitation, the right to take or receive from Operating Partnership, directly or indirectly, in cash or other property or by setoff or in any other manner, payment or security on account of such claim or other rights. The Subsidiary Guarantor hereby agrees not to exercise any rights which may be acquired by way of contribution under this Subsidiary Guarantee or any other agreement, by any payment made hereunder or otherwise, including, without limitation, the right to take or receive from any other guarantor, directly or indirectly, in cash or other property or by setoff or in any other manner, payment or security on account of such contribution rights. If, notwithstanding the foregoing provisions, any amount shall be paid to any of the undersigned on account of any such Guarantor's Conditional Rights and either (i) such amount is paid to such undersigned party at any time when the indebtedness shall not have been paid or performed in full, or (ii) regardless of when such amount is paid to such undersigned party, any payment made by Operating Partnership to a Holder that is at any time determined to be a Preferential Payment (as defined below), then such amount paid to the undersigned shall be held in trust for the benefit of the Holders and shall forthwith be paid such Holder to be credited and applied upon the indebtedness, whether matured or unmatured. Any such payment is herein referred to as a "Preferential Payment" to the extent the Operating Partnership makes any payment to Holder in connection with the Note, and any or all of such payment is subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid or paid over to a trustee, receiver or any other entity, whether under any bankruptcy act or otherwise. To the extent that any violation of the provisions of the immediately preceding paragraph shall not be enforceable, each of the undersigned agrees that until such time as the indebtedness has been paid and performed in full and the period of time has expired during which any payment made by the Operating Partnership or the undersigned to a Holder may be determined to be a Preferential Payment, Guarantor's Conditional Rights to the extent not validly waived herein shall be ~~subordinate to Holders' right to full payment~~ absolutely null and ~~performance of the indebtedness~~ void and ~~each of the undersigned~~ shall not enforce any of its respective portion of the Guarantors' Conditional Rights until such time as the indebtedness has been paid and performed in full and the period of time has expired during which any payment made by the Operating Partnership or the undersigned to Holders may be determined to be a Preferential Payment. The undersigned's liability (the "Base Guaranty Liability") shall be that amount from time to time equal to the aggregate liability of the undersigned hereunder, but shall be limited to the lesser of (A) the aggregate amount of the obligation as stated vest no rights in the second sentence of Section 1401 of the Indenture, and (B) the amount, if any, which would not have (i) rendered the undersigned "insolvent" (as such term is defined in Section 101(29) of the Federal Bankruptcy Code and in Section 271 of the Debtor and Creditor Law of the State of New York, as each is in effect at the date of the Indenture) or (ii) left the undersigned with unreasonably small capital at the time its Guarantee was entered into, after giving effect to the incurrence of existing Debt (as defined in the Indenture) immediately prior to such time, provided that, it shall be a presumption in any lawsuit or other proceeding in which the undersigned is a party that the amount guaranteed is the amount set forth in (A) above unless a creditor, or representative of creditors of the undersigned or a trustee in bankruptcy of the undersigned, as debtor in possession, otherwise proves in such a lawsuit that the aggregate liability of the undersigned is limited to the amount set forth in (B)purported Transferee. In making any determination as to the solvency or sufficiency of capital of the undersigned in accordance with the previous sentence, the right of the undersigned to contribution from other Guarantors, to subrogation and any other rights the undersigned may have, contractual or otherwise, shall be taken into account. The obligations of the undersigned to the Holders of the 2018 Notes and to the Trustee pursuant to the Subsidiary Guarantee and the Indenture are expressly set forth in Article 14 of the Indenture and reference Reference is hereby made to the ~~Indenture~~ further provisions of this Certificate set forth on the reverse hereof, which further provisions shall for all purposes have the ~~precise terms~~ same effect as if set forth at this place. This Certificate shall not be entitled to any benefit under the Agreement or be valid for any purpose unless manually authenticated by an authorized signatory of the Subsidiary Guarantee and all of the other provisions of the Indenture to which this Subsidiary Guarantee relates. Capitalized terms in this Subsidiary Guarantee which are not defined herein shall have the meanings assigned to them in the IndentureSecurities Administrator.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (GSAMP Trust 2006-He8)

Dated. ~~Notice~~Signature by or on behalf of assignor --------------------------------------- Signature Guaranteed DISTRIBUTION INSTRUCTIONS ------------------------- The assignee should include the following for purposes of distribution: The signature to this assignment must correspond with the name as it appears upon the face of the within Note in every particular, without alteration or enlargement or any change whatever. ABBREVIATIONS The following abbreviations, when used in the inscription on the face of this instrument, Distributions shall be ~~construed as though they were written out~~ made, by wire transfer or otherwise, in ~~full according~~ immediately available funds to applicable laws or regulations: TEN COM--as tenants in common UNIF GIFT MIN ACT--_____ Custodian______ TEN ENT--as tenants by the entireties (Cust) (Minor) JT TEN--as joint tenants with right Under Uniform Gifts to Minors of survivorship and not as Act_________________________~~_ tenants in common (State) Additional abbreviations may also~~ _______________________, for the account of ______________________________, account number _____________, or, if mailed by check, to ______________________________. Applicable statements should be ~~used though not in~~ mailed to ___________________________________________________________. This information is provided by ______________________________________, the ~~above list~~assignee named above, or ____________________________________, as its agent. ~~--------------------------- [~~EXHIBIT A-16 ------------ FORM OF ~~SCHEDULE~~ CLASS B-6PO CERTIFICATE SOLELY FOR ~~ENDORSEMENTS~~ U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT", AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986 (THE "CODE"). THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE U.S. FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS CERTIFICATE. THE ISSUE DATE OF THIS CERTIFICATE IS FEBRUARY __, 1999. BASED ON ~~GLOBAL SECURITY~~ THE OID REGULATIONS AND ASSUMING THAT THE MORTGAGE LOANS PREPAY AT 275% OF THE STANDARD PREPAYMENT ASSUMPTION, USED SOLELY FOR THE PURPOSES OF APPLYING THE OID RULES TO ~~REFLECT CHANGES IN~~ THE CERTIFICATES (THE "PREPAYMENT ASSUMPTION"), THIS CERTIFICATE HAS BEEN ISSUED WITH NO MORE THAN $_____ OF OID PER $1,000 OF INITIAL CERTIFICATE PRINCIPAL ~~AMOUNT] Schedule A Changes to Principal Amount of Global Security Principal Amount of Securities by which this Global Security is to be Reduced or Increased~~BALANCE, and Reason for Remaining Principal Amount of Notation Date Reduction or Increase this Global Securities Made by ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- Exhibit B SUBSIDIARY GUARANTEE FOR VALUE RECEIVED, the undersigned hereby jointly and severally with the Parent Guarantor pursuant to the Parent Guarantee and any other subsidiary Guarantors under their respective Subsidiary Guarantees, unconditionally guarantees to the Holder of the accompanying THE YIELD TO MATURITY IS _____% ~~Note Due June~~ AND THE AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL PERIOD IS NO MORE THAN $___ PER $1,000 OF INITIAL CERTIFICATE PRINCIPAL BALANCE, COMPUTED UNDER THE EXACT METHOD. NO REPRESENTATION IS MADE THAT THE MORTGAGE LOANS WILL PREPAY AT A RATE BASED ON THE PREPAYMENT ASSUMPTION OR AT ANY OTHER RATE. THIS CERTIFICATE IS SUBORDINATE TO THE SENIOR CERTIFICATES, THE RESIDUAL CERTIFICATES, THE CLASS B-1 CERTIFICATES, THE CLASS B-2 CERTIFICATES, THE CLASS B-3 CERTIFICATES, THE CLASS B-4 CERTIFICATES AND THE CLASS B- 5 CERTIFICATES TO THE EXTENT DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN. THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE RESOLD OR TRANSFERRED UNLESS IT IS REGISTERED PURSUANT TO SUCH ACT AND LAWS OR IS SOLD OR TRANSFERRED IN TRANSACTIONS THAT ARE EXEMPT FROM REGISTRATION UNDER SUCH ACT AND UNDER APPLICABLE STATE LAW AND IS TRANSFERRED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE AGREEMENT. NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT (EACH A "PLAN") SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE CODE WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROCEDURES DESCRIBED HEREIN. Series 1999-2, Class B-6PO Aggregate Certificate Principal Balance of Class B-6PO Certificates as of the Pass-Through Rate: 0.00% per annum Issue Date: $558,364.57 Date of Agreement and Cut-off Date: Denomination: $____________________ February 1, ~~2018~~ 1999 Master Servicer: First Distribution Date: Cendant Mortgage Corporation March 25, 1999 No. _____ Trustee: The Chase Manhattan Bank Issue Date: February 25, 1999 DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE AS THE DENOMINATION OF THIS CERTIFICATE. MORTGAGE PASS-THROUGH CERTIFICATE evidencing a beneficial ownership interest in a Trust Fund (the "~~2018 Note~~Trust Fund") ~~issued by AMB Property~~consisting primarily of a pool of conventional, ~~L.P.~~ one- to four-family, fixed-rate, first lien mortgage loans (the "~~Operating Partnership~~Mortgage Loans") ~~under an Indenture dated as of June~~ formed and sold by SALOMON BROTHERS MORTGAGE SECURITIES VII, INC. THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN SALOMON BROTHERS MORTGAGE SECURITIES VII, INC., THE MASTER SERVICER, THE TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES. This certifies that ____________________ is the registered owner of a Percentage Interest (obtained by dividing the denomination of this Certificate by the aggregate Certificate Principal Balance of the Class B-6PO Certificates as of the Issue Date) in that certain beneficial ownership interest evidenced by all the Class B-6PO Certificates in REMIC II created pursuant to a Pooling and Servicing Agreement, ~~1998 (together with the Second Supplemental Indenture thereto, the "Indenture") among the Operating Partnership, AMB Property Corporation, and State Street Bank and Trust Company of California, N.A.,~~ dated as ~~trustee~~ specified above (the "~~Trustee~~Agreement"), among Salomon Brothers Mortgage Securities VII, Inc. (a) hereinafter called the ~~full~~ "Depositor," which term includes any successor entity under the Agreement), the Master Servicer and ~~prompt payment~~ the Trustee, a summary of certain of the ~~principal~~ 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 Agreement. This Certificate is issued under and ~~premium~~is subject to the terms, ~~if any, on such 2018 Note when~~ provisions and ~~as the same shall become due and payable, whether at Stated Maturity, by acceleration, by redemption or otherwise, and (b) the full and prompt payment~~ conditions of the ~~interest on~~ Agreement, to which Agreement the Holder of this Certificate by virtue of the acceptance hereof assents and by which such ~~2018 Note when and as the same shall become due and payable, according~~ Holder is bound. Pursuant to the terms of the Agreement, distributions will be made on the 25th day of each month or, if such ~~2018 Note and~~ 25th day is not a Business Day, the Business Day immediately following (a "Distribution Date"), commencing on the First Distribution Date specified above, to the Person in whose name this Certificate is registered on the Record Date, in an amount equal to the product of the ~~Indenture. The undersigned hereby agrees, jointly~~ Percentage Interest evidenced by this Certificate and ~~severally with~~ the ~~Parent Guarantor~~ amount required to be distributed to the Holders of Class B-6PO Certificates on such Distribution Date pursuant to the ~~Parent Guarantee~~ Agreement. All distributions to the Holder of this Certificate under the Agreement will be made or caused to be made by or on behalf of the Trustee by wire transfer in immediately available funds to the account of the Person entitled thereto if such Person shall have so notified the Trustee in writing at least five Business Days prior to the Record Date immediately prior to such Distribution Date and is the registered owner of Class B-6PO Certificates, the aggregate initial Certificate Principal Balance of which is in excess of the lesser of (i) $5,000,000 or (ii) two-thirds of the aggregate initial Certificate Principal Balance of the Class B-6PO Certificates, or otherwise by check mailed by first class mail to the address of the Person entitled thereto, as such name and address shall appear on the Certificate Register. Notwithstanding the above, the final distribution on this Certificate will be made after due notice by the Trustee of the pendency of such distribution and only upon the presentation and surrender of this Certificate at the office or agency appointed by the Trustee for that purpose as provided in the Agreement. This Certificate is one of a duly authorized issue of Certificates designated as Mortgage Pass-Through Certificates of the Series specified on the face hereof (hereinafter called the "Certificates") and representing a Percentage Interest in the Class of Certificates specified on the face hereof equal to the denomination specified on the face hereof divided by the aggregate Certificate Principal Balance of the Class of Certificates specified on the face hereof. The 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 Agreement. As provided in the Agreement, withdrawals from the Collection Account and the Distribution Account may be made from time to time for purposes other than distributions to Holders of the Certificates, such purposes including reimbursement of advances made, or certain expenses incurred, with respect to the Mortgage Loans. The Agreement permits, with certain exceptions and conditions provided therein, the amendment thereof and the modification of the rights and obligations of the Depositor, the Master Servicer and the Trustee and the rights of the Holders of the Certificates under the Agreement at any ~~other Subsidiary Guarantors under their respective Subsidiary Guarantees~~time by the Depositor, ~~that its obligations hereunder~~ the Master Servicer and the Trustee, with the consent of the Holders of Certificates entitled to at least 66% of the Voting Rights. Any such consent by the Holder of this Certificate shall be ~~as principal~~ conclusive and binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in exchange herefor or in lieu hereof whether or not ~~merely as surety~~notation of such consent is made upon this Certificate. The Agreement also permits the amendment thereof, ~~and shall be absolute and unconditional~~in certain limited circumstances, ~~and shall not be affected, modified or impaired by~~ without the ~~following: (a) the failure to give notice to the Guarantors~~ consent of the occurrence of an Event of Default under the Indenture; (b) the waiver, surrender, compromise, settlement, release or termination of the payment, performance or observance by the Operating Partnership or the Guarantors of any or all of the obligations, covenants or agreements of either of them contained in the Indenture or the 2018 Notes; (c) the acceleration, extension or any other changes in the time for payment of any principal of or interest or any premium on any 2018 Note or for any other payment under the Indenture or of the time for performance of any other obligations, covenants or agreements under or arising out of the Indenture or the 2018 Notes; (d) the modification or amendment (whether material or otherwise) of any obligation, covenant or agreement set forth in the Indenture or the 2018 Notes; (e) the taking or the omission Holders of any of the ~~actions referred to~~ Certificates. As provided in the ~~Indenture~~ Agreement and subject to certain limitations set forth therein, the transfer of this Certificate is registrable in ~~any~~ the Certificate Register upon surrender of this Certificate for registration of transfer at the offices or agencies appointed by the Trustee as provided in the Agreement, duly endorsed by, or accompanied by an assignment in the form below or other written instrument of transfer in form satisfactory to the Trustee and the Certificate Registrar duly executed by, the Holder hereof or such Holder's attorney duly authorized in writing, and thereupon one or more new Certificates of the ~~actions~~ same Class in authorized denominations evidencing the same aggregate Percentage Interest 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 Agreement. As provided in the Agreement and subject to certain limitations set forth therein, Certificates are exchangeable for new Certificates of the same Class in authorized denominations evidencing the same aggregate Percentage Interest, as requested by the Holder surrendering the same. No transfer of this Certificate shall be made unless the transfer is made pursuant to an effective registration statement under the ~~2018 Notes;~~ Securities Act of 1933, as amended (fthe "1933 Act"), and an effective registration or qualification under applicable state securities laws, or is made in a transaction that does not require such registration or qualification. In the event that such a transfer of this Certificate is to be made without registration or qualification, the Trustee and the Certificate Registrar shall require receipt of (i) ~~any failure~~if such transfer is purportedly being made in reliance upon Rule 144A under the 1933 Act, ~~omission~~written certifications from the Holder of the Certificate desiring to effect the transfer, ~~delay~~ and from such Holder's prospective transferee, substantially in the forms attached to the Agreement as Exhibit F-1, and (ii) in all other cases, an Opinion of Counsel satisfactory to it that such transfer may be made without such registration or ~~lack~~ qualification (which Opinion of Counsel shall not be an expense of the Trust Fund or of the Depositor, the Trustee or the Master Servicer in their respective capacities as such), together with copies of the written certification(s) of the Holder of the Certificate desiring to effect the transfer and/or such Holder's prospective transferee upon which such Opinion of Counsel is based. None of the Depositor, the Certificate Registrar or the Trustee is obligated to register or qualify the Class of Certificates specified on the ~~part of~~ face hereof under the ~~Trustee to enforce, assert or exercise any right, power or remedy conferred on the Trustee in the Indenture,~~ 1933 Act or any other securities law or to take any action not otherwise required under the Agreement to permit the transfer of such Certificates without registration or ~~acts on~~ qualification. Any Holder desiring to effect a transfer of this Certificate shall be required to indemnify the ~~part~~ Trustee, the Depositor, the Certificate Registrar and the Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such federal and state laws. No transfer of this Certificate to a Plan subject to ERISA or Section 4975 of the Trustee or any of the Holders from time to time of the 2018 Notes; (g) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all the assets, marshaling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition with creditors or readjustment of, or other similar proceedings affecting the Guarantors or the Operating Partnership or any of the assets of any of them, or any allegation or contest of the validity of this Subsidiary Guarantee in any such proceeding; (h) to the extent permitted by law, the release or discharge by operation of law of the Guarantors from the performance or observance of any obligation, covenant or agreement contained in the Indenture; (i) to the extent permitted by law, the release or discharge by operation of law of the Operating Partnership from the performance or observance of any obligation, covenant or agreement contained in the Indenture; (j) the default or failure of the Operating Partnership or the Trustee fully to perform any of its obligations set forth in the Indenture or the 2018 Notes; (k) the invalidity, irregularity or unenforceability of the Indenture or the 2018 Notes or any part of any thereof; (l) any judicial or governmental action affecting the Operating Partnership or any 2018 Notes or consent or indulgence granted by the Operating Partnership by the Holders or by the Trustee; or (m) the recovery of any judgment against the Operating Partnership or any action to enforce the same or any other circumstance which might constitute a legal or equitable discharge of a surety or guarantor. The undersigned hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of merger, sale, lease or conveyance of all or substantially all of its assets, insolvency or bankruptcy of the Operating PartnershipCode, any right to require a proceeding first against the Operating Partnership, protest or notice with respect to such Notice or the indebtedness evidenced thereby and all demands whatsoever, and covenants that this Subsidiary Guarantee will not be discharged except by complete performance of the obligations contained in such 2018 Note and in this Subsidiary Guarantee. No reference herein to such Indenture and no provision of this Subsidiary Guarantee or of such Indenture shall alter or impair the guarantee of the undersigned, which is absolute and unconditional, of the full and prompt payment of the principal of and premium, if any, and interest on the 2018 Note. THIS SUBSIDIARY GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. The validity and enforceability of this Subsidiary Guarantee shall not be affected by the fact that it is not affixed to any particular 2018 Note. An Event of Default under the Indenture or the 2018 Notes shall constitute an event of default under this Subsidiary Guarantee, and shall entitle the Holders of 2018 Notes to accelerate the obligations of the undersigned hereunder in the same manner and to the same extent as the obligations of the Operating Partnership. Notwithstanding any other provision of this Subsidiary Guarantee to the contrary, the undersigned hereby waives any claims or other rights which it may now have or hereafter acquire against the Operating Partnership that arise from the existence or performance of its obligations under this Subsidiary Guarantee (all such claims and rights are referred to as "Guarantor's Conditional Rights"), including, without limitation, any right of subrogation, reimbursement, exoneration, contribution, or indemnification, any right to participate in any claim or remedy against the Operating Partnership, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, by any payment made hereunder or otherwise, including without limitation, the right to take or receive from Operating PartnershipPerson acting, directly or indirectly, ~~in cash or other property or by setoff or in any other manner, payment or security~~ on account of such claim or other rights. The Subsidiary Guarantor hereby agrees not to exercise any rights which may be acquired by way of contribution under this Subsidiary Guarantee or any other agreement, by any payment made hereunder or otherwise, including, without limitation, the right to take or receive from any other guarantor, directly or indirectly, in cash or other property or by setoff or in any other manner, payment or security on account of such contribution rights. If, notwithstanding the foregoing provisions, any amount shall be paid to any of the undersigned on account behalf of any such ~~Guarantor's Conditional Rights and either (i) such amount is paid~~ Plan or any person using Plan Assets to such undersigned party at any time when the indebtedness shall not have been paid or performed in full, or (ii) regardless of when such amount is paid to such undersigned party, any payment made by Operating Partnership to a Holder that is at any time determined to be a Preferential Payment (as defined below), then such amount paid to the undersigned acquire this Certificate shall be ~~held~~ made except in ~~trust for the benefit~~ accordance with Section 5.02(c) of the ~~Holders and shall forthwith~~ Agreement. No service charge will be ~~paid~~ made for any such ~~Holder~~ registration of transfer or exchange of Certificates, but the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be credited and applied upon the indebtedness, whether matured or unmatured. Any such payment is herein referred to as a "Preferential Payment" to the extent the Operating Partnership makes any payment to Holder imposed in connection with any transfer or exchange of Certificates. The Depositor, the ~~Note~~Master Servicer, the Trustee and the Certificate Registrar and any agent of the Depositor, the Master Servicer, the Trustee or the Certificate Registrar may treat the Person in whose name this Certificate is registered as the owner hereof for all purposes, and any or all of such payment is subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid or paid over to a trustee, receiver or any other entity, whether under any bankruptcy act or otherwise. To the extent that any none of the ~~provisions of~~ Depositor, the ~~immediately preceding paragraph~~ Master Servicer, the Trustee, the Certificate Registrar nor any such agent shall ~~not~~ be ~~enforceable, each of the undersigned agrees that until such time as the indebtedness has been paid and performed in full and the period of time has expired during which any payment made~~ affected by ~~the Operating Partnership or the undersigned to a Holder may be determined to be a Preferential Payment, Guarantor's Conditional Rights~~ notice to the extent not validly waived shall be subordinate to Holders' right to full payment and performance of the indebtedness and each of the undersigned shall not enforce any of its respective portion of the Guarantors' Conditional Rights until such time as the indebtedness has been paid and performed in full and the period of time has expired during which any payment made by the Operating Partnership or the undersigned to Holders may be determined to be a Preferential Payment. The undersigned's liability (the "Base Guaranty Liability") shall be that amount from time to time equal to the aggregate liability of the undersigned hereunder, but shall be limited to the lesser of (A) the aggregate amount of the obligation as stated in the second sentence of Section 1401 of the Indenture, and (B) the amount, if any, which would not have (i) rendered the undersigned "insolvent" (as such term is defined in Section 101(29) of the Federal Bankruptcy Code and in Section 271 of the Debtor and Creditor Law of the State of New York, as each is in effect at the date of the Indenture) or (ii) left the undersigned with unreasonably small capital at the time its Guarantee was entered into, after giving effect to the incurrence of existing Debt (as defined in the Indenture) immediately prior to such time, provided that, it shall be a presumption in any lawsuit or other proceeding in which the undersigned is a party that the amount guaranteed is the amount set forth in (A) above unless a creditor, or representative of creditors of the undersigned or a trustee in bankruptcy of the undersigned, as debtor in possession, otherwise proves in such a lawsuit that the aggregate liability of the undersigned is limited to the amount set forth in (B). In making any determination as to the solvency or sufficiency of capital of the undersigned in accordance with the previous sentence, the right of the undersigned to contribution from other Guarantors, to subrogation and any other rights the undersigned may have, contractual or otherwise, shall be taken into accountcontrary. The obligations of created by the ~~undersigned~~ Agreement and the Trust Fund created thereby shall terminate upon payment (or provision for payment) to the Holders of the ~~2018 Notes and to~~ Certificates of all amounts held by or on behalf of the Trustee and required to be paid to them pursuant to the ~~Subsidiary Guarantee~~ Agreement following the earlier of (i) the final payment (or any advance with respect thereto) on or other liquidation of the last Mortgage Loan remaining in the Trust Fund, and (ii) the purchase by the party designated in the Agreement at a price determined as provided in the Agreement from the Trust Fund of all the Mortgage Loans and all property acquired in respect of such Mortgage Loans remaining therein. The Agreement permits, but does not require, the party designated in the Agreement to purchase from the Trust Fund all the Mortgage Loans and all property acquired in respect of any Mortgage Loan remaining therein at a price determined as provided in the Agreement. The exercise of such right will effect early retirement of the Certificates; however, such right to purchase is subject to the aggregate Stated Principal Balance of the Mortgage Loans at the time of purchase being less than 10% of the aggregate principal balance of the Mortgage Loans as of the Cut-off Date. The recitals contained herein shall be taken as statements of the Depositor and the ~~Indenture are expressly set forth in Article 14~~ Trustee assumes no responsibility for their correctness. Unless the certificate of authentication hereon has been executed by the ~~Indenture and reference is hereby made~~ Certificate Registrar, by manual signature, this Certificate shall not be entitled to any benefit under the ~~Indenture~~ Agreement or be valid for the precise terms of the Subsidiary Guarantee and all of the other provisions of the Indenture to which this Subsidiary Guarantee relates. Capitalized terms in this Subsidiary Guarantee which are not defined herein shall have the meanings assigned to them in the Indentureany purpose.

Appears in 1 contract

Samples: Distribution Instructions (Salomon Brothers MRT Sec Vii Inc MRT Ps THR Cert 1999-2)

Dated. ~~Notice~~Signature by or on behalf of assignor ------------------------------- Signature Guaranteed DISTRIBUTION INSTRUCTIONS The assignee should include the following for purposes of distribution: The signature to this assignment must correspond with the name as it appears upon the face of the within Note in every particular, without alteration or enlargement or any change whatever. ABBREVIATIONS The following abbreviations, when used in the inscription on the face of this instrument, Distributions shall be ~~construed as though they were written out~~ made, by wire transfer or otherwise, in ~~full according~~ immediately available funds to ~~applicable laws or regulations: TEN COM--as tenants in common UNIF GIFT MIN ACT--_____ Custodian~~_____~~_ TEN ENT--as tenants by the entireties (Cust) (Minor) JT TEN--as joint tenants with right Under Uniform Gifts to Minors of survivorship and not as Act~~___________________________________________ tenants in common (State) Additional abbreviations may also be used though not in the above list. --------------------------- [FORM OF SCHEDULE FOR ENDORSEMENTS ON GLOBAL SECURITY TO REFLECT CHANGES IN PRINCIPAL AMOUNT] Schedule A Changes to Principal Amount of Global Security Principal Amount of Securities by which this Global Security is to be Reduced or Increased, and Reason for Remaining Principal Amount of Notation Date Reduction or Increase this Global Securities Made by ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- Exhibit B SUBSIDIARY GUARANTEE FOR VALUE RECEIVED, the undersigned hereby jointly and severally with the Parent Guarantor pursuant to the Parent Guarantee and any other subsidiary Guarantors under their respective Subsidiary Guarantees, unconditionally guarantees to the Holder of the accompanying _____~~% Note Due June~~ ___________________________________________________________ for the account of _______________________________, ~~2018 (the "2018 Note") issued by AMB Property, L.P. (the "Operating Partnership") under an Indenture dated as of June~~ account number ________________________, ~~1998 (together with the Second Supplemental Indenture thereto~~or, if mailed by check, to__________________________________________________________ _______________________________________________________________________________. Applicable statements should be mailed to_______________________________________ ________________________________________________________________________________ _______________________________________________. This information is provided by __________________________________________________, the assignee named above, or ________________________________________, as its agent. XXXXXXX X-0 ----------- FORM OF CLASS M-3 CERTIFICATE UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("~~Indenture~~DTC"~~) among~~ ), TO THE TRUST ADMINISTRATOR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986 (THE "CODE"). THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1 CERTIFICATES, THE CLASS A-2 CERTIFICATES, THE CLASS A-3 CERTIFICATES, THE CLASS A-4 CERTIFICATES, THE CLASS M-1 CERTIFICATES AND THE CLASS M-2 CERTIFICATES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN. NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, OR THE CODE WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROCEDURES DESCRIBED HEREIN. Series: 2004-HE1 Xxxxxxxxx Xxxxxxxxxxx Xxxncipal Balance of the ~~Operating Partnership~~Class M-3 Certificates as of the Issue Date: Pass-Through Rate: Variable $6,682,000.00 Cut-off Date and date of Pooling and Denomination: $6,682,000.00 Servicing Agreement: September 1, ~~AMB Property Corporation, and State Street Bank~~ 2004 Master Servicer and Trust ~~Company~~ Administrator: First Distribution Date: October 25, 2004 Wells Fargo Bank, X.X. No. 1 Trustee: U.S. Bank National Association Issue Date: September 29, 2004 CUSIP: 57643L EL 6 DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE AS THE DENOMINATION OF THIS CERTIFICATE. MORTGAGE PASS-THROUGH CERTIFICATE evidencing a beneficial ownership interest in a portion of ~~California, N.A., as trustee~~ a Trust Fund (the "~~Trustee~~Trust Fund") consisting primarily of a pool of conventional one- to four-family, fixed-rate and adjustable-rate, first and second lien mortgage loans (the "Mortgage Loans") formed and sold by MORTGAGE ASSET SECURITIZATION TRANSACTIONS, INC. THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN MORTGAGE ASSET SECURITIZATION TRANSACTIONS, INC., THE MASTER SERVICER, THE TRUSTEE, THE TRUST ADMINISTRATOR OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES. This certifies that Cede & Co. is the registered owner of a Percentage Interest (obtained by dividing the denomination of this Certificate by the aggregate Certificate Principal Balance of the Class M-3 Certificates as of the Issue Date) in that certain beneficial ownership interest evidenced by all the Class M-3 Certificates in REMIC II created pursuant to a Pooling and Servicing Agreement, dated as specified above (the "Agreement"), among Mortgage Asset Securitization Transactions, Inc. (a) hereinafter called the ~~full~~ "Depositor," which term includes any successor entity under the Agreement), the Master Servicer, the Trust Administrator and ~~prompt payment~~ the Trustee, a summary of certain of the ~~principal~~ 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 Agreement. This Certificate is issued under and ~~premium~~is subject to the terms, ~~if any, on such 2018 Note when~~ provisions and ~~as the same shall become due and payable, whether at Stated Maturity, by acceleration, by redemption or otherwise, and (b) the full and prompt payment~~ conditions of the ~~interest on~~ Agreement, to which Agreement the Holder of this Certificate by virtue of the acceptance hereof assents and by which such ~~2018 Note when and as the same shall become due and payable, according~~ Holder is bound. Pursuant to the terms of the Agreement, distributions will be made on the 25th day of each month or, if such ~~2018 Note and~~ 25th day is not a Business Day, the Business Day immediately following (a "Distribution Date"), commencing on the First Distribution Date specified above, to the Person in whose name this Certificate is registered on the Record Date, in an amount equal to the product of the ~~Indenture. The undersigned hereby agrees, jointly~~ Percentage Interest evidenced by this Certificate and ~~severally with~~ the ~~Parent Guarantor~~ amount required to be distributed to the Holders of Class M-3 Certificates on such Distribution Date pursuant to the ~~Parent Guarantee~~ Agreement. All distributions to the Holder of this Certificate under the Agreement will be made or caused to be made by the Trust Administrator by wire transfer in immediately available funds to the account of the Person entitled thereto if such Person shall have so notified the Trust Administrator in writing at least five Business Days prior to the Record Date immediately prior to such Distribution Date and is the registered owner of Class M-2 Certificates the aggregate initial Certificate Principal Balance of which is in excess of the lesser of (i) $5,000,000 or (ii) two-thirds of the aggregate initial Certificate Principal Balance of the Class M-2 Certificates, or otherwise by check mailed by first class mail to the address of the Person entitled thereto, as such name and address shall appear on the Certificate Register. Notwithstanding the above, the final distribution on this Certificate will be made after due notice by the Trust Administrator of the pendency of such distribution and only upon presentation and surrender of this Certificate at the office or agency appointed by the Trust Administrator for that purpose as provided in the Agreement. The Pass-Through Rate applicable to the calculation of interest payable with respect to this Certificate on any Distribution Date shall equal a rate per annum equal to the lesser of (i) the related Formula Rate for such Distribution Date and (ii) the related Net WAC Rate for such Distribution Date. This Certificate is one of a duly authorized issue of Certificates designated as Mortgage Pass-Through Certificates of the Series specified on the face hereof (herein called the "Certificates") and representing a Percentage Interest in the Class of Certificates specified on the face hereof equal to the denomination specified on the face hereof divided by the aggregate Certificate Principal Balance of the Class of Certificates specified on the face hereof. The 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 Agreement. As provided in the Agreement, withdrawals from the Distribution Account may be made from time to time for purposes other ~~Subsidiary Guarantors~~ than distributions to Certificateholders, such purposes including reimbursement of advances made, or certain expenses incurred, with respect to the Mortgage Loans. The Agreement permits, with certain exceptions therein provided, the amendment thereof and the modification of the rights and obligations of the Depositor, the Master Servicer, the Trust Administrator, the Trustee and the rights of the Certificateholders under ~~their respective Subsidiary Guarantees~~the Agreement at any time by the Depositor, ~~that its obligations hereunder~~ the Master Servicer, the Trust Administrator and the Trustee with the consent of the Holders of Certificates entitled to at least 66% of the Voting Rights. Any such consent by the Holder of this Certificate shall be ~~as principal~~ conclusive and binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in exchange herefor or in lieu hereof whether or not ~~merely as surety~~notation of such consent is made upon this Certificate. The Agreement also permits the amendment thereof, ~~and shall be absolute and unconditional~~in certain limited circumstances, ~~and shall not be affected, modified or impaired by~~ without the ~~following: (a) the failure to give notice to the Guarantors~~ consent of the occurrence of an Event of Default under the Indenture; (b) the waiver, surrender, compromise, settlement, release or termination of the payment, performance or observance by the Operating Partnership or the Guarantors of any or all of the obligations, covenants or agreements of either of them contained in the Indenture or the 2018 Notes; (c) the acceleration, extension or any other changes in the time for payment of any principal of or interest or any premium on any 2018 Note or for any other payment under the Indenture or of the time for performance of any other obligations, covenants or agreements under or arising out of the Indenture or the 2018 Notes; (d) the modification or amendment (whether material or otherwise) of any obligation, covenant or agreement set forth in the Indenture or the 2018 Notes; (e) the taking or the omission Holders of any of the ~~actions referred to~~ Certificates. As provided in the ~~Indenture~~ Agreement and subject to certain limitations therein set forth, the transfer of this Certificate is registrable in ~~any~~ the Certificate Register upon surrender of this Certificate for registration of transfer at the offices or agencies appointed by the Trust Administrator as provided in the Agreement, duly endorsed by, or accompanied by an assignment in the form below or other written instrument of transfer in form satisfactory to the Trust 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 ~~actions under~~ same Class in authorized denominations evidencing the ~~2018 Notes; (f) any failure, omission, delay~~ same aggregate Percentage Interest will be issued to the designated transferee or ~~lack on the part~~ transferees. No transfer of this Certificate to a Plan subject to ERISA or Section 4975 of the Trustee to enforce, assert or exercise any right, power or remedy conferred on the Trustee in the Indenture, or any other action or acts on the part of the Trustee or any of the Holders from time to time of the 2018 Notes; (g) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all the assets, marshaling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition with creditors or readjustment of, or other similar proceedings affecting the Guarantors or the Operating Partnership or any of the assets of any of them, or any allegation or contest of the validity of this Subsidiary Guarantee in any such proceeding; (h) to the extent permitted by law, the release or discharge by operation of law of the Guarantors from the performance or observance of any obligation, covenant or agreement contained in the Indenture; (i) to the extent permitted by law, the release or discharge by operation of law of the Operating Partnership from the performance or observance of any obligation, covenant or agreement contained in the Indenture; (j) the default or failure of the Operating Partnership or the Trustee fully to perform any of its obligations set forth in the Indenture or the 2018 Notes; (k) the invalidity, irregularity or unenforceability of the Indenture or the 2018 Notes or any part of any thereof; (l) any judicial or governmental action affecting the Operating Partnership or any 2018 Notes or consent or indulgence granted by the Operating Partnership by the Holders or by the Trustee; or (m) the recovery of any judgment against the Operating Partnership or any action to enforce the same or any other circumstance which might constitute a legal or equitable discharge of a surety or guarantor. The undersigned hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of merger, sale, lease or conveyance of all or substantially all of its assets, insolvency or bankruptcy of the Operating PartnershipCode, any right to require a proceeding first against the Operating Partnership, protest or notice with respect to such Notice or the indebtedness evidenced thereby and all demands whatsoever, and covenants that this Subsidiary Guarantee will not be discharged except by complete performance of the obligations contained in such 2018 Note and in this Subsidiary Guarantee. No reference herein to such Indenture and no provision of this Subsidiary Guarantee or of such Indenture shall alter or impair the guarantee of the undersigned, which is absolute and unconditional, of the full and prompt payment of the principal of and premium, if any, and interest on the 2018 Note. THIS SUBSIDIARY GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. The validity and enforceability of this Subsidiary Guarantee shall not be affected by the fact that it is not affixed to any particular 2018 Note. An Event of Default under the Indenture or the 2018 Notes shall constitute an event of default under this Subsidiary Guarantee, and shall entitle the Holders of 2018 Notes to accelerate the obligations of the undersigned hereunder in the same manner and to the same extent as the obligations of the Operating Partnership. Notwithstanding any other provision of this Subsidiary Guarantee to the contrary, the undersigned hereby waives any claims or other rights which it may now have or hereafter acquire against the Operating Partnership that arise from the existence or performance of its obligations under this Subsidiary Guarantee (all such claims and rights are referred to as "Guarantor's Conditional Rights"), including, without limitation, any right of subrogation, reimbursement, exoneration, contribution, or indemnification, any right to participate in any claim or remedy against the Operating Partnership, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, by any payment made hereunder or otherwise, including without limitation, the right to take or receive from Operating PartnershipPerson acting, directly or indirectly, on behalf of any such Plan or any Person using "Plan Assets" to acquire this Certificate shall be made except in ~~cash~~ accordance with Section 5.02(c) of the Agreement. The Certificates are issuable in fully registered form only without coupons in Classes and denominations representing Percentage Interests specified in the Agreement. As provided in the Agreement and subject to certain limitations therein set forth, the Certificates are exchangeable for new Certificates of the same Class in authorized denominations evidencing the same aggregate Percentage Interest, as requested by the Holder surrendering the same. No service charge will be made for any such registration of transfer or exchange of Certificates, but the Trust Administrator may require payment of a sum sufficient to cover any tax or other ~~property~~ governmental charge that may be imposed in connection with any transfer or ~~by setoff or in any other manner, payment or security on account~~ exchange of ~~such claim or other rights~~Certificates. The Subsidiary Guarantor hereby agrees not to exercise any rights which may be acquired by way of contribution under this Subsidiary Guarantee or any other agreement, by any payment made hereunder or otherwise, including, without limitationDepositor, the ~~right~~ Master Servicer, the Trustee, the Trust Administrator and any agent of the Depositor, the Master Servicer, the Trust Administrator or 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 Trustee, the Trust Administrator nor any such agent shall be affected by notice to ~~take or receive from any other guarantor, directly or indirectly, in cash or other property or~~ the contrary. The obligations created by ~~setoff or in any other manner,~~ the Agreement and the Trust Fund created thereby shall terminate upon payment ~~or security on account~~ to the Certificateholders of ~~such contribution rights. If, notwithstanding~~ all amounts held by the ~~foregoing provisions, any amount shall~~ Trust Administrator and required to be paid to ~~any~~ them pursuant to the Agreement following the earlier of ~~the undersigned on account of any such Guarantor's Conditional Rights and either~~ (i) ~~such amount is paid to such undersigned party at~~ the final payment or other liquidation (or any ~~time when~~ advance with respect thereto) of the ~~indebtedness shall not have been paid or performed~~ last Mortgage Loan and REO Property remaining in ~~full, or~~ REMIC I and (ii) ~~regardless~~ the purchase by the party designated in the Agreement at a price determined as provided in the Agreement from REMIC I of ~~when~~ all the Mortgage Loans and all property acquired in respect of such ~~amount~~ Mortgage Loans. The Agreement permits, but does not require, the party designated in the Agreement to purchase from REMIC I all the Mortgage Loans and all property acquired in respect of any Mortgage Loan at a price determined as provided in the Agreement. The exercise of such right will effect early retirement of the Certificates; however, such right to purchase is ~~paid to such undersigned party, any payment made by Operating Partnership to a Holder that is at any time determined to be a Preferential Payment (as defined below), then such amount paid~~ subject to the ~~undersigned~~ aggregate Stated Principal Balance of the Mortgage Loans at the time of purchase being less than 10% of the aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-off Date. The recitals contained herein shall be ~~held in trust for the benefit~~ taken as statements of the ~~Holders~~ Depositor and ~~shall forthwith be paid such Holder to be credited and applied upon~~ the ~~indebtedness~~Trust Administrator assume no responsibility for their correctness. Unless the certificate of authentication hereon has been executed by the Trust Administrator, ~~whether matured or unmatured. Any such payment is herein referred to as a "Preferential Payment" to the extent the Operating Partnership makes any payment to Holder in connection with the Note~~by manual signature, and any or all of such payment is subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid or paid over to a trustee, receiver or any other entity, whether under any bankruptcy act or otherwise. To the extent that any of the provisions of the immediately preceding paragraph this Certificate shall not be ~~enforceable, each of~~ entitled to any benefit under the ~~undersigned agrees that until such time as the indebtedness has been paid and performed in full and the period of time has expired during which~~ Agreement or be valid for any payment made by the Operating Partnership or the undersigned to a Holder may be determined to be a Preferential Payment, Guarantor's Conditional Rights to the extent not validly waived shall be subordinate to Holders' right to full payment and performance of the indebtedness and each of the undersigned shall not enforce any of its respective portion of the Guarantors' Conditional Rights until such time as the indebtedness has been paid and performed in full and the period of time has expired during which any payment made by the Operating Partnership or the undersigned to Holders may be determined to be a Preferential Payment. The undersigned's liability (the "Base Guaranty Liability") shall be that amount from time to time equal to the aggregate liability of the undersigned hereunder, but shall be limited to the lesser of (A) the aggregate amount of the obligation as stated in the second sentence of Section 1401 of the Indenture, and (B) the amount, if any, which would not have (i) rendered the undersigned "insolvent" (as such term is defined in Section 101(29) of the Federal Bankruptcy Code and in Section 271 of the Debtor and Creditor Law of the State of New York, as each is in effect at the date of the Indenture) or (ii) left the undersigned with unreasonably small capital at the time its Guarantee was entered into, after giving effect to the incurrence of existing Debt (as defined in the Indenture) immediately prior to such time, provided that, it shall be a presumption in any lawsuit or other proceeding in which the undersigned is a party that the amount guaranteed is the amount set forth in (A) above unless a creditor, or representative of creditors of the undersigned or a trustee in bankruptcy of the undersigned, as debtor in possession, otherwise proves in such a lawsuit that the aggregate liability of the undersigned is limited to the amount set forth in (B). In making any determination as to the solvency or sufficiency of capital of the undersigned in accordance with the previous sentence, the right of the undersigned to contribution from other Guarantors, to subrogation and any other rights the undersigned may have, contractual or otherwise, shall be taken into account. The obligations of the undersigned to the Holders of the 2018 Notes and to the Trustee pursuant to the Subsidiary Guarantee and the Indenture are expressly set forth in Article 14 of the Indenture and reference is hereby made to the Indenture for the precise terms of the Subsidiary Guarantee and all of the other provisions of the Indenture to which this Subsidiary Guarantee relates. Capitalized terms in this Subsidiary Guarantee which are not defined herein shall have the meanings assigned to them in the Indenturepurpose.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (MASTR Asset Backed Securities Trust 2004-He1)

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Carrington Mortgage Loan Trust, Series 2005-Nc5)

Appears in 1 contract

Samples: Pooling and Servicing Agreement (ACE Securities Corp Series 2004-He4)

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Morgan Stanley Dean Witter Capital I Inc)

Dated. ~~Notice~~Signature by or on behalf of assignor --------------------------------------- Signature Guaranteed DISTRIBUTION INSTRUCTIONS ------------------------- The assignee should include the following for purposes of distribution: The signature to this assignment must correspond with the name as it appears upon the face of the within Note in every particular, without alteration or enlargement or any change whatever. ABBREVIATIONS The following abbreviations, when used in the inscription on the face of this instrument, Distributions shall be ~~construed as though they were written out~~ made, by wire transfer or otherwise, in ~~full according~~ immediately available funds to applicable laws or regulations: TEN COM--as tenants in common UNIF GIFT MIN ACT--_____ Custodian______ TEN ENT--as tenants by the entireties (Cust) (Minor) JT TEN--as joint tenants with right Under Uniform Gifts to Minors of survivorship and not as Act__________________________ tenants in common (State) Additional abbreviations may also be used though not in the above list. --------------------------- [FORM OF SCHEDULE FOR ENDORSEMENTS ON GLOBAL SECURITY TO REFLECT CHANGES IN PRINCIPAL AMOUNT] Schedule A Changes to Principal Amount of Global Security Principal Amount of Securities by which this Global Security is to be Reduced or Increased, and Reason for Remaining Principal Amount of Notation Date Reduction or Increase this Global Securities Made by ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- Exhibit B SUBSIDIARY GUARANTEE FOR VALUE RECEIVED, the undersigned hereby jointly and severally with the Parent Guarantor pursuant to the Parent Guarantee and any other subsidiary Guarantors under their respective Subsidiary Guarantees, unconditionally guarantees to the Holder of the accompanying _____~~% Note Due June~~ __________________, ~~2018 (~~for the ~~"2018 Note") issued by AMB Property, L.P. (the "Operating Partnership") under an Indenture dated as~~ account of ~~June~~ ______________________________, ~~1998 (together with the Second Supplemental Indenture thereto~~account number _____________, or, if mailed by check, to ______________________________. Applicable statements should be mailed to ___________________________________________________________. This information is provided by ______________________________________, the ~~"Indenture") among the Operating Partnership~~assignee named above, ~~AMB Property Corporation, and State Street Bank and Trust Company of California, N.A.~~or ____________________________________, as ~~trustee~~ its agent. EXHIBIT A-5 FORM OF CLASS A-5 CERTIFICATE SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT", AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986 (THE "CODE"). Series 1999-1, Class A-5 Aggregate Certificate Principal Balance of Class A-5 Certificates as of the Issue Pass-Through Rate: 6.50% per annum Date: $__________ Date of Trust Agreement: February 25, 1999 Denomination: $__________ First Distribution Date: March 26, 1999 Trustee: The Bank of New York No. __ Issue Date: February 25, 1999 CUSIP: 79548K DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE AS THE DENOMINATION OF THIS CERTIFICATE. MORTGAGE PASS-THROUGH CERTIFICATE evidencing a beneficial ownership interest in a Trust Fund consisting primarily of the Underlying Certificates, such Trust Fund formed and the Underlying Certificates deposited therein by SALOMON BROTHERS MORTGAGE SECURITIES VII, INC. THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN SALOMON BROTHERS MORTGAGE SECURITIES VII, INC., THE TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLY ING CERTIFICATES ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES. This certifies that ____________ is the registered owner of a Percentage Interest (obtained by dividing the denomination of this Certificate by the aggregate Certificate Principal Balance of the Class A-5 Certificates as of the Issue Date) in that certain beneficial ownership interest evidenced by all the Class A-5 Certificates in the Trust Fund created pursuant to a Trust Agreement, dated as specified above (the "~~Trustee~~Agreement"), between Salomon Brothers Mortgage Securities VII, Inc. (ahereinafter called the "Depositor," which term includes any successor entity under the Agreement) and the ~~full and prompt payment~~ Trustee, a summary of certain of the ~~principal~~ 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 Agreement. This Certificate is issued under and ~~premium~~is subject to the terms, ~~if any, on such 2018 Note when~~ provisions and ~~as the same shall become due and payable, whether at Stated Maturity, by acceleration, by redemption or otherwise, and (b) the full and prompt payment~~ conditions of the ~~interest on~~ Agreement, to which Agreement the Holder of this Certificate by virtue of the acceptance hereof assents and by which such ~~2018 Note when and as the same shall become due and payable, according~~ Holder is bound. Pursuant to the terms of the Agreement, distributions will be made on the 26th day of each month or, if such ~~2018 Note and~~ 26th day is not a Business Day, the Business Day immediately following (a "Distribution Date"), commencing on the First Distribution Date specified above, to the Person in whose name this Certificate is registered on the last Business Day of the ~~Indenture. The undersigned hereby agrees~~month immediately preceding the month of such distribution (the "Record Date"), ~~jointly~~ in an amount equal to the product of the Percentage Interest evidenced by this Certificate and ~~severally with~~ the ~~Parent Guarantor~~ amount required to be distributed to the Holders of Class A-5 Certificates on such Distribution Date pursuant to the ~~Parent Guarantee~~ Agreement. All distributions to the Holder of this Certificate under the Agreement will be made or caused to be made by or on behalf of the Trustee by wire transfer in immediately available funds to the account of the Person entitled thereto if such Person shall have so notified the Trustee in writing at least five Business Days prior to the Record Date immediately prior to such Distribution Date and is the registered owner of Class A-5 Certificates the aggregate initial Certificate Principal Balance of which is in excess of the lesser of (i) $5,000,000 or (ii) two-thirds of the aggregate initial Certificate Principal Balance of the Class A-5 Certificates, or otherwise by check mailed by first class mail to the address of the Person entitled thereto, as such name and address shall appear on the Certificate Register. Notwithstanding the above, the final distribution on this Certificate will be made after due notice by the Trustee of the pendency of such distribution and only upon presentation and surrender of this Certificate at the office or agency appointed by the Trustee for that purpose as provided in the Agreement. This Certificate is one of a duly authorized issue of Certificates designated as Trust Certificates of the Series specified on the face hereof (herein called the "Certificates") and representing a Percentage Interest in the Class of Certificates specified on the face hereof equal to the denomination specified on the face hereof divided by the aggregate Certificate Principal Balance of the Class of Certificates specified on the face hereof. The Certificates are limited in right of payment to certain collections and recoveries respecting the Underlying Certificates, all as more specifically set forth herein and in the Agreement. As provided in the Agreement, withdrawals from the Collection Account and the Distribution Account may be made from time to time for purposes other than distributions to Certificateholders, such purposes including reimbursement of advances made, or certain expenses incurred, with respect to the Underlying Certificates. The Agreement permits, with certain exceptions therein provided, the amendment thereof and the modification of the rights and obligations of the Depositor and the Trustee, and the rights of the Certificateholders under the Agreement at any ~~other Subsidiary Guarantors under their respective Subsidiary Guarantees, that its obligations hereunder~~ time by the Depositor and the Trustee with the consent of the Holders of Certificates entitled to at least 66% of the Voting Rights. Any such consent by the Holder of this Certificate shall be ~~as principal~~ conclusive and binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in exchange herefor or in lieu hereof whether or not ~~merely as surety~~notation of such consent is made upon this Certificate. The Agreement also permits the amendment thereof, ~~and shall be absolute and unconditional~~in certain limited circumstances, ~~and shall not be affected, modified or impaired by~~ without the ~~following: (a) the failure to give notice to the Guarantors~~ consent of the occurrence of an Event of Default under the Indenture; (b) the waiver, surrender, compromise, settlement, release or termination of the payment, performance or observance by the Operating Partnership or the Guarantors of any or all of the obligations, covenants or agreements of either of them contained in the Indenture or the 2018 Notes; (c) the acceleration, extension or any other changes in the time for payment of any principal of or interest or any premium on any 2018 Note or for any other payment under the Indenture or of the time for performance of any other obligations, covenants or agreements under or arising out of the Indenture or the 2018 Notes; (d) the modification or amendment (whether material or otherwise) of any obligation, covenant or agreement set forth in the Indenture or the 2018 Notes; (e) the taking or the omission Holders of any of the ~~actions referred to~~ Certificates. As provided in the ~~Indenture~~ Agreement and subject to certain limitations therein set forth, the transfer of this Certificate is registrable in ~~any~~ the Certificate Register upon surrender of this Certificate for registration of transfer at the offices or agencies appointed by the Trustee as provided in the Agreement, duly endorsed by, or accompanied by an assignment in the form below or other written instrument of transfer in form satisfactory to the Trustee and the Certificate Registrar duly executed by, the Holder hereof or such Holder's attorney duly authorized in writing, and thereupon one or more new Certificates of the ~~actions under~~ same Class in authorized denominations evidencing the ~~2018 Notes;~~ same aggregate Percentage Interest 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 Agreement. As provided in the Agreement and subject to certain limitations therein set forth, Certificates are exchangeable for new Certificates of the same Class in authorized denominations evidencing the same aggregate Percentage Interest, as requested by the Holder surrendering the same. No service charge will be made for any such registration of transfer or exchange of Certificates, but the Trustee 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 and the Certificate Registrar and any agent of the Depositor, the Trustee or the Certificate Registrar 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 Certificate Registrar nor any such agent shall be affected by notice to the contrary. The obligations created by the Agreement and the Trust Fund created thereby shall terminate upon payment (for provision for payment) ~~any failure, omission, delay~~ to the Certificateholders of all amounts held by or ~~lack~~ on ~~the part~~ behalf of the Trustee and required to ~~enforce, assert~~ be paid to them pursuant to the Agreement follow ing the final payment (or ~~exercise~~ any ~~right, power or remedy conferred~~ advance with respect thereto) on the ~~Trustee in the Indenture, or any other action or acts on the part~~ Underlying Certificates. The recitals contained herein shall be taken as statements of the Trustee or any of the Holders from time to time of the 2018 Notes; (g) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all the assets, marshaling of assets Depositor and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition with creditors or readjustment of, or other similar proceedings affecting the Guarantors or the Operating Partnership or any of the assets of any of them, or any allegation or contest of the validity of this Subsidiary Guarantee in any such proceeding; (h) to the extent permitted by law, the release or discharge by operation of law of the Guarantors from the performance or observance of any obligation, covenant or agreement contained in the Indenture; (i) to the extent permitted by law, the release or discharge by operation of law of the Operating Partnership from the performance or observance of any obligation, covenant or agreement contained in the Indenture; (j) the default or failure of the Operating Partnership or the Trustee ~~fully to perform any~~ assumes no responsibility for their correctness. Unless the certificate of its obligations set forth in the Indenture or the 2018 Notes; (k) the invalidity, irregularity or unenforceability of the Indenture or the 2018 Notes or any part of any thereof; (l) any judicial or governmental action affecting the Operating Partnership or any 2018 Notes or consent or indulgence granted authentication hereon has been executed by the ~~Operating Partnership~~ Certificate Registrar, by the Holders or by the Trustee; or (m) the recovery of any judgment against the Operating Partnership or any action to enforce the same or any other circumstance which might constitute a legal or equitable discharge of a surety or guarantor. The undersigned hereby waives diligencemanual signature, presentment, demand of payment, filing of claims with a court in the event of merger, sale, lease or conveyance of all or substantially all of its assets, insolvency or bankruptcy of the Operating Partnership, any right to require a proceeding first against the Operating Partnership, protest or notice with respect to such Notice or the indebtedness evidenced thereby and all demands whatsoever, and covenants that this Subsidiary Guarantee will not be discharged except by complete performance of the obligations contained in such 2018 Note and in this Subsidiary Guarantee. No reference herein to such Indenture and no provision of this Subsidiary Guarantee or of such Indenture shall alter or impair the guarantee of the undersigned, which is absolute and unconditional, of the full and prompt payment of the principal of and premium, if any, and interest on the 2018 Note. THIS SUBSIDIARY GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. The validity and enforceability of this Subsidiary Guarantee Certificate shall not be ~~affected by the fact that it is not affixed~~ entitled to any ~~particular 2018 Note. An Event of Default~~ benefit under the ~~Indenture~~ Agreement or the 2018 Notes shall constitute an event of default under this Subsidiary Guarantee, and shall entitle the Holders of 2018 Notes to accelerate the obligations of the undersigned hereunder in the same manner and to the same extent as the obligations of the Operating Partnership. Notwithstanding be valid for any other provision of this Subsidiary Guarantee to the contrary, the undersigned hereby waives any claims or other rights which it may now have or hereafter acquire against the Operating Partnership that arise from the existence or performance of its obligations under this Subsidiary Guarantee (all such claims and rights are referred to as "Guarantor's Conditional Rights"), including, without limitation, any right of subrogation, reimbursement, exoneration, contribution, or indemnification, any right to participate in any claim or remedy against the Operating Partnership, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, by any payment made hereunder or otherwise, including without limitation, the right to take or receive from Operating Partnership, directly or indirectly, in cash or other property or by setoff or in any other manner, payment or security on account of such claim or other rights. The Subsidiary Guarantor hereby agrees not to exercise any rights which may be acquired by way of contribution under this Subsidiary Guarantee or any other agreement, by any payment made hereunder or otherwise, including, without limitation, the right to take or receive from any other guarantor, directly or indirectly, in cash or other property or by setoff or in any other manner, payment or security on account of such contribution rights. If, notwithstanding the foregoing provisions, any amount shall be paid to any of the undersigned on account of any such Guarantor's Conditional Rights and either (i) such amount is paid to such undersigned party at any time when the indebtedness shall not have been paid or performed in full, or (ii) regardless of when such amount is paid to such undersigned party, any payment made by Operating Partnership to a Holder that is at any time determined to be a Preferential Payment (as defined below), then such amount paid to the undersigned shall be held in trust for the benefit of the Holders and shall forthwith be paid such Holder to be credited and applied upon the indebtedness, whether matured or unmatured. Any such payment is herein referred to as a "Preferential Payment" to the extent the Operating Partnership makes any payment to Holder in connection with the Note, and any or all of such payment is subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid or paid over to a trustee, receiver or any other entity, whether under any bankruptcy act or otherwise. To the extent that any of the provisions of the immediately preceding paragraph shall not be enforceable, each of the undersigned agrees that until such time as the indebtedness has been paid and performed in full and the period of time has expired during which any payment made by the Operating Partnership or the undersigned to a Holder may be determined to be a Preferential Payment, Guarantor's Conditional Rights to the extent not validly waived shall be subordinate to Holders' right to full payment and performance of the indebtedness and each of the undersigned shall not enforce any of its respective portion of the Guarantors' Conditional Rights until such time as the indebtedness has been paid and performed in full and the period of time has expired during which any payment made by the Operating Partnership or the undersigned to Holders may be determined to be a Preferential Payment. The undersigned's liability (the "Base Guaranty Liability") shall be that amount from time to time equal to the aggregate liability of the undersigned hereunder, but shall be limited to the lesser of (A) the aggregate amount of the obligation as stated in the second sentence of Section 1401 of the Indenture, and (B) the amount, if any, which would not have (i) rendered the undersigned "insolvent" (as such term is defined in Section 101(29) of the Federal Bankruptcy Code and in Section 271 of the Debtor and Creditor Law of the State of New York, as each is in effect at the date of the Indenture) or (ii) left the undersigned with unreasonably small capital at the time its Guarantee was entered into, after giving effect to the incurrence of existing Debt (as defined in the Indenture) immediately prior to such time, provided that, it shall be a presumption in any lawsuit or other proceeding in which the undersigned is a party that the amount guaranteed is the amount set forth in (A) above unless a creditor, or representative of creditors of the undersigned or a trustee in bankruptcy of the undersigned, as debtor in possession, otherwise proves in such a lawsuit that the aggregate liability of the undersigned is limited to the amount set forth in (B). In making any determination as to the solvency or sufficiency of capital of the undersigned in accordance with the previous sentence, the right of the undersigned to contribution from other Guarantors, to subrogation and any other rights the undersigned may have, contractual or otherwise, shall be taken into account. The obligations of the undersigned to the Holders of the 2018 Notes and to the Trustee pursuant to the Subsidiary Guarantee and the Indenture are expressly set forth in Article 14 of the Indenture and reference is hereby made to the Indenture for the precise terms of the Subsidiary Guarantee and all of the other provisions of the Indenture to which this Subsidiary Guarantee relates. Capitalized terms in this Subsidiary Guarantee which are not defined herein shall have the meanings assigned to them in the Indenturepurpose.

Appears in 1 contract

Samples: Distribution Instructions (Solomon Bros Mort Securities Vii Trust Cert Series 1999 1)

Appears in 1 contract

Samples: Distribution Instructions (Salomon Brothers MRT Sec Vii Inc MRT Ps THR Cert 1999-2)

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Salomon Brothers Mort Sec Vii Inc Fl Rte Cert Se 1999-Nc4)

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Home Equity Loan Trust Series 2004-Hs1)

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Cendant Mortgage Capital LLC)

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Morgan Stanley ABS Capital I Inc. Trust 2004-Nc6)

Dated. ~~Notice~~Signature by or on behalf of assignor --------------------------------------- Signature Guaranteed DISTRIBUTION INSTRUCTIONS ------------------------- The assignee should include the following for purposes of distribution: The signature to this assignment must correspond with the name as it appears upon the face of the within Note in every particular, without alteration or enlargement or any change whatever. ABBREVIATIONS The following abbreviations, when used in the inscription on the face of this instrument, Distributions shall be ~~construed as though they were written out~~ made, by wire transfer or otherwise, in ~~full according~~ immediately available funds to applicable laws or regulations: TEN COM--as tenants in common UNIF GIFT MIN ACT--_____ Custodian______ TEN ENT--as tenants by the entireties (Cust) (Minor) JT TEN--as joint tenants with right Under Uniform Gifts to Minors of survivorship and not as Act__________________________ tenants in common (State) Additional abbreviations may also be used though not in the above list. --------------------------- [FORM OF SCHEDULE FOR ENDORSEMENTS ON GLOBAL SECURITY TO REFLECT CHANGES IN PRINCIPAL AMOUNT] Schedule A Changes to Principal Amount of Global Security Principal Amount of Securities by which this Global Security is to be Reduced or Increased, and Reason for Remaining Principal Amount of Notation Date Reduction or Increase this Global Securities Made by ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- Exhibit B SUBSIDIARY GUARANTEE FOR VALUE RECEIVED, the undersigned hereby jointly and severally with the Parent Guarantor pursuant to the Parent Guarantee and any other subsidiary Guarantors under their respective Subsidiary Guarantees, unconditionally guarantees to the Holder of the accompanying _____~~% Note Due June~~ __________________, ~~2018 (~~for the ~~"2018 Note") issued by AMB Property, L.P. (the "Operating Partnership") under an Indenture dated as~~ account of ~~June~~ ______________________________, ~~1998 (together with the Second Supplemental Indenture thereto~~account number _____________, or, if mailed by check, to ______________________________. Applicable statements should be mailed to ___________________________________________________________. This information is provided by ______________________________________, the ~~"Indenture") among the Operating Partnership~~assignee named above, ~~AMB Property Corporation, and State Street Bank and Trust Company of California, N.A.~~or ____________________________________, as ~~trustee~~ its agent. EXHIBIT A-10 FORM OF CLASS A-10 CERTIFICATE SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT", AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986 (THE "CODE"). Series 1999-1, Class A-10 Aggregate Certificate Principal Balance of Class A-10 Certificates as of the Issue Pass-Through Rate: 6.50% per annum Date: $__________ Date of Trust Agreement: February 25, 1999 Denomination: $__________ First Distribution Date: March 26, 1999 Trustee: The Bank of New York No. __ Issue Date: February 25, 1999 CUSIP: 79548K DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE AS THE DENOMINATION OF THIS CERTIFICATE. MORTGAGE PASS-THROUGH CERTIFICATE evidencing a beneficial ownership interest in a Trust Fund consisting primarily of the Underlying Certificates, such Trust Fund formed and the Underlying Certificates deposited therein by SALOMON BROTHERS MORTGAGE SECURITIES VII, INC. THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN SALOMON BROTHERS MORTGAGE SECURITIES VII, INC., THE TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLY ING CERTIFICATES ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES. This certifies that ____________ is the registered owner of a Percentage Interest (obtained by dividing the denomination of this Certificate by the aggregate Certificate Principal Balance of the Class A-10 Certificates as of the Issue Date) in that certain beneficial ownership interest evidenced by all the Class A-10 Certificates in the Trust Fund created pursuant to a Trust Agreement, dated as specified above (the "~~Trustee~~Agreement"), between Salomon Brothers Mortgage Securities VII, Inc. (ahereinafter called the "Depositor," which term includes any successor entity under the Agreement) and the ~~full and prompt payment~~ Trustee, a summary of certain of the ~~principal~~ 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 Agreement. This Certificate is issued under and ~~premium~~is subject to the terms, ~~if any, on such 2018 Note when~~ provisions and ~~as the same shall become due and payable, whether at Stated Maturity, by acceleration, by redemption or otherwise, and (b) the full and prompt payment~~ conditions of the ~~interest on~~ Agreement, to which Agreement the Holder of this Certificate by virtue of the acceptance hereof assents and by which such ~~2018 Note when and as the same shall become due and payable, according~~ Holder is bound. Pursuant to the terms of the Agreement, distributions will be made on the 26th day of each month or, if such ~~2018 Note and~~ 26th day is not a Business Day, the Business Day immediately following (a "Distribution Date"), commencing on the First Distribution Date specified above, to the Person in whose name this Certificate is registered on the last Business Day of the ~~Indenture. The undersigned hereby agrees~~month immediately preceding the month of such distribution (the "Record Date"), ~~jointly~~ in an amount equal to the product of the Percentage Interest evidenced by this Certificate and ~~severally with~~ the ~~Parent Guarantor~~ amount required to be distributed to the Holders of Class A-10 Certificates on such Distribution Date pursuant to the ~~Parent Guarantee~~ Agreement. All distributions to the Holder of this Certificate under the Agreement will be made or caused to be made by or on behalf of the Trustee by wire transfer in immediately available funds to the account of the Person entitled thereto if such Person shall have so notified the Trustee in writing at least five Business Days prior to the Record Date immediately prior to such Distribution Date and is the registered owner of Class A-10 Certificates the aggregate initial Certificate Principal Balance of which is in excess of the lesser of (i) $5,000,000 or (ii) two-thirds of the aggregate initial Certificate Principal Balance of the Class A-10 Certificates, or otherwise by check mailed by first class mail to the address of the Person entitled thereto, as such name and address shall appear on the Certificate Register. Notwithstanding the above, the final distribution on this Certificate will be made after due notice by the Trustee of the pendency of such distribution and only upon presentation and surrender of this Certificate at the office or agency appointed by the Trustee for that purpose as provided in the Agreement. This Certificate is one of a duly authorized issue of Certificates designated as Trust Certificates of the Series specified on the face hereof (herein called the "Certificates") and representing a Percentage Interest in the Class of Certificates specified on the face hereof equal to the denomination specified on the face hereof divided by the aggregate Certificate Principal Balance of the Class of Certificates specified on the face hereof. The Certificates are limited in right of payment to certain collections and recoveries respecting the Underlying Certificates, all as more specifically set forth herein and in the Agreement. As provided in the Agreement, withdrawals from the Collection Account and the Distribution Account may be made from time to time for purposes other than distributions to Certificateholders, such purposes including reimbursement of advances made, or certain expenses incurred, with respect to the Underlying Certificates. The Agreement permits, with certain exceptions therein provided, the amendment thereof and the modification of the rights and obligations of the Depositor and the Trustee, and the rights of the Certificateholders under the Agreement at any ~~other Subsidiary Guarantors under their respective Subsidiary Guarantees, that its obligations hereunder~~ time by the Depositor and the Trustee with the consent of the Holders of Certificates entitled to at least 66% of the Voting Rights. Any such consent by the Holder of this Certificate shall be ~~as principal~~ conclusive and binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in exchange herefor or in lieu hereof whether or not ~~merely as surety~~notation of such consent is made upon this Certificate. The Agreement also permits the amendment thereof, ~~and shall be absolute and unconditional~~in certain limited circumstances, ~~and shall not be affected, modified or impaired by~~ without the ~~following: (a) the failure to give notice to the Guarantors~~ consent of the occurrence of an Event of Default under the Indenture; (b) the waiver, surrender, compromise, settlement, release or termination of the payment, performance or observance by the Operating Partnership or the Guarantors of any or all of the obligations, covenants or agreements of either of them contained in the Indenture or the 2018 Notes; (c) the acceleration, extension or any other changes in the time for payment of any principal of or interest or any premium on any 2018 Note or for any other payment under the Indenture or of the time for performance of any other obligations, covenants or agreements under or arising out of the Indenture or the 2018 Notes; (d) the modification or amendment (whether material or otherwise) of any obligation, covenant or agreement set forth in the Indenture or the 2018 Notes; (e) the taking or the omission Holders of any of the ~~actions referred to~~ Certificates. As provided in the ~~Indenture~~ Agreement and subject to certain limitations therein set forth, the transfer of this Certificate is registrable in ~~any~~ the Certificate Register upon surrender of this Certificate for registration of transfer at the offices or agencies appointed by the Trustee as provided in the Agreement, duly endorsed by, or accompanied by an assignment in the form below or other written instrument of transfer in form satisfactory to the Trustee and the Certificate Registrar duly executed by, the Holder hereof or such Holder's attorney duly authorized in writing, and thereupon one or more new Certificates of the ~~actions under~~ same Class in authorized denominations evidencing the ~~2018 Notes;~~ same aggregate Percentage Interest 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 Agreement. As provided in the Agreement and subject to certain limitations therein set forth, Certificates are exchangeable for new Certificates of the same Class in authorized denominations evidencing the same aggregate Percentage Interest, as requested by the Holder surrendering the same. No service charge will be made for any such registration of transfer or exchange of Certificates, but the Trustee 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 and the Certificate Registrar and any agent of the Depositor, the Trustee or the Certificate Registrar 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 Certificate Registrar nor any such agent shall be affected by notice to the contrary. The obligations created by the Agreement and the Trust Fund created thereby shall terminate upon payment (for provision for payment) ~~any failure, omission, delay~~ to the Certificateholders of all amounts held by or ~~lack~~ on ~~the part~~ behalf of the Trustee and required to ~~enforce, assert~~ be paid to them pursuant to the Agreement follow ing the final payment (or ~~exercise~~ any ~~right, power or remedy conferred~~ advance with respect thereto) on the ~~Trustee in the Indenture, or any other action or acts on the part~~ Underlying Certificates. The recitals contained herein shall be taken as statements of the Trustee or any of the Holders from time to time of the 2018 Notes; (g) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all the assets, marshaling of assets Depositor and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition with creditors or readjustment of, or other similar proceedings affecting the Guarantors or the Operating Partnership or any of the assets of any of them, or any allegation or contest of the validity of this Subsidiary Guarantee in any such proceeding; (h) to the extent permitted by law, the release or discharge by operation of law of the Guarantors from the performance or observance of any obligation, covenant or agreement contained in the Indenture; (i) to the extent permitted by law, the release or discharge by operation of law of the Operating Partnership from the performance or observance of any obligation, covenant or agreement contained in the Indenture; (j) the default or failure of the Operating Partnership or the Trustee ~~fully to perform any~~ assumes no responsibility for their correctness. Unless the certificate of its obligations set forth in the Indenture or the 2018 Notes; (k) the invalidity, irregularity or unenforceability of the Indenture or the 2018 Notes or any part of any thereof; (l) any judicial or governmental action affecting the Operating Partnership or any 2018 Notes or consent or indulgence granted authentication hereon has been executed by the ~~Operating Partnership~~ Certificate Registrar, by the Holders or by the Trustee; or (m) the recovery of any judgment against the Operating Partnership or any action to enforce the same or any other circumstance which might constitute a legal or equitable discharge of a surety or guarantor. The undersigned hereby waives diligencemanual signature, presentment, demand of payment, filing of claims with a court in the event of merger, sale, lease or conveyance of all or substantially all of its assets, insolvency or bankruptcy of the Operating Partnership, any right to require a proceeding first against the Operating Partnership, protest or notice with respect to such Notice or the indebtedness evidenced thereby and all demands whatsoever, and covenants that this Subsidiary Guarantee will not be discharged except by complete performance of the obligations contained in such 2018 Note and in this Subsidiary Guarantee. No reference herein to such Indenture and no provision of this Subsidiary Guarantee or of such Indenture shall alter or impair the guarantee of the undersigned, which is absolute and unconditional, of the full and prompt payment of the principal of and premium, if any, and interest on the 2018 Note. THIS SUBSIDIARY GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. The validity and enforceability of this Subsidiary Guarantee Certificate shall not be ~~affected by the fact that it is not affixed~~ entitled to any ~~particular 2018 Note. An Event of Default~~ benefit under the ~~Indenture~~ Agreement or the 2018 Notes shall constitute an event of default under this Subsidiary Guarantee, and shall entitle the Holders of 2018 Notes to accelerate the obligations of the undersigned hereunder in the same manner and to the same extent as the obligations of the Operating Partnership. Notwithstanding be valid for any other provision of this Subsidiary Guarantee to the contrary, the undersigned hereby waives any claims or other rights which it may now have or hereafter acquire against the Operating Partnership that arise from the existence or performance of its obligations under this Subsidiary Guarantee (all such claims and rights are referred to as "Guarantor's Conditional Rights"), including, without limitation, any right of subrogation, reimbursement, exoneration, contribution, or indemnification, any right to participate in any claim or remedy against the Operating Partnership, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, by any payment made hereunder or otherwise, including without limitation, the right to take or receive from Operating Partnership, directly or indirectly, in cash or other property or by setoff or in any other manner, payment or security on account of such claim or other rights. The Subsidiary Guarantor hereby agrees not to exercise any rights which may be acquired by way of contribution under this Subsidiary Guarantee or any other agreement, by any payment made hereunder or otherwise, including, without limitation, the right to take or receive from any other guarantor, directly or indirectly, in cash or other property or by setoff or in any other manner, payment or security on account of such contribution rights. If, notwithstanding the foregoing provisions, any amount shall be paid to any of the undersigned on account of any such Guarantor's Conditional Rights and either (i) such amount is paid to such undersigned party at any time when the indebtedness shall not have been paid or performed in full, or (ii) regardless of when such amount is paid to such undersigned party, any payment made by Operating Partnership to a Holder that is at any time determined to be a Preferential Payment (as defined below), then such amount paid to the undersigned shall be held in trust for the benefit of the Holders and shall forthwith be paid such Holder to be credited and applied upon the indebtedness, whether matured or unmatured. Any such payment is herein referred to as a "Preferential Payment" to the extent the Operating Partnership makes any payment to Holder in connection with the Note, and any or all of such payment is subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid or paid over to a trustee, receiver or any other entity, whether under any bankruptcy act or otherwise. To the extent that any of the provisions of the immediately preceding paragraph shall not be enforceable, each of the undersigned agrees that until such time as the indebtedness has been paid and performed in full and the period of time has expired during which any payment made by the Operating Partnership or the undersigned to a Holder may be determined to be a Preferential Payment, Guarantor's Conditional Rights to the extent not validly waived shall be subordinate to Holders' right to full payment and performance of the indebtedness and each of the undersigned shall not enforce any of its respective portion of the Guarantors' Conditional Rights until such time as the indebtedness has been paid and performed in full and the period of time has expired during which any payment made by the Operating Partnership or the undersigned to Holders may be determined to be a Preferential Payment. The undersigned's liability (the "Base Guaranty Liability") shall be that amount from time to time equal to the aggregate liability of the undersigned hereunder, but shall be limited to the lesser of (A) the aggregate amount of the obligation as stated in the second sentence of Section 1401 of the Indenture, and (B) the amount, if any, which would not have (i) rendered the undersigned "insolvent" (as such term is defined in Section 101(29) of the Federal Bankruptcy Code and in Section 271 of the Debtor and Creditor Law of the State of New York, as each is in effect at the date of the Indenture) or (ii) left the undersigned with unreasonably small capital at the time its Guarantee was entered into, after giving effect to the incurrence of existing Debt (as defined in the Indenture) immediately prior to such time, provided that, it shall be a presumption in any lawsuit or other proceeding in which the undersigned is a party that the amount guaranteed is the amount set forth in (A) above unless a creditor, or representative of creditors of the undersigned or a trustee in bankruptcy of the undersigned, as debtor in possession, otherwise proves in such a lawsuit that the aggregate liability of the undersigned is limited to the amount set forth in (B). In making any determination as to the solvency or sufficiency of capital of the undersigned in accordance with the previous sentence, the right of the undersigned to contribution from other Guarantors, to subrogation and any other rights the undersigned may have, contractual or otherwise, shall be taken into account. The obligations of the undersigned to the Holders of the 2018 Notes and to the Trustee pursuant to the Subsidiary Guarantee and the Indenture are expressly set forth in Article 14 of the Indenture and reference is hereby made to the Indenture for the precise terms of the Subsidiary Guarantee and all of the other provisions of the Indenture to which this Subsidiary Guarantee relates. Capitalized terms in this Subsidiary Guarantee which are not defined herein shall have the meanings assigned to them in the Indenturepurpose.

Appears in 1 contract

Samples: Distribution Instructions (Solomon Bros Mort Securities Vii Trust Cert Series 1999 1)

Dated. ~~Notice~~Signature by or on behalf of assignor DISTRIBUTION INSTRUCTIONS The assignee should include the following for purposes of distribution: The signature to this assignment must correspond with the name as it appears upon the face of the within Note in every particular, without alteration or enlargement or any change whatever. ABBREVIATIONS The following abbreviations, when used in the inscription on the face of this instrument, Distributions shall be ~~construed as though they were written out~~ made, by wire transfer or otherwise, in ~~full according~~ immediately available funds to applicable laws or regulations: TEN COM--as tenants in common UNIF GIFT MIN ACT--_____ Custodian______ TEN ENT--as tenants by the entireties (Cust) (Minor) JT TEN--as joint tenants with right Under Uniform Gifts to Minors of survivorship and not as Act__________________________ tenants in common (State) Additional abbreviations may also be used though not in the above list. --------------------------- [FORM OF SCHEDULE FOR ENDORSEMENTS ON GLOBAL SECURITY TO REFLECT CHANGES IN PRINCIPAL AMOUNT] Schedule A Changes to Principal Amount of Global Security Principal Amount of Securities by which this Global Security is to be Reduced or Increased, and Reason for Remaining Principal Amount of Notation Date Reduction or Increase this Global Securities Made by ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- Exhibit B SUBSIDIARY GUARANTEE FOR VALUE RECEIVED, the undersigned hereby jointly and severally with the Parent Guarantor pursuant to the Parent Guarantee and any other subsidiary Guarantors under their respective Subsidiary Guarantees, unconditionally guarantees to the Holder of the accompanying _____~~% Note Due June~~ __________________, ~~2018 (the "2018 Note") issued by AMB Property, L.P. (the "Operating Partnership") under an Indenture dated as of June~~ _______________________________________________________________________________, ~~1998 (together with~~ for the ~~Second Supplemental Indenture thereto~~account of ____________________________________________________________, account number _______________, or, if mailed by check, to ____________________. Applicable statements should be mailed to _____________________________________, _______________________________________________________________________________. This information is provided by ___________________________________, the assignee named above, or __________________________________________________, as its agent. EXHIBIT B FORM OF CLASS P CERTIFICATE NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE PROPOSED TRANSFEROR DELIVERS TO THE TRUSTEE A TRANSFEROR LETTER IN THE FORM OF EXHIBIT H TO THE AGREEMENT REFERRED TO HEREIN AND EITHER (i) THE TRUSTEE RECEIVES A RULE 144A LETTER IN THE FORM OF EXHIBIT I TO THE AGREEMENT REFERRED TO HEREIN OR (ii) THE TRUSTEE RECEIVES AN OPINION OF COUNSEL, DELIVERED AT THE EXPENSE OF THE TRANSFEROR, THAT SUCH TRANSFER MAY BE MADE WITHOUT REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED. NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE TRANSFEREE DELIVERS TO THE TRUSTEE A REPRESENTATION LETTER TO THE EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("~~Indenture~~ERISA"), OR A PLAN SUBJECT TO SECTION 4975 OF THE CODE OR A PLAN SUBJECT TO APPLICABLE FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") ~~among~~ MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE, OR A PERSON INVESTING ON BEHALF OF OR WITH PLAN ASSETS OF SUCH A PLAN. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, ANY PURPORTED TRANSFER OF THIS CERTIFICATE TO OR ON BEHALF OF AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF ERISA, SECTION 4975 OF THE CODE OR SIMILAR LAW WITHOUT THE REPRESENTATION LETTER SATISFACTORY TO THE TRUSTEE AS DESCRIBED ABOVE SHALL BE VOID AND OF NO EFFECT. Certificate No. : [1] Cut-off Date : May 1, 2005 First Distribution Date : June 27, 2005 Percentage Interest of this Certificate ("Denomination") : [__]% CUSIP : 36242D 4Q 3 ISIN : US36242D4Q31 GS MORTGAGE SECURITIES CORP. GSAMP Trust 2005-AHL Mortgage Pass-Through Certificates, Series 2005-AHL Class P evidencing a percentage interest in the ~~Operating Partnership~~distributions allocable to the Certificates of the above-referenced Class. Distributions in respect of this Certificate are distributable monthly as set forth herein. This Certificate does not evidence an obligation of, ~~AMB Property Corporation~~or an interest in, and ~~State Street~~ is not guaranteed by the Depositor, the Servicer or the Trustee referred to below or any of their respective affiliates. Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any governmental agency or instrumentality. This certifies that __________ is the registered owner of the Percentage Interest evidenced by this Certificate (obtained by dividing the denomination of this Certificate by the aggregate of the denominations of all Certificates of the Class to which this Certificate belongs) in certain monthly distributions pursuant to a Pooling and Servicing Agreement dated as of the Cut-off date specified above (the "Agreement"), among GS Mortgage Securities Corp., as depositor (the "Depositor"), Countrywide Home Loans Servicing LP, as servicer, (the "Servicer"), and Deutsche Bank ~~and~~ National Trust ~~Company of California, N.A.~~Company, as trustee (the "Trustee"). To the extent not defined herein, ~~(a)~~ the ~~full~~ capitalized terms used herein have the meanings assigned in the Agreement. This Certificate is issued under and ~~prompt payment~~ is subject to the terms, provisions and conditions of the ~~principal~~ Agreement, to which Agreement the Holder of ~~and premium, if any, on such 2018 Note when and as the same shall become due and payable, whether at Stated Maturity,~~ this Certificate by ~~acceleration, by redemption or otherwise, and (b) the full and prompt payment~~ virtue of the ~~interest on~~ acceptance hereof assents and by which such ~~2018 Note when~~ Holder is bound. This Certificate does not have a Pass-Through Rate and ~~as the same shall become due and payable, according~~ will be entitled to distributions only to the terms of such 2018 Note and of the Indenture. The undersigned hereby agrees, jointly and severally with the Parent Guarantor pursuant to the Parent Guarantee and any other Subsidiary Guarantors under their respective Subsidiary Guarantees, that its obligations hereunder shall be as principal and not merely as surety, and shall be absolute and unconditional, and shall not be affected, modified or impaired by the following: (a) the failure to give notice to the Guarantors of the occurrence of an Event of Default under the Indenture; (b) the waiver, surrender, compromise, settlement, release or termination of the payment, performance or observance by the Operating Partnership or the Guarantors of any or all of the obligations, covenants or agreements of either of them contained in the Indenture or the 2018 Notes; (c) the acceleration, extension or any other changes in the time for payment of any principal of or interest or any premium on any 2018 Note or for any other payment under the Indenture or of the time for performance of any other obligations, covenants or agreements under or arising out of the Indenture or the 2018 Notes; (d) the modification or amendment (whether material or otherwise) of any obligation, covenant or agreement extent set forth in the ~~Indenture or~~ Agreement. In addition, any distribution of the ~~2018 Notes; (e) the taking or the omission~~ proceeds of any remaining assets of the ~~actions referred to in~~ Trust will be made only upon presentment and surrender of this Certificate at the ~~Indenture and in any~~ offices designated by the Trustee for such purpose. No transfer of a Certificate of this Class shall be made unless such disposition is exempt from the registration requirements of the ~~actions under~~ Securities Act of 1933, as amended (the ~~2018 Notes; (f)~~ "1933 Act"), and any ~~failure, omission, delay~~ applicable state securities laws or ~~lack on~~ is made in accordance with the part of the Trustee to enforce, assert or exercise any right, power or remedy conferred on the Trustee in the Indenture, or any other action or acts on the part of the Trustee or any of the Holders from time to time of the 2018 Notes; (g) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all the assets, marshaling of assets 1933 Act and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition with creditors or readjustment of, or other similar proceedings affecting the Guarantors or the Operating Partnership or any of the assets of any of them, or any allegation or contest of the validity of this Subsidiary Guarantee in any such proceeding; (h) to the extent permitted by law, the release or discharge by operation of law of the Guarantors from the performance or observance of any obligation, covenant or agreement contained in the Indenture; (i) to the extent permitted by law, the release or discharge by operation of law of the Operating Partnership from the performance or observance of any obligation, covenant or agreement contained in the Indenture; (j) the default or failure of the Operating Partnership or the Trustee fully to perform any of its obligations set forth in the Indenture or the 2018 Notes; (k) the invalidity, irregularity or unenforceability of the Indenture or the 2018 Notes or any part of any thereof; (l) any judicial or governmental action affecting the Operating Partnership or any 2018 Notes or consent or indulgence granted by the Operating Partnership by the Holders or by the Trustee; or (m) the recovery of any judgment against the Operating Partnership or any action to enforce the same or any other circumstance which might constitute a legal or equitable discharge of a surety or guarantorlaws. ~~The undersigned hereby waives diligence, presentment, demand of payment, filing of claims with a court in~~ In the event of ~~merger~~any such transfer, ~~sale, lease or conveyance of all or~~ the Trustee shall require the transferor to execute a transferor certificate (in substantially ~~all of its assets, insolvency or bankruptcy of~~ the Operating Partnership, any right to require a proceeding first against the Operating Partnership, protest or notice with respect to such Notice or the indebtedness evidenced thereby and all demands whatsoever, and covenants that this Subsidiary Guarantee will not be discharged except by complete performance of the obligations contained in such 2018 Note and in this Subsidiary Guarantee. No reference herein to such Indenture and no provision of this Subsidiary Guarantee or of such Indenture shall alter or impair the guarantee of the undersigned, which is absolute and unconditional, of the full and prompt payment of the principal of and premium, if any, and interest on the 2018 Note. THIS SUBSIDIARY GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. The validity and enforceability of this Subsidiary Guarantee shall not be affected by the fact that it is not affixed to any particular 2018 Note. An Event of Default under the Indenture or the 2018 Notes shall constitute an event of default under this Subsidiary Guarantee, and shall entitle the Holders of 2018 Notes to accelerate the obligations of the undersigned hereunder in the same manner and form attached to the same extent as the obligations of the Operating Partnership. Notwithstanding any other provision of this Subsidiary Guarantee to the contrary, the undersigned hereby waives any claims or other rights which it may now have or hereafter acquire against the Operating Partnership that arise from the existence or performance of its obligations under this Subsidiary Guarantee (all such claims Pooling and rights are referred to as "Guarantor's Conditional Rights"), including, without limitation, any right of subrogation, reimbursement, exoneration, contribution, or indemnification, any right to participate in any claim or remedy against the Operating Partnership, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, by any payment made hereunder or otherwise, including without limitation, the right to take or receive from Operating Partnership, directly or indirectly, in cash or other property or by setoff or in any other manner, payment or security on account of such claim or other rights. The Subsidiary Guarantor hereby agrees not to exercise any rights which may be acquired by way of contribution under this Subsidiary Guarantee or any other agreement, by any payment made hereunder or otherwise, including, without limitation, the right to take or receive from any other guarantor, directly or indirectly, in cash or other property or by setoff or in any other manner, payment or security on account of such contribution rights. If, notwithstanding the foregoing provisions, any amount shall be paid to any of the undersigned on account of any such Guarantor's Conditional Rights Servicing Agreement) and deliver either (i) ~~such amount is paid~~ a Rule 144A Letter, in either case substantially in the form attached to ~~such undersigned party at any time when~~ the ~~indebtedness shall not have been paid or performed in full~~Agreement, or (ii) ~~regardless~~ a written Opinion of ~~when~~ Counsel to the Trustee that such ~~amount~~ transfer may be made pursuant to an exemption, describing the applicable exemption and the basis therefor, from the 1933 Act or is ~~paid~~ being made pursuant to the 1933 Act, which Opinion of Counsel shall be an expense of the transferor. No transfer of a Certificate of this Class shall be made unless the Trustee shall have received a representation letter from the transferee of such ~~undersigned party~~Certificate, acceptable to and in form and substance satisfactory to the Trustee, to the effect that such transferee is not an employee benefit plan subject to Section 406 of ERISA, Section 4975 of the Code or any ~~payment made by Operating Partnership to a Holder that is at any time determined to be a Preferential Payment~~ materially similar provisions of applicable Federal, state or local law (~~as defined below~~"Similar Law"), ~~then~~ or a person acting on behalf of or investing plan assets of any such ~~amount paid to the undersigned shall be held in trust for the benefit of the Holders and shall forthwith be paid such Holder to be credited and applied upon the indebtedness~~plan, whether matured or unmatured. Any such payment is herein referred to as a "Preferential Payment" to the extent the Operating Partnership makes any payment to Holder in connection with the Note, and any or all of such payment is subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid or paid over to a trustee, receiver or any other entity, whether under any bankruptcy act or otherwise. To the extent that any of the provisions of the immediately preceding paragraph which representation letter shall not be ~~enforceable, each~~ an expense of the undersigned agrees that until such time as the indebtedness has been paid and performed in full and the period of time has expired during which any payment made by the Operating Partnership or the undersigned to a Holder may be determined to be a Preferential Payment, Guarantor's Conditional Rights to the extent not validly waived shall be subordinate to Holders' right to full payment and performance of the indebtedness and each of the undersigned shall not enforce any of its respective portion of the Guarantors' Conditional Rights until such time as the indebtedness has been paid and performed in full and the period of time has expired during which any payment made by the Operating Partnership or the undersigned to Holders may be determined to be a Preferential PaymentTrustee. The undersigned's liability (the "Base Guaranty Liability") shall be that amount from time to time equal to the aggregate liability of the undersigned hereunder, but shall be limited to the lesser of (A) the aggregate amount of the obligation as stated in the second sentence of Section 1401 of the Indenture, and (B) the amount, if any, which would not have (i) rendered the undersigned "insolvent" (as such term is defined in Section 101(29) of the Federal Bankruptcy Code and in Section 271 of the Debtor and Creditor Law of the State of New York, as each is in effect at the date of the Indenture) or (ii) left the undersigned with unreasonably small capital at the time its Guarantee was entered into, after giving effect to the incurrence of existing Debt (as defined in the Indenture) immediately prior to such time, provided that, it shall be a presumption in any lawsuit or other proceeding in which the undersigned is a party that the amount guaranteed is the amount set forth in (A) above unless a creditor, or representative of creditors of the undersigned or a trustee in bankruptcy of the undersigned, as debtor in possession, otherwise proves in such a lawsuit that the aggregate liability of the undersigned is limited to the amount set forth in (B). In making any determination as to the solvency or sufficiency of capital of the undersigned in accordance with the previous sentence, the right of the undersigned to contribution from other Guarantors, to subrogation and any other rights the undersigned may have, contractual or otherwise, shall be taken into account. The obligations of the undersigned to the Holders of the 2018 Notes and to the Trustee pursuant to the Subsidiary Guarantee and the Indenture are expressly set forth in Article 14 of the Indenture and reference Reference is hereby made to the ~~Indenture~~ further provisions of this Certificate set forth on the reverse hereof, which further provisions shall for all purposes have the ~~precise terms~~ same effect as if set forth at this place. This Certificate shall not be entitled to any benefit under the Agreement or be valid for any purpose unless manually authenticated by an authorized signatory of the ~~Subsidiary Guarantee and all of the other provisions of the Indenture to which this Subsidiary Guarantee relates~~Trustee. ~~Capitalized terms in this Subsidiary Guarantee which are not defined herein shall have the meanings assigned to them in the Indenture.~~* * *

Appears in 1 contract

Samples: Pooling and Servicing Agreement (GSAMP Trust 2005-Ahl)

Dated. ~~Notice~~Signature by or on behalf of assignor ------------------------------- Signature Guaranteed DISTRIBUTION INSTRUCTIONS The assignee should include the following for purposes of distribution: The signature to this assignment must correspond with the name as it appears upon the face of the within Note in every particular, without alteration or enlargement or any change whatever. ABBREVIATIONS The following abbreviations, when used in the inscription on the face of this instrument, Distributions shall be ~~construed as though they were written out~~ made, by wire transfer or otherwise, in ~~full according~~ immediately available funds to ~~applicable laws or regulations: TEN COM--as tenants in common UNIF GIFT MIN ACT--_____ Custodian~~_____~~_ TEN ENT--as tenants by the entireties (Cust) (Minor) JT TEN--as joint tenants with right Under Uniform Gifts to Minors of survivorship and not as Act~~___________________________________________ tenants in common (State) Additional abbreviations may also be used though not in the above list. --------------------------- [FORM OF SCHEDULE FOR ENDORSEMENTS ON GLOBAL SECURITY TO REFLECT CHANGES IN PRINCIPAL AMOUNT] Schedule A Changes to Principal Amount of Global Security Principal Amount of Securities by which this Global Security is to be Reduced or Increased, and Reason for Remaining Principal Amount of Notation Date Reduction or Increase this Global Securities Made by ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- Exhibit B SUBSIDIARY GUARANTEE FOR VALUE RECEIVED, the undersigned hereby jointly and severally with the Parent Guarantor pursuant to the Parent Guarantee and any other subsidiary Guarantors under their respective Subsidiary Guarantees, unconditionally guarantees to the Holder of the accompanying _____~~% Note Due June~~ ___________________________________________________________ for the account of _______________________________, ~~2018 (the "2018 Note") issued by AMB Property, L.P. (the "Operating Partnership") under an Indenture dated as of June~~ account number ________________________, ~~1998 (together with the Second Supplemental Indenture thereto~~or, if mailed by check, to__________________________________________________________ _______________________________________________________________________________. Applicable statements should be mailed to_______________________________________ ________________________________________________________________________________ _______________________________________________. This information is provided by __________________________________________________, the assignee named above, or ________________________________________, as its agent. XXXXXXX X-0 ----------- FORM OF CLASS A-3 CERTIFICATE UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("~~Indenture~~DTC"~~) among~~ ), TO THE TRUST ADMINISTRATOR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986 (THE "CODE"). Series: 2004-HE1 Xxxxxxxxx Xxxxxxxxxxx Xxxncipal Balance of the ~~Operating Partnership~~Class A-3 Certificates as of the Issue Date: Pass-Through Rate: Variable $63,886,000.00 Cut-off Date and date of Pooling and Denomination: $63,886,000.00 Servicing Agreement: September 1, ~~AMB Property Corporation, and State Street Bank~~ 2004 Master Servicer and Trust ~~Company~~ Administrator: First Distribution Date: October 25, 2004 Wells Fargo Bank, X.X. No. 1 Trustee: U.S. Bank National Association Issue Date: September 29, 2004 CUSIP: 57643L EG 7 DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE AS THE DENOMINATION OF THIS CERTIFICATE. MORTGAGE PASS-THROUGH CERTIFICATE evidencing a beneficial ownership interest in a portion of ~~California, N.A., as trustee~~ a Trust Fund (the "~~Trustee~~Trust Fund") consisting primarily of a pool of conventional one- to four-family, fixed-rate and adjustable-rate, first and second lien mortgage loans (the "Mortgage Loans") formed and sold by MORTGAGE ASSET SECURITIZATION TRANSACTIONS, INC. THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN MORTGAGE ASSET SECURITIZATION TRANSACTIONS, INC., THE MASTER SERVICER, THE TRUSTEE, THE TRUST ADMINISTRATOR OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES. This certifies that Cede & Co. is the registered owner of a Percentage Interest (obtained by dividing the denomination of this Certificate by the aggregate Certificate Principal Balance of the Class A-3 Certificates as of the Issue Date) in that certain beneficial ownership interest evidenced by all the Class A-3 Certificates in REMIC II created pursuant to a Pooling and Servicing Agreement, dated as specified above (the "Agreement"), among Mortgage Asset Securitization Transactions, Inc. (a) hereinafter called the ~~full~~ "Depositor," which term includes any successor entity under the Agreement), the Master Servicer, the Trust Administrator and ~~prompt payment~~ the Trustee, a summary of certain of the ~~principal~~ 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 Agreement. This Certificate is issued under and ~~premium~~is subject to the terms, ~~if any, on such 2018 Note when~~ provisions and ~~as the same shall become due and payable, whether at Stated Maturity, by acceleration, by redemption or otherwise, and (b) the full and prompt payment~~ conditions of the ~~interest on~~ Agreement, to which Agreement the Holder of this Certificate by virtue of the acceptance hereof assents and by which such ~~2018 Note when and as the same shall become due and payable, according~~ Holder is bound. Pursuant to the terms of the Agreement, distributions will be made on the 25th day of each month or, if such ~~2018 Note and~~ 25th day is not a Business Day, the Business Day immediately following (a "Distribution Date"), commencing on the First Distribution Date specified above, to the Person in whose name this Certificate is registered on the Record Date, in an amount equal to the product of the ~~Indenture. The undersigned hereby agrees, jointly~~ Percentage Interest evidenced by this Certificate and ~~severally with~~ the ~~Parent Guarantor~~ amount required to be distributed to the Holders of Class A-3 Certificates on such Distribution Date pursuant to the ~~Parent Guarantee and any other Subsidiary Guarantors~~ Agreement. All distributions to the Holder of this Certificate under ~~their respective Subsidiary Guarantees, that its obligations hereunder shall~~ the Agreement will be ~~as principal and not merely as surety, and shall~~ made or caused to be ~~absolute and unconditional, and shall not be affected, modified or impaired~~ made by the ~~following: (a) the failure to give notice~~ Trust Administrator by wire transfer in immediately available funds to the ~~Guarantors~~ account of the ~~occurrence~~ Person entitled thereto if such Person shall have so notified the Trust Administrator in writing at least five Business Days prior to the Record Date immediately prior to such Distribution Date and is the registered owner of ~~an Event~~ Class A-3 Certificates the aggregate initial Certificate Principal Balance of ~~Default under the Indenture; (b) the waiver, surrender, compromise, settlement, release or termination~~ which is in excess of the ~~payment, performance or observance by the Operating Partnership or the Guarantors~~ lesser of any or all of the obligations, covenants or agreements of either of them contained in the Indenture or the 2018 Notes; (c) the acceleration, extension or any other changes in the time for payment of any principal of or interest or any premium on any 2018 Note or for any other payment under the Indenture or of the time for performance of any other obligations, covenants or agreements under or arising out of the Indenture or the 2018 Notes; (d) the modification or amendment (whether material or otherwise) of any obligation, covenant or agreement set forth in the Indenture or the 2018 Notes; (e) the taking or the omission of any of the actions referred to in the Indenture and in any of the actions under the 2018 Notes; (f) any failure, omission, delay or lack on the part of the Trustee to enforce, assert or exercise any right, power or remedy conferred on the Trustee in the Indenture, or any other action or acts on the part of the Trustee or any of the Holders from time to time of the 2018 Notes; (g) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all the assets, marshaling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition with creditors or readjustment of, or other similar proceedings affecting the Guarantors or the Operating Partnership or any of the assets of any of them, or any allegation or contest of the validity of this Subsidiary Guarantee in any such proceeding; (h) to the extent permitted by law, the release or discharge by operation of law of the Guarantors from the performance or observance of any obligation, covenant or agreement contained in the Indenture; (i) to the extent permitted by law, the release or discharge by operation of law of the Operating Partnership from the performance or observance of any obligation, covenant or agreement contained in the Indenture; (j) the default or failure of the Operating Partnership or the Trustee fully to perform any of its obligations set forth in the Indenture or the 2018 Notes; (k) the invalidity, irregularity or unenforceability of the Indenture or the 2018 Notes or any part of any thereof; (l) any judicial or governmental action affecting the Operating Partnership or any 2018 Notes or consent or indulgence granted by the Operating Partnership by the Holders or by the Trustee; or (m) the recovery of any judgment against the Operating Partnership or any action to enforce the same or any other circumstance which might constitute a legal or equitable discharge of a surety or guarantor. The undersigned hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of merger, sale, lease or conveyance of all or substantially all of its assets, insolvency or bankruptcy of the Operating Partnership, any right to require a proceeding first against the Operating Partnership, protest or notice with respect to such Notice or the indebtedness evidenced thereby and all demands whatsoever, and covenants that this Subsidiary Guarantee will not be discharged except by complete performance of the obligations contained in such 2018 Note and in this Subsidiary Guarantee. No reference herein to such Indenture and no provision of this Subsidiary Guarantee or of such Indenture shall alter or impair the guarantee of the undersigned, which is absolute and unconditional, of the full and prompt payment of the principal of and premium, if any, and interest on the 2018 Note. THIS SUBSIDIARY GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. The validity and enforceability of this Subsidiary Guarantee shall not be affected by the fact that it is not affixed to any particular 2018 Note. An Event of Default under the Indenture or the 2018 Notes shall constitute an event of default under this Subsidiary Guarantee, and shall entitle the Holders of 2018 Notes to accelerate the obligations of the undersigned hereunder in the same manner and to the same extent as the obligations of the Operating Partnership. Notwithstanding any other provision of this Subsidiary Guarantee to the contrary, the undersigned hereby waives any claims or other rights which it may now have or hereafter acquire against the Operating Partnership that arise from the existence or performance of its obligations under this Subsidiary Guarantee (all such claims and rights are referred to as "Guarantor's Conditional Rights"), including, without limitation, any right of subrogation, reimbursement, exoneration, contribution, or indemnification, any right to participate in any claim or remedy against the Operating Partnership, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, by any payment made hereunder or otherwise, including without limitation, the right to take or receive from Operating Partnership, directly or indirectly, in cash or other property or by setoff or in any other manner, payment or security on account of such claim or other rights. The Subsidiary Guarantor hereby agrees not to exercise any rights which may be acquired by way of contribution under this Subsidiary Guarantee or any other agreement, by any payment made hereunder or otherwise, including, without limitation, the right to take or receive from any other guarantor, directly or indirectly, in cash or other property or by setoff or in any other manner, payment or security on account of such contribution rights. If, notwithstanding the foregoing provisions, any amount shall be paid to any of the undersigned on account of any such Guarantor's Conditional Rights and either (i) such amount is paid to such undersigned party at any time when the indebtedness shall not have been paid or performed in full, $5,000,000 or (ii) ~~regardless~~ two-thirds of ~~when such amount is paid to such undersigned party~~the aggregate initial Certificate Principal Balance of the Class A Certificates, ~~any payment made~~ or otherwise by ~~Operating Partnership to a Holder that is at any time determined to be a Preferential Payment (as defined below), then such amount paid~~ check mailed by first class mail to the ~~undersigned shall be held in trust for the benefit~~ address of the ~~Holders~~ Person entitled thereto, as such name and address shall ~~forthwith~~ appear on the Certificate Register. Notwithstanding the above, the final distribution on this Certificate will be ~~paid~~ made after due notice by the Trust Administrator of the pendency of such ~~Holder to be credited~~ distribution and ~~applied~~ only upon presentation and surrender of this Certificate at the ~~indebtedness, whether matured~~ office or ~~unmatured~~agency appointed by the Trust Administrator for that purpose as provided in the Agreement. ~~Any such payment is herein referred to as a "Preferential Payment"~~ The Pass-Through Rate applicable to the ~~extent the Operating Partnership makes~~ calculation of interest payable with respect to this Certificate on any ~~payment to Holder in connection with the Note, and any or all of such payment is subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid or paid over to~~ Distribution Date shall equal a trustee, receiver or any other entity, whether under any bankruptcy act or otherwise. To the extent that any of the provisions of the immediately preceding paragraph shall not be enforceable, each of the undersigned agrees that until such time as the indebtedness has been paid and performed in full and the period of time has expired during which any payment made by the Operating Partnership or the undersigned to a Holder may be determined to be a Preferential Payment, Guarantor's Conditional Rights to the extent not validly waived shall be subordinate to Holders' right to full payment and performance of the indebtedness and each of the undersigned shall not enforce any of its respective portion of the Guarantors' Conditional Rights until such time as the indebtedness has been paid and performed in full and the period of time has expired during which any payment made by the Operating Partnership or the undersigned to Holders may be determined to be a Preferential Payment. The undersigned's liability (the "Base Guaranty Liability") shall be that amount from time to time rate per annum equal ~~to the aggregate liability of the undersigned hereunder, but shall be limited~~ to the lesser of (Ai) the ~~aggregate amount~~ related Formula Rate for such Distribution Date and (ii) the related Net WAC Rate for such Distribution Date. This Certificate is one of a duly authorized issue of Certificates designated as Mortgage Pass-Through Certificates of the ~~obligation as stated~~ Series specified on the face hereof (herein called the "Certificates") and representing a Percentage Interest in the ~~second sentence~~ Class of ~~Section 1401~~ Certificates specified on the face hereof equal to the denomination specified on the face hereof divided by the aggregate Certificate Principal Balance of the ~~Indenture~~Class of Certificates specified on the face hereof. The 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 Agreement. As provided in the Agreement, withdrawals from the Distribution Account may be made from time to time for purposes other than distributions to Certificateholders, such purposes including reimbursement of advances made, or certain expenses incurred, with respect to the Mortgage Loans. The Agreement permits, with certain exceptions therein provided, the amendment thereof and the modification of the rights and obligations of the Depositor, the Master Servicer, the Trustee, the Trust Administrator and the rights of the Certificateholders under the Agreement at any time by the Depositor, the Master Servicer, the Trust Administrator and the Trustee with the consent of the Holders of Certificates entitled to at least 66% of the Voting Rights. Any such consent by the Holder of this Certificate shall be conclusive and binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in exchange herefor or in lieu hereof whether or not notation of such consent is made upon this Certificate. The Agreement also permits the amendment thereof, in certain limited circumstances, without the consent of the Holders of any of the Certificates. As provided in the Agreement and subject to certain limitations therein set forth, the transfer of this Certificate is registrable in the Certificate Register upon surrender of this Certificate for registration of transfer at the offices or agencies appointed by the Trust Administrator as provided in the Agreement, duly endorsed by, or accompanied by an assignment in the form below or other written instrument of transfer in form satisfactory to the Trust Administrator duly executed by, the Holder hereof or such Holder's attorney duly authorized in writing, and ~~(B)~~ thereupon one or more new Certificates of the ~~amount~~same Class in authorized denominations evidencing the same aggregate Percentage Interest 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 Agreement. As provided in the Agreement and subject to certain limitations therein set forth, ~~if any~~the Certificates are exchangeable for new Certificates of the same Class in authorized denominations evidencing the same aggregate Percentage Interest, ~~which would not have~~ as requested by the Holder surrendering the same. No service charge will be made for any such registration of transfer or exchange of Certificates, but the Trust 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 Trustee, the Trust Administrator and any agent of the Depositor, the Master Servicer, the Trust Administrator or 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 Trustee, the Trust Administrator nor any such agent shall be affected by notice to the contrary. The obligations created by the Agreement and the Trust Fund created thereby shall terminate upon payment to the Certificateholders of all amounts held by the Trust Administrator and required to be paid to them pursuant to the Agreement following the earlier of (i) ~~rendered~~ the ~~undersigned "insolvent"~~ final payment or other liquidation (~~as such term is defined in Section 101(29~~or any advance with respect thereto) of the ~~Federal Bankruptcy Code~~ last Mortgage Loan and REO Property remaining in ~~Section 271 of the Debtor~~ REMIC I and ~~Creditor Law of the State of New York, as each is in effect at the date of the Indenture) or~~ (ii) ~~left~~ the ~~undersigned with unreasonably small capital~~ purchase by the party designated in the Agreement at a price determined as provided in the Agreement from REMIC I of all the Mortgage Loans and all property acquired in respect of such Mortgage Loans. The Agreement permits, but does not require, the party designated in the Agreement to purchase from REMIC I all the Mortgage Loans and all property acquired in respect of any Mortgage Loan at a price determined as provided in the Agreement. The exercise of such right will effect early retirement of the Certificates; however, such right to purchase is subject to the aggregate Stated Principal Balance of the Mortgage Loans at the time ~~its Guarantee was entered into, after giving effect to the incurrence~~ of existing Debt (as defined in the Indenture) immediately prior to such time, provided that, it shall be a presumption in any lawsuit or other proceeding in which the undersigned is a party that the amount guaranteed is the amount set forth in (A) above unless a creditor, or representative of creditors purchase being less than 10% of the ~~undersigned or a trustee in bankruptcy~~ aggregate Stated Principal Balance of the ~~undersigned,~~ Mortgage Loans as ~~debtor in possession, otherwise proves in such a lawsuit that the aggregate liability~~ of the ~~undersigned is limited to the amount set forth in (B)~~Cut-off Date. In making any determination as to the solvency or sufficiency of capital of the undersigned in accordance with the previous sentence, the right of the undersigned to contribution from other Guarantors, to subrogation and any other rights the undersigned may have, contractual or otherwise, The recitals contained herein shall be taken ~~into account. The obligations~~ as statements of the ~~undersigned to the Holders of the 2018 Notes and to the Trustee pursuant to the Subsidiary Guarantee~~ Depositor and the ~~Indenture are expressly set forth in Article 14~~ Trust Administrator assume no responsibility for their correctness. Unless the certificate of authentication hereon has been executed by the ~~Indenture and reference is hereby made~~ Trust Administrator, by manual signature, this Certificate shall not be entitled to any benefit under the ~~Indenture~~ Agreement or be valid for the precise terms of the Subsidiary Guarantee and all of the other provisions of the Indenture to which this Subsidiary Guarantee relates. Capitalized terms in this Subsidiary Guarantee which are not defined herein shall have the meanings assigned to them in the Indentureany purpose.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (MASTR Asset Backed Securities Trust 2004-He1)

Dated. ~~Notice~~Signature by or on behalf of assignor DISTRIBUTION INSTRUCTIONS The assignee should include the following for purposes of distribution: The signature to this assignment must correspond with the name as it appears upon the face of the within Note in every particular, without alteration or enlargement or any change whatever. ABBREVIATIONS The following abbreviations, when used in the inscription on the face of this instrument, Distributions shall be ~~construed as though they were written out~~ made, by wire transfer or otherwise, in ~~full according~~ immediately available funds to applicable laws or regulations: TEN COM--as tenants in common UNIF GIFT MIN ACT--_____ Custodian______ TEN ENT--as tenants by the entireties (Cust) (Minor) JT TEN--as joint tenants with right Under Uniform Gifts to Minors of survivorship and not as Act__________________________ tenants in common (State) Additional abbreviations may also be used though not in the above list. --------------------------- [FORM OF SCHEDULE FOR ENDORSEMENTS ON GLOBAL SECURITY TO REFLECT CHANGES IN PRINCIPAL AMOUNT] Schedule A Changes to Principal Amount of Global Security Principal Amount of Securities by which this Global Security is to be Reduced or Increased, and Reason for Remaining Principal Amount of Notation Date Reduction or Increase this Global Securities Made by ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- Exhibit B SUBSIDIARY GUARANTEE FOR VALUE RECEIVED, the undersigned hereby jointly and severally with the Parent Guarantor pursuant to the Parent Guarantee and any other subsidiary Guarantors under their respective Subsidiary Guarantees, unconditionally guarantees to the Holder of the accompanying _____~~% Note Due June~~ __________________, ~~2018 (the "2018 Note") issued by AMB Property, L.P. (the "Operating Partnership") under an Indenture dated as of June~~ _______________________________________________________________________________, ~~1998 (together with~~ for the ~~Second Supplemental Indenture thereto~~account of , __________________________________________________________, account number ___________, or, if mailed by check, to ________________________. Applicable statements should be mailed to _____________________________________, _______________________________________________________________________________. This information is provided by ___________________________________, the assignee named above, or __________________________________________________, as its agent. EXHIBIT D SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS AN INTEREST IN A "~~Indenture~~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 ASSETS. NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE PROPOSED TRANSFEROR DELIVERS TO THE TRUSTEE A TRANSFEROR LETTER IN THE FORM OF EXHIBIT H TO THE AGREEMENT REFERRED TO HEREIN AND EITHER (I) THE TRUSTEE RECEIVES A RULE 144A LETTER IN THE FORM OF EXHIBIT I TO THE AGREEMENT REFERRED TO HEREIN OR (II) THE TRUSTEE RECEIVES AN OPINION OF COUNSEL, DELIVERED AT THE EXPENSE OF THE TRANSFEROR, THAT SUCH TRANSFER MAY BE MADE WITHOUT REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED. NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE TRANSFEREE DELIVERS TO THE TRUSTEE EITHER A REPRESENTATION LETTER TO THE EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO SECTION 4975 OF THE CODE, OR, a plan subject to applicable Federal, state or local law ("Similar Law") materially similar to the foregoing provisions of ERISA or the Code or a person acting on behalf of or investing plan assets of any such plan, other than an insurance company which is purchasing such Certificates with funds contained in an "insurance company general account" (as such term is defined in Section V(e) of Prohibited Transaction Class Exemption 95-60 ("PTCE 95-60")) under such conditions that the purchase and holding of this Certificate are covered under Sections I and III of PTCE 95-60, OR AN OPINION OF COUNSEL IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, ANY PURPORTED TRANSFER OF THIS CERTIFICATE TO OR ON BEHALF OF AN EMPLOYEE BENEFIT PLAN SUBJECT TO ERISA OR TO THE CODE WITHOUT THE REPRESENTATION LETTER OR THE OPINION OF COUNSEL SATISFACTORY TO THE TRUSTEE AS DESCRIBED ABOVE SHALL BE VOID AND OF NO EFFECT. Certificate No. : X-1 Cut-off Date : July 1, 2003 First Distribution Date : August 25, 2003 Initial Certificate Balance of this Certificate : $10,747,026 Initial Certificate Balances of all Certificates of this Class : $10,747,026 Percentage Interest of this Certificate ("Denomination") : 100% MORGAN STANLEY ABS CAPITAL I INC. Morgan Stanley XXX Xaxxxxx X Inc. Trust 2003-NC7 Mxxxxxxe Xxxx-Xhrough Certificates, Series 2003-NC7 Class X evidencing a percentage interest in the distributions allocable to the Certificates of the above-referenced Class. Distributions in respect of this Certificate are distributable monthly as set forth herein. This Certificate does not evidence an obligation of, or an interest in, and is not guaranteed by the Depositor, the Servicer, the Responsible Party or the Trustee referred to below or any of their respective affiliates. Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any governmental agency or instrumentality. This certifies that Deutsche Bank National Trust Company, as indenture trustee, is the registered owner of the Percentage Interest evidenced by this Certificate (obtained by dividing the denomination of this Certificate by the aggregate of the denominations of all Certificates of the Class to which this Certificate belongs) in certain monthly distributions pursuant to a Pooling and Servicing Agreement dated as of the Cut-off Date specified above (the "Agreement") among Morgan Stanley ABS Capital I Inc., as depositor (the ~~Operating Partnership~~"Depositor"), ~~AMB Property~~ XxxXq Xxxxxxing Corporation, as servicer (the "Servicer"), NC Capital Corporation, as responsible party (the "Responsible Party"), and ~~State Street~~ Deutsche Bank ~~and~~ National Trust ~~Company of California, N.A.~~Company, as trustee (the "Trustee"). To the extent not defined herein, ~~(a)~~ the ~~full~~ capitalized terms used herein have the meanings assigned in the Agreement. This Certificate is issued under and ~~prompt payment~~ is subject to the terms, provisions and conditions of the ~~principal~~ Agreement, to which Agreement the Holder of ~~and premium, if any, on such 2018 Note when and as the same shall become due and payable, whether at Stated Maturity,~~ this Certificate by ~~acceleration, by redemption or otherwise, and (b) the full and prompt payment~~ virtue of the ~~interest on~~ acceptance hereof assents and by which such ~~2018 Note when~~ Holder is bound. This Certificate does not have a Pass-Through Rate and ~~as the same shall become due and payable, according~~ will be entitled to distributions only to the terms of such 2018 Note and of the Indenture. The undersigned hereby agrees, jointly and severally with the Parent Guarantor pursuant to the Parent Guarantee and any other Subsidiary Guarantors under their respective Subsidiary Guarantees, that its obligations hereunder shall be as principal and not merely as surety, and shall be absolute and unconditional, and shall not be affected, modified or impaired by the following: (a) the failure to give notice to the Guarantors of the occurrence of an Event of Default under the Indenture; (b) the waiver, surrender, compromise, settlement, release or termination of the payment, performance or observance by the Operating Partnership or the Guarantors of any or all of the obligations, covenants or agreements of either of them contained in the Indenture or the 2018 Notes; (c) the acceleration, extension or any other changes in the time for payment of any principal of or interest or any premium on any 2018 Note or for any other payment under the Indenture or of the time for performance of any other obligations, covenants or agreements under or arising out of the Indenture or the 2018 Notes; (d) the modification or amendment (whether material or otherwise) of any obligation, covenant or agreement extent set forth in the ~~Indenture~~ Agreement. In addition, any distribution of the proceeds of any remaining assets of the Trust will be made only upon presentment and surrender of this Certificate at the offices designated by the Trustee for such purposes or the ~~2018 Notes; (e) the taking~~ office or the omission of any of the actions referred to in the Indenture and in any of the actions under the 2018 Notes; (f) any failure, omission, delay or lack on the part of the Trustee to enforce, assert or exercise any right, power or remedy conferred on the Trustee in the Indenture, or any other action or acts on the part of the Trustee or any of the Holders from time to time of the 2018 Notes; (g) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all the assets, marshaling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition with creditors or readjustment of, or other similar proceedings affecting the Guarantors or the Operating Partnership or any of the assets of any of them, or any allegation or contest of the validity of this Subsidiary Guarantee in any such proceeding; (h) to the extent permitted by law, the release or discharge by operation of law of the Guarantors from the performance or observance of any obligation, covenant or agreement contained in the Indenture; (i) to the extent permitted by law, the release or discharge by operation of law of the Operating Partnership from the performance or observance of any obligation, covenant or agreement contained in the Indenture; (j) the default or failure of the Operating Partnership or the Trustee fully to perform any of its obligations set forth in the Indenture or the 2018 Notes; (k) the invalidity, irregularity or unenforceability of the Indenture or the 2018 Notes or any part of any thereof; (l) any judicial or governmental action affecting the Operating Partnership or any 2018 Notes or consent or indulgence granted by the Operating Partnership by the Holders or agency maintained by the Trustee~~; or (m) the recovery of any judgment against the Operating Partnership or any action to enforce the same or any other circumstance which might constitute a legal or equitable discharge~~ . No transfer of a ~~surety~~ Certificate of this Class shall be made unless such disposition is exempt from the registration requirements of the Securities Act of 1933, as amended (the "1933 Act"), and any applicable state securities laws or ~~guarantor~~is made in accordance with the 1933 Act and such laws. ~~The undersigned hereby waives diligence, presentment, demand of payment, filing of claims with a court in~~ In the event of ~~merger~~any such transfer, ~~sale, lease or conveyance of all or~~ the Trustee shall require the transferor to execute a transferor certificate (in substantially ~~all of its assets, insolvency or bankruptcy of~~ the Operating Partnership, any right to require a proceeding first against the Operating Partnership, protest or notice with respect to such Notice or the indebtedness evidenced thereby and all demands whatsoever, and covenants that this Subsidiary Guarantee will not be discharged except by complete performance of the obligations contained in such 2018 Note and in this Subsidiary Guarantee. No reference herein to such Indenture and no provision of this Subsidiary Guarantee or of such Indenture shall alter or impair the guarantee of the undersigned, which is absolute and unconditional, of the full and prompt payment of the principal of and premium, if any, and interest on the 2018 Note. THIS SUBSIDIARY GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. The validity and enforceability of this Subsidiary Guarantee shall not be affected by the fact that it is not affixed to any particular 2018 Note. An Event of Default under the Indenture or the 2018 Notes shall constitute an event of default under this Subsidiary Guarantee, and shall entitle the Holders of 2018 Notes to accelerate the obligations of the undersigned hereunder in the same manner and form attached to the same extent as the obligations of the Operating Partnership. Notwithstanding any other provision of this Subsidiary Guarantee to the contrary, the undersigned hereby waives any claims or other rights which it may now have or hereafter acquire against the Operating Partnership that arise from the existence or performance of its obligations under this Subsidiary Guarantee (all such claims Pooling and rights are referred to as "Guarantor's Conditional Rights"), including, without limitation, any right of subrogation, reimbursement, exoneration, contribution, or indemnification, any right to participate in any claim or remedy against the Operating Partnership, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, by any payment made hereunder or otherwise, including without limitation, the right to take or receive from Operating Partnership, directly or indirectly, in cash or other property or by setoff or in any other manner, payment or security on account of such claim or other rights. The Subsidiary Guarantor hereby agrees not to exercise any rights which may be acquired by way of contribution under this Subsidiary Guarantee or any other agreement, by any payment made hereunder or otherwise, including, without limitation, the right to take or receive from any other guarantor, directly or indirectly, in cash or other property or by setoff or in any other manner, payment or security on account of such contribution rights. If, notwithstanding the foregoing provisions, any amount shall be paid to any of the undersigned on account of any such Guarantor's Conditional Rights Servicing Agreement) and deliver either (i) ~~such amount is paid~~ a Rule 144A Letter, in either case substantially in the form attached to ~~such undersigned party at any time when~~ the ~~indebtedness shall not have been paid or performed in full~~Agreement, or (ii) ~~regardless~~ a written Opinion of when such amount is paid to such undersigned party, any payment made by Operating Partnership to a Holder that is at any time determined to be a Preferential Payment (as defined below), then such amount paid Counsel to the ~~undersigned~~ Trustee that such transfer may be made pursuant to an exemption, describing the applicable exemption and the basis therefor, from the 1933 Act or is being made pursuant to the 1933 Act, which Opinion of Counsel shall be ~~held in trust for the benefit~~ an expense of the ~~Holders~~ transferor. No transfer of a Certificate of this Class shall be made unless the Trustee shall have received either (i) a representation letter from the transferee of such Certificate, acceptable to and ~~shall forthwith be paid such Holder to be credited~~ in form and ~~applied upon the indebtedness, whether matured or unmatured. Any such payment is herein referred to as a "Preferential Payment"~~ substance satisfactory to the ~~extent~~ Trustee, to the ~~Operating Partnership makes any payment~~ effect that such transferee is not an employee benefit plan subject to ~~Holder in connection with~~ Section 406 of ERISA or Section 4975 of the ~~Note, and any or all of such payment is subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid or paid over to a trustee, receiver~~ Code or any ~~other entity, whether under any bankruptcy act or otherwise. To the extent that any of the~~ materially similar provisions of ~~the immediately preceding paragraph~~ applicable Federal, state or local law ("Similar Law") or a person acting on behalf of or investing plan assets of any such plan, which representation letter shall not be ~~enforceable, each~~ an expense of the undersigned agrees that until such time as the indebtedness has been paid and performed in full and the period of time has expired during which any payment made by the Operating Partnership or the undersigned to a Holder may be determined to be a Preferential PaymentTrustee, Guarantor's Conditional Rights to the extent not validly waived shall be subordinate to Holders' right to full payment and performance of the indebtedness and each of the undersigned shall not enforce any of its respective portion of the Guarantors' Conditional Rights until such time as the indebtedness has been paid and performed in full and the period of time has expired during which any payment made by the Operating Partnership or the undersigned to Holders may be determined to be a Preferential Payment. The undersigned's liability (the "Base Guaranty Liability") shall be that amount from time to time equal to the aggregate liability of the undersigned hereunder, but shall be limited to the lesser of (A) the aggregate amount of the obligation as stated in the second sentence of Section 1401 of the Indenture, and (B) the amount, if any, which would not have (i) rendered the undersigned "insolvent" (as such term is defined in Section 101(29) of the Federal Bankruptcy Code and in Section 271 of the Debtor and Creditor Law of the State of New York, as each is in effect at the date of the Indenture) or (ii) ~~left~~ if the ~~undersigned~~ transferee is an insurance company, a representation letter that it is purchasing such Certificates with ~~unreasonably small capital at~~ the ~~time~~ assets of its ~~Guarantee was entered into~~general account and that the purchase and holding of such Certificates are covered under Sections I and III of PTCE 95-60, ~~after giving effect to the incurrence of existing Debt~~ or (~~as defined~~ iii) in the ~~Indenture) immediately prior~~ case of a Certificate presented for registration in the name of an employee benefit plan subject to such time, provided that, it shall be a presumption in any lawsuit or other proceeding in which the undersigned is a party that the amount guaranteed is the amount set forth in (A) above unless a creditorERISA, or ~~representative of creditors~~ a plan or arrangement subject to Section 4975 of the ~~undersigned~~ Code (or comparable provisions of any subsequent enactments) or a plan subject to Similar Law, or a trustee ~~in bankruptcy~~ of ~~the undersigned, as debtor in possession, otherwise proves in~~ any such ~~a lawsuit that the aggregate liability of the undersigned is limited to the amount set forth in (B). In making any determination as to the solvency~~ plan or ~~sufficiency of capital of the undersigned in accordance with the previous sentence, the right of the undersigned to contribution from other Guarantors, to subrogation and~~ any other ~~rights the undersigned may have~~person acting on behalf of any such plan or arrangement or using such plan's or arrangement's assets, ~~contractual or otherwise, shall be taken into account. The obligations~~ an Opinion of ~~the undersigned to the Holders of the 2018 Notes and~~ Counsel satisfactory to the Trustee ~~pursuant~~ and the Servicer, which Opinion of Counsel shall not be an expense of the Trustee, the Servicer or the Trust Fund, addressed to the ~~Subsidiary Guarantee~~ Trustee, to the effect that the purchase or holding of such Certificate will not result in the assets of the Trust Fund being deemed to be "plan assets" and subject to the prohibited transaction provisions of ERISA and the ~~Indenture are~~ Code and will not subject the Trustee or the Servicer to any obligation in addition to those expressly ~~set forth~~ undertaken in ~~Article 14 of the Indenture and reference~~ this Agreement or to any liability. Reference is hereby made to the ~~Indenture~~ further provisions of this Certificate set forth on the reverse hereof, which further provisions shall for all purposes have the ~~precise terms~~ same effect as if set forth at this place. This Certificate shall not be entitled to any benefit under the Agreement or be valid for any purpose unless manually countersigned by an authorized signatory of the ~~Subsidiary Guarantee and all of the other provisions of the Indenture to which this Subsidiary Guarantee relates~~Trustee. ~~Capitalized terms in this Subsidiary Guarantee which are not defined herein shall have the meanings assigned to them in the Indenture.~~* * *

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Morgan Stanley Abs Capital I Inc Trust 2003-Nc7)

Dated. ~~Notice~~Signature by or on behalf of assignor ------------------------------- Signature Guaranteed DISTRIBUTION INSTRUCTIONS The assignee should include the following for purposes of distribution: The signature to this assignment must correspond with the name as it appears upon the face of the within Note in every particular, without alteration or enlargement or any change whatever. ABBREVIATIONS The following abbreviations, when used in the inscription on the face of this instrument, Distributions shall be ~~construed as though they were written out~~ made, by wire transfer or otherwise, in ~~full according~~ immediately available funds to ~~applicable laws or regulations: TEN COM--as tenants in common UNIF GIFT MIN ACT--_____ Custodian~~_____~~_ TEN ENT--as tenants by the entireties (Cust) (Minor) JT TEN--as joint tenants with right Under Uniform Gifts to Minors of survivorship and not as Act~~___________________________________________ tenants in common (State) Additional abbreviations may also be used though not in the above list. --------------------------- [FORM OF SCHEDULE FOR ENDORSEMENTS ON GLOBAL SECURITY TO REFLECT CHANGES IN PRINCIPAL AMOUNT] Schedule A Changes to Principal Amount of Global Security Principal Amount of Securities by which this Global Security is to be Reduced or Increased, and Reason for Remaining Principal Amount of Notation Date Reduction or Increase this Global Securities Made by ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- Exhibit B SUBSIDIARY GUARANTEE FOR VALUE RECEIVED, the undersigned hereby jointly and severally with the Parent Guarantor pursuant to the Parent Guarantee and any other subsidiary Guarantors under their respective Subsidiary Guarantees, unconditionally guarantees to the Holder of the accompanying _____~~% Note Due June~~ ___________________________________________________________ for the account of _______________________________, ~~2018 (the "2018 Note") issued by AMB Property, L.P. (the "Operating Partnership") under an Indenture dated as of June~~ account number ________________________, ~~1998 (together with the Second Supplemental Indenture thereto~~or, if mailed by check, to__________________________________________________________ _______________________________________________________________________________. Applicable statements should be mailed to_______________________________________ ________________________________________________________________________________ _______________________________________________. This information is provided by __________________________________________________, the assignee named above, or ________________________________________, as its agent. EXHIBIT A-14 ------------ FORM OF CLASS M-10 CERTIFICATE UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("~~Indenture~~DTC"~~) among~~ ), TO THE TRUST ADMINISTRATOR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986 (THE "CODE"). THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1 CERTIFICATES, THE CLASS A-2 CERTIFICATES, THE CLASS A-3 CERTIFICATES, THE CLASS A-4 CERTIFICATES, THE CLASS M-1 CERTIFICATES, THE CLASS M- 2 CERTIFICATES, THE CLASS M-3 CERTIFICATES, THE CLASS M-4 CERTIFICATES, THE CLASS M-5 CERTIFICATES, THE CLASS M-6 CERTIFICATES, THE CLASS M-7 CERTIFICATES, THE CLASS M-8 CERTIFICATES AND THE CLASS M-9 CERTIFICATES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN. NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, OR THE CODE WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROCEDURES DESCRIBED HEREIN. Series: 2004-HE1 Xxxxxxxxx Xxxxxxxxxxx Xxxncipal Balance of the ~~Operating Partnership~~Class M-10 Certificates as of the Issue Date: Pass-Through Rate: Variable $5,345,000.00 Cut-off Date and date of Pooling and Denomination: $5,345,000.00 Servicing Agreement: September 1, ~~AMB Property Corporation, and State Street Bank~~ 2004 Master Servicer and Trust ~~Company~~ Administrator: First Distribution Date: October 25, 2004 Wells Fargo Bank, X.X. No. 1 Trustee: U.S. Bank National Association Issue Date: September 29, 2004 CUSIP: 57643L ET 9 DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE AS THE DENOMINATION OF THIS CERTIFICATE. MORTGAGE PASS-THROUGH CERTIFICATE evidencing a beneficial ownership interest in a portion of ~~California, N.A., as trustee~~ a Trust Fund (the "~~Trustee~~Trust Fund") consisting primarily of a pool of conventional one- to four-family, fixed-rate and adjustable-rate, first and second lien mortgage loans (the "Mortgage Loans") formed and sold by MORTGAGE ASSET SECURITIZATION TRANSACTIONS, INC. THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN MORTGAGE ASSET SECURITIZATION TRANSACTIONS, INC., THE MASTER SERVICER, THE TRUSTEE, THE TRUST ADMINISTRATOR OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES. This certifies that Cede & Co. is the registered owner of a Percentage Interest (obtained by dividing the denomination of this Certificate by the aggregate Certificate Principal Balance of the Class M-10 Certificates as of the Issue Date) in that certain beneficial ownership interest evidenced by all the Class M-10 Certificates in REMIC II created pursuant to a Pooling and Servicing Agreement, dated as specified above (the "Agreement"), among Mortgage Asset Securitization Transactions, Inc. (a) hereinafter called the ~~full~~ "Depositor," which term includes any successor entity under the Agreement), the Master Servicer, the Trust Administrator and ~~prompt payment~~ the Trustee, a summary of certain of the ~~principal~~ 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 Agreement. This Certificate is issued under and ~~premium~~is subject to the terms, ~~if any, on such 2018 Note when~~ provisions and ~~as the same shall become due and payable, whether at Stated Maturity, by acceleration, by redemption or otherwise, and (b) the full and prompt payment~~ conditions of the ~~interest on~~ Agreement, to which Agreement the Holder of this Certificate by virtue of the acceptance hereof assents and by which such ~~2018 Note when and as the same shall become due and payable, according~~ Holder is bound. Pursuant to the terms of the Agreement, distributions will be made on the 25th day of each month or, if such ~~2018 Note and~~ 25th day is not a Business Day, the Business Day immediately following (a "Distribution Date"), commencing on the First Distribution Date specified above, to the Person in whose name this Certificate is registered on the Record Date, in an amount equal to the product of the ~~Indenture. The undersigned hereby agrees, jointly~~ Percentage Interest evidenced by this Certificate and ~~severally with~~ the ~~Parent Guarantor~~ amount required to be distributed to the Holders of Class M-10 Certificates on such Distribution Date pursuant to the ~~Parent Guarantee~~ Agreement. All distributions to the Holder of this Certificate under the Agreement will be made or caused to be made by the Trust Administrator by wire transfer in immediately available funds to the account of the Person entitled thereto if such Person shall have so notified the Trust Administrator in writing at least five Business Days prior to the Record Date immediately prior to such Distribution Date and is the registered owner of Class M-10 Certificates the aggregate initial Certificate Principal Balance of which is in excess of the lesser of (i) $5,000,000 or (ii) two-thirds of the aggregate initial Certificate Principal Balance of the Class M-10 Certificates, or otherwise by check mailed by first class mail to the address of the Person entitled thereto, as such name and address shall appear on the Certificate Register. Notwithstanding the above, the final distribution on this Certificate will be made after due notice by the Trust Administrator of the pendency of such distribution and only upon presentation and surrender of this Certificate at the office or agency appointed by the Trust Administrator for that purpose as provided in the Agreement. The Pass-Through Rate applicable to the calculation of interest payable with respect to this Certificate on any Distribution Date shall equal a rate per annum equal to the lesser of (i) the related Formula Rate for such Distribution Date and (ii) the related Net WAC Rate for such Distribution Date. This Certificate is one of a duly authorized issue of Certificates designated as Mortgage Pass-Through Certificates of the Series specified on the face hereof (herein called the "Certificates") and representing a Percentage Interest in the Class of Certificates specified on the face hereof equal to the denomination specified on the face hereof divided by the aggregate Certificate Principal Balance of the Class of Certificates specified on the face hereof. The 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 Agreement. As provided in the Agreement, withdrawals from the Distribution Account may be made from time to time for purposes other ~~Subsidiary Guarantors~~ than distributions to Certificateholders, such purposes including reimbursement of advances made, or certain expenses incurred, with respect to the Mortgage Loans. The Agreement permits, with certain exceptions therein provided, the amendment thereof and the modification of the rights and obligations of the Depositor, the Master Servicer, the Trust Administrator, the Trustee and the rights of the Certificateholders under ~~their respective Subsidiary Guarantees~~the Agreement at any time by the Depositor, ~~that its obligations hereunder~~ the Master Servicer, the Trust Administrator and the Trustee with the consent of the Holders of Certificates entitled to at least 66% of the Voting Rights. Any such consent by the Holder of this Certificate shall be ~~as principal~~ conclusive and binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in exchange herefor or in lieu hereof whether or not ~~merely as surety~~notation of such consent is made upon this Certificate. The Agreement also permits the amendment thereof, ~~and shall be absolute and unconditional~~in certain limited circumstances, ~~and shall not be affected, modified or impaired by~~ without the ~~following: (a) the failure to give notice to the Guarantors~~ consent of the occurrence of an Event of Default under the Indenture; (b) the waiver, surrender, compromise, settlement, release or termination of the payment, performance or observance by the Operating Partnership or the Guarantors of any or all of the obligations, covenants or agreements of either of them contained in the Indenture or the 2018 Notes; (c) the acceleration, extension or any other changes in the time for payment of any principal of or interest or any premium on any 2018 Note or for any other payment under the Indenture or of the time for performance of any other obligations, covenants or agreements under or arising out of the Indenture or the 2018 Notes; (d) the modification or amendment (whether material or otherwise) of any obligation, covenant or agreement set forth in the Indenture or the 2018 Notes; (e) the taking or the omission Holders of any of the ~~actions referred to~~ Certificates. As provided in the ~~Indenture~~ Agreement and subject to certain limitations therein set forth, the transfer of this Certificate is registrable in ~~any~~ the Certificate Register upon surrender of this Certificate for registration of transfer at the offices or agencies appointed by the Trust Administrator as provided in the Agreement, duly endorsed by, or accompanied by an assignment in the form below or other written instrument of transfer in form satisfactory to the Trust 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 ~~actions under~~ same Class in authorized denominations evidencing the ~~2018 Notes; (f) any failure, omission, delay~~ same aggregate Percentage Interest will be issued to the designated transferee or ~~lack on the part~~ transferees. No transfer of this Certificate to a Plan subject to ERISA or Section 4975 of the Trustee to enforce, assert or exercise any right, power or remedy conferred on the Trustee in the Indenture, or any other action or acts on the part of the Trustee or any of the Holders from time to time of the 2018 Notes; (g) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all the assets, marshaling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition with creditors or readjustment of, or other similar proceedings affecting the Guarantors or the Operating Partnership or any of the assets of any of them, or any allegation or contest of the validity of this Subsidiary Guarantee in any such proceeding; (h) to the extent permitted by law, the release or discharge by operation of law of the Guarantors from the performance or observance of any obligation, covenant or agreement contained in the Indenture; (i) to the extent permitted by law, the release or discharge by operation of law of the Operating Partnership from the performance or observance of any obligation, covenant or agreement contained in the Indenture; (j) the default or failure of the Operating Partnership or the Trustee fully to perform any of its obligations set forth in the Indenture or the 2018 Notes; (k) the invalidity, irregularity or unenforceability of the Indenture or the 2018 Notes or any part of any thereof; (l) any judicial or governmental action affecting the Operating Partnership or any 2018 Notes or consent or indulgence granted by the Operating Partnership by the Holders or by the Trustee; or (m) the recovery of any judgment against the Operating Partnership or any action to enforce the same or any other circumstance which might constitute a legal or equitable discharge of a surety or guarantor. The undersigned hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of merger, sale, lease or conveyance of all or substantially all of its assets, insolvency or bankruptcy of the Operating PartnershipCode, any right to require a proceeding first against the Operating Partnership, protest or notice with respect to such Notice or the indebtedness evidenced thereby and all demands whatsoever, and covenants that this Subsidiary Guarantee will not be discharged except by complete performance of the obligations contained in such 2018 Note and in this Subsidiary Guarantee. No reference herein to such Indenture and no provision of this Subsidiary Guarantee or of such Indenture shall alter or impair the guarantee of the undersigned, which is absolute and unconditional, of the full and prompt payment of the principal of and premium, if any, and interest on the 2018 Note. THIS SUBSIDIARY GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. The validity and enforceability of this Subsidiary Guarantee shall not be affected by the fact that it is not affixed to any particular 2018 Note. An Event of Default under the Indenture or the 2018 Notes shall constitute an event of default under this Subsidiary Guarantee, and shall entitle the Holders of 2018 Notes to accelerate the obligations of the undersigned hereunder in the same manner and to the same extent as the obligations of the Operating Partnership. Notwithstanding any other provision of this Subsidiary Guarantee to the contrary, the undersigned hereby waives any claims or other rights which it may now have or hereafter acquire against the Operating Partnership that arise from the existence or performance of its obligations under this Subsidiary Guarantee (all such claims and rights are referred to as "Guarantor's Conditional Rights"), including, without limitation, any right of subrogation, reimbursement, exoneration, contribution, or indemnification, any right to participate in any claim or remedy against the Operating Partnership, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, by any payment made hereunder or otherwise, including without limitation, the right to take or receive from Operating PartnershipPerson acting, directly or indirectly, on behalf of any such Plan or any Person using "Plan Assets" to acquire this Certificate shall be made except in ~~cash~~ accordance with Section 5.02(c) of the Agreement. The Certificates are issuable in fully registered form only without coupons in Classes and denominations representing Percentage Interests specified in the Agreement. As provided in the Agreement and subject to certain limitations therein set forth, the Certificates are exchangeable for new Certificates of the same Class in authorized denominations evidencing the same aggregate Percentage Interest, as requested by the Holder surrendering the same. No service charge will be made for any such registration of transfer or exchange of Certificates, but the Trust Administrator may require payment of a sum sufficient to cover any tax or other ~~property~~ governmental charge that may be imposed in connection with any transfer or ~~by setoff or in any other manner, payment or security on account~~ exchange of ~~such claim or other rights~~Certificates. The Subsidiary Guarantor hereby agrees not to exercise any rights which may be acquired by way of contribution under this Subsidiary Guarantee or any other agreement, by any payment made hereunder or otherwise, including, without limitationDepositor, the ~~right~~ Master Servicer, the Trustee, the Trust Administrator and any agent of the Depositor, the Master Servicer, the Trust Administrator or 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 Trustee, the Trust Administrator nor any such agent shall be affected by notice to ~~take or receive from any other guarantor, directly or indirectly, in cash or other property or~~ the contrary. The obligations created by ~~setoff or in any other manner,~~ the Agreement and the Trust Fund created thereby shall terminate upon payment ~~or security on account~~ to the Certificateholders of ~~such contribution rights. If, notwithstanding~~ all amounts held by the ~~foregoing provisions, any amount shall~~ Trust Administrator and required to be paid to ~~any~~ them pursuant to the Agreement following the earlier of ~~the undersigned on account of any such Guarantor's Conditional Rights and either~~ (i) ~~such amount is paid to such undersigned party at~~ the final payment or other liquidation (or any ~~time when~~ advance with respect thereto) of the ~~indebtedness shall not have been paid or performed~~ last Mortgage Loan and REO Property remaining in ~~full, or~~ REMIC I and (ii) ~~regardless~~ the purchase by the party designated in the Agreement at a price determined as provided in the Agreement from REMIC I of ~~when~~ all the Mortgage Loans and all property acquired in respect of such ~~amount~~ Mortgage Loans. The Agreement permits, but does not require, the party designated in the Agreement to purchase from REMIC I all the Mortgage Loans and all property acquired in respect of any Mortgage Loan at a price determined as provided in the Agreement. The exercise of such right will effect early retirement of the Certificates; however, such right to purchase is ~~paid to such undersigned party, any payment made by Operating Partnership to a Holder that is at any time determined to be a Preferential Payment (as defined below), then such amount paid~~ subject to the ~~undersigned~~ aggregate Stated Principal Balance of the Mortgage Loans at the time of purchase being less than 10% of the aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-off Date. The recitals contained herein shall be ~~held in trust for the benefit~~ taken as statements of the ~~Holders~~ Depositor and ~~shall forthwith be paid such Holder to be credited and applied upon~~ the ~~indebtedness~~Trust Administrator assume no responsibility for their correctness. Unless the certificate of authentication hereon has been executed by the Trust Administrator, ~~whether matured or unmatured. Any such payment is herein referred to as a "Preferential Payment" to the extent the Operating Partnership makes any payment to Holder in connection with the Note~~by manual signature, and any or all of such payment is subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid or paid over to a trustee, receiver or any other entity, whether under any bankruptcy act or otherwise. To the extent that any of the provisions of the immediately preceding paragraph this Certificate shall not be ~~enforceable, each of~~ entitled to any benefit under the ~~undersigned agrees that until such time as the indebtedness has been paid and performed in full and the period of time has expired during which~~ Agreement or be valid for any payment made by the Operating Partnership or the undersigned to a Holder may be determined to be a Preferential Payment, Guarantor's Conditional Rights to the extent not validly waived shall be subordinate to Holders' right to full payment and performance of the indebtedness and each of the undersigned shall not enforce any of its respective portion of the Guarantors' Conditional Rights until such time as the indebtedness has been paid and performed in full and the period of time has expired during which any payment made by the Operating Partnership or the undersigned to Holders may be determined to be a Preferential Payment. The undersigned's liability (the "Base Guaranty Liability") shall be that amount from time to time equal to the aggregate liability of the undersigned hereunder, but shall be limited to the lesser of (A) the aggregate amount of the obligation as stated in the second sentence of Section 1401 of the Indenture, and (B) the amount, if any, which would not have (i) rendered the undersigned "insolvent" (as such term is defined in Section 101(29) of the Federal Bankruptcy Code and in Section 271 of the Debtor and Creditor Law of the State of New York, as each is in effect at the date of the Indenture) or (ii) left the undersigned with unreasonably small capital at the time its Guarantee was entered into, after giving effect to the incurrence of existing Debt (as defined in the Indenture) immediately prior to such time, provided that, it shall be a presumption in any lawsuit or other proceeding in which the undersigned is a party that the amount guaranteed is the amount set forth in (A) above unless a creditor, or representative of creditors of the undersigned or a trustee in bankruptcy of the undersigned, as debtor in possession, otherwise proves in such a lawsuit that the aggregate liability of the undersigned is limited to the amount set forth in (B). In making any determination as to the solvency or sufficiency of capital of the undersigned in accordance with the previous sentence, the right of the undersigned to contribution from other Guarantors, to subrogation and any other rights the undersigned may have, contractual or otherwise, shall be taken into account. The obligations of the undersigned to the Holders of the 2018 Notes and to the Trustee pursuant to the Subsidiary Guarantee and the Indenture are expressly set forth in Article 14 of the Indenture and reference is hereby made to the Indenture for the precise terms of the Subsidiary Guarantee and all of the other provisions of the Indenture to which this Subsidiary Guarantee relates. Capitalized terms in this Subsidiary Guarantee which are not defined herein shall have the meanings assigned to them in the Indenturepurpose.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (MASTR Asset Backed Securities Trust 2004-He1)

Dated. ~~Notice~~Signature by or on behalf of assignor DISTRIBUTION INSTRUCTIONS The assignee should include the following for purposes of distribution: The signature to this assignment must correspond with the name as it appears upon the face of the within Note in every particular, without alteration or enlargement or any change whatever. ABBREVIATIONS The following abbreviations, when used in the inscription on the face of this instrument, Distributions shall be ~~construed as though they were written out~~ made, by wire transfer or otherwise, in ~~full according~~ immediately available funds to applicable laws or regulations: TEN COM--as tenants in common UNIF GIFT MIN ACT--_____ Custodian______ TEN ENT--as tenants by the entireties (Cust) (Minor) JT TEN--as joint tenants with right Under Uniform Gifts to Minors of survivorship and not as Act__________________________ tenants in common (State) Additional abbreviations may also be used though not in the above list. --------------------------- [FORM OF SCHEDULE FOR ENDORSEMENTS ON GLOBAL SECURITY TO REFLECT CHANGES IN PRINCIPAL AMOUNT] Schedule A Changes to Principal Amount of Global Security Principal Amount of Securities by which this Global Security is to be Reduced or Increased, and Reason for Remaining Principal Amount of Notation Date Reduction or Increase this Global Securities Made by ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- Exhibit B SUBSIDIARY GUARANTEE FOR VALUE RECEIVED, the undersigned hereby jointly and severally with the Parent Guarantor pursuant to the Parent Guarantee and any other subsidiary Guarantors under their respective Subsidiary Guarantees, unconditionally guarantees to the Holder of the accompanying _____~~% Note Due June~~ __________________, ~~2018 (the "2018 Note") issued by AMB Property, L.P. (the "Operating Partnership") under an Indenture dated as of June~~ _______________________________________________________________________________, ~~1998 (together with~~ for the ~~Second Supplemental Indenture thereto~~account of ____________________________________________________________, account number _______________, or, if mailed by check, to ____________________. Applicable statements should be mailed to _____________________________________, _______________________________________________________________________________. This information is provided by ___________________________________, the assignee named above, or __________________________________________________, as its agent. EXHIBIT D FORM OF CLASS X CERTIFICATE SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS TWO "~~Indenture~~REGULAR INTERESTS" 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 ASSETS. NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE PROPOSED TRANSFEROR DELIVERS TO THE TRUSTEE A TRANSFEROR LETTER IN THE FORM OF EXHIBIT H TO THE AGREEMENT REFERRED TO HEREIN AND EITHER (i) THE TRUSTEE RECEIVES A RULE 144A LETTER IN THE FORM OF EXHIBIT I TO THE AGREEMENT REFERRED TO HEREIN OR (ii) THE TRUSTEE RECEIVES AN OPINION OF COUNSEL, DELIVERED AT THE EXPENSE OF THE TRANSFEROR, THAT SUCH TRANSFER MAY BE MADE WITHOUT REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED. NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE TRANSFEREE DELIVERS TO THE TRUSTEE EITHER A REPRESENTATION LETTER TO THE EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO SECTION 4975 OF THE CODE, OR A PLAN SUBJECT TO APPLICABLE FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") ~~among~~ MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE OR A PERSON INVESTING ON BEHALF OF OR WITH PLAN ASSETS OF SUCH A PLAN, OR, IF THE TRANSFEREE IS AN INSURANCE COMPANY, A REPRESENTATION LETTER THAT IT IS USING THE ASSETS OF ITS GENERAL ACCOUNT AND THAT THE PURCHASE AND HOLDING OF THIS CERTIFICATE ARE COVERED UNDER SECTIONS I AND III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 OR AN OPINION OF COUNSEL SATISFACTORY TO THE TRUSTEE, TO THE EFFECT THAT THE PURCHASE OR HOLDING OF THIS CERTIFICATE WILL NOT CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION WITHIN THE MEANING OF ERISA, SECTION 4975 OF THE CODE OR ANY SIMILAR LAW AND WILL NOT SUBJECT THE TRUSTEE, THE DEPOSITOR OR THE SERVICER TO ANY OBLIGATION IN ADDITION TO THOSE EXPRESSLY UNDERTAKEN IN THIS AGREEMENT OR TO ANY LIABILITY. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, ANY PURPORTED TRANSFER OF THIS CERTIFICATE TO OR ON BEHALF OF AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF ERISA, SECTION 4975 OF THE CODE OR SIMILAR LAW WITHOUT THE REPRESENTATION LETTER OR OPINION OF COUNSEL SATISFACTORY TO THE TRUSTEE AS DESCRIBED ABOVE SHALL BE VOID AND OF NO EFFECT. Certificate No. : 1 Cut-off Date : May 1, 2005 First Distribution Date : June 27, 2005 Percentage Interest of this Certificate ("Denomination") : [__]% CUSIP : 36242D 4P 5 ISIN : US36242D4P57 GS MORTGAGE SECURITIES CORP. GSAMP Trust 2005-AHL Mortgage Pass-Through Certificates, Series 2005-AHL Class X evidencing a percentage interest in the ~~Operating Partnership~~distributions allocable to the Certificates of the above-referenced Class. Distributions in respect of this Certificate are distributable monthly as set forth herein. This Class X Certificate has no Certificate Balance and is not entitled to distributions in respect of principal or interest. This Certificate does not evidence an obligation of, ~~AMB Property Corporation~~or an interest in, and ~~State Street~~ is not guaranteed by the Depositor, the Servicer or the Trustee referred to below or any of their respective affiliates. Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any governmental agency or instrumentality. This certifies that _____________ is the registered owner of the Percentage Interest specified above of any monthly distributions due to the Class X Certificates pursuant to a Pooling and Servicing Agreement dated as of the Cut-off Date specified above (the "Agreement"), among GS Mortgage Securities Corp., as depositor (the "Depositor"), Countrywide Home Loans Servicing LP, as servicer (the "Servicer"), and Deutsche Bank ~~and~~ National Trust ~~Company of California, N.A.~~Company, as trustee (the "Trustee"). To the extent not defined herein, ~~(a)~~ the ~~full~~ capitalized terms used herein have the meanings assigned in the Agreement. This Certificate is issued under and ~~prompt payment~~ is subject to the terms, provisions and conditions of the ~~principal~~ Agreement, to which Agreement the Holder of ~~and premium, if any, on such 2018 Note when and as the same shall become due and payable, whether at Stated Maturity,~~ this Certificate by ~~acceleration, by redemption or otherwise, and (b) the full and prompt payment~~ virtue of the ~~interest on~~ acceptance hereof assents and by which such ~~2018 Note when~~ Holder is bound. Any distribution of the proceeds of any remaining assets of the Trust Fund will be made only upon presentment and as surrender of this Class X Certificate at the ~~same~~ offices designated by the Trustee for such purposes. No transfer of a Class X Certificate shall ~~become due~~ be made unless the Trustee shall have received either (i) a representation letter from the transferee of such Certificate, acceptable to and ~~payable, according~~ in form and substance satisfactory to the ~~terms~~ Trustee, to the effect that such transferee is not an employee benefit plan or arrangement subject to Section 406 of ~~such 2018 Note and~~ ERISA, a plan or arrangement subject to Section 4975 of the ~~Indenture. The undersigned hereby agrees~~Code or a plan subject to Similar Law, jointly and severally with the Parent Guarantor pursuant to the Parent Guarantee and any other Subsidiary Guarantors under their respective Subsidiary Guarantees, that its obligations hereunder shall be as principal and not merely as surety, and shall be absolute and unconditional, and shall not be affected, modified or impaired by the following: (a) the failure to give notice to the Guarantors of the occurrence of an Event of Default under the Indenture; (b) the waiver, surrender, compromise, settlement, release or termination of the payment, performance or observance by the Operating Partnership or the Guarantors a person acting on behalf of any such plan or all of the obligations, covenants or agreements of either of them contained in the Indenture or the 2018 Notes; (c) the acceleration, extension or any other changes in the time for payment of any principal of or interest or any premium on any 2018 Note or for any other payment under the Indenture or of the time for performance of any other obligations, covenants or agreements under or arising out of the Indenture or the 2018 Notes; (d) the modification or amendment (whether material or otherwise) of any obligation, covenant or agreement set forth in the Indenture or the 2018 Notes; (e) the taking or the omission of any of the actions referred to in the Indenture and in any of the actions under the 2018 Notes; (f) any failure, omission, delay or lack on the part of the Trustee to enforce, assert or exercise any right, power or remedy conferred on the Trustee in the Indenture, or any other action or acts on the part of the Trustee or any of the Holders from time to time of the 2018 Notes; (g) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all the assets, marshaling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition with creditors or readjustment of, or other similar proceedings affecting the Guarantors or the Operating Partnership or any of arrangement nor using the assets of any ~~of them,~~ such plan or ~~any allegation or contest of the validity of this Subsidiary Guarantee in any~~ arrangement to effect such proceeding; (h) to the extent permitted by law, the release or discharge by operation of law of the Guarantors from the performance or observance of any obligation, covenant or agreement contained in the Indenture; (i) to the extent permitted by law, the release or discharge by operation of law of the Operating Partnership from the performance or observance of any obligation, covenant or agreement contained in the Indenture; (j) the default or failure of the Operating Partnership or the Trustee fully to perform any of its obligations set forth in the Indenture or the 2018 Notes; (k) the invalidity, irregularity or unenforceability of the Indenture or the 2018 Notes or any part of any thereof; (l) any judicial or governmental action affecting the Operating Partnership or any 2018 Notes or consent or indulgence granted by the Operating Partnership by the Holders or by the Trustee; or (m) the recovery of any judgment against the Operating Partnership or any action to enforce the same or any other circumstance which might constitute a legal or equitable discharge of a surety or guarantor. The undersigned hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of merger, sale, lease or conveyance of all or substantially all of its assets, insolvency or bankruptcy of the Operating Partnership, any right to require a proceeding first against the Operating Partnership, protest or notice with respect to such Notice or the indebtedness evidenced thereby and all demands whatsoever, and covenants that this Subsidiary Guarantee will not be discharged except by complete performance of the obligations contained in such 2018 Note and in this Subsidiary Guarantee. No reference herein to such Indenture and no provision of this Subsidiary Guarantee or of such Indenture shall alter or impair the guarantee of the undersignedtransfer, which is absolute and unconditional, of the full and prompt payment of the principal of and premium, if any, and interest on the 2018 Note. THIS SUBSIDIARY GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. The validity and enforceability of this Subsidiary Guarantee representation letter shall not be ~~affected by~~ an expense of the ~~fact that it is not affixed to any particular 2018 Note. An Event of Default under~~ Trustee, the ~~Indenture~~ Depositor, the Servicer or the 2018 Notes shall constitute an event of default under this Subsidiary Guarantee, and shall entitle the Holders of 2018 Notes to accelerate the obligations of the undersigned hereunder in the same manner and to the same extent as the obligations of the Operating Partnership. Notwithstanding any other provision of this Subsidiary Guarantee to the contrary, the undersigned hereby waives any claims or other rights which it may now have or hereafter acquire against the Operating Partnership that arise from the existence or performance of its obligations under this Subsidiary Guarantee (all such claims and rights are referred to as "Guarantor's Conditional Rights"), including, without limitation, any right of subrogation, reimbursement, exoneration, contribution, or indemnification, any right to participate in any claim or remedy against the Operating Partnership, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, by any payment made hereunder or otherwise, including without limitation, the right to take or receive from Operating Partnership, directly or indirectly, in cash or other property or by setoff or in any other manner, payment or security on account of such claim or other rights. The Subsidiary Guarantor hereby agrees not to exercise any rights which may be acquired by way of contribution under this Subsidiary Guarantee or any other agreement, by any payment made hereunder or otherwise, including, without limitation, the right to take or receive from any other guarantor, directly or indirectly, in cash or other property or by setoff or in any other manner, payment or security on account of such contribution rights. If, notwithstanding the foregoing provisions, any amount shall be paid to any of the undersigned on account of any such Guarantor's Conditional Rights and either (i) such amount is paid to such undersigned party at any time when the indebtedness shall not have been paid or performed in fullTrust Fund, or (ii) ~~regardless~~ if the Class X Certificate has been the subject of ~~when~~ an ERISA Qualifying Underwriting and the transferee is an insurance company, a representation letter that it is purchasing such ~~amount~~ Certificates with the assets of its general account and that the purchase and holding of such Certificates are covered under Sections I and III of PTCE 95-60, or (iii) in the case of a Class X Certificate presented for registration in the name of an employee benefit plan subject to ERISA, or a plan or arrangement subject to Section 4975 of the Code (or comparable provisions of any subsequent enactments) or a plan subject to Similar Law, or a trustee of any such plan or any other person acting on behalf of any such plan or arrangement or using such plan's or arrangement's assets, an Opinion of Counsel satisfactory to the Trustee, which Opinion of Counsel shall not be an expense of the Trustee, the Depositor, the Servicer or the Trust Fund, addressed to the Trustee, to the effect that the purchase or holding of such Certificate will not constitute or result in a non-exempt prohibited transaction within the meaning of ERISA, Section 4975 of the Code or any Similar Law and will not subject the Trustee, the Depositor or the Servicer to any obligation in addition to those expressly undertaken in this Agreement or to any liability. In the event that such representation is ~~paid~~ violated, or any attempt is made to ~~such undersigned party, any payment made by Operating Partnership~~ transfer to a plan or arrangement subject to Section 406 of ERISA or a plan subject to Section 4975 of the Code or a plan subject to Similar Law, or a person acting on behalf of any such plan or arrangement or using the assets of any such plan or arrangement, such attempted transfer or acquisition shall be void and of no effect. Each Holder ~~that is at any time determined~~ of this Class X Certificate shall be deemed by the acceptance or acquisition an Ownership Interest in this Class X Certificate to have agreed to be ~~a Preferential Payment (as defined below)~~bound by the following provisions, ~~then such amount paid~~ and the rights of each Person acquiring any Ownership Interest in this Class X Certificate are expressly subject to the ~~undersigned~~ following provisions: (i) each Person holding or acquiring any Ownership Interest in this Class X Certificate shall be ~~held~~ a Permitted Transferee and shall promptly notify the Trustee of any change or impending change in ~~trust for~~ its status as a Permitted Transferee, (ii) no Ownership Interest in this Class X Certificate may be registered on the ~~benefit~~ Closing Date or thereafter transferred, and the Trustee shall not register the Transfer of this Certificate unless, in addition to the certificates required to be delivered to the Trustee under Section 5.02(b) of the ~~Holders and~~ Agreement, the Trustee shall ~~forthwith be paid such Holder to be credited and applied upon~~ have been furnished with a Transfer Affidavit of the ~~indebtedness, whether matured~~ initial owner or ~~unmatured. Any such payment is herein referred to~~ the proposed transferee in the form attached as ~~a "Preferential Payment"~~ Exhibit G to the ~~extent the Operating Partnership makes~~ Agreement, (iii) each Person holding or acquiring any ~~payment~~ Ownership Interest in this Class X Certificate shall agree (A) to ~~Holder~~ obtain a Transfer Affidavit from any other Person to whom such Person attempts to Transfer its Ownership Interest this Class X Certificate, (B) to obtain a Transfer Affidavit from any Person for whom such Person is acting as nominee, trustee or agent in connection with any Transfer of this Class X Certificate, (C) not to cause income with respect to the ~~Note~~Class X Certificate to be attributable to a foreign permanent establishment or fixed base, ~~and any or all~~ within the meaning of an applicable income tax treaty, of such ~~payment is subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid or paid over to a trustee, receiver~~ Person or any other ~~entity, whether under~~ U.S. Person and (D) not to Transfer the Ownership Interest in this Class X Certificate or to cause the Transfer of the Ownership Interest in this Class X Certificate to any ~~bankruptcy act~~ other Person if it has actual knowledge that such Person is not a Permitted Transferee and (iv) any attempted or ~~otherwise. To~~ purported Transfer of the ~~extent that any~~ Ownership Interest in this Class X Certificate in violation of the provisions of the immediately preceding paragraph shall not be enforceable, each of the undersigned agrees that until such time as the indebtedness has been paid and performed in full and the period of time has expired during which any payment made by the Operating Partnership or the undersigned to a Holder may be determined to be a Preferential Payment, Guarantor's Conditional Rights to the extent not validly waived herein shall be ~~subordinate to Holders' right to full payment~~ absolutely null and ~~performance of the indebtedness~~ void and ~~each of the undersigned~~ shall not enforce any of its respective portion of the Guarantors' Conditional Rights until such time as the indebtedness has been paid and performed in full and the period of time has expired during which any payment made by the Operating Partnership or the undersigned to Holders may be determined to be a Preferential Payment. The undersigned's liability (the "Base Guaranty Liability") shall be that amount from time to time equal to the aggregate liability of the undersigned hereunder, but shall be limited to the lesser of (A) the aggregate amount of the obligation as stated vest no rights in the second sentence of Section 1401 of the Indenture, and (B) the amount, if any, which would not have (i) rendered the undersigned "insolvent" (as such term is defined in Section 101(29) of the Federal Bankruptcy Code and in Section 271 of the Debtor and Creditor Law of the State of New York, as each is in effect at the date of the Indenture) or (ii) left the undersigned with unreasonably small capital at the time its Guarantee was entered into, after giving effect to the incurrence of existing Debt (as defined in the Indenture) immediately prior to such time, provided that, it shall be a presumption in any lawsuit or other proceeding in which the undersigned is a party that the amount guaranteed is the amount set forth in (A) above unless a creditor, or representative of creditors of the undersigned or a trustee in bankruptcy of the undersigned, as debtor in possession, otherwise proves in such a lawsuit that the aggregate liability of the undersigned is limited to the amount set forth in (B)purported Transferee. In making any determination as to the solvency or sufficiency of capital of the undersigned in accordance with the previous sentence, the right of the undersigned to contribution from other Guarantors, to subrogation and any other rights the undersigned may have, contractual or otherwise, shall be taken into account. The obligations of the undersigned to the Holders of the 2018 Notes and to the Trustee pursuant to the Subsidiary Guarantee and the Indenture are expressly set forth in Article 14 of the Indenture and reference Reference is hereby made to the ~~Indenture~~ further provisions of this Certificate set forth on the reverse hereof, which further provisions shall for all purposes have the ~~precise terms~~ same effect as if set forth at this place. This Certificate shall not be entitled to any benefit under the Agreement or be valid for any purpose unless manually authenticated by an authorized signatory of the Subsidiary Guarantee and all of the other provisions of the Indenture to which this Subsidiary Guarantee relates. Capitalized terms in this Subsidiary Guarantee which are not defined herein shall have the meanings assigned to them in the IndentureTrustee.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (GSAMP Trust 2005-Ahl)

Dated. ~~Notice~~Signature by or on behalf of assignor ------------------------------------- Signature Guaranteed DISTRIBUTION INSTRUCTIONS The assignee should include the following for purposes of distribution: The signature to this assignment must correspond with the name as it appears upon the face of the within Note in every particular, without alteration or enlargement or any change whatever. ABBREVIATIONS The following abbreviations, when used in the inscription on the face of this instrument, Distributions shall be ~~construed as though they were written out~~ made, by wire transfer or otherwise, in ~~full according~~ immediately available funds to ~~applicable laws or regulations: TEN COM--as tenants in common UNIF GIFT MIN ACT--_____ Custodian~~_____~~_ TEN ENT--as tenants~~ _______________________________________________________, for the account of ____________________________________________________________, account number __________, or, if mailed by ~~the entireties (Cust) (Minor) JT TEN--as joint tenants with right Under Uniform Gifts~~ check, to ~~Minors of survivorship and not as Act~~_________________________, Applicable statements should be mailed to _____________________________________ tenants in common (State) Additional abbreviations may also be used though not in the above list. --------------------------- [FORM OF SCHEDULE FOR ENDORSEMENTS ON GLOBAL SECURITY TO REFLECT CHANGES IN PRINCIPAL AMOUNT] Schedule A Changes to Principal Amount of Global Security Principal Amount of Securities by which this Global Security is to be Reduced or Increased, and Reason for Remaining Principal Amount of Notation Date Reduction or Increase this Global Securities Made by ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- Exhibit B SUBSIDIARY GUARANTEE FOR VALUE RECEIVED, the undersigned hereby jointly and severally with the Parent Guarantor pursuant to the Parent Guarantee and any other subsidiary Guarantors under their respective Subsidiary Guarantees, unconditionally guarantees to the Holder of the accompanying _____~~% Note Due June~~ __________________________________________________________________________. This information is provided by _______________________________________________, ~~2018 (~~the ~~"2018 Note") issued by AMB Property~~assignee named above, ~~L.P. (the "Operating Partnership") under an Indenture dated as of June~~ or __________________________________________________, ~~1998~~ as its agent. XXXXXXX X-0 FORM OF CLASS M-1 CERTIFICATE UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (~~together with~~ "DTC"), TO THE TRUSTEE OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986 (THE "CODE"). THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A CERTIFICATES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN. Series 2005-NC5 Pass-Through Rate: Variable Cut-off Date and date of Pooling and Servicing Agreement: October 1, 2005 First Distribution Date: November 25, 2005 No. 1 Aggregate Certificate Principal Balance of the ~~Second Supplemental Indenture thereto,~~ Class M-1 Certificates as of the ~~"Indenture") among the Operating Partnership, AMB Property Corporation, and State Street~~ Issue Date: $[______].00 Denomination: $[_________].00 Servicer: New Century Mortgage Corporation Trustee: Deutsche Bank ~~and~~ National Trust Company Issue Date: October 4, 2005 CUSIP: [______] [__] [_] DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE AS THE DENOMINATION OF THIS CERTIFICATE. ASSET BACKED PASS-THROUGH CERTIFICATE evidencing a beneficial ownership interest in a portion of ~~California, N.A., as trustee~~ a Trust Fund (the "~~Trustee~~Trust Fund") consisting primarily of a pool of conventional one- to four-family, adjustable-rate and fixed-rate, interest-only and fully-amortizing, first lien and second lien mortgage loans (the "Mortgage Loans") formed and sold by STANWICH ASSET ACCEPTANCE COMPANY, L.L.C. THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN STANWICH ASSET ACCEPTANCE COMPANY, L.L.C., THE SERVICER, THE TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES. This certifies that Cede & Co. is the registered owner of a Percentage Interest (obtained by dividing the denomination of this Certificate by the aggregate Certificate Principal Balance of the Class M-1 Certificates as of the Issue Date) in that certain beneficial ownership interest evidenced by all the Class M-1 Certificates in REMIC II created pursuant to a Pooling and Servicing Agreement, dated as specified above (the "Agreement"), among Stanwich Asset Acceptance Company, L.L.C. (a) hereinafter called the ~~full~~ "Depositor," which term includes any successor entity under the Agreement), the Servicer and ~~prompt payment~~ the Trustee, a summary of certain of the ~~principal~~ 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 Agreement. This Certificate is issued under and ~~premium~~is subject to the terms, ~~if any, on such 2018 Note when~~ provisions and ~~as the same shall become due and payable, whether at Stated Maturity, by acceleration, by redemption or otherwise, and (b) the full and prompt payment~~ conditions of the ~~interest on~~ Agreement, to which Agreement the Holder of this Certificate by virtue of the acceptance hereof assents and by which such ~~2018 Note when and as the same shall become due and payable, according~~ Holder is bound. Pursuant to the terms of the Agreement, distributions will be made on the 25th day of each month or, if such ~~2018 Note and~~ 25th day is not a Business Day, the Business Day immediately following (a "Distribution Date"), commencing on the First Distribution Date specified above, to the Person in whose name this Certificate is registered on the Record Date, in an amount equal to the product of the ~~Indenture. The undersigned hereby agrees, jointly~~ Percentage Interest evidenced by this Certificate and ~~severally with~~ the ~~Parent Guarantor~~ amount required to be distributed to the Holders of Class M-1 Certificates on such Distribution Date pursuant to the ~~Parent Guarantee and any other Subsidiary Guarantors~~ Agreement. All distributions to the Holder of this Certificate under ~~their respective Subsidiary Guarantees, that its obligations hereunder shall~~ the Agreement will be ~~as principal and not merely as surety, and shall~~ made or caused to be ~~absolute and unconditional, and shall not be affected, modified or impaired~~ made by the ~~following: (a) the failure to give notice~~ Trustee by wire transfer in immediately available funds to the ~~Guarantors~~ account of the occurrence of an Event of Default under the Indenture; (b) the waiver, surrender, compromise, settlement, release or termination of the payment, performance or observance by the Operating Partnership or the Guarantors of any or all of the obligations, covenants or agreements of either of them contained in the Indenture or the 2018 Notes; (c) the acceleration, extension or any other changes in the time for payment of any principal of or interest or any premium on any 2018 Note or for any other payment under the Indenture or of the time for performance of any other obligations, covenants or agreements under or arising out of the Indenture or the 2018 Notes; (d) the modification or amendment (whether material or otherwise) of any obligation, covenant or agreement set forth in the Indenture or the 2018 Notes; (e) the taking or the omission of any of the actions referred to in the Indenture and in any of the actions under the 2018 Notes; (f) any failure, omission, delay or lack on the part of the Trustee to enforce, assert or exercise any right, power or remedy conferred on Person entitled thereto if such Person shall have so notified the Trustee in writing at least five Business Days prior to the ~~Indenture~~Record Date immediately prior to such Distribution Date or otherwise by check mailed by first class mail to the address of the Person entitled thereto, ~~or any other action or acts~~ as such name and address shall appear on the ~~part~~ Certificate Register. Notwithstanding the above, the final distribution on this Certificate will be made after due notice by the Trustee of the ~~Trustee or any~~ pendency of ~~the Holders from time to time of the 2018 Notes; (g) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all the assets, marshaling of assets~~ such distribution and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition with creditors or readjustment of, or other similar proceedings affecting the Guarantors or the Operating Partnership or any of the assets of any of them, or any allegation or contest of the validity only upon presentation and surrender of this ~~Subsidiary Guarantee~~ Certificate at the office or agency appointed by the Trustee for that purpose as provided in ~~any such proceeding; (h)~~ the Agreement. The Pass-Through Rate applicable to the ~~extent permitted by law, the release or discharge by operation~~ calculation of law of the Guarantors from the performance or observance of any obligation, covenant or agreement contained in the Indenture; (i) to the extent permitted by law, the release or discharge by operation of law of the Operating Partnership from the performance or observance of any obligation, covenant or agreement contained in the Indenture; (j) the default or failure of the Operating Partnership or the Trustee fully to perform any of its obligations set forth in the Indenture or the 2018 Notes; (k) the invalidity, irregularity or unenforceability of the Indenture or the 2018 Notes or any part of any thereof; (l) any judicial or governmental action affecting the Operating Partnership or any 2018 Notes or consent or indulgence granted by the Operating Partnership by the Holders or by the Trustee; or (m) the recovery of any judgment against the Operating Partnership or any action to enforce the same or any other circumstance which might constitute a legal or equitable discharge of a surety or guarantor. The undersigned hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of merger, sale, lease or conveyance of all or substantially all of its assets, insolvency or bankruptcy of the Operating Partnership, any right to require a proceeding first against the Operating Partnership, protest or notice interest payable with respect to ~~such Notice or the indebtedness evidenced thereby and all demands whatsoever, and covenants that~~ this Subsidiary Guarantee will not be discharged except by complete performance of the obligations contained in such 2018 Note and in this Subsidiary Guarantee. No reference herein to such Indenture and no provision of this Subsidiary Guarantee or of such Indenture Certificate on any Distribution Date shall alter or impair the guarantee of the undersigned, which is absolute and unconditional, of the full and prompt payment of the principal of and premium, if any, and interest on the 2018 Note. THIS SUBSIDIARY GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. The validity and enforceability of this Subsidiary Guarantee shall not be affected by the fact that it is not affixed to any particular 2018 Note. An Event of Default under the Indenture or the 2018 Notes shall constitute an event of default under this Subsidiary Guarantee, and shall entitle the Holders of 2018 Notes to accelerate the obligations of the undersigned hereunder in the same manner and to the same extent as the obligations of the Operating Partnership. Notwithstanding any other provision of this Subsidiary Guarantee to the contrary, the undersigned hereby waives any claims or other rights which it may now have or hereafter acquire against the Operating Partnership that arise from the existence or performance of its obligations under this Subsidiary Guarantee (all such claims and rights are referred to as "Guarantor's Conditional Rights"), including, without limitation, any right of subrogation, reimbursement, exoneration, contribution, or indemnification, any right to participate in any claim or remedy against the Operating Partnership, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, by any payment made hereunder or otherwise, including without limitation, the right to take or receive from Operating Partnership, directly or indirectly, in cash or other property or by setoff or in any other manner, payment or security on account of such claim or other rights. The Subsidiary Guarantor hereby agrees not to exercise any rights which may be acquired by way of contribution under this Subsidiary Guarantee or any other agreement, by any payment made hereunder or otherwise, including, without limitation, the right to take or receive from any other guarantor, directly or indirectly, in cash or other property or by setoff or in any other manner, payment or security on account of such contribution rights. If, notwithstanding the foregoing provisions, any amount shall be paid to any of the undersigned on account of any such Guarantor's Conditional Rights and either (i) such amount is paid to such undersigned party at any time when the indebtedness shall not have been paid or performed in full, or (ii) regardless of when such amount is paid to such undersigned party, any payment made by Operating Partnership to equal a Holder that is at any time determined to be a Preferential Payment (as defined below), then such amount paid to the undersigned shall be held in trust for the benefit of the Holders and shall forthwith be paid such Holder to be credited and applied upon the indebtedness, whether matured or unmatured. Any such payment is herein referred to as a "Preferential Payment" to the extent the Operating Partnership makes any payment to Holder in connection with the Note, and any or all of such payment is subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid or paid over to a trustee, receiver or any other entity, whether under any bankruptcy act or otherwise. To the extent that any of the provisions of the immediately preceding paragraph shall not be enforceable, each of the undersigned agrees that until such time as the indebtedness has been paid and performed in full and the period of time has expired during which any payment made by the Operating Partnership or the undersigned to a Holder may be determined to be a Preferential Payment, Guarantor's Conditional Rights to the extent not validly waived shall be subordinate to Holders' right to full payment and performance of the indebtedness and each of the undersigned shall not enforce any of its respective portion of the Guarantors' Conditional Rights until such time as the indebtedness has been paid and performed in full and the period of time has expired during which any payment made by the Operating Partnership or the undersigned to Holders may be determined to be a Preferential Payment. The undersigned's liability (the "Base Guaranty Liability") shall be that amount from time to time rate per annum equal ~~to the aggregate liability of the undersigned hereunder, but shall be limited~~ to the lesser of (i) the related Formula Rate for such Distribution Date and (ii) the related Net WAC Pass-Through Rate for such Distribution Date. This Certificate is one of a duly authorized issue of Certificates designated as Asset Backed Pass-Through Certificates of the Series specified on the face hereof (herein called the "Certificates") and representing a Percentage Interest in the Class of Certificates specified on the face hereof equal to the denomination specified on the face hereof divided by the aggregate Certificate Principal Balance of the Class of Certificates specified on the face hereof. The 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 Agreement. As provided in the Agreement, withdrawals from the Collection Account and the Distribution Account may be made from time to time for purposes other than distributions to Certificateholders, such purposes including reimbursement of advances made, or certain expenses incurred, with respect to the Mortgage Loans. The Agreement permits, with certain exceptions therein provided, the amendment thereof and the modification of the rights and obligations of the Depositor, the Servicer, the Trustee and the rights of the Certificateholders under the Agreement at any time by the Depositor, the Servicer and the Trustee with the consent of the Holders of Certificates entitled to at least 66% of the Voting Rights. Any such consent by the Holder of this Certificate shall be conclusive and binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in exchange herefor or in lieu hereof whether or not notation of such consent is made upon this Certificate. The Agreement also permits the amendment thereof, in certain limited circumstances, without the consent of the Holders of any of the Certificates. As provided in the Agreement and subject to certain limitations therein set forth, the transfer of this Certificate is registrable in the Certificate Register upon surrender of this Certificate for registration of transfer at the offices or agencies appointed by the Trustee as provided in the Agreement, duly endorsed by, or accompanied by an assignment in the form below or other written instrument of transfer in form satisfactory to the Trustee duly executed by, the Holder hereof or such Holder's attorney duly authorized in writing, and thereupon one or more new Certificates of the same Class in authorized denominations evidencing the same aggregate Percentage Interest will be issued to the designated transferee or transferees. Each beneficial owner of this Certificate or any interest therein shall be deemed to have represented, by virtue of its acquisition or holding of such Certificate or interest therein, that either (A) ~~the aggregate amount~~ it is not an "employee benefit plan" as defined in Section 3(3) of the ~~obligation~~ Employee Retirement Income Security Act of 1974, as ~~stated~~ amended ("ERISA"), that is subject to Title I of ERISA, any "plan" as defined in ~~the second sentence of~~ Section ~~1401~~ 4975 of the ~~Indenture~~Internal Revenue Code of 1986, ~~and~~ as amended (the "Code"), that is subject to Section 4975 of the Code or any entity deemed to hold plan assets of any of the foregoing, (B) it has acquired and is holding this Certificate in reliance on the ~~amount~~underwriters' exemption, ~~if any~~and that it understands that there are certain conditions to the availability of the underwriters' exemption, ~~which would~~ including that this Certificate must be rated, at the time of purchase, not ~~have (i) rendered the undersigned~~ lower than "~~insolvent~~BBB-" (or its equivalent) by Fitch, S&P or Xxxxx'x and the Certificate is so rated, that it is an accredited investor as defined in Rule 501(a)(1) of Regulation D of the Securities Act of 1933, as amended, and that it will obtain a representation from any transferee that such transferee is an accredited investor, or (C)(1) it is an insurance company, (2) the source of funds used to acquire or hold this Certificate or interest therein is an "insurance company general account," as such term is defined in Prohibited Transaction Class Exemption ("PTCE") 95-60, and (3) the conditions in Sections I and III of PTCE 95-60 have been satisfied. If this Certificate or any interest therein is acquired or held in violation of the provisions of Section ~~101(29~~5.02(c) of the ~~Federal Bankruptcy Code and in Section 271~~ Agreement, the next preceding permitted beneficial owner will be treated as the beneficial owner of ~~the Debtor and Creditor Law of the State of New York, as each is in effect at~~ this Certificate retroactive to the date of transfer to the ~~Indenture~~purported beneficial owner. Any purported beneficial owner whose acquisition or holding of any this Certificate or interest therein was effected in violation of the provisions of Section 5.02(c) of the Agreement shall indemnify and hold harmless the Depositor, the Servicer, the Trustee and the Trust Fund from and against any and all liabilities, claims, costs or expenses incurred by those parties as a result of that acquisition or holding. The Certificates are issuable in fully registered form only without coupons in Classes and denominations representing Percentage Interests specified in the Agreement. As provided in the Agreement and subject to certain limitations therein set forth, the Certificates are exchangeable for new Certificates of the same Class in authorized denominations evidencing the same aggregate Percentage Interest, as requested by the Holder surrendering the same. No service charge will be made for any such registration of transfer or exchange of Certificates, but the Trustee 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 Servicer, the Trustee and any agent of the Depositor, the Servicer or 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 Servicer, the Trustee nor any such agent shall be affected by notice to the contrary. The obligations created by the Agreement and the Trust Fund created thereby shall terminate upon payment to the Certificateholders of all amounts held by the Trustee and required to be paid to them pursuant to the Agreement following the earlier of (i) the final payment or other liquidation (or any advance with respect thereto) of the last Mortgage Loan and REO Property remaining in REMIC I and (ii) ~~left~~ the ~~undersigned with unreasonably small capital~~ purchase by the party designated in the Agreement at a price determined as provided in the Agreement from REMIC I of all the Mortgage Loans and all property acquired in respect of such Mortgage Loans. The Agreement permits, but does not require, the party designated in the Agreement to purchase from REMIC I all the Mortgage Loans and all property acquired in respect of any Mortgage Loan at a price determined as provided in the Agreement. The exercise of such right will effect early retirement of the Certificates; however, such right to purchase is subject to the aggregate Stated Principal Balance of the Mortgage Loans at the time ~~its Guarantee was entered into, after giving effect to the incurrence~~ of existing Debt (as defined in the Indenture) immediately prior to such time, provided that, it shall be a presumption in any lawsuit or other proceeding in which the undersigned is a party that the amount guaranteed is the amount set forth in (A) above unless a creditor, or representative of creditors purchase being less than 10% of the ~~undersigned or a trustee in bankruptcy~~ aggregate Stated Principal Balance of the ~~undersigned,~~ Mortgage Loans as ~~debtor in possession, otherwise proves in such a lawsuit that the aggregate liability~~ of the ~~undersigned is limited to the amount set forth in (B)~~Cut-off Date. In making any determination as to the solvency or sufficiency of capital of the undersigned in accordance with the previous sentence, the right of the undersigned to contribution from other Guarantors, to subrogation and any other rights the undersigned may have, contractual or otherwise, The recitals contained herein shall be taken ~~into account. The obligations~~ as statements of the ~~undersigned to the Holders of the 2018 Notes~~ Depositor and to the Trustee ~~pursuant~~ assumes no responsibility for their correctness. Unless the certificate of authentication hereon has been executed by the Trustee, by manual signature, this Certificate shall not be entitled to any benefit under the ~~Subsidiary Guarantee and the Indenture are expressly set forth in Article 14 of the Indenture and reference is hereby made to the Indenture~~ Agreement or be valid for the precise terms of the Subsidiary Guarantee and all of the other provisions of the Indenture to which this Subsidiary Guarantee relates. Capitalized terms in this Subsidiary Guarantee which are not defined herein shall have the meanings assigned to them in the Indentureany purpose.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Carrington Mortgage Loan Trust, Series 2005-Nc5)

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Merrill Lynch Alternative Note Asset Trust, Series 2007-Oar3)

Appears in 1 contract

Samples: Distribution Instructions (Salomon Brothers Mort Sec Vii Inc Asst Back Cert Se 1997-Lb2)

Dated. ~~Notice~~Signature by or on behalf of assignor DISTRIBUTION INSTRUCTIONS The assignee should include the following for purposes of distribution: The signature to this assignment must correspond with the name as it appears upon the face of the within Note in every particular, without alteration or enlargement or any change whatever. ABBREVIATIONS The following abbreviations, when used in the inscription on the face of this instrument, Distributions shall be ~~construed as though they were written out~~ made, by wire transfer or otherwise, in ~~full according~~ immediately available funds to applicable laws or regulations: TEN COM--as tenants in common UNIF GIFT MIN ACT--_____ Custodian______ TEN ENT--as tenants by the entireties (Cust) (Minor) JT TEN--as joint tenants with right Under Uniform Gifts to Minors of survivorship and not as Act__________________________ tenants in common (State) Additional abbreviations may also be used though not in the above list. --------------------------- [FORM OF SCHEDULE FOR ENDORSEMENTS ON GLOBAL SECURITY TO REFLECT CHANGES IN PRINCIPAL AMOUNT] Schedule A Changes to Principal Amount of Global Security Principal Amount of Securities by which this Global Security is to be Reduced or Increased, and Reason for Remaining Principal Amount of Notation Date Reduction or Increase this Global Securities Made by ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- Exhibit B SUBSIDIARY GUARANTEE FOR VALUE RECEIVED, the undersigned hereby jointly and severally with the Parent Guarantor pursuant to the Parent Guarantee and any other subsidiary Guarantors under their respective Subsidiary Guarantees, unconditionally guarantees to the Holder of the accompanying _____~~% Note Due June~~ __________________, ~~2018 (the "2018 Note") issued by AMB Property, L.P. (the "Operating Partnership") under an Indenture dated as of June~~ _______________________________________________________________________________, ~~1998 (together with~~ for the ~~Second Supplemental Indenture thereto~~account of ____________________________________________________________, account number ___________, or, if mailed by check, to ________________________. Applicable statements should be mailed to _____________________________________, _______________________________________________________________________________. This information is provided by ___________________________________, the assignee named above, or __________________________________________________, as its agent. EXHIBIT D SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "~~Indenture~~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"). NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE PROPOSED TRANSFEROR DELIVERS TO THE TRUSTEE A TRANSFEROR LETTER IN THE FORM OF EXHIBIT H TO THE AGREEMENT REFERRED TO HEREIN AND EITHER (I) THE TRUSTEE RECEIVES A RULE 144A LETTER IN THE FORM OF EXHIBIT I TO THE AGREEMENT REFERRED TO HEREIN OR (II) THE TRUSTEE RECEIVES AN OPINION OF COUNSEL, DELIVERED AT THE EXPENSE OF THE TRANSFEROR, THAT SUCH TRANSFER MAY BE MADE WITHOUT REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED. NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE TRANSFEREE DELIVERS TO THE TRUSTEE EITHER A REPRESENTATION LETTER TO THE EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, OR A PLAN SUBJECT TO SECTION 4975 OF THE CODE, OR AN OPINION OF COUNSEL IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, ANY PURPORTED TRANSFER OF THIS CERTIFICATE TO OR ON BEHALF OF AN EMPLOYEE BENEFIT PLAN SUBJECT TO ERISA OR TO THE CODE WITHOUT THE REPRESENTATION LETTER OR THE OPINION OF COUNSEL SATISFACTORY TO THE TRUSTEE AS DESCRIBED ABOVE SHALL BE VOID AND OF NO EFFECT. Certificate No. : 1 Cut-off Date : August 1, 2001 First Distribution Date : September 25, 2001 Percentage Interest of this Certificate ("Denomination") : 100% ------------ CUSIP : XXXXXX XXXXXXX XXXX XXXXXX CAPITAL I INC. Xxxxxx Xxxxxxx Xxxx Xxxxxx Capital I Inc. Trust 2001-NC2 Mortgage Pass-Through Certificates, Series 2001-NC2 Class X evidencing a percentage interest in the distributions allocable to the Certificates of the above-referenced Class. Distributions in respect of this Certificate are distributable monthly as set forth herein. This Certificate does not evidence an obligation of, or an interest in, and is not guaranteed by the Depositor, the Servicer, the Responsible Party or the Trustee referred to below or any of their respective affiliates. Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any governmental agency or instrumentality. This certifies that Bankers Trust of California, N.A., as Indenture Trustee, is the registered owner of the Percentage Interest evidenced by this Certificate (obtained by dividing the denomination of this Certificate by the aggregate of the denominations of all Certificates of the Class to which this Certificate belongs) in certain monthly distributions pursuant to a Pooling and Servicing Agreement dated as of the Cut-off Date specified above (the "Agreement") among Xxxxxx Xxxxxxx Xxxx Xxxxxx Capital I Inc., as depositor (the ~~Operating Partnership~~"Depositor"), ~~AMB Property~~ Ocwen Federal Bank FSB, as servicer (the "Servicer"), NC Capital Corporation, as responsible party (the "Responsible Party") and ~~State Street Bank and~~ Bankers Trust Company of California, N.A., as trustee (the "Trustee"). To the extent not defined herein, ~~(a)~~ the ~~full~~ capitalized terms used herein have the meanings assigned in the Agreement. This Certificate is issued under and ~~prompt payment~~ is subject to the terms, provisions and conditions of the ~~principal~~ Agreement, to which Agreement the Holder of ~~and premium, if any, on such 2018 Note when and as the same shall become due and payable, whether at Stated Maturity,~~ this Certificate by ~~acceleration, by redemption or otherwise, and (b) the full and prompt payment~~ virtue of the ~~interest on~~ acceptance hereof assents and by which such ~~2018 Note when~~ Holder is bound. This Certificate does not have a Certificate Balance or Pass-Through Rate and ~~as the same shall become due and payable, according~~ will be entitled to distributions only to the terms of such 2018 Note and of the Indenture. The undersigned hereby agrees, jointly and severally with the Parent Guarantor pursuant to the Parent Guarantee and any other Subsidiary Guarantors under their respective Subsidiary Guarantees, that its obligations hereunder shall be as principal and not merely as surety, and shall be absolute and unconditional, and shall not be affected, modified or impaired by the following: (a) the failure to give notice to the Guarantors of the occurrence of an Event of Default under the Indenture; (b) the waiver, surrender, compromise, settlement, release or termination of the payment, performance or observance by the Operating Partnership or the Guarantors of any or all of the obligations, covenants or agreements of either of them contained in the Indenture or the 2018 Notes; (c) the acceleration, extension or any other changes in the time for payment of any principal of or interest or any premium on any 2018 Note or for any other payment under the Indenture or of the time for performance of any other obligations, covenants or agreements under or arising out of the Indenture or the 2018 Notes; (d) the modification or amendment (whether material or otherwise) of any obligation, covenant or agreement extent set forth in the ~~Indenture~~ Agreement. In addition, any distribution of the proceeds of any remaining assets of the Trust will be made only upon presentment and surrender of this Certificate at the offices designated by the Trustee for such purposes or the ~~2018 Notes; (e) the taking~~ office or the omission of any of the actions referred to in the Indenture and in any of the actions under the 2018 Notes; (f) any failure, omission, delay or lack on the part of the Trustee to enforce, assert or exercise any right, power or remedy conferred on the Trustee in the Indenture, or any other action or acts on the part of the Trustee or any of the Holders from time to time of the 2018 Notes; (g) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all the assets, marshaling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition with creditors or readjustment of, or other similar proceedings affecting the Guarantors or the Operating Partnership or any of the assets of any of them, or any allegation or contest of the validity of this Subsidiary Guarantee in any such proceeding; (h) to the extent permitted by law, the release or discharge by operation of law of the Guarantors from the performance or observance of any obligation, covenant or agreement contained in the Indenture; (i) to the extent permitted by law, the release or discharge by operation of law of the Operating Partnership from the performance or observance of any obligation, covenant or agreement contained in the Indenture; (j) the default or failure of the Operating Partnership or the Trustee fully to perform any of its obligations set forth in the Indenture or the 2018 Notes; (k) the invalidity, irregularity or unenforceability of the Indenture or the 2018 Notes or any part of any thereof; (l) any judicial or governmental action affecting the Operating Partnership or any 2018 Notes or consent or indulgence granted by the Operating Partnership by the Holders or agency maintained by the Trustee~~; or (m) the recovery of any judgment against the Operating Partnership or any action to enforce the same or any other circumstance which might constitute a legal or equitable discharge~~ . No transfer of a ~~surety~~ Certificate of this Class shall be made unless such disposition is exempt from the registration requirements of the Securities Act of 1933, as amended (the "1933 Act"), and any applicable state securities laws or ~~guarantor~~is made in accordance with the 1933 Act and such laws. ~~The undersigned hereby waives diligence, presentment, demand of payment, filing of claims with a court in~~ In the event of ~~merger~~any such transfer, ~~sale, lease or conveyance of all or~~ the Trustee shall require the transferor to execute a transferor certificate (in substantially ~~all of its assets, insolvency or bankruptcy of~~ the Operating Partnership, any right to require a proceeding first against the Operating Partnership, protest or notice with respect to such Notice or the indebtedness evidenced thereby and all demands whatsoever, and covenants that this Subsidiary Guarantee will not be discharged except by complete performance of the obligations contained in such 2018 Note and in this Subsidiary Guarantee. No reference herein to such Indenture and no provision of this Subsidiary Guarantee or of such Indenture shall alter or impair the guarantee of the undersigned, which is absolute and unconditional, of the full and prompt payment of the principal of and premium, if any, and interest on the 2018 Note. THIS SUBSIDIARY GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. The validity and enforceability of this Subsidiary Guarantee shall not be affected by the fact that it is not affixed to any particular 2018 Note. An Event of Default under the Indenture or the 2018 Notes shall constitute an event of default under this Subsidiary Guarantee, and shall entitle the Holders of 2018 Notes to accelerate the obligations of the undersigned hereunder in the same manner and form attached to the same extent as the obligations of the Operating Partnership. Notwithstanding any other provision of this Subsidiary Guarantee to the contrary, the undersigned hereby waives any claims or other rights which it may now have or hereafter acquire against the Operating Partnership that arise from the existence or performance of its obligations under this Subsidiary Guarantee (all such claims Pooling and rights are referred to as "Guarantor's Conditional Rights"), including, without limitation, any right of subrogation, reimbursement, exoneration, contribution, or indemnification, any right to participate in any claim or remedy against the Operating Partnership, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, by any payment made hereunder or otherwise, including without limitation, the right to take or receive from Operating Partnership, directly or indirectly, in cash or other property or by setoff or in any other manner, payment or security on account of such claim or other rights. The Subsidiary Guarantor hereby agrees not to exercise any rights which may be acquired by way of contribution under this Subsidiary Guarantee or any other agreement, by any payment made hereunder or otherwise, including, without limitation, the right to take or receive from any other guarantor, directly or indirectly, in cash or other property or by setoff or in any other manner, payment or security on account of such contribution rights. If, notwithstanding the foregoing provisions, any amount shall be paid to any of the undersigned on account of any such Guarantor's Conditional Rights Servicing Agreement) and deliver either (i) ~~such amount is paid~~ a Rule 144A Letter, in either case substantially in the form attached to ~~such undersigned party at any time when~~ the ~~indebtedness shall not have been paid or performed in full~~Agreement, or (ii) ~~regardless~~ a written Opinion of when such amount is paid to such undersigned party, any payment made by Operating Partnership to a Holder that is at any time determined to be a Preferential Payment (as defined below), then such amount paid Counsel to the ~~undersigned~~ Trustee that such transfer may be made pursuant to an exemption, describing the applicable exemption and the basis therefor, from the 1933 Act or is being made pursuant to the 1933 Act, which Opinion of Counsel shall be ~~held in trust for the benefit~~ an expense of the ~~Holders~~ transferor. No transfer of a Certificate of this Class shall be made unless the Trustee shall have received either (i) a representation letter from the transferee of such Certificate, acceptable to and ~~shall forthwith be paid such Holder to be credited~~ in form and ~~applied upon the indebtedness, whether matured or unmatured. Any such payment is herein referred to as a "Preferential Payment"~~ substance satisfactory to the ~~extent~~ Trustee, to the ~~Operating Partnership makes any payment~~ effect that such transferee is not an employee benefit plan subject to ~~Holder in connection with~~ Section 406 of ERISA or Section 4975 of the ~~Note, and any or all of such payment is subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid or paid over to a trustee, receiver~~ Code or any ~~other entity, whether under any bankruptcy act or otherwise. To the extent that any of the~~ materially similar provisions of ~~the immediately preceding paragraph~~ applicable Federal, state or local law ("Similar Law") or a person acting on behalf of or investing plan assets of any such plan, which representation letter shall not be ~~enforceable, each~~ an expense of the ~~undersigned agrees~~ Trustee, or (ii) if the purchaser is an insurance company, a representation that ~~until~~ the purchaser is an insurance company which is purchasing such ~~time as the indebtedness has been paid and performed~~ Certificates with funds contained in full and the period of time has expired during which any payment made by the Operating Partnership or the undersigned to a Holder may be determined to be a Preferential Payment, Guarantor's Conditional Rights to the extent not validly waived shall be subordinate to Holders' right to full payment and performance of the indebtedness and each of the undersigned shall not enforce any of its respective portion of the Guarantors' Conditional Rights until such time as the indebtedness has been paid and performed in full and the period of time has expired during which any payment made by the Operating Partnership or the undersigned to Holders may be determined to be a Preferential Payment. The undersigned's liability (the an "Base Guaranty Liability") shall be that amount from time to time equal to the aggregate liability of the undersigned hereunder, but shall be limited to the lesser of (A) the aggregate amount of the obligation as stated in the second sentence of Section 1401 of the Indenture, and (B) the amount, if any, which would not have (i) rendered the undersigned "insolventinsurance company general account" (as such term is defined in Section ~~101(29~~V(e) of Prohibited Transaction Class Exemption 95-60 ("PTCE 95-60")) and that the ~~Federal Bankruptcy Code~~ purchase and holding of such Certificates are covered under Sections I and III of PTCE 95-60, or (iii) in the case of a Certificate presented for registration in the name of an employee benefit plan subject to ERISA, or a plan or arrangement subject to Section ~~271~~ 4975 of the ~~Debtor and Creditor Law~~ Code (or comparable provisions of ~~the State of New York, as each is in effect at the date of the Indenture~~any subsequent enactments) or ~~(ii) left the undersigned with unreasonably small capital at the time its Guarantee was entered into~~a plan subject to Similar Law, after giving effect to the incurrence of existing Debt (as defined in the Indenture) immediately prior to such time, provided that, it shall be a presumption in any lawsuit or other proceeding in which the undersigned is a party that the amount guaranteed is the amount set forth in (A) above unless a creditor, or representative of creditors of the undersigned or a trustee ~~in bankruptcy~~ of ~~the undersigned, as debtor in possession, otherwise proves in~~ any such ~~a lawsuit that the aggregate liability of the undersigned is limited to the amount set forth in (B). In making any determination as to the solvency~~ plan or ~~sufficiency of capital of the undersigned in accordance with the previous sentence, the right of the undersigned to contribution from other Guarantors, to subrogation and~~ any other ~~rights the undersigned may have~~person acting on behalf of any such plan or arrangement or using such plan's or arrangement's assets, ~~contractual or otherwise, shall be taken into account. The obligations~~ an Opinion of ~~the undersigned to the Holders of the 2018 Notes and~~ Counsel satisfactory to the Trustee ~~pursuant~~ and the Servicer, which Opinion of Counsel shall not be an expense of the Trustee, the Servicer or the Trust Fund, addressed to the ~~Subsidiary Guarantee~~ Trustee, to the effect that the purchase or holding of such Certificate will not result in the assets of the Trust Fund being deemed to be "plan assets" and subject to the prohibited transaction provisions of ERISA and the ~~Indenture are~~ Code and will not subject the Trustee or the Servicer to any obligation in addition to those expressly ~~set forth~~ undertaken in ~~Article 14 of the Indenture and reference~~ this Agreement or to any liability. Reference is hereby made to the ~~Indenture~~ further provisions of this Certificate set forth on the reverse hereof, which further provisions shall for all purposes have the ~~precise terms~~ same effect as if set forth at this place. This Certificate shall not be entitled to any benefit under the Agreement or be valid for any purpose unless manually countersigned by an authorized signatory of the ~~Subsidiary Guarantee and all of the other provisions of the Indenture to which this Subsidiary Guarantee relates~~Trustee. ~~Capitalized terms in this Subsidiary Guarantee which are not defined herein shall have the meanings assigned to them in the Indenture.~~* * *

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Morgan Stanley Dean Witter Capital I Inc Trust 2001-Nc2)

Dated. ~~Notice~~Signature by or on behalf of assignor -------------------------------------- Signature Guaranteed DISTRIBUTION INSTRUCTIONS The assignee should include the following for purposes of distribution: The signature to this assignment must correspond with the name as it appears upon the face of the within Note in every particular, without alteration or enlargement or any change whatever. ABBREVIATIONS The following abbreviations, when used in the inscription on the face of this instrument, Distributions shall be ~~construed as though they were written out~~ made, by wire transfer or otherwise, in ~~full according~~ immediately available funds to ~~applicable laws or regulations: TEN COM--as tenants in common UNIF GIFT MIN ACT--_____ Custodian~~_____~~_ TEN ENT--as tenants by the entireties (Cust) (Minor) JT TEN--as joint tenants with right Under Uniform Gifts to Minors of survivorship and not as Act~~_________________________________________ tenants in common (State) Additional abbreviations may also be used though not in the above list. --------------------------- [FORM OF SCHEDULE FOR ENDORSEMENTS ON GLOBAL SECURITY TO REFLECT CHANGES IN PRINCIPAL AMOUNT] Schedule A Changes to Principal Amount of Global Security Principal Amount of Securities by which this Global Security is to be Reduced or Increased, and Reason for Remaining Principal Amount of Notation Date Reduction or Increase this Global Securities Made by ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- Exhibit B SUBSIDIARY GUARANTEE FOR VALUE RECEIVED, the undersigned hereby jointly and severally with the Parent Guarantor pursuant to the Parent Guarantee and any other subsidiary Guarantors under their respective Subsidiary Guarantees, unconditionally guarantees to the Holder of the accompanying _____~~% Note Due June~~ ________________________________________________________________________ for the account of ______________________, ~~2018 (the "2018 Note") issued by AMB Property, L.P. (the "Operating Partnership") under an Indenture dated as of June~~ account number ________________, ~~1998 (together with the Second Supplemental Indenture thereto~~or, if mailed by check, to ______________________________________________________ _____________________________________________________________________________. Applicable statements should be mailed to____________________________________ _____________________________________________________________________________. This information is provided by __________________________________________, the assignee named above, or ___________________________________, as its agent. XXXXXXX X-0 CLASS P CERTIFICATE SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "~~Indenture~~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 (THE "CODE"). THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE RESOLD OR TRANSFERRED UNLESS IT IS REGISTERED PURSUANT TO SUCH ACT AND LAWS OR IS SOLD OR TRANSFERRED IN TRANSACTIONS THAT ARE EXEMPT FROM REGISTRATION UNDER SUCH ACT AND UNDER APPLICABLE STATE LAW AND IS TRANSFERRED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 6.02 OF THE AGREEMENT. NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, OR THE CODE WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROCEDURES DESCRIBED HEREIN. Series 2004-HS1, Class P Aggregate Certificate Principal Balance of the Class P Certificates as of the Issue Date: $100.00 Cut-off Date and date of Pooling and Servicing Agreement: February 1, 2004 Denomination: $100.00 First Distribution Date: March 25, 2004 Master Servicer: Wells Fargo Bank, National Association No. __ Trustee: JPMorgan Chase Bank Issue Date: February 27, 2004 DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE AS THE DENOMINATION OF THIS CERTIFICATE. ACE SECURITIES CORP. HOME EQUITY LOAN TRUST, SERIES 2004-HS1 ASSET BACKED PASS-THROUGH CERTIFICATE evidencing a beneficial ownership interest in a Trust Fund (the "Trust Fund") consisting primarily of a pool of conventional one- to four-family, fixed and adjustable-rate, first lien mortgage loans (the "Mortgage Loans") formed and sold by ACE SECURITIES CORP. THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN ACE SECURITIES CORP., THE MASTER SERVICER, THE SECURITIES ADMINISTRATOR, THE SERVICER, THE TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES. This certifies that____________________ is the registered owner of a Percentage Interest (obtained by dividing the denomination of this Certificate by the aggregate Certificate Principal Balance of the Class P Certificates as of the Issue Date) in that certain beneficial ownership interest evidenced by all the Class P Certificates in REMIC II created pursuant to a Pooling and Servicing Agreement, dated as specified above (the "Agreement"), among ACE Securities Corp., as depositor (hereinafter called the ~~Operating Partnership~~"Depositor", ~~AMB Property Corporation~~which term includes any successor entity under the Agreement), Wells Fargo Bank, National Assxxxxxion, as master servicer (the "Master Servicer"), and ~~State Street~~ securities administrator (the "Securities Administrator"), Ocwen Federal Bank FSB, as servicer (the "Servicer") and ~~Trust Company of California, N.A.~~JPMorgan Chase Bank, as trustee (the "Trustee"), ~~(a) the full and prompt payment~~ a summary of certain of the ~~principal~~ 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 Agreement. This Certificate is issued under and ~~premium~~is subject to the terms, ~~if any, on such 2018 Note when~~ provisions and ~~as the same shall become due and payable, whether at Stated Maturity, by acceleration, by redemption or otherwise, and (b) the full and prompt payment~~ conditions of the ~~interest on~~ Agreement, to which Agreement the Holder of this Certificate by virtue of the acceptance hereof assents and by which such ~~2018 Note when and as the same shall become due and payable, according~~ Holder is bound. Pursuant to the terms of the Agreement, distributions will be made on the 25th day of each month or, if such ~~2018 Note and~~ 25th day is not a Business Day, the Business Day immediately following such 25th day (a "Distribution Date"), commencing on the First Distribution Date specified above, to the Person in whose name this Certificate is registered on the last Business Day of the ~~Indenture. The undersigned hereby agrees~~calendar month immediately preceding the month in which the related Distribution Date occurs (the "Record Date"), ~~jointly~~ in an amount equal to the product of the Percentage Interest evidenced by this Certificate and ~~severally with~~ the ~~Parent Guarantor~~ amount required to be distributed to the Holders of Class P Certificates on such Distribution Date pursuant to the ~~Parent Guarantee~~ Agreement. All distributions to the Holder of this Certificate under the Agreement will be made or caused to be made by the Securities Administrator by wire transfer in immediately available funds to the account of the Person entitled thereto if such Person shall have so notified the Securities Administrator in writing at least five Business Days prior to the Record Date immediately prior to such Distribution Date and is the registered owner of Class P Certificates the aggregate initial Certificate Principal Balance of which is in excess of the lesser of (i) $5,000,000 or (ii) two-thirds of the aggregate initial Certificate Principal Balance of the Class P Certificates, or otherwise by check mailed by first class mail to the address of the Person entitled thereto, as such name and address shall appear on 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 appointed by the Securities Administrator for that purpose as provided in the Agreement. This Certificate is one of a duly authorized issue of Certificates designated as Asset Backed Pass-Through Certificate of the Series specified on the face hereof (herein called the "Certificates") and representing a Percentage Interest in the Class of Certificates specified on the face hereof equal to the denomination specified on the face hereof divided by the aggregate Certificate Principal Balance of the Class of Certificates specified on the face hereof. The 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 Agreement. As provided in the Agreement, withdrawals from the Collection Account and the Distribution Account may be made from time to time for purposes other than distributions to Certificateholders, such purposes including reimbursement of advances made, or certain expenses incurred, with respect to the Mortgage Loans. The Agreement permits, with certain exceptions therein provided, the amendment thereof and the modification of the rights and obligations of the Depositor, the Master Servicer, the Trustee, the Securities Administrator, the Servicer and the rights of the Certificateholders under the Agreement at any ~~other Subsidiary Guarantors under their respective Subsidiary Guarantees~~time by the Depositor, ~~that its obligations hereunder~~ the Master Servicer, the Trustee, the Securities Administrator and the Servicer with the consent of the Holders of Certificates entitled to at least 66% of the Voting Rights. Any such consent by the Holder of this Certificate shall be ~~as principal~~ conclusive and binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in exchange herefor or in lieu hereof whether or not ~~merely as surety~~notation of such consent is made upon this Certificate. The Agreement also permits the amendment thereof, ~~and shall be absolute and unconditional~~in certain limited circumstances, ~~and shall not be affected, modified or impaired by~~ without the ~~following: (a) the failure to give notice to the Guarantors~~ consent of the occurrence of an Event of Default under the Indenture; (b) the waiver, surrender, compromise, settlement, release or termination of the payment, performance or observance by the Operating Partnership or the Guarantors of any or all of the obligations, covenants or agreements of either of them contained in the Indenture or the 2018 Notes; (c) the acceleration, extension or any other changes in the time for payment of any principal of or interest or any premium on any 2018 Note or for any other payment under the Indenture or of the time for performance of any other obligations, covenants or agreements under or arising out of the Indenture or the 2018 Notes; (d) the modification or amendment (whether material or otherwise) of any obligation, covenant or agreement set forth in the Indenture or the 2018 Notes; (e) the taking or the omission Holders of any of the ~~actions referred to~~ Certificates. As provided in the ~~Indenture~~ Agreement and subject to certain limitations therein set forth, the transfer of this Certificate is registrable in ~~any~~ the Certificate Register upon surrender of this Certificate for registration of transfer at the offices or agencies appointed by the Securities Administrator as provided in the Agreement, duly endorsed by, or accompanied by an assignment in the form below 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 ~~actions~~ same Class in authorized denominations evidencing the same aggregate Percentage Interest will be issued to the designated transferee or transferees. No transfer of this Certificate shall be made unless the transfer is made pursuant to an effective registration statement under the ~~2018 Notes;~~ Securities Act of 1933, as amended (fthe "1933 Act"), and an effective registration or qualification under applicable state securities laws, or is made in a transaction that does not require such registration or qualification. In the event that such a transfer of this Certificate is to be made without registration or qualification, the Securities Administrator shall require receipt of (i) ~~any failure~~if such transfer is purportedly being made in reliance upon Rule 144A under the 1933 Act, ~~omission~~written certifications from the Holder of the Certificate desiring to effect the transfer, ~~delay~~ and from such Holder's prospective transferee, substantially in the forms attached to the Agreement as Exhibit B-1, and (ii) in all other cases, an Opinion of Counsel satisfactory to it that such transfer may be made without such registration or ~~lack~~ qualification (which Opinion of Counsel shall not be an expense of the Trust Fund or of the Depositor, the Trustee, the Master Servicer or the Securities Administrator in their respective capacities as such), together with copies of the written certification(s) of the Holder of the Certificate desiring to effect the transfer and/or such Holder's prospective transferee upon which such Opinion of Counsel is based. None of the Depositor, the Trustee or the Securities Administrator is obligated to register or qualify the Class of Certificates specified on the ~~part of~~ face hereof under the ~~Trustee to enforce, assert or exercise any right, power or remedy conferred on the Trustee in the Indenture,~~ 1933 Act or any other securities law or to take any action not otherwise required under the Agreement to permit the transfer of such Certificates without registration or ~~acts on~~ qualification. Any Holder desiring to effect a transfer of this Certificate shall be required to indemnify the ~~part~~ Trustee, the Depositor, the Master Servicer 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. No transfer of this Certificate to a Plan subject to ERISA or Section 4975 of the Trustee or any of the Holders from time to time of the 2018 Notes; (g) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all the assets, marshaling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition with creditors or readjustment of, or other similar proceedings affecting the Guarantors or the Operating Partnership or any of the assets of any of them, or any allegation or contest of the validity of this Subsidiary Guarantee in any such proceeding; (h) to the extent permitted by law, the release or discharge by operation of law of the Guarantors from the performance or observance of any obligation, covenant or agreement contained in the Indenture; (i) to the extent permitted by law, the release or discharge by operation of law of the Operating Partnership from the performance or observance of any obligation, covenant or agreement contained in the Indenture; (j) the default or failure of the Operating Partnership or the Trustee fully to perform any of its obligations set forth in the Indenture or the 2018 Notes; (k) the invalidity, irregularity or unenforceability of the Indenture or the 2018 Notes or any part of any thereof; (l) any judicial or governmental action affecting the Operating Partnership or any 2018 Notes or consent or indulgence granted by the Operating Partnership by the Holders or by the Trustee; or (m) the recovery of any judgment against the Operating Partnership or any action to enforce the same or any other circumstance which might constitute a legal or equitable discharge of a surety or guarantor. The undersigned hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of merger, sale, lease or conveyance of all or substantially all of its assets, insolvency or bankruptcy of the Operating PartnershipCode, any right to require a proceeding first against the Operating Partnership, protest or notice with respect to such Notice or the indebtedness evidenced thereby and all demands whatsoever, and covenants that this Subsidiary Guarantee will not be discharged except by complete performance of the obligations contained in such 2018 Note and in this Subsidiary Guarantee. No reference herein to such Indenture and no provision of this Subsidiary Guarantee or of such Indenture shall alter or impair the guarantee of the undersigned, which is absolute and unconditional, of the full and prompt payment of the principal of and premium, if any, and interest on the 2018 Note. THIS SUBSIDIARY GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. The validity and enforceability of this Subsidiary Guarantee shall not be affected by the fact that it is not affixed to any particular 2018 Note. An Event of Default under the Indenture or the 2018 Notes shall constitute an event of default under this Subsidiary Guarantee, and shall entitle the Holders of 2018 Notes to accelerate the obligations of the undersigned hereunder in the same manner and to the same extent as the obligations of the Operating Partnership. Notwithstanding any other provision of this Subsidiary Guarantee to the contrary, the undersigned hereby waives any claims or other rights which it may now have or hereafter acquire against the Operating Partnership that arise from the existence or performance of its obligations under this Subsidiary Guarantee (all such claims and rights are referred to as "Guarantor's Conditional Rights"), including, without limitation, any right of subrogation, reimbursement, exoneration, contribution, or indemnification, any right to participate in any claim or remedy against the Operating Partnership, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, by any payment made hereunder or otherwise, including without limitation, the right to take or receive from Operating PartnershipPerson acting, directly or indirectly, on behalf of any such Plan or any Person using "Plan Assets" to acquire this Certificate shall be made except in ~~cash~~ accordance with Section 6.02(c) of the Agreement. The Certificates are issuable in fully registered form only without coupons in Classes and denominations representing Percentage Interests specified in the Agreement. As provided in the Agreement and subject to certain limitations therein set forth, the Certificates are exchangeable for new Certificates of the same Class in authorized denominations evidencing the same aggregate Percentage Interest, as requested by the Holder surrendering the same. No service charge will be made for any such registration of transfer or exchange of Certificates, but the Securities Administrator may require payment of a sum sufficient to cover any tax or other ~~property~~ governmental charge that may be imposed in connection with any transfer or ~~by setoff or in any other manner, payment or security on account~~ exchange of ~~such claim or other rights~~Certificates. The Subsidiary Guarantor hereby agrees not to exercise any rights which may be acquired by way of contribution under this Subsidiary Guarantee or any other agreement, by any payment made hereunder or otherwise, including, without limitationDepositor, the ~~right~~ Master Servicer, the Trustee, the Securities Administrator, the Servicer and any agent of the Depositor, the Master Servicer, the Trustee, the Securities Administrator or the Servicer 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 Trustee, the Securities Administrator, the Servicer nor any such agent shall be affected by notice to ~~take or receive from any other guarantor, directly or indirectly, in cash or other property or~~ the contrary. The obligations created by ~~setoff or in any other manner,~~ the Agreement and the Trust Fund created thereby shall terminate upon payment ~~or security on account~~ to the Certificateholders of ~~such contribution rights. If, notwithstanding~~ all amounts held by the ~~foregoing provisions, any amount shall~~ Securities Administrator and required to be paid to ~~any~~ them pursuant to the Agreement following the earlier of ~~the undersigned on account of any such Guarantor's Conditional Rights and either~~ (i) ~~such amount is paid to such undersigned party at~~ the final payment or other liquidation (or any ~~time when~~ advance with respect thereto) of the ~~indebtedness shall not have been paid or performed~~ last Mortgage Loan remaining in ~~full, or~~ REMIC I and (ii) ~~regardless~~ the purchase by the party designated in the Agreement at a price determined as provided in the Agreement from REMIC I of ~~when~~ all the Mortgage Loans and all property acquired in respect of such ~~amount~~ Mortgage Loans. The Agreement permits, but does not require, the party designated in the Agreement to purchase from REMIC I all the Mortgage Loans and all property acquired in respect of any Mortgage Loan at a price determined as provided in the Agreement. The exercise of such right will effect early retirement of the Certificates; however, such right to purchase is ~~paid to such undersigned party, any payment made by Operating Partnership to a Holder that is at any time determined to be a Preferential Payment (as defined below), then such amount paid~~ subject to the ~~undersigned~~ aggregate Stated Principal Balance of the Mortgage Loans at the time of purchase being less than 10% of the aggregate principal balance of the Mortgage Loans as of the Cut-off Date. The recitals contained herein shall be ~~held in trust for the benefit~~ taken as statements of the ~~Holders~~ Depositor and ~~shall forthwith be paid such Holder to be credited and applied upon~~ neither the ~~indebtedness~~Trustee nor the Securities Administrator assume any responsibility for their correctness. Unless the certificate of authentication hereon has been executed by the Securities Administrator, ~~whether matured or unmatured. Any such payment is herein referred to as a "Preferential Payment" to the extent the Operating Partnership makes any payment to Holder in connection with the Note~~by manual signature, and any or all of such payment is subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid or paid over to a trustee, receiver or any other entity, whether under any bankruptcy act or otherwise. To the extent that any of the provisions of the immediately preceding paragraph this Certificate shall not be ~~enforceable, each of~~ entitled to any benefit under the ~~undersigned agrees that until such time as the indebtedness has been paid and performed in full and the period of time has expired during which~~ Agreement or be valid for any payment made by the Operating Partnership or the undersigned to a Holder may be determined to be a Preferential Payment, Guarantor's Conditional Rights to the extent not validly waived shall be subordinate to Holders' right to full payment and performance of the indebtedness and each of the undersigned shall not enforce any of its respective portion of the Guarantors' Conditional Rights until such time as the indebtedness has been paid and performed in full and the period of time has expired during which any payment made by the Operating Partnership or the undersigned to Holders may be determined to be a Preferential Payment. The undersigned's liability (the "Base Guaranty Liability") shall be that amount from time to time equal to the aggregate liability of the undersigned hereunder, but shall be limited to the lesser of (A) the aggregate amount of the obligation as stated in the second sentence of Section 1401 of the Indenture, and (B) the amount, if any, which would not have (i) rendered the undersigned "insolvent" (as such term is defined in Section 101(29) of the Federal Bankruptcy Code and in Section 271 of the Debtor and Creditor Law of the State of New York, as each is in effect at the date of the Indenture) or (ii) left the undersigned with unreasonably small capital at the time its Guarantee was entered into, after giving effect to the incurrence of existing Debt (as defined in the Indenture) immediately prior to such time, provided that, it shall be a presumption in any lawsuit or other proceeding in which the undersigned is a party that the amount guaranteed is the amount set forth in (A) above unless a creditor, or representative of creditors of the undersigned or a trustee in bankruptcy of the undersigned, as debtor in possession, otherwise proves in such a lawsuit that the aggregate liability of the undersigned is limited to the amount set forth in (B). In making any determination as to the solvency or sufficiency of capital of the undersigned in accordance with the previous sentence, the right of the undersigned to contribution from other Guarantors, to subrogation and any other rights the undersigned may have, contractual or otherwise, shall be taken into account. The obligations of the undersigned to the Holders of the 2018 Notes and to the Trustee pursuant to the Subsidiary Guarantee and the Indenture are expressly set forth in Article 14 of the Indenture and reference is hereby made to the Indenture for the precise terms of the Subsidiary Guarantee and all of the other provisions of the Indenture to which this Subsidiary Guarantee relates. Capitalized terms in this Subsidiary Guarantee which are not defined herein shall have the meanings assigned to them in the Indenturepurpose.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Home Equity Loan Trust Series 2004-Hs1)

Dated. ~~Notice~~Signature by or on behalf of assignor DISTRIBUTION INSTRUCTIONS The assignee should include the following for purposes of distribution: The signature to this assignment must correspond with the name as it appears upon the face of the within Note in every particular, without alteration or enlargement or any change whatever. ABBREVIATIONS The following abbreviations, when used in the inscription on the face of this instrument, Distributions shall be ~~construed as though they were written out~~ made, by wire transfer or otherwise, in full according to applicable laws or regulations: TEN COM--as tenants in common UNIF GIFT MIN ACT--_____ Custodian______ TEN ENT--as tenants by the entireties (Cust) (Minor) JT TEN--as joint tenants with right Under Uniform Gifts to Minors of survivorship and not as Actimmediately available funds to__________________________ tenants in common (State) Additional abbreviations may also be used though not in the above list. --------------------------- [FORM OF SCHEDULE FOR ENDORSEMENTS ON GLOBAL SECURITY TO REFLECT CHANGES IN PRINCIPAL AMOUNT] Schedule A Changes to Principal Amount of Global Security Principal Amount of Securities by which this Global Security is to be Reduced or Increased, and Reason for Remaining Principal Amount of Notation Date Reduction or Increase this Global Securities Made by ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- Exhibit B SUBSIDIARY GUARANTEE FOR VALUE RECEIVED, the undersigned hereby jointly and severally with the Parent Guarantor pursuant to the Parent Guarantee and any other subsidiary Guarantors under their respective Subsidiary Guarantees, unconditionally guarantees to the Holder of the accompanying _____~~% Note Due June~~ ___________________, ~~2018~~ _______________________________________________________________________________, for the account of ____________________________________________________________, account number ______________, or, if mailed by check, to______________________. Applicable statements should be mailed to______________________________________, _______________________________________________________________________________. This information is provided by ___________________________________, the assignee named above, or __________________________________________________, as its agent. EXHIBIT A-2 FORM OF CLASS A-IO CERTIFICATE Unless this Certificate is presented by an authorized representative of the Depository Trust Company, a New York corporation ("DTC"), to Issuer or its agent for registration of transfer, exchange, or payment, and any certificate issued is registered in the name of Cede & Co. or in such other name as is requested by an authorized representative of DTC (and any payment is made to Cede & Co. or to such other entity as is requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest herein. SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS AN INTEREST IN A "~~2018 Note~~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 ASSETS. Certificate No. : Cut-off Date : June 1, 2004 First Distribution Date : July 26, 2004 Initial Notional Amount of this Certificate ("Denomination") ~~issued~~ Original Class A-IO Notional Amount : CUSIP ISIN GS MORTGAGE SECURITIES CORP. GSAMP Trust 2004-SEA2 Mortgage Pass-Through Certificates, Series 2004-SEA2 Class A-IO evidencing a percentage interest in the distributions allocable to the Certificates of the above-referenced Class. Payments in reduction of the Class A-IO Notional Amount in respect of this Certificate are distributable monthly as set forth herein. Accordingly, the Class A-IO Notional Amount represented by ~~AMB Property~~this Certificate may be less than the Denomination as set forth herein. This Certificate does not evidence an obligation of, ~~L.P.~~ or an interest in, and is not guaranteed by the Depositor, the Servicer or the Trustee referred to below or any of their respective affiliates. Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any governmental agency or instrumentality. This certifies that CEDE & CO. is the registered owner of the Percentage Interest evidenced by this Certificate (obtained by dividing the ~~"Operating Partnership"~~Initial Notional Amount of this Certificate by the Original Class A-IO Notional Amount) ~~under an Indenture~~ in certain monthly distributions pursuant to a Pooling and Servicing Agreement, dated as of June ~~___~~1, ~~1998~~ 2004 (~~together with the Second Supplemental Indenture thereto,~~ the "~~Indenture~~Agreement") ), among GS Mortgage Securities Corp., as depositor (the ~~Operating Partnership~~"Depositor"), ~~AMB Property Corporation~~Ocwen Federal Bank FSB, ~~and State Street~~ as servicer, (the "Servicer"), Bank ~~and Trust Company of California~~One, N.A., as servicer and responsible party (the "Responsible Party") and JPMorgan Chase Bank, as trustee and Backup servicer (the "Trustee"), (a) the full and prompt payment of the principal of and premium, if any, on such 2018 Note when and as the same shall become due and payable, whether at Stated Maturity, by acceleration, by redemption or otherwise, and (b) the full and prompt payment of the interest on such 2018 Note when and as the same shall become due and payable, according to the terms of such 2018 Note and of the Indenture. The undersigned hereby agrees, jointly and severally with the Parent Guarantor pursuant to the Parent Guarantee and any other Subsidiary Guarantors under their respective Subsidiary Guarantees, that its obligations hereunder shall be as principal and not merely as surety, and shall be absolute and unconditional, and shall not be affected, modified or impaired by the following: (a) the failure to give notice to the Guarantors of the occurrence of an Event of Default under the Indenture; (b) the waiver, surrender, compromise, settlement, release or termination of the payment, performance or observance by the Operating Partnership or the Guarantors of any or all of the obligations, covenants or agreements of either of them contained in the Indenture or the 2018 Notes; (c) the acceleration, extension or any other changes in the time for payment of any principal of or interest or any premium on any 2018 Note or for any other payment under the Indenture or of the time for performance of any other obligations, covenants or agreements under or arising out of the Indenture or the 2018 Notes; (d) the modification or amendment (whether material or otherwise) of any obligation, covenant or agreement set forth in the Indenture or the 2018 Notes; (e) the taking or the omission of any of the actions referred to in the Indenture and in any of the actions under the 2018 Notes; (f) any failure, omission, delay or lack on the part of the Trustee to enforce, assert or exercise any right, power or remedy conferred on the Trustee in the Indenture, or any other action or acts on the part of the Trustee or any of the Holders from time to time of the 2018 Notes; (g) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all the assets, marshaling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition with creditors or readjustment of, or other similar proceedings affecting the Guarantors or the Operating Partnership or any of the assets of any of them, or any allegation or contest of the validity of this Subsidiary Guarantee in any such proceeding; (h) to the extent permitted by law, the release or discharge by operation of law of the Guarantors from the performance or observance of any obligation, covenant or agreement contained in the Indenture; (i) to the extent permitted by law, the release or discharge by operation of law of the Operating Partnership from the performance or observance of any obligation, covenant or agreement contained in the Indenture; (j) the default or failure of the Operating Partnership or the Trustee fully to perform any of its obligations set forth in the Indenture or the 2018 Notes; (k) the invalidity, irregularity or unenforceability of the Indenture or the 2018 Notes or any part of any thereof; (l) any judicial or governmental action affecting the Operating Partnership or any 2018 Notes or consent or indulgence granted by the Operating Partnership by the Holders or by the Trustee; or (m) the recovery of any judgment against the Operating Partnership or any action to enforce the same or any other circumstance which might constitute a legal or equitable discharge of a surety or guarantor. The undersigned hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of merger, sale, lease or conveyance of all or substantially all of its assets, insolvency or bankruptcy of the Operating Partnership, any right to require a proceeding first against the Operating Partnership, protest or notice with respect to such Notice or the indebtedness evidenced thereby and all demands whatsoever, and covenants that this Subsidiary Guarantee will not be discharged except by complete performance of the obligations contained in such 2018 Note and in this Subsidiary Guarantee. No reference herein to such Indenture and no provision of this Subsidiary Guarantee or of such Indenture shall alter or impair the guarantee of the undersigned, which is absolute and unconditional, of the full and prompt payment of the principal of and premium, if any, and interest on the 2018 Note. THIS SUBSIDIARY GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. The validity and enforceability of this Subsidiary Guarantee shall not be affected by the fact that it is not affixed to any particular 2018 Note. An Event of Default under the Indenture or the 2018 Notes shall constitute an event of default under this Subsidiary Guarantee, and shall entitle the Holders of 2018 Notes to accelerate the obligations of the undersigned hereunder in the same manner and to the same extent as the obligations of the Operating Partnership. Notwithstanding any other provision of this Subsidiary Guarantee to the contrary, the undersigned hereby waives any claims or other rights which it may now have or hereafter acquire against the Operating Partnership that arise from the existence or performance of its obligations under this Subsidiary Guarantee (all such claims and rights are referred to as "Guarantor's Conditional Rights"), including, without limitation, any right of subrogation, reimbursement, exoneration, contribution, or indemnification, any right to participate in any claim or remedy against the Operating Partnership, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, by any payment made hereunder or otherwise, including without limitation, the right to take or receive from Operating Partnership, directly or indirectly, in cash or other property or by setoff or in any other manner, payment or security on account of such claim or other rights. The Subsidiary Guarantor hereby agrees not to exercise any rights which may be acquired by way of contribution under this Subsidiary Guarantee or any other agreement, by any payment made hereunder or otherwise, including, without limitation, the right to take or receive from any other guarantor, directly or indirectly, in cash or other property or by setoff or in any other manner, payment or security on account of such contribution rights. If, notwithstanding the foregoing provisions, any amount shall be paid to any of the undersigned on account of any such Guarantor's Conditional Rights and either (i) such amount is paid to such undersigned party at any time when the indebtedness shall not have been paid or performed in full, or (ii) regardless of when such amount is paid to such undersigned party, any payment made by Operating Partnership to a Holder that is at any time determined to be a Preferential Payment (as defined below), then such amount paid to the undersigned shall be held in trust for the benefit of the Holders and shall forthwith be paid such Holder to be credited and applied upon the indebtedness, whether matured or unmatured. Any such payment is herein referred to as a "Preferential Payment" to the extent the Operating Partnership makes any payment to Holder in connection with the Note, and any or all of such payment is subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid or paid over to a trustee, receiver or any other entity, whether under any bankruptcy act or otherwise. To the extent ~~that any~~ not defined herein, the capitalized terms used herein have the meanings assigned in the Agreement. This Certificate is issued under and is subject to the terms, provisions and conditions of the ~~provisions~~ Agreement, to which Agreement the Holder of this Certificate by virtue of the ~~immediately preceding paragraph shall not be enforceable, each of the undersigned agrees that until~~ acceptance hereof assents and by which such ~~time as the indebtedness has been paid and performed in full and the period of time has expired during which any payment made by the Operating Partnership or the undersigned to a~~ Holder may be determined to be a Preferential Payment, Guarantor's Conditional Rights to the extent not validly waived shall be subordinate to Holders' right to full payment and performance of the indebtedness and each of the undersigned shall not enforce any of its respective portion of the Guarantors' Conditional Rights until such time as the indebtedness has been paid and performed in full and the period of time has expired during which any payment made by the Operating Partnership or the undersigned to Holders may be determined to be a Preferential Paymentis bound. The undersigned's liability (the "Base Guaranty Liability") shall be that amount from time to time equal to the aggregate liability of the undersigned hereunder, but shall be limited to the lesser of (A) the aggregate amount of the obligation as stated in the second sentence of Section 1401 of the Indenture, and (B) the amount, if any, which would not have (i) rendered the undersigned "insolvent" (as such term is defined in Section 101(29) of the Federal Bankruptcy Code and in Section 271 of the Debtor and Creditor Law of the State of New York, as each is in effect at the date of the Indenture) or (ii) left the undersigned with unreasonably small capital at the time its Guarantee was entered into, after giving effect to the incurrence of existing Debt (as defined in the Indenture) immediately prior to such time, provided that, it shall be a presumption in any lawsuit or other proceeding in which the undersigned is a party that the amount guaranteed is the amount set forth in (A) above unless a creditor, or representative of creditors of the undersigned or a trustee in bankruptcy of the undersigned, as debtor in possession, otherwise proves in such a lawsuit that the aggregate liability of the undersigned is limited to the amount set forth in (B). In making any determination as to the solvency or sufficiency of capital of the undersigned in accordance with the previous sentence, the right of the undersigned to contribution from other Guarantors, to subrogation and any other rights the undersigned may have, contractual or otherwise, shall be taken into account. The obligations of the undersigned to the Holders of the 2018 Notes and to the Trustee pursuant to the Subsidiary Guarantee and the Indenture are expressly set forth in Article 14 of the Indenture and reference Reference is hereby made to the ~~Indenture~~ further provisions of this Certificate set forth on the reverse hereof, which further provisions shall for all purposes have the ~~precise terms~~ same effect as if set forth at this place. This Certificate shall not be entitled to any benefit under the Agreement or be valid for any purpose unless manually authenticated by an authorized signatory of the ~~Subsidiary Guarantee and all of the other provisions of the Indenture to which this Subsidiary Guarantee relates~~Trustee. ~~Capitalized terms in this Subsidiary Guarantee which are not defined herein shall have the meanings assigned to them in the Indenture.~~* * *

Appears in 1 contract

Samples: Pooling and Servicing Agreement (GS Mortgage GSAMP Trust 2004-Sea2)

Dated. ~~Notice~~Signature by or on behalf of assignor DISTRIBUTION INSTRUCTIONS The assignee should include the following for purposes of distribution: The signature to this assignment must correspond with the name as it appears upon the face of the within Note in every particular, without alteration or enlargement or any change whatever. ABBREVIATIONS The following abbreviations, when used in the inscription on the face of this instrument, Distributions shall be ~~construed as though they were written out~~ made, by wire transfer or otherwise, in ~~full according~~ immediately available funds to ~~applicable laws or regulations: TEN COM--as tenants in common UNIF GIFT MIN ACT--_____ Custodian~~_____~~_ TEN ENT--as tenants~~ ___________________________________________, _______________________________________________________________________________, for the account of ____________________________________________________________, account number_____________, or, if mailed by ~~the entireties (Cust) (Minor) JT TEN--as joint tenants with right Under Uniform Gifts~~ check, to ~~Minors of survivorship and not as Act~~_______________________. Applicable statements should be mailed to _____________________________________, _______________________________________________________________________________. This information is provided by________________________________________ tenants in common (State) Additional abbreviations may also be used though not in the above list. --------------------------- [FORM OF SCHEDULE FOR ENDORSEMENTS ON GLOBAL SECURITY TO REFLECT CHANGES IN PRINCIPAL AMOUNT] Schedule A Changes to Principal Amount of Global Security Principal Amount of Securities by which this Global Security is to be Reduced or Increased, and Reason for Remaining Principal Amount of Notation Date Reduction or Increase this Global Securities Made by ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- Exhibit B SUBSIDIARY GUARANTEE FOR VALUE RECEIVED, the undersigned hereby jointly and severally with the Parent Guarantor pursuant to the Parent Guarantee and any other subsidiary Guarantors under their respective Subsidiary Guarantees, unconditionally guarantees to the Holder of the accompanying _____~~% Note Due June~~ ___________________, ~~2018 (~~the ~~"2018 Note") issued by AMB Property~~assignee named above, ~~L.P. (the "Operating Partnership") under an Indenture dated as of June~~ or__________________________ ______________________________________, ~~1998~~ as its agent. EXHIBIT D SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (~~together with~~ THE "CODE"). NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE PROPOSED TRANSFEROR DELIVERS TO THE TRUSTEE A TRANSFEROR LETTER IN THE FORM OF EXHIBIT H TO THE AGREEMENT REFERRED TO HEREIN AND EITHER (I) THE TRUSTEE RECEIVES A RULE 144A LETTER IN THE FORM OF EXHIBIT I TO THE AGREEMENT REFERRED TO HEREIN OR (II) THE TRUSTEE RECEIVES AN OPINION OF COUNSEL, DELIVERED AT THE EXPENSE OF THE TRANSFEROR, THAT SUCH TRANSFER MAY BE MADE WITHOUT REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED. NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE TRANSFEREE DELIVERS TO THE TRUSTEE EITHER A REPRESENTATION LETTER TO THE EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO SECTION 4975 OF THE CODE, OR, IF THE TRANSFEREE IS AN INSURANCE COMPANY, A REPRESENTATION LETTER THAT IT IS USING THE ASSETS OF ITS GENERAL ACCOUNT AND THAT THE PURCHASE AND HOLDING OF THIS CERTIFICATE ARE COVERED UNDER SECTIONS I AND III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 OR AN OPINION OF COUNSEL SATISFACTORY TO THE TRUSTEE AND THE SERVICER, TO THE EFFECT THAT THE PURCHASE OR HOLDING OF THIS CERTIFICATE WILL NOT RESULT IN THE ASSETS OF THE TRUST FUND BEING DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE OR SIMILAR VIOLATION OF SIMILAR LAW AND WILL NOT SUBJECT THE TRUSTEE OR THE SERVICER TO ANY OBLIGATION IN ADDITION TO THOSE EXPRESSLY UNDERTAKEN IN THIS AGREEMENT OR TO ANY LIABILITY. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, ANY PURPORTED TRANSFER OF THIS CERTIFICATE TO OR ON BEHALF OF AN EMPLOYEE BENEFIT PLAN SUBJECT TO ERISA OR TO THE CODE WITHOUT THE REPRESENTATION LETTER AS DESCRIBED ABOVE SHALL BE VOID AND OF NO EFFECT. Certificate No. : 1 Cut-off Date : March 1, 2002 First Distribution Date : April 25, 2002 Percentage Interest of this Certificate ("Denomination") : 100% CUSIP : XXXXXX XXXXXXX XXXX XXXXXX CAPITAL I INC. Xxxxxx Xxxxxxx Xxxx Xxxxxx Capital I Inc. Trust 2002-NC1 Mortgage Pass-Through Certificates, Series 2002-NC1 Class X evidencing a percentage interest in the ~~Second Supplemental Indenture thereto~~distributions allocable to the Certificates of the above-referenced Class. Distributions in respect of this Certificate are distributable monthly as set forth herein. This Certificate does not evidence an obligation of, or an interest in, and is not guaranteed by the Depositor, the Servicer, the Responsible Party or the Trustee referred to below or any of their respective affiliates. Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any governmental agency or instrumentality. This certifies that U.S. Bank National Association, as Indenture Trustee, is the registered owner of the Percentage Interest evidenced by this Certificate (obtained by dividing the denomination of this Certificate by the aggregate of the denominations of all Certificates of the Class to which this Certificate belongs) in certain monthly distributions pursuant to a Pooling and Servicing Agreement dated as of the Cut-off Date specified above (the "~~Indenture~~Agreement") among Xxxxxx Xxxxxxx Xxxx Xxxxxx Capital I Inc., as depositor (the ~~Operating Partnership~~"Depositor"), ~~AMB Property~~ The Provident Bank, as servicer (the "Servicer"), NC Capital Corporation, as responsible party (the "Responsible Party") and ~~State Street~~ U.S. Bank ~~and Trust Company of California, N.A.~~National Association, as trustee (the "Trustee"). To the extent not defined herein, ~~(a)~~ the ~~full~~ capitalized terms used herein have the meanings assigned in the Agreement. This Certificate is issued under and ~~prompt payment~~ is subject to the terms, provisions and conditions of the ~~principal~~ Agreement, to which Agreement the Holder of ~~and premium, if any, on such 2018 Note when and as the same shall become due and payable, whether at Stated Maturity,~~ this Certificate by ~~acceleration, by redemption or otherwise, and (b) the full and prompt payment~~ virtue of the ~~interest on~~ acceptance hereof assents and by which such ~~2018 Note when~~ Holder is bound. This Certificate does not have a Certificate Balance or Pass-Through Rate and ~~as the same shall become due and payable, according~~ will be entitled to distributions only to the terms of such 2018 Note and of the Indenture. The undersigned hereby agrees, jointly and severally with the Parent Guarantor pursuant to the Parent Guarantee and any other Subsidiary Guarantors under their respective Subsidiary Guarantees, that its obligations hereunder shall be as principal and not merely as surety, and shall be absolute and unconditional, and shall not be affected, modified or impaired by the following: (a) the failure to give notice to the Guarantors of the occurrence of an Event of Default under the Indenture; (b) the waiver, surrender, compromise, settlement, release or termination of the payment, performance or observance by the Operating Partnership or the Guarantors of any or all of the obligations, covenants or agreements of either of them contained in the Indenture or the 2018 Notes; (c) the acceleration, extension or any other changes in the time for payment of any principal of or interest or any premium on any 2018 Note or for any other payment under the Indenture or of the time for performance of any other obligations, covenants or agreements under or arising out of the Indenture or the 2018 Notes; (d) the modification or amendment (whether material or otherwise) of any obligation, covenant or agreement extent set forth in the ~~Indenture~~ Agreement. In addition, any distribution of the proceeds of any remaining assets of the Trust will be made only upon presentment and surrender of this Certificate at the offices designated by the Trustee for such purposes or the ~~2018 Notes; (e) the taking~~ office or the omission of any of the actions referred to in the Indenture and in any of the actions under the 2018 Notes; (f) any failure, omission, delay or lack on the part of the Trustee to enforce, assert or exercise any right, power or remedy conferred on the Trustee in the Indenture, or any other action or acts on the part of the Trustee or any of the Holders from time to time of the 2018 Notes; (g) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all the assets, marshaling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition with creditors or readjustment of, or other similar proceedings affecting the Guarantors or the Operating Partnership or any of the assets of any of them, or any allegation or contest of the validity of this Subsidiary Guarantee in any such proceeding; (h) to the extent permitted by law, the release or discharge by operation of law of the Guarantors from the performance or observance of any obligation, covenant or agreement contained in the Indenture; (i) to the extent permitted by law, the release or discharge by operation of law of the Operating Partnership from the performance or observance of any obligation, covenant or agreement contained in the Indenture; (j) the default or failure of the Operating Partnership or the Trustee fully to perform any of its obligations set forth in the Indenture or the 2018 Notes; (k) the invalidity, irregularity or unenforceability of the Indenture or the 2018 Notes or any part of any thereof; (l) any judicial or governmental action affecting the Operating Partnership or any 2018 Notes or consent or indulgence granted by the Operating Partnership by the Holders or agency maintained by the Trustee~~; or (m) the recovery of any judgment against the Operating Partnership or any action to enforce the same or any other circumstance which might constitute a legal or equitable discharge~~ . No transfer of a ~~surety~~ Certificate of this Class shall be made unless such disposition is exempt from the registration requirements of the Securities Act of 1933, as amended (the "1933 Act"), and any applicable state securities laws or ~~guarantor~~is made in accordance with the 1933 Act and such laws. ~~The undersigned hereby waives diligence, presentment, demand of payment, filing of claims with a court in~~ In the event of ~~merger~~any such transfer, ~~sale, lease or conveyance of all or~~ the Trustee shall require the transferor to execute a transferor certificate (in substantially ~~all of its assets, insolvency or bankruptcy of~~ the Operating Partnership, any right to require a proceeding first against the Operating Partnership, protest or notice with respect to such Notice or the indebtedness evidenced thereby and all demands whatsoever, and covenants that this Subsidiary Guarantee will not be discharged except by complete performance of the obligations contained in such 2018 Note and in this Subsidiary Guarantee. No reference herein to such Indenture and no provision of this Subsidiary Guarantee or of such Indenture shall alter or impair the guarantee of the undersigned, which is absolute and unconditional, of the full and prompt payment of the principal of and premium, if any, and interest on the 2018 Note. THIS SUBSIDIARY GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. The validity and enforceability of this Subsidiary Guarantee shall not be affected by the fact that it is not affixed to any particular 2018 Note. An Event of Default under the Indenture or the 2018 Notes shall constitute an event of default under this Subsidiary Guarantee, and shall entitle the Holders of 2018 Notes to accelerate the obligations of the undersigned hereunder in the same manner and form attached to the same extent as the obligations of the Operating Partnership. Notwithstanding any other provision of this Subsidiary Guarantee to the contrary, the undersigned hereby waives any claims or other rights which it may now have or hereafter acquire against the Operating Partnership that arise from the existence or performance of its obligations under this Subsidiary Guarantee (all such claims Pooling and rights are referred to as "Guarantor's Conditional Rights"), including, without limitation, any right of subrogation, reimbursement, exoneration, contribution, or indemnification, any right to participate in any claim or remedy against the Operating Partnership, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, by any payment made hereunder or otherwise, including without limitation, the right to take or receive from Operating Partnership, directly or indirectly, in cash or other property or by setoff or in any other manner, payment or security on account of such claim or other rights. The Subsidiary Guarantor hereby agrees not to exercise any rights which may be acquired by way of contribution under this Subsidiary Guarantee or any other agreement, by any payment made hereunder or otherwise, including, without limitation, the right to take or receive from any other guarantor, directly or indirectly, in cash or other property or by setoff or in any other manner, payment or security on account of such contribution rights. If, notwithstanding the foregoing provisions, any amount shall be paid to any of the undersigned on account of any such Guarantor's Conditional Rights Servicing Agreement) and deliver either (i) ~~such amount is paid~~ a Rule 144A Letter, in either case substantially in the form attached to ~~such undersigned party at any time when~~ the ~~indebtedness shall not have been paid or performed in full~~Agreement, or (ii) ~~regardless~~ a written Opinion of when such amount is paid to such undersigned party, any payment made by Operating Partnership to a Holder that is at any time determined to be a Preferential Payment (as defined below), then such amount paid Counsel to the ~~undersigned~~ Trustee that such transfer may be made pursuant to an exemption, describing the applicable exemption and the basis therefor, from the 1933 Act or is being made pursuant to the 1933 Act, which Opinion of Counsel shall be ~~held in trust for the benefit~~ an expense of the ~~Holders~~ transferor. No transfer of a Certificate of this Class shall be made unless the Trustee shall have received either (i) a representation letter from the transferee of such Certificate, acceptable to and ~~shall forthwith be paid such Holder to be credited~~ in form and ~~applied upon the indebtedness, whether matured or unmatured. Any such payment is herein referred to as a "Preferential Payment"~~ substance satisfactory to the ~~extent~~ Trustee, to the ~~Operating Partnership makes any payment~~ effect that such transferee is not an employee benefit plan subject to ~~Holder in connection with~~ Section 406 of ERISA or Section 4975 of the ~~Note, and any or all of such payment is subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid or paid over to a trustee, receiver~~ Code or any ~~other entity, whether under any bankruptcy act or otherwise. To the extent that any of the~~ materially similar provisions of ~~the immediately preceding paragraph~~ applicable Federal, state or local law ("Similar Law") or a person acting on behalf of or investing plan assets of any such plan, which representation letter shall not be ~~enforceable, each~~ an expense of the undersigned agrees that until such time as the indebtedness has been paid and performed in full and the period of time has expired during which any payment made by the Operating Partnership or the undersigned to a Holder may be determined to be a Preferential PaymentTrustee, Guarantor's Conditional Rights to the extent not validly waived shall be subordinate to Holders' right to full payment and performance of the indebtedness and each of the undersigned shall not enforce any of its respective portion of the Guarantors' Conditional Rights until such time as the indebtedness has been paid and performed in full and the period of time has expired during which any payment made by the Operating Partnership or the undersigned to Holders may be determined to be a Preferential Payment. The undersigned's liability (the "Base Guaranty Liability") shall be that amount from time to time equal to the aggregate liability of the undersigned hereunder, but shall be limited to the lesser of (A) the aggregate amount of the obligation as stated in the second sentence of Section 1401 of the Indenture, and (B) the amount, if any, which would not have (i) rendered the undersigned "insolvent" (as such term is defined in Section 101(29) of the Federal Bankruptcy Code and in Section 271 of the Debtor and Creditor Law of the State of New York, as each is in effect at the date of the Indenture) or (ii) ~~left~~ if the ~~undersigned~~ transferee is an insurance company, a representation letter that it is purchasing such Certificates with ~~unreasonably small capital at~~ the ~~time~~ assets of its ~~Guarantee was entered into~~general account and that the purchase and holding of such Certificates are covered under Sections I and III of PTCE 95-60, ~~after giving effect to the incurrence of existing Debt~~ or (~~as defined~~ iii) in the ~~Indenture) immediately prior~~ case of a Certificate presented for registration in the name of an employee benefit plan subject to such time, provided that, it shall be a presumption in any lawsuit or other proceeding in which the undersigned is a party that the amount guaranteed is the amount set forth in (A) above unless a creditorERISA, or ~~representative of creditors~~ a plan or arrangement subject to Section 4975 of the ~~undersigned~~ Code (or comparable provisions of any subsequent enactments) or a plan subject to Similar Law, or a trustee ~~in bankruptcy~~ of ~~the undersigned, as debtor in possession, otherwise proves in~~ any such ~~a lawsuit that the aggregate liability of the undersigned is limited to the amount set forth in (B). In making any determination as to the solvency~~ plan or ~~sufficiency of capital of the undersigned in accordance with the previous sentence, the right of the undersigned to contribution from other Guarantors, to subrogation and~~ any other ~~rights the undersigned may have~~person acting on behalf of any such plan or arrangement or using such plan's or arrangement's assets, ~~contractual or otherwise, shall be taken into account. The obligations~~ an Opinion of ~~the undersigned to the Holders of the 2018 Notes and~~ Counsel satisfactory to the Trustee ~~pursuant~~ and the Servicer, which Opinion of Counsel shall not be an expense of the Trustee, the Servicer or the Trust Fund, addressed to the ~~Subsidiary Guarantee~~ Trustee, to the effect that the purchase or holding of such Certificate will not result in the assets of the Trust Fund being deemed to be "plan assets" and subject to the prohibited transaction provisions of ERISA and the ~~Indenture are~~ Code and will not subject the Trustee or the Servicer to any obligation in addition to those expressly ~~set forth~~ undertaken in ~~Article 14 of the Indenture and reference~~ this Agreement or to any liability. Reference is hereby made to the ~~Indenture~~ further provisions of this Certificate set forth on the reverse hereof, which further provisions shall for all purposes have the ~~precise terms~~ same effect as if set forth at this place. This Certificate shall not be entitled to any benefit under the Agreement or be valid for any purpose unless manually countersigned by an authorized signatory of the ~~Subsidiary Guarantee and all of the other provisions of the Indenture to which this Subsidiary Guarantee relates~~Trustee. ~~Capitalized terms in this Subsidiary Guarantee which are not defined herein shall have the meanings assigned to them in the Indenture.~~* * *

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Morgan Stanley Dean Witter Cap I Inc Dep Series 2002-Hq)

Dated. ~~Notice~~Signature by or on behalf of assignor ---------------------------------------- Signature Guaranteed DISTRIBUTION INSTRUCTIONS The assignee should include the following for purposes of distribution: The signature to this assignment must correspond with the name as it appears upon the face of the within Note in every particular, without alteration or enlargement or any change whatever. ABBREVIATIONS The following abbreviations, when used in the inscription on the face of this instrument, Distributions shall be ~~construed as though they were written out~~ made, by wire transfer or otherwise, in ~~full according~~ immediately available funds to ~~applicable laws or regulations: TEN COM--as tenants in common UNIF GIFT MIN ACT--_____ Custodian~~_____~~_ TEN ENT--as tenants~~ _______________________________________________________, for the account of ____________________________________________________________, account number __________, or, if mailed by ~~the entireties (Cust) (Minor) JT TEN--as joint tenants with right Under Uniform Gifts~~ check, to ~~Minors of survivorship and not as Act~~_________________________, Applicable statements should be mailed to ______________________________________ tenants in common (State) Additional abbreviations may also be used though not in the above list. --------------------------- [FORM OF SCHEDULE FOR ENDORSEMENTS ON GLOBAL SECURITY TO REFLECT CHANGES IN PRINCIPAL AMOUNT] Schedule A Changes to Principal Amount of Global Security Principal Amount of Securities by which this Global Security is to be Reduced or Increased, and Reason for Remaining Principal Amount of Notation Date Reduction or Increase this Global Securities Made by ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- Exhibit B SUBSIDIARY GUARANTEE FOR VALUE RECEIVED, the undersigned hereby jointly and severally with the Parent Guarantor pursuant to the Parent Guarantee and any other subsidiary Guarantors under their respective Subsidiary Guarantees, unconditionally guarantees to the Holder of the accompanying _____~~% Note Due June~~ __________________________________________________________________________. This information is provided by _______________________________________________, ~~2018 (~~the ~~"2018 Note") issued by AMB Property~~assignee named above, ~~L.P. (the "Operating Partnership") under an Indenture dated as of June~~ or __________________________________________________, ~~1998~~ as its agent. [ _____________ ] FORM OF CLASS A-2 CERTIFICATE UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (~~together with~~ "DTC"), TO THE TRUSTEE OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986 (THE "CODE"). Series 0000-XXX0 Xxxxxxxxx Certificate Principal Balance of the ~~Second Supplemental Indenture thereto~~Class A-2 Pass-Through Rate: Variable Certificates as of the Closing Date: [ _____________ ] Cut-off Date: November 1, ~~the "Indenture") among the Operating Partnership~~2005 Denomination: [ _____________ ] Date of Pooling and Servicing Agreement: October 31, ~~AMB Property Corporation~~2005 Servicer: Fremont Investment & Loan First Distribution Date: December 25, ~~and State Street~~ 2005 Trustee: Deutsche Bank ~~and~~ National Trust Company No. 1 Closing Date: November 3, 2005 CUSIP: [ ________ ] [_] [_] DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE AS THE DENOMINATION OF THIS CERTIFICATE. ASSET BACKED PASS-THROUGH CERTIFICATE evidencing a beneficial ownership interest in a portion of ~~California, N.A., as trustee~~ a Trust Fund (the "~~Trustee~~Trust Fund") consisting primarily of a pool of conventional one- to four-family, adjustable-rate and fixed-rate, interest-only and fully-amortizing, first lien and second lien mortgage loans (the "Mortgage Loans") formed and sold by STANWICH ASSET ACCEPTANCE COMPANY, L.L.C. THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN STANWICH ASSET ACCEPTANCE COMPANY, L.L.C., THE SERVICER, THE TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES. This certifies that Cede & Co. is the registered owner of a Percentage Interest (obtained by dividing the denomination of this Certificate by the aggregate Certificate Principal Balance of the Class A-2 Certificates as of the Closing Date) in that certain beneficial ownership interest evidenced by all the Class A-2 Certificates in REMIC II created pursuant to a Pooling and Servicing Agreement, dated as specified above (the "Agreement"), among Stanwich Asset Acceptance Company, L.L.C. (a) hereinafter called the ~~full~~ "Depositor," which term includes any successor entity under the Agreement), the Servicer and ~~prompt payment~~ the Trustee, a summary of certain of the ~~principal~~ 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 Agreement. This Certificate is issued under and ~~premium~~is subject to the terms, ~~if any, on such 2018 Note when~~ provisions and ~~as the same shall become due and payable, whether at Stated Maturity, by acceleration, by redemption or otherwise, and (b) the full and prompt payment~~ conditions of the ~~interest on~~ Agreement, to which Agreement the Holder of this Certificate by virtue of the acceptance hereof assents and by which such ~~2018 Note when and as the same shall become due and payable, according~~ Holder is bound. Pursuant to the terms of the Agreement, distributions will be made on the 25th day of each month or, if such ~~2018 Note and~~ 25th day is not a Business Day, the Business Day immediately following (a "Distribution Date"), commencing on the First Distribution Date specified above, to the Person in whose name this Certificate is registered on the Record Date, in an amount equal to the product of the ~~Indenture. The undersigned hereby agrees, jointly~~ Percentage Interest evidenced by this Certificate and ~~severally with~~ the ~~Parent Guarantor~~ amount required to be distributed to the Holders of Class A-2 Certificates on such Distribution Date pursuant to the ~~Parent Guarantee and any other Subsidiary Guarantors~~ Agreement. All distributions to the Holder of this Certificate under ~~their respective Subsidiary Guarantees, that its obligations hereunder shall~~ the Agreement will be ~~as principal and not merely as surety, and shall~~ made or caused to be ~~absolute and unconditional, and shall not be affected, modified or impaired~~ made by the ~~following: (a) the failure to give notice~~ Trustee by wire transfer in immediately available funds to the ~~Guarantors~~ account of the occurrence of an Event of Default under the Indenture; (b) the waiver, surrender, compromise, settlement, release or termination of the payment, performance or observance by the Operating Partnership or the Guarantors of any or all of the obligations, covenants or agreements of either of them contained in the Indenture or the 2018 Notes; (c) the acceleration, extension or any other changes in the time for payment of any principal of or interest or any premium on any 2018 Note or for any other payment under the Indenture or of the time for performance of any other obligations, covenants or agreements under or arising out of the Indenture or the 2018 Notes; (d) the modification or amendment (whether material or otherwise) of any obligation, covenant or agreement set forth in the Indenture or the 2018 Notes; (e) the taking or the omission of any of the actions referred to in the Indenture and in any of the actions under the 2018 Notes; (f) any failure, omission, delay or lack on the part of the Trustee to enforce, assert or exercise any right, power or remedy conferred on Person entitled thereto if such Person shall have so notified the Trustee in writing at least five Business Days prior to the ~~Indenture~~Record Date immediately prior to such Distribution Date or otherwise by check mailed by first class mail to the address of the Person entitled thereto, ~~or any other action or acts~~ as such name and address shall appear on the ~~part~~ Certificate Register. Notwithstanding the above, the final distribution on this Certificate will be made after due notice by the Trustee of the ~~Trustee or any~~ pendency of ~~the Holders from time to time of the 2018 Notes; (g) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all the assets, marshaling of assets~~ such distribution and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition with creditors or readjustment of, or other similar proceedings affecting the Guarantors or the Operating Partnership or any of the assets of any of them, or any allegation or contest of the validity only upon presentation and surrender of this ~~Subsidiary Guarantee~~ Certificate at the office or agency appointed by the Trustee for that purpose as provided in ~~any such proceeding; (h)~~ the Agreement. The Pass-Through Rate applicable to the ~~extent permitted by law, the release or discharge by operation~~ calculation of law of the Guarantors from the performance or observance of any obligation, covenant or agreement contained in the Indenture; (i) to the extent permitted by law, the release or discharge by operation of law of the Operating Partnership from the performance or observance of any obligation, covenant or agreement contained in the Indenture; (j) the default or failure of the Operating Partnership or the Trustee fully to perform any of its obligations set forth in the Indenture or the 2018 Notes; (k) the invalidity, irregularity or unenforceability of the Indenture or the 2018 Notes or any part of any thereof; (l) any judicial or governmental action affecting the Operating Partnership or any 2018 Notes or consent or indulgence granted by the Operating Partnership by the Holders or by the Trustee; or (m) the recovery of any judgment against the Operating Partnership or any action to enforce the same or any other circumstance which might constitute a legal or equitable discharge of a surety or guarantor. The undersigned hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of merger, sale, lease or conveyance of all or substantially all of its assets, insolvency or bankruptcy of the Operating Partnership, any right to require a proceeding first against the Operating Partnership, protest or notice interest payable with respect to ~~such Notice or the indebtedness evidenced thereby and all demands whatsoever, and covenants that~~ this Subsidiary Guarantee will not be discharged except by complete performance of the obligations contained in such 2018 Note and in this Subsidiary Guarantee. No reference herein to such Indenture and no provision of this Subsidiary Guarantee or of such Indenture Certificate on any Distribution Date shall alter or impair the guarantee of the undersigned, which is absolute and unconditional, of the full and prompt payment of the principal of and premium, if any, and interest on the 2018 Note. THIS SUBSIDIARY GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. The validity and enforceability of this Subsidiary Guarantee shall not be affected by the fact that it is not affixed to any particular 2018 Note. An Event of Default under the Indenture or the 2018 Notes shall constitute an event of default under this Subsidiary Guarantee, and shall entitle the Holders of 2018 Notes to accelerate the obligations of the undersigned hereunder in the same manner and to the same extent as the obligations of the Operating Partnership. Notwithstanding any other provision of this Subsidiary Guarantee to the contrary, the undersigned hereby waives any claims or other rights which it may now have or hereafter acquire against the Operating Partnership that arise from the existence or performance of its obligations under this Subsidiary Guarantee (all such claims and rights are referred to as "Guarantor's Conditional Rights"), including, without limitation, any right of subrogation, reimbursement, exoneration, contribution, or indemnification, any right to participate in any claim or remedy against the Operating Partnership, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, by any payment made hereunder or otherwise, including without limitation, the right to take or receive from Operating Partnership, directly or indirectly, in cash or other property or by setoff or in any other manner, payment or security on account of such claim or other rights. The Subsidiary Guarantor hereby agrees not to exercise any rights which may be acquired by way of contribution under this Subsidiary Guarantee or any other agreement, by any payment made hereunder or otherwise, including, without limitation, the right to take or receive from any other guarantor, directly or indirectly, in cash or other property or by setoff or in any other manner, payment or security on account of such contribution rights. If, notwithstanding the foregoing provisions, any amount shall be paid to any of the undersigned on account of any such Guarantor's Conditional Rights and either (i) such amount is paid to such undersigned party at any time when the indebtedness shall not have been paid or performed in full, or (ii) regardless of when such amount is paid to such undersigned party, any payment made by Operating Partnership to equal a Holder that is at any time determined to be a Preferential Payment (as defined below), then such amount paid to the undersigned shall be held in trust for the benefit of the Holders and shall forthwith be paid such Holder to be credited and applied upon the indebtedness, whether matured or unmatured. Any such payment is herein referred to as a "Preferential Payment" to the extent the Operating Partnership makes any payment to Holder in connection with the Note, and any or all of such payment is subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid or paid over to a trustee, receiver or any other entity, whether under any bankruptcy act or otherwise. To the extent that any of the provisions of the immediately preceding paragraph shall not be enforceable, each of the undersigned agrees that until such time as the indebtedness has been paid and performed in full and the period of time has expired during which any payment made by the Operating Partnership or the undersigned to a Holder may be determined to be a Preferential Payment, Guarantor's Conditional Rights to the extent not validly waived shall be subordinate to Holders' right to full payment and performance of the indebtedness and each of the undersigned shall not enforce any of its respective portion of the Guarantors' Conditional Rights until such time as the indebtedness has been paid and performed in full and the period of time has expired during which any payment made by the Operating Partnership or the undersigned to Holders may be determined to be a Preferential Payment. The undersigned's liability (the "Base Guaranty Liability") shall be that amount from time to time rate per annum equal ~~to the aggregate liability of the undersigned hereunder, but shall be limited~~ to the lesser of (i) the related Formula Rate for such Distribution Date and (ii) the related Net WAC Pass-Through Rate for such Distribution Date. This Certificate is one of a duly authorized issue of Certificates designated as Asset Backed Pass-Through Certificates of the Series specified on the face hereof (herein called the "Certificates") and representing a Percentage Interest in the Class of Certificates specified on the face hereof equal to the denomination specified on the face hereof divided by the aggregate Certificate Principal Balance of the Class of Certificates specified on the face hereof. The 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 Agreement. As provided in the Agreement, withdrawals from the Collection Account and the Distribution Account may be made from time to time for purposes other than distributions to Certificateholders, such purposes including reimbursement of advances made, or certain expenses incurred, with respect to the Mortgage Loans. The Agreement permits, with certain exceptions therein provided, the amendment thereof and the modification of the rights and obligations of the Depositor, the Servicer, the Trustee, and the rights of the Certificateholders under the Agreement at any time by the Depositor, the Servicer and the Trustee with the consent of the Holders of Certificates entitled to at least 66% of the Voting Rights. Any such consent by the Holder of this Certificate shall be conclusive and binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in exchange herefor or in lieu hereof whether or not notation of such consent is made upon this Certificate. The Agreement also permits the amendment thereof, in certain limited circumstances, without the consent of the Holders of any of the Certificates. As provided in the Agreement and subject to certain limitations therein set forth, the transfer of this Certificate is registrable in the Certificate Register upon surrender of this Certificate for registration of transfer at the offices or agencies appointed by the Trustee as provided in the Agreement, duly endorsed by, or accompanied by an assignment in the form below or other written instrument of transfer in form satisfactory to the Trustee duly executed by, the Holder hereof or such Holder's attorney duly authorized in writing, and thereupon one or more new Certificates of the same Class in authorized denominations evidencing the same aggregate Percentage Interest will be issued to the designated transferee or transferees. Each beneficial owner of this Certificate or any interest therein shall be deemed to have represented, by virtue of its acquisition or holding of such Certificate or interest therein, that either (A) ~~the aggregate amount~~ it is not an "employee benefit plan" as defined in Section 3(3) of the ~~obligation~~ Employee Retirement Income Security Act of 1974, as ~~stated~~ amended ("ERISA"), that is subject to Title I of ERISA, any "plan" as defined in ~~the second sentence of~~ Section ~~1401~~ 4975 of the ~~Indenture~~Internal Revenue Code of 1986, ~~and~~ as amended (the "Code"), that is subject to Section 4975 of the Code or any entity deemed to hold plan assets of any of the foregoing, (B) it has acquired and is holding this Certificate in reliance on the ~~amount~~underwriters' exemption, ~~if any~~and that it understands that there are certain conditions to the availability of the underwriters' exemption, ~~which would~~ including that this Certificate must be rated, at the time of purchase, not ~~have (i) rendered the undersigned~~ lower than "~~insolvent~~BBB-" (or its equivalent) by Fitch, S&P or Xxxxx'x and the Certificate is so rated, that it is an accredited investor as defined in Rule 501(a)(1) of Regulation D of the Securities Act of 1933, as amended, and that it will obtain a representation from any transferee that such transferee is an accredited investor, or (C)(1) it is an insurance company, (2) the source of funds used to acquire or hold this Certificate or interest therein is an "insurance company general account," as such term is defined in Prohibited Transaction Class Exemption ("PTCE") 95-60, and (3) the conditions in Sections I and III of PTCE 95-60 have been satisfied. If this Certificate or any interest therein is acquired or held in violation of the provisions of Section ~~101(29~~5.02(c) of the ~~Federal Bankruptcy Code and in Section 271~~ Agreement, the next preceding permitted beneficial owner will be treated as the beneficial owner of ~~the Debtor and Creditor Law of the State of New York, as each is in effect at~~ this Certificate retroactive to the date of transfer to the ~~Indenture~~purported beneficial owner. Any purported beneficial owner whose acquisition or holding of any this Certificate or interest therein was effected in violation of the provisions of Section 5.02(c) of the Agreement shall indemnify and hold harmless the Depositor, the Servicer, the Trustee and the Trust Fund from and against any and all liabilities, claims, costs or expenses incurred by those parties as a result of that acquisition or holding. The Certificates are issuable in fully registered form only without coupons in Classes and denominations representing Percentage Interests specified in the Agreement. As provided in the Agreement and subject to certain limitations therein set forth, the Certificates are exchangeable for new Certificates of the same Class in authorized denominations evidencing the same aggregate Percentage Interest, as requested by the Holder surrendering the same. No service charge will be made for any such registration of transfer or exchange of Certificates, but the Trustee 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 Servicer, the Trustee and any agent of the Depositor, the Servicer or 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 Servicer, the Trustee nor any such agent shall be affected by notice to the contrary. The obligations created by the Agreement and the Trust Fund created thereby shall terminate upon payment to the Certificateholders of all amounts held by the Trustee and required to be paid to them pursuant to the Agreement following the earlier of (i) the final payment or other liquidation (or any advance with respect thereto) of the last Mortgage Loan and REO Property remaining in REMIC I and (ii) ~~left~~ the ~~undersigned with unreasonably small capital~~ purchase by the party designated in the Agreement at a price determined as provided in the Agreement from REMIC I of all the Mortgage Loans and all property acquired in respect of such Mortgage Loans. The Agreement permits, but does not require, the party designated in the Agreement to purchase from REMIC I all the Mortgage Loans and all property acquired in respect of any Mortgage Loan at a price determined as provided in the Agreement. The exercise of such right will effect early retirement of the Certificates; however, such right to purchase is subject to the aggregate Stated Principal Balance of the Mortgage Loans at the time ~~its Guarantee was entered into, after giving effect to the incurrence~~ of existing Debt (as defined in the Indenture) immediately prior to such time, provided that, it shall be a presumption in any lawsuit or other proceeding in which the undersigned is a party that the amount guaranteed is the amount set forth in (A) above unless a creditor, or representative of creditors purchase being less than 10% of the ~~undersigned or a trustee in bankruptcy~~ aggregate Stated Principal Balance of the ~~undersigned,~~ Mortgage Loans as ~~debtor in possession, otherwise proves in such a lawsuit that the aggregate liability~~ of the ~~undersigned is limited to the amount set forth in (B)~~Cut-off Date. In making any determination as to the solvency or sufficiency of capital of the undersigned in accordance with the previous sentence, the right of the undersigned to contribution from other Guarantors, to subrogation and any other rights the undersigned may have, contractual or otherwise, The recitals contained herein shall be taken ~~into account. The obligations~~ as statements of the ~~undersigned to the Holders of the 2018 Notes~~ Depositor and to the Trustee ~~pursuant~~ assumes no responsibility for their correctness. Unless the certificate of authentication hereon has been executed by the Trustee, by manual signature, this Certificate shall not be entitled to any benefit under the ~~Subsidiary Guarantee and the Indenture are expressly set forth in Article 14 of the Indenture and reference is hereby made to the Indenture~~ Agreement or be valid for the precise terms of the Subsidiary Guarantee and all of the other provisions of the Indenture to which this Subsidiary Guarantee relates. Capitalized terms in this Subsidiary Guarantee which are not defined herein shall have the meanings assigned to them in the Indentureany purpose.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Carrington Mortgage Loan Trust, Series 2005-Fre1)

Dated. ~~Notice~~Signature by or on behalf of assignor ------------------------------------- Signature Guaranteed DISTRIBUTION INSTRUCTIONS The assignee should include the following for purposes of distribution: The signature to this assignment must correspond with the name as it appears upon the face of the within Note in every particular, without alteration or enlargement or any change whatever. ABBREVIATIONS The following abbreviations, when used in the inscription on the face of this instrument, Distributions shall be ~~construed as though they were written out~~ made, by wire transfer or otherwise, in ~~full according~~ immediately available funds to ~~applicable laws or regulations: TEN COM--as tenants in common UNIF GIFT MIN ACT--_____ Custodian~~_____~~_ TEN ENT--as tenants~~ _______________________________________________________, for the account of ____________________________________________________________, account number___________, or, if mailed by ~~the entireties (Cust) (Minor) JT TEN--as joint tenants with right Under Uniform Gifts~~ check, to ~~Minors of survivorship and not as Act~~_________________________, Applicable statements should be mailed to _____________________________________ tenants in common (State) Additional abbreviations may also be used though not in the above list. --------------------------- [FORM OF SCHEDULE FOR ENDORSEMENTS ON GLOBAL SECURITY TO REFLECT CHANGES IN PRINCIPAL AMOUNT] Schedule A Changes to Principal Amount of Global Security Principal Amount of Securities by which this Global Security is to be Reduced or Increased, and Reason for Remaining Principal Amount of Notation Date Reduction or Increase this Global Securities Made by ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- Exhibit B SUBSIDIARY GUARANTEE FOR VALUE RECEIVED, the undersigned hereby jointly and severally with the Parent Guarantor pursuant to the Parent Guarantee and any other subsidiary Guarantors under their respective Subsidiary Guarantees, unconditionally guarantees to the Holder of the accompanying _____~~% Note Due June~~ __________________________________________________________________________. This information is provided by________________________________________________, ~~2018 (~~the ~~"2018 Note") issued by AMB Property~~assignee named above, ~~L.P. (the "Operating Partnership") under an Indenture dated as of June~~ or __________________________________________________, ~~1998~~ as its agent. XXXXXXX X-0 FORM OF CLASS M-1 CERTIFICATE UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (~~together with~~ "DTC"), TO THE TRUSTEE OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986 (THE "CODE"). THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A CERTIFICATES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN. <TABLE> Series 0000-XX0 Xxxxxxxxx Certificate Principal Balance of the ~~Second Supplemental Indenture thereto~~Class M-1 Certificates as of the Issue Pass-Through Rate: Variable Date: $[______].00 Cut-off Date and date of Pooling and Denomination: $[_________].00 Servicing Agreement: August 1, ~~the "Indenture") among the Operating Partnership~~2005 Servicer: New Century Mortgage Corporation First Distribution Date: September 26, ~~AMB Property Corporation~~2005 Trustee: Deutsche Bank National Trust No. 1 Company Issue Date: August 16, ~~and State Street Bank and~~ 2005 CUSIP: [______] [__] [_] </TABLE> DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE AS THE DENOMINATION OF THIS CERTIFICATE. ASSET BACKED PASS-THROUGH CERTIFICATE evidencing a beneficial ownership interest in a portion of a Trust ~~Company of California, N.A., as trustee~~ Fund (the "~~Trustee~~Trust Fund") consisting primarily of a pool of conventional one- to four-family, adjustable-rate, first lien mortgage loans (the "Mortgage Loans") formed and sold by STANWICH ASSET ACCEPTANCE COMPANY, L.L.C. THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN STANWICH ASSET ACCEPTANCE COMPANY, L.L.C., THE SERVICER, THE TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES. This certifies that Cede & Co. is the registered owner of a Percentage Interest (obtained by dividing the denomination of this Certificate by the aggregate Certificate Principal Balance of the Class M-1 Certificates as of the Issue Date) in that certain beneficial ownership interest evidenced by all the Class M-1 Certificates in REMIC II created pursuant to a Pooling and Servicing Agreement, dated as specified above (the "Agreement"), among Stanwich Asset Acceptance Company, L.L.C. (a) hereinafter called the ~~full~~ "Depositor," which term includes any successor entity under the Agreement), the Servicer and ~~prompt payment~~ the Trustee, a summary of certain of the ~~principal~~ 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 Agreement. This Certificate is issued under and ~~premium~~is subject to the terms, ~~if any, on such 2018 Note when~~ provisions and ~~as the same shall become due and payable, whether at Stated Maturity, by acceleration, by redemption or otherwise, and (b) the full and prompt payment~~ conditions of the ~~interest on~~ Agreement, to which Agreement the Holder of this Certificate by virtue of the acceptance hereof assents and by which such ~~2018 Note when and as the same shall become due and payable, according~~ Holder is bound. Pursuant to the terms of the Agreement, distributions will be made on the 25th day of each month or, if such ~~2018 Note and~~ 25th day is not a Business Day, the Business Day immediately following (a "Distribution Date"), commencing on the First Distribution Date specified above, to the Person in whose name this Certificate is registered on the Record Date, in an amount equal to the product of the ~~Indenture. The undersigned hereby agrees, jointly~~ Percentage Interest evidenced by this Certificate and ~~severally with~~ the ~~Parent Guarantor~~ amount required to be distributed to the Holders of Class M-1 Certificates on such Distribution Date pursuant to the ~~Parent Guarantee and any other Subsidiary Guarantors~~ Agreement. All distributions to the Holder of this Certificate under ~~their respective Subsidiary Guarantees, that its obligations hereunder shall~~ the Agreement will be ~~as principal and not merely as surety, and shall~~ made or caused to be ~~absolute and unconditional, and shall not be affected, modified or impaired~~ made by the ~~following: (a) the failure to give notice~~ Trustee by wire transfer in immediately available funds to the ~~Guarantors~~ account of the occurrence of an Event of Default under the Indenture; (b) the waiver, surrender, compromise, settlement, release or termination of the payment, performance or observance by the Operating Partnership or the Guarantors of any or all of the obligations, covenants or agreements of either of them contained in the Indenture or the 2018 Notes; (c) the acceleration, extension or any other changes in the time for payment of any principal of or interest or any premium on any 2018 Note or for any other payment under the Indenture or of the time for performance of any other obligations, covenants or agreements under or arising out of the Indenture or the 2018 Notes; (d) the modification or amendment (whether material or otherwise) of any obligation, covenant or agreement set forth in the Indenture or the 2018 Notes; (e) the taking or the omission of any of the actions referred to in the Indenture and in any of the actions under the 2018 Notes; (f) any failure, omission, delay or lack on the part of the Trustee to enforce, assert or exercise any right, power or remedy conferred on Person entitled thereto if such Person shall have so notified the Trustee in writing at least five Business Days prior to the ~~Indenture~~Record Date immediately prior to such Distribution Date or otherwise by check mailed by first class mail to the address of the Person entitled thereto, ~~or any other action or acts~~ as such name and address shall appear on the ~~part~~ Certificate Register. Notwithstanding the above, the final distribution on this Certificate will be made after due notice by the Trustee of the ~~Trustee or any~~ pendency of ~~the Holders from time to time of the 2018 Notes; (g) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all the assets, marshaling of assets~~ such distribution and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition with creditors or readjustment of, or other similar proceedings affecting the Guarantors or the Operating Partnership or any of the assets of any of them, or any allegation or contest of the validity only upon presentation and surrender of this ~~Subsidiary Guarantee~~ Certificate at the office or agency appointed by the Trustee for that purpose as provided in ~~any such proceeding; (h)~~ the Agreement. The Pass-Through Rate applicable to the ~~extent permitted by law, the release or discharge by operation~~ calculation of law of the Guarantors from the performance or observance of any obligation, covenant or agreement contained in the Indenture; (i) to the extent permitted by law, the release or discharge by operation of law of the Operating Partnership from the performance or observance of any obligation, covenant or agreement contained in the Indenture; (j) the default or failure of the Operating Partnership or the Trustee fully to perform any of its obligations set forth in the Indenture or the 2018 Notes; (k) the invalidity, irregularity or unenforceability of the Indenture or the 2018 Notes or any part of any thereof; (l) any judicial or governmental action affecting the Operating Partnership or any 2018 Notes or consent or indulgence granted by the Operating Partnership by the Holders or by the Trustee; or (m) the recovery of any judgment against the Operating Partnership or any action to enforce the same or any other circumstance which might constitute a legal or equitable discharge of a surety or guarantor. The undersigned hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of merger, sale, lease or conveyance of all or substantially all of its assets, insolvency or bankruptcy of the Operating Partnership, any right to require a proceeding first against the Operating Partnership, protest or notice interest payable with respect to ~~such Notice or the indebtedness evidenced thereby and all demands whatsoever, and covenants that~~ this Subsidiary Guarantee will not be discharged except by complete performance of the obligations contained in such 2018 Note and in this Subsidiary Guarantee. No reference herein to such Indenture and no provision of this Subsidiary Guarantee or of such Indenture Certificate on any Distribution Date shall alter or impair the guarantee of the undersigned, which is absolute and unconditional, of the full and prompt payment of the principal of and premium, if any, and interest on the 2018 Note. THIS SUBSIDIARY GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. The validity and enforceability of this Subsidiary Guarantee shall not be affected by the fact that it is not affixed to any particular 2018 Note. An Event of Default under the Indenture or the 2018 Notes shall constitute an event of default under this Subsidiary Guarantee, and shall entitle the Holders of 2018 Notes to accelerate the obligations of the undersigned hereunder in the same manner and to the same extent as the obligations of the Operating Partnership. Notwithstanding any other provision of this Subsidiary Guarantee to the contrary, the undersigned hereby waives any claims or other rights which it may now have or hereafter acquire against the Operating Partnership that arise from the existence or performance of its obligations under this Subsidiary Guarantee (all such claims and rights are referred to as "Guarantor's Conditional Rights"), including, without limitation, any right of subrogation, reimbursement, exoneration, contribution, or indemnification, any right to participate in any claim or remedy against the Operating Partnership, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, by any payment made hereunder or otherwise, including without limitation, the right to take or receive from Operating Partnership, directly or indirectly, in cash or other property or by setoff or in any other manner, payment or security on account of such claim or other rights. The Subsidiary Guarantor hereby agrees not to exercise any rights which may be acquired by way of contribution under this Subsidiary Guarantee or any other agreement, by any payment made hereunder or otherwise, including, without limitation, the right to take or receive from any other guarantor, directly or indirectly, in cash or other property or by setoff or in any other manner, payment or security on account of such contribution rights. If, notwithstanding the foregoing provisions, any amount shall be paid to any of the undersigned on account of any such Guarantor's Conditional Rights and either (i) such amount is paid to such undersigned party at any time when the indebtedness shall not have been paid or performed in full, or (ii) regardless of when such amount is paid to such undersigned party, any payment made by Operating Partnership to equal a Holder that is at any time determined to be a Preferential Payment (as defined below), then such amount paid to the undersigned shall be held in trust for the benefit of the Holders and shall forthwith be paid such Holder to be credited and applied upon the indebtedness, whether matured or unmatured. Any such payment is herein referred to as a "Preferential Payment" to the extent the Operating Partnership makes any payment to Holder in connection with the Note, and any or all of such payment is subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid or paid over to a trustee, receiver or any other entity, whether under any bankruptcy act or otherwise. To the extent that any of the provisions of the immediately preceding paragraph shall not be enforceable, each of the undersigned agrees that until such time as the indebtedness has been paid and performed in full and the period of time has expired during which any payment made by the Operating Partnership or the undersigned to a Holder may be determined to be a Preferential Payment, Guarantor's Conditional Rights to the extent not validly waived shall be subordinate to Holders' right to full payment and performance of the indebtedness and each of the undersigned shall not enforce any of its respective portion of the Guarantors' Conditional Rights until such time as the indebtedness has been paid and performed in full and the period of time has expired during which any payment made by the Operating Partnership or the undersigned to Holders may be determined to be a Preferential Payment. The undersigned's liability (the "Base Guaranty Liability") shall be that amount from time to time rate per annum equal ~~to the aggregate liability of the undersigned hereunder, but shall be limited~~ to the lesser of (i) the related Formula Rate for such Distribution Date and (ii) the related Net WAC Pass-Through Rate for such Distribution Date. This Certificate is one of a duly authorized issue of Certificates designated as Asset Backed Pass-Through Certificates of the Series specified on the face hereof (herein called the "Certificates") and representing a Percentage Interest in the Class of Certificates specified on the face hereof equal to the denomination specified on the face hereof divided by the aggregate Certificate Principal Balance of the Class of Certificates specified on the face hereof. The 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 Agreement. As provided in the Agreement, withdrawals from the Collection Account and the Distribution Account may be made from time to time for purposes other than distributions to Certificateholders, such purposes including reimbursement of advances made, or certain expenses incurred, with respect to the Mortgage Loans. The Agreement permits, with certain exceptions therein provided, the amendment thereof and the modification of the rights and obligations of the Depositor, the Servicer, the Trustee and the rights of the Certificateholders under the Agreement at any time by the Depositor, the Servicer and the Trustee with the consent of the Holders of Certificates entitled to at least 66% of the Voting Rights. Any such consent by the Holder of this Certificate shall be conclusive and binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in exchange herefor or in lieu hereof whether or not notation of such consent is made upon this Certificate. The Agreement also permits the amendment thereof, in certain limited circumstances, without the consent of the Holders of any of the Certificates. As provided in the Agreement and subject to certain limitations therein set forth, the transfer of this Certificate is registrable in the Certificate Register upon surrender of this Certificate for registration of transfer at the offices or agencies appointed by the Trustee as provided in the Agreement, duly endorsed by, or accompanied by an assignment in the form below or other written instrument of transfer in form satisfactory to the Trustee duly executed by, the Holder hereof or such Holder's attorney duly authorized in writing, and thereupon one or more new Certificates of the same Class in authorized denominations evidencing the same aggregate Percentage Interest will be issued to the designated transferee or transferees. Each beneficial owner of this Certificate or any interest therein shall be deemed to have represented, by virtue of its acquisition or holding of such Certificate or interest therein, that either (A) ~~the aggregate amount~~ it is not an "employee benefit plan" as defined in Section 3(3) of the ~~obligation~~ Employee Retirement Income Security Act of 1974, as ~~stated~~ amended ("ERISA"), that is subject to Title I of ERISA, any "plan" as defined in ~~the second sentence of~~ Section ~~1401~~ 4975 of the ~~Indenture~~Internal Revenue Code of 1986, ~~and~~ as amended (the "Code"), that is subject to Section 4975 of the Code or any entity deemed to hold plan assets of any of the foregoing, (B) it has acquired and is holding this Certificate in reliance on the ~~amount~~underwriters' exemption, ~~if any~~and that it understands that there are certain conditions to the availability of the underwriters' exemption, ~~which would~~ including that this Certificate must be rated, at the time of purchase, not ~~have (i) rendered the undersigned~~ lower than "~~insolvent~~BBB-" (or its equivalent) by Fitch, S&P or Xxxxx'x and the Certificate is so rated, that it is an accredited investor as defined in Rule 501(a)(1) of Regulation D of the Securities Act of 1933, as amended, and that it will obtain a representation from any transferee that such transferee is an accredited investor, or (C)(1) it is an insurance company, (2) the source of funds used to acquire or hold this Certificate or interest therein is an "insurance company general account," as such term is defined in Prohibited Transaction Class Exemption ("PTCE") 95-60, and (3) the conditions in Sections I and III of PTCE 95-60 have been satisfied. If this Certificate or any interest therein is acquired or held in violation of the provisions of Section ~~101(29~~5.02(c) of the ~~Federal Bankruptcy Code and in Section 271~~ Agreement, the next preceding permitted beneficial owner will be treated as the beneficial owner of ~~the Debtor and Creditor Law of the State of New York, as each is in effect at~~ this Certificate retroactive to the date of transfer to the ~~Indenture~~purported beneficial owner. Any purported beneficial owner whose acquisition or holding of any this Certificate or interest therein was effected in violation of the provisions of Section 5.02(c) of the Agreement shall indemnify and hold harmless the Depositor, the Servicer, the Trustee and the Trust Fund from and against any and all liabilities, claims, costs or expenses incurred by those parties as a result of that acquisition or holding. The Certificates are issuable in fully registered form only without coupons in Classes and denominations representing Percentage Interests specified in the Agreement. As provided in the Agreement and subject to certain limitations therein set forth, the Certificates are exchangeable for new Certificates of the same Class in authorized denominations evidencing the same aggregate Percentage Interest, as requested by the Holder surrendering the same. No service charge will be made for any such registration of transfer or exchange of Certificates, but the Trustee 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 Servicer, the Trustee and any agent of the Depositor, the Servicer or 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 Servicer, the Trustee nor any such agent shall be affected by notice to the contrary. The obligations created by the Agreement and the Trust Fund created thereby shall terminate upon payment to the Certificateholders of all amounts held by the Trustee and required to be paid to them pursuant to the Agreement following the earlier of (i) the final payment or other liquidation (or any advance with respect thereto) of the last Mortgage Loan and REO Property remaining in REMIC I and (ii) ~~left~~ the ~~undersigned with unreasonably small capital~~ purchase by the party designated in the Agreement at a price determined as provided in the Agreement from REMIC I of all the Mortgage Loans and all property acquired in respect of such Mortgage Loans. The Agreement permits, but does not require, the party designated in the Agreement to purchase from REMIC I all the Mortgage Loans and all property acquired in respect of any Mortgage Loan at a price determined as provided in the Agreement. The exercise of such right will effect early retirement of the Certificates; however, such right to purchase is subject to the aggregate Stated Principal Balance of the Mortgage Loans at the time ~~its Guarantee was entered into, after giving effect to the incurrence~~ of existing Debt (as defined in the Indenture) immediately prior to such time, provided that, it shall be a presumption in any lawsuit or other proceeding in which the undersigned is a party that the amount guaranteed is the amount set forth in (A) above unless a creditor, or representative of creditors purchase being less than 10% of the ~~undersigned or a trustee in bankruptcy~~ aggregate Stated Principal Balance of the ~~undersigned,~~ Mortgage Loans as ~~debtor in possession, otherwise proves in such a lawsuit that the aggregate liability~~ of the ~~undersigned is limited to the amount set forth in (B)~~Cut-off Date. In making any determination as to the solvency or sufficiency of capital of the undersigned in accordance with the previous sentence, the right of the undersigned to contribution from other Guarantors, to subrogation and any other rights the undersigned may have, contractual or otherwise, The recitals contained herein shall be taken ~~into account. The obligations~~ as statements of the ~~undersigned to the Holders of the 2018 Notes~~ Depositor and to the Trustee ~~pursuant~~ assumes no responsibility for their correctness. Unless the certificate of authentication hereon has been executed by the Trustee, by manual signature, this Certificate shall not be entitled to any benefit under the ~~Subsidiary Guarantee and the Indenture are expressly set forth in Article 14 of the Indenture and reference is hereby made to the Indenture~~ Agreement or be valid for the precise terms of the Subsidiary Guarantee and all of the other provisions of the Indenture to which this Subsidiary Guarantee relates. Capitalized terms in this Subsidiary Guarantee which are not defined herein shall have the meanings assigned to them in the Indentureany purpose.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Carrington Home Equity Loan Trust, Series 2005-Nc4 Asset-Backed Pass-Through Certificates)

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Trust Series 2006-Af1)

Dated. ~~Notice~~Signature by or on behalf of assignor DISTRIBUTION INSTRUCTIONS The assignee should include the following for purposes of distribution: The signature to this assignment must correspond with the name as it appears upon the face of the within Note in every particular, without alteration or enlargement or any change whatever. ABBREVIATIONS The following abbreviations, when used in the inscription on the face of this instrument, Distributions shall be ~~construed as though they were written out~~ made, by wire transfer or otherwise, in ~~full according~~ immediately available funds to applicable laws or regulations: TEN COM--as tenants in common UNIF GIFT MIN ACT--_____ Custodian______ TEN ENT--as tenants by the entireties (Cust) (Minor) JT TEN--as joint tenants with right Under Uniform Gifts to Minors of survivorship and not as Act__________________________ tenants in common (State) Additional abbreviations may also be used though not in the above list. --------------------------- [FORM OF SCHEDULE FOR ENDORSEMENTS ON GLOBAL SECURITY TO REFLECT CHANGES IN PRINCIPAL AMOUNT] Schedule A Changes to Principal Amount of Global Security Principal Amount of Securities by which this Global Security is to be Reduced or Increased, and Reason for Remaining Principal Amount of Notation Date Reduction or Increase this Global Securities Made by ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- Exhibit B SUBSIDIARY GUARANTEE FOR VALUE RECEIVED, the undersigned hereby jointly and severally with the Parent Guarantor pursuant to the Parent Guarantee and any other subsidiary Guarantors under their respective Subsidiary Guarantees, unconditionally guarantees to the Holder of the accompanying _____~~% Note Due June~~ __________________, ~~2018 (the "2018 Note") issued by AMB Property, L.P. (the "Operating Partnership") under an Indenture dated as of June~~ _______________________________________________________________________________, ~~1998 (together with~~ for the ~~Second Supplemental Indenture thereto~~account of ____________________________________________________________, account number, __________, or, if mailed by check, to ________________________. Applicable statements should be mailed to _____________________________________, _______________________________________________________________________________. This information is provided by ___________________________________, the assignee named above, or __________________________________________________, as its agent. EXHIBIT B NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE PROPOSED TRANSFEROR DELIVERS TO THE TRUSTEE A TRANSFEROR LETTER IN THE FORM OF EXHIBIT H TO THE AGREEMENT REFERRED TO HEREIN AND EITHER (I) THE TRUSTEE RECEIVES A RULE 144A LETTER IN THE FORM OF EXHIBIT I TO THE AGREEMENT REFERRED TO HEREIN OR (II) THE TRUSTEE RECEIVES AN OPINION OF COUNSEL, DELIVERED AT THE EXPENSE OF THE TRANSFEROR, THAT SUCH TRANSFER MAY BE MADE WITHOUT REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED. NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE TRANSFEREE DELIVERS TO THE TRUSTEE A REPRESENTATION LETTER TO THE EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, ("~~Indenture~~ERISA"), OR A PLAN SUBJECT TO SECTION 4975 OF THE CODE OR A PLAN SUBJECT TO MATERIALLY SIMILAR PROVISIONS OF APPLICABLE FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") OR A PERSON INVESTING ON BEHALF OF OR WITH PLAN ASSETS OF SUCH A PLAN. IN THE EVENT THAT SUCH REPRESENTATION IS VIOLATED, OR ANY ATTEMPT IS MADE TO TRANSFER TO A PLAN OR ARRANGEMENT SUBJECT TO SECTION 406 OF ERISA, A PLAN SUBJECT TO SECTION 4975 OF THE CODE OR A PLAN SUBJECT TO SIMILAR LAW, OR A PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR ARRANGEMENT OR USING THE ASSETS OF ANY SUCH PLAN OR ARRANGEMENT, SUCH ATTEMPTED TRANSFER OR ACQUISITION SHALL BE VOID AND OF NO EFFECT. Certificate No. : 1 Cut-off Date : February 1, 2003 First Distribution Date : March 25, 2003 Percentage Interest of this Certificate ("Denomination") : 100% ------------ MORGAN STANLEY DEAN WITTER CAPITAL I XXX. Xxxxxx Xtanley Dean Witter Capital I Xxx. Xrxxx 0000-XX0 Mortgage Pass-Through Certificates, Series 2003-NC2 Class P evidencing a percentage interest in the distributions allocable to the Certificates of the above-referenced Class. Distributions in respect of this Certificate are distributable monthly as set forth herein. This Certificate does not evidence an obligation of, or an interest in, and is not guaranteed by the Depositor, the Responsible Party, the Servicer or the Trustee referred to below or any of their respective affiliates. Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any governmental agency or instrumentality. This certifies that Deutsche Bank National Trust Company, as Indenture Trustee, is the registered owner of the Percentage Interest evidenced by this Certificate (obtained by dividing the denomination of this Certificate by the aggregate of the denominations of all Certificates of the Class to which this Certificate belongs) in certain monthly distributions pursuant to a Pooling and Servicing Agreement dated as of the Cut-off Date specified above (the "Agreement") among Morgan Stanley Dean Witter Capital I Xxx., ax xxxxxxxxx (xxx "Xepositor"), The Provident Bank, as servicer (the ~~Operating Partnership~~"Servicer"), ~~AMB Property~~ NC Capital Corporation, as responsible party (the "Responsible Party"), and ~~State Street~~ Deutsche Bank ~~and~~ National Trust ~~Company of California, N.A.~~Company, as trustee (the "Trustee"). To the extent not defined herein, ~~(a)~~ the ~~full~~ capitalized terms used herein have the meanings assigned in the Agreement. This Certificate is issued under and ~~prompt payment~~ is subject to the terms, provisions and conditions of the ~~principal~~ Agreement, to which Agreement the Holder of ~~and premium, if any, on such 2018 Note when and as the same shall become due and payable, whether at Stated Maturity,~~ this Certificate by ~~acceleration, by redemption or otherwise, and (b) the full and prompt payment~~ virtue of the ~~interest on~~ acceptance hereof assents and by which such ~~2018 Note when~~ Holder is bound. This Certificate does not have a Pass-Through Rate and ~~as the same shall become due and payable, according~~ will be entitled to distributions only to the terms of such 2018 Note and of the Indenture. The undersigned hereby agrees, jointly and severally with the Parent Guarantor pursuant to the Parent Guarantee and any other Subsidiary Guarantors under their respective Subsidiary Guarantees, that its obligations hereunder shall be as principal and not merely as surety, and shall be absolute and unconditional, and shall not be affected, modified or impaired by the following: (a) the failure to give notice to the Guarantors of the occurrence of an Event of Default under the Indenture; (b) the waiver, surrender, compromise, settlement, release or termination of the payment, performance or observance by the Operating Partnership or the Guarantors of any or all of the obligations, covenants or agreements of either of them contained in the Indenture or the 2018 Notes; (c) the acceleration, extension or any other changes in the time for payment of any principal of or interest or any premium on any 2018 Note or for any other payment under the Indenture or of the time for performance of any other obligations, covenants or agreements under or arising out of the Indenture or the 2018 Notes; (d) the modification or amendment (whether material or otherwise) of any obligation, covenant or agreement extent set forth in the ~~Indenture~~ Agreement. In addition, any distribution of the proceeds of any remaining assets of the Trust will be made only upon presentment and surrender of this Certificate at the offices designated by the Trustee for such purpose, or the ~~2018 Notes; (e) the taking~~ office or the omission of any of the actions referred to in the Indenture and in any of the actions under the 2018 Notes; (f) any failure, omission, delay or lack on the part of the Trustee to enforce, assert or exercise any right, power or remedy conferred on the Trustee in the Indenture, or any other action or acts on the part of the Trustee or any of the Holders from time to time of the 2018 Notes; (g) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all the assets, marshaling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition with creditors or readjustment of, or other similar proceedings affecting the Guarantors or the Operating Partnership or any of the assets of any of them, or any allegation or contest of the validity of this Subsidiary Guarantee in any such proceeding; (h) to the extent permitted by law, the release or discharge by operation of law of the Guarantors from the performance or observance of any obligation, covenant or agreement contained in the Indenture; (i) to the extent permitted by law, the release or discharge by operation of law of the Operating Partnership from the performance or observance of any obligation, covenant or agreement contained in the Indenture; (j) the default or failure of the Operating Partnership or the Trustee fully to perform any of its obligations set forth in the Indenture or the 2018 Notes; (k) the invalidity, irregularity or unenforceability of the Indenture or the 2018 Notes or any part of any thereof; (l) any judicial or governmental action affecting the Operating Partnership or any 2018 Notes or consent or indulgence granted by the Operating Partnership by the Holders or agency maintained by the Trustee~~; or (m) the recovery of any judgment against the Operating Partnership or any action to enforce the same or any other circumstance which might constitute a legal or equitable discharge~~ . No transfer of a ~~surety~~ Certificate of this Class shall be made unless such disposition is exempt from the registration requirements of the Securities Act of 1933, as amended (the "1933 Act"), and any applicable state securities laws or ~~guarantor~~is made in accordance with the 1933 Act and such laws. ~~The undersigned hereby waives diligence, presentment, demand of payment, filing of claims with a court in~~ In the event of ~~merger~~any such transfer, ~~sale, lease or conveyance of all or~~ the Trustee shall require the transferor to execute a transferor certificate (in substantially ~~all of its assets, insolvency or bankruptcy of~~ the Operating Partnership, any right to require a proceeding first against the Operating Partnership, protest or notice with respect to such Notice or the indebtedness evidenced thereby and all demands whatsoever, and covenants that this Subsidiary Guarantee will not be discharged except by complete performance of the obligations contained in such 2018 Note and in this Subsidiary Guarantee. No reference herein to such Indenture and no provision of this Subsidiary Guarantee or of such Indenture shall alter or impair the guarantee of the undersigned, which is absolute and unconditional, of the full and prompt payment of the principal of and premium, if any, and interest on the 2018 Note. THIS SUBSIDIARY GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. The validity and enforceability of this Subsidiary Guarantee shall not be affected by the fact that it is not affixed to any particular 2018 Note. An Event of Default under the Indenture or the 2018 Notes shall constitute an event of default under this Subsidiary Guarantee, and shall entitle the Holders of 2018 Notes to accelerate the obligations of the undersigned hereunder in the same manner and form attached to the same extent as the obligations of the Operating Partnership. Notwithstanding any other provision of this Subsidiary Guarantee to the contrary, the undersigned hereby waives any claims or other rights which it may now have or hereafter acquire against the Operating Partnership that arise from the existence or performance of its obligations under this Subsidiary Guarantee (all such claims Pooling and rights are referred to as "Guarantor's Conditional Rights"), including, without limitation, any right of subrogation, reimbursement, exoneration, contribution, or indemnification, any right to participate in any claim or remedy against the Operating Partnership, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, by any payment made hereunder or otherwise, including without limitation, the right to take or receive from Operating Partnership, directly or indirectly, in cash or other property or by setoff or in any other manner, payment or security on account of such claim or other rights. The Subsidiary Guarantor hereby agrees not to exercise any rights which may be acquired by way of contribution under this Subsidiary Guarantee or any other agreement, by any payment made hereunder or otherwise, including, without limitation, the right to take or receive from any other guarantor, directly or indirectly, in cash or other property or by setoff or in any other manner, payment or security on account of such contribution rights. If, notwithstanding the foregoing provisions, any amount shall be paid to any of the undersigned on account of any such Guarantor's Conditional Rights Servicing Agreement) and deliver either (i) ~~such amount is paid~~ a Rule 144A Letter, in either case substantially in the form attached to ~~such undersigned party at any time when~~ the ~~indebtedness shall not have been paid or performed in full~~Agreement, or (ii) ~~regardless~~ a written Opinion of ~~when~~ Counsel to the Trustee that such ~~amount~~ transfer may be made pursuant to an exemption, describing the applicable exemption and the basis therefor, from the 1933 Act or is ~~paid~~ being made pursuant to the 1933 Act, which Opinion of Counsel shall be an expense of the transferor. No transfer of a Certificate of this Class shall be made unless the Trustee shall have received a representation letter from the transferee of such ~~undersigned party~~Certificate, acceptable to and in form and substance satisfactory to the Trustee, to the effect that such transferee is not an employee benefit plan subject to Section 406 of ERISA, Section 4975 of the Code or any ~~payment made by Operating Partnership to a Holder that is at any time determined to be a Preferential Payment~~ materially similar provisions of applicable federal, state or local law (~~as defined below~~"Similar Law"), ~~then~~ or a person acting on behalf of or investing plan assets of any such ~~amount paid to the undersigned shall be held in trust for the benefit of the Holders and shall forthwith be paid such Holder to be credited and applied upon the indebtedness~~plan, whether matured or unmatured. Any such payment is herein referred to as a "Preferential Payment" to the extent the Operating Partnership makes any payment to Holder in connection with the Note, and any or all of such payment is subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid or paid over to a trustee, receiver or any other entity, whether under any bankruptcy act or otherwise. To the extent that any of the provisions of the immediately preceding paragraph which representation letter shall not be ~~enforceable, each~~ an expense of the undersigned agrees that until such time as the indebtedness has been paid and performed in full and the period of time has expired during which any payment made by the Operating Partnership or the undersigned to a Holder may be determined to be a Preferential Payment, Guarantor's Conditional Rights to the extent not validly waived shall be subordinate to Holders' right to full payment and performance of the indebtedness and each of the undersigned shall not enforce any of its respective portion of the Guarantors' Conditional Rights until such time as the indebtedness has been paid and performed in full and the period of time has expired during which any payment made by the Operating Partnership or the undersigned to Holders may be determined to be a Preferential PaymentTrustee. The undersigned's liability (the "Base Guaranty Liability") shall be that amount from time to time equal to the aggregate liability of the undersigned hereunder, but shall be limited to the lesser of (A) the aggregate amount of the obligation as stated in the second sentence of Section 1401 of the Indenture, and (B) the amount, if any, which would not have (i) rendered the undersigned "insolvent" (as such term is defined in Section 101(29) of the Federal Bankruptcy Code and in Section 271 of the Debtor and Creditor Law of the State of New York, as each is in effect at the date of the Indenture) or (ii) left the undersigned with unreasonably small capital at the time its Guarantee was entered into, after giving effect to the incurrence of existing Debt (as defined in the Indenture) immediately prior to such time, provided that, it shall be a presumption in any lawsuit or other proceeding in which the undersigned is a party that the amount guaranteed is the amount set forth in (A) above unless a creditor, or representative of creditors of the undersigned or a trustee in bankruptcy of the undersigned, as debtor in possession, otherwise proves in such a lawsuit that the aggregate liability of the undersigned is limited to the amount set forth in (B). In making any determination as to the solvency or sufficiency of capital of the undersigned in accordance with the previous sentence, the right of the undersigned to contribution from other Guarantors, to subrogation and any other rights the undersigned may have, contractual or otherwise, shall be taken into account. The obligations of the undersigned to the Holders of the 2018 Notes and to the Trustee pursuant to the Subsidiary Guarantee and the Indenture are expressly set forth in Article 14 of the Indenture and reference Reference is hereby made to the ~~Indenture~~ further provisions of this Certificate set forth on the reverse hereof, which further provisions shall for all purposes have the ~~precise terms~~ same effect as if set forth at this place. This Certificate shall not be entitled to any benefit under the Agreement or be valid for any purpose unless manually countersigned by an authorized signatory of the ~~Subsidiary Guarantee and all of the other provisions of the Indenture to which this Subsidiary Guarantee relates~~Trustee. ~~Capitalized terms in this Subsidiary Guarantee which are not defined herein shall have the meanings assigned to them in the Indenture.~~* * *

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Morgan Stanley Dean Witter Capital I Inc Series 2003 Nc2)

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Deutsche Alt-a Securities, Inc. Mortgage Loan Trust, Series 2005-1)

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Salomon Brothers Mort Sec Vii Inc Fl Rte Cert Se 1999-Nc4)

Dated. ~~Notice~~Signature by or on behalf of assignor ------------------------------- Signature Guaranteed DISTRIBUTION INSTRUCTIONS The assignee should include the following for purposes of distribution: The signature to this assignment must correspond with the name as it appears upon the face of the within Note in every particular, without alteration or enlargement or any change whatever. ABBREVIATIONS The following abbreviations, when used in the inscription on the face of this instrument, Distributions shall be ~~construed as though they were written out~~ made, by wire transfer or otherwise, in ~~full according~~ immediately available funds to ~~applicable laws or regulations: TEN COM--as tenants in common UNIF GIFT MIN ACT--_____ Custodian~~_____~~_ TEN ENT--as tenants by the entireties (Cust) (Minor) JT TEN--as joint tenants with right Under Uniform Gifts to Minors of survivorship and not as Act~~___________________________________________ tenants in common (State) Additional abbreviations may also be used though not in the above list. --------------------------- [FORM OF SCHEDULE FOR ENDORSEMENTS ON GLOBAL SECURITY TO REFLECT CHANGES IN PRINCIPAL AMOUNT] Schedule A Changes to Principal Amount of Global Security Principal Amount of Securities by which this Global Security is to be Reduced or Increased, and Reason for Remaining Principal Amount of Notation Date Reduction or Increase this Global Securities Made by ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- Exhibit B SUBSIDIARY GUARANTEE FOR VALUE RECEIVED, the undersigned hereby jointly and severally with the Parent Guarantor pursuant to the Parent Guarantee and any other subsidiary Guarantors under their respective Subsidiary Guarantees, unconditionally guarantees to the Holder of the accompanying _____~~% Note Due June~~ ___________________________________________________________ for the account of _______________________________, ~~2018 (the "2018 Note") issued by AMB Property, L.P. (the "Operating Partnership") under an Indenture dated as of June~~ account number ________________________, ~~1998 (together with the Second Supplemental Indenture thereto~~or, if mailed by check, to__________________________________________________________ _______________________________________________________________________________. Applicable statements should be mailed to_______________________________________ ________________________________________________________________________________ _______________________________________________. This information is provided by __________________________________________________, the assignee named above, or ________________________________________, as its agent. XXXXXXX X-0 ----------- FORM OF CLASS M-2 CERTIFICATE UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("~~Indenture~~DTC"~~) among~~ ), TO THE TRUST ADMINISTRATOR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986 (THE "CODE"). THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1 CERTIFICATES, THE CLASS A-2 CERTIFICATES, THE CLASS A-3 CERTIFICATES, THE CLASS A-4 CERTIFICATES AND THE CLASS M-1 CERTIFICATES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN. NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, OR THE CODE WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROCEDURES DESCRIBED HEREIN. Series: 2004-HE1 Xxxxxxxxx Xxxxxxxxxxx Xxxncipal Balance of the ~~Operating Partnership~~Class M-2 Certificates as of the Issue Date: Pass-Through Rate: Variable $9,355,000.00 Cut-off Date and date of Pooling and Denomination: $9,355,000.00 Servicing Agreement: September 1, ~~AMB Property Corporation, and State Street Bank~~ 2004 Master Servicer and Trust ~~Company~~ Administrator: First Distribution Date: October 25, 2004 Wells Fargo Bank, X.X. No. 1 Trustee: U.S. Bank National Association Issue Date: September 29, 2004 CUSIP: 57643L EK 8 DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE AS THE DENOMINATION OF THIS CERTIFICATE. MORTGAGE PASS-THROUGH CERTIFICATE evidencing a beneficial ownership interest in a portion of ~~California, N.A., as trustee~~ a Trust Fund (the "~~Trustee~~Trust Fund") consisting primarily of a pool of conventional one- to four-family, fixed-rate and adjustable-rate, first and second lien mortgage loans (the "Mortgage Loans") formed and sold by MORTGAGE ASSET SECURITIZATION TRANSACTIONS, INC. THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN MORTGAGE ASSET SECURITIZATION TRANSACTIONS, INC., THE MASTER SERVICER, THE TRUSTEE, THE TRUST ADMINISTRATOR OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES. This certifies that Cede & Co. is the registered owner of a Percentage Interest (obtained by dividing the denomination of this Certificate by the aggregate Certificate Principal Balance of the Class M-2 Certificates as of the Issue Date) in that certain beneficial ownership interest evidenced by all the Class M-2 Certificates in REMIC II created pursuant to a Pooling and Servicing Agreement, dated as specified above (the "Agreement"), among Mortgage Asset Securitization Transactions, Inc. (a) hereinafter called the ~~full~~ "Depositor," which term includes any successor entity under the Agreement), the Master Servicer, the Trust Administrator and ~~prompt payment~~ the Trustee, a summary of certain of the ~~principal~~ 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 Agreement. This Certificate is issued under and ~~premium~~is subject to the terms, ~~if any, on such 2018 Note when~~ provisions and ~~as the same shall become due and payable, whether at Stated Maturity, by acceleration, by redemption or otherwise, and (b) the full and prompt payment~~ conditions of the ~~interest on~~ Agreement, to which Agreement the Holder of this Certificate by virtue of the acceptance hereof assents and by which such ~~2018 Note when and as the same shall become due and payable, according~~ Holder is bound. Pursuant to the terms of the Agreement, distributions will be made on the 25th day of each month or, if such ~~2018 Note and~~ 25th day is not a Business Day, the Business Day immediately following (a "Distribution Date"), commencing on the First Distribution Date specified above, to the Person in whose name this Certificate is registered on the Record Date, in an amount equal to the product of the ~~Indenture. The undersigned hereby agrees, jointly~~ Percentage Interest evidenced by this Certificate and ~~severally with~~ the ~~Parent Guarantor~~ amount required to be distributed to the Holders of Class M-2 Certificates on such Distribution Date pursuant to the ~~Parent Guarantee~~ Agreement. All distributions to the Holder of this Certificate under the Agreement will be made or caused to be made by the Trust Administrator by wire transfer in immediately available funds to the account of the Person entitled thereto if such Person shall have so notified the Trust Administrator in writing at least five Business Days prior to the Record Date immediately prior to such Distribution Date and is the registered owner of Class M-2 Certificates the aggregate initial Certificate Principal Balance of which is in excess of the lesser of (i) $5,000,000 or (ii) two-thirds of the aggregate initial Certificate Principal Balance of the Class M-2 Certificates, or otherwise by check mailed by first class mail to the address of the Person entitled thereto, as such name and address shall appear on the Certificate Register. Notwithstanding the above, the final distribution on this Certificate will be made after due notice by the Trust Administrator of the pendency of such distribution and only upon presentation and surrender of this Certificate at the office or agency appointed by the Trust Administrator for that purpose as provided in the Agreement. The Pass-Through Rate applicable to the calculation of interest payable with respect to this Certificate on any Distribution Date shall equal a rate per annum equal to the lesser of (i) the related Formula Rate for such Distribution Date and (ii) the related Net WAC Rate for such Distribution Date. This Certificate is one of a duly authorized issue of Certificates designated as Mortgage Pass-Through Certificates of the Series specified on the face hereof (herein called the "Certificates") and representing a Percentage Interest in the Class of Certificates specified on the face hereof equal to the denomination specified on the face hereof divided by the aggregate Certificate Principal Balance of the Class of Certificates specified on the face hereof. The 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 Agreement. As provided in the Agreement, withdrawals from the Distribution Account may be made from time to time for purposes other ~~Subsidiary Guarantors~~ than distributions to Certificateholders, such purposes including reimbursement of advances made, or certain expenses incurred, with respect to the Mortgage Loans. The Agreement permits, with certain exceptions therein provided, the amendment thereof and the modification of the rights and obligations of the Depositor, the Master Servicer, the Trust Administrator and the Trustee and the rights of the Certificateholders under ~~their respective Subsidiary Guarantees~~the Agreement at any time by the Depositor, ~~that its obligations hereunder~~ the Master Servicer, the Trust Administrator and the Trustee with the consent of the Holders of Certificates entitled to at least 66% of the Voting Rights. Any such consent by the Holder of this Certificate shall be ~~as principal~~ conclusive and binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in exchange herefor or in lieu hereof whether or not ~~merely as surety~~notation of such consent is made upon this Certificate. The Agreement also permits the amendment thereof, ~~and shall be absolute and unconditional~~in certain limited circumstances, ~~and shall not be affected, modified or impaired by~~ without the ~~following: (a) the failure to give notice to the Guarantors~~ consent of the occurrence of an Event of Default under the Indenture; (b) the waiver, surrender, compromise, settlement, release or termination of the payment, performance or observance by the Operating Partnership or the Guarantors of any or all of the obligations, covenants or agreements of either of them contained in the Indenture or the 2018 Notes; (c) the acceleration, extension or any other changes in the time for payment of any principal of or interest or any premium on any 2018 Note or for any other payment under the Indenture or of the time for performance of any other obligations, covenants or agreements under or arising out of the Indenture or the 2018 Notes; (d) the modification or amendment (whether material or otherwise) of any obligation, covenant or agreement set forth in the Indenture or the 2018 Notes; (e) the taking or the omission Holders of any of the ~~actions referred to~~ Certificates. As provided in the ~~Indenture~~ Agreement and subject to certain limitations therein set forth, the transfer of this Certificate is registrable in ~~any~~ the Certificate Register upon surrender of this Certificate for registration of transfer at the offices or agencies appointed by the Trust Administrator as provided in the Agreement, duly endorsed by, or accompanied by an assignment in the form below or other written instrument of transfer in form satisfactory to the Trust 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 ~~actions under~~ same Class in authorized denominations evidencing the ~~2018 Notes; (f) any failure, omission, delay~~ same aggregate Percentage Interest will be issued to the designated transferee or ~~lack on the part~~ transferees. No transfer of this Certificate to a Plan subject to ERISA or Section 4975 of the Trustee to enforce, assert or exercise any right, power or remedy conferred on the Trustee in the Indenture, or any other action or acts on the part of the Trustee or any of the Holders from time to time of the 2018 Notes; (g) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all the assets, marshaling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition with creditors or readjustment of, or other similar proceedings affecting the Guarantors or the Operating Partnership or any of the assets of any of them, or any allegation or contest of the validity of this Subsidiary Guarantee in any such proceeding; (h) to the extent permitted by law, the release or discharge by operation of law of the Guarantors from the performance or observance of any obligation, covenant or agreement contained in the Indenture; (i) to the extent permitted by law, the release or discharge by operation of law of the Operating Partnership from the performance or observance of any obligation, covenant or agreement contained in the Indenture; (j) the default or failure of the Operating Partnership or the Trustee fully to perform any of its obligations set forth in the Indenture or the 2018 Notes; (k) the invalidity, irregularity or unenforceability of the Indenture or the 2018 Notes or any part of any thereof; (l) any judicial or governmental action affecting the Operating Partnership or any 2018 Notes or consent or indulgence granted by the Operating Partnership by the Holders or by the Trustee; or (m) the recovery of any judgment against the Operating Partnership or any action to enforce the same or any other circumstance which might constitute a legal or equitable discharge of a surety or guarantor. The undersigned hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of merger, sale, lease or conveyance of all or substantially all of its assets, insolvency or bankruptcy of the Operating PartnershipCode, any right to require a proceeding first against the Operating Partnership, protest or notice with respect to such Notice or the indebtedness evidenced thereby and all demands whatsoever, and covenants that this Subsidiary Guarantee will not be discharged except by complete performance of the obligations contained in such 2018 Note and in this Subsidiary Guarantee. No reference herein to such Indenture and no provision of this Subsidiary Guarantee or of such Indenture shall alter or impair the guarantee of the undersigned, which is absolute and unconditional, of the full and prompt payment of the principal of and premium, if any, and interest on the 2018 Note. THIS SUBSIDIARY GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. The validity and enforceability of this Subsidiary Guarantee shall not be affected by the fact that it is not affixed to any particular 2018 Note. An Event of Default under the Indenture or the 2018 Notes shall constitute an event of default under this Subsidiary Guarantee, and shall entitle the Holders of 2018 Notes to accelerate the obligations of the undersigned hereunder in the same manner and to the same extent as the obligations of the Operating Partnership. Notwithstanding any other provision of this Subsidiary Guarantee to the contrary, the undersigned hereby waives any claims or other rights which it may now have or hereafter acquire against the Operating Partnership that arise from the existence or performance of its obligations under this Subsidiary Guarantee (all such claims and rights are referred to as "Guarantor's Conditional Rights"), including, without limitation, any right of subrogation, reimbursement, exoneration, contribution, or indemnification, any right to participate in any claim or remedy against the Operating Partnership, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, by any payment made hereunder or otherwise, including without limitation, the right to take or receive from Operating PartnershipPerson acting, directly or indirectly, on behalf of any such Plan or any Person using "Plan Assets" to acquire this Certificate shall be made except in ~~cash~~ accordance with Section 5.02(c) of the Agreement. The Certificates are issuable in fully registered form only without coupons in Classes and denominations representing Percentage Interests specified in the Agreement. As provided in the Agreement and subject to certain limitations therein set forth, the Certificates are exchangeable for new Certificates of the same Class in authorized denominations evidencing the same aggregate Percentage Interest, as requested by the Holder surrendering the same. No service charge will be made for any such registration of transfer or exchange of Certificates, but the Trust Administrator may require payment of a sum sufficient to cover any tax or other ~~property~~ governmental charge that may be imposed in connection with any transfer or ~~by setoff or in any other manner, payment or security on account~~ exchange of ~~such claim or other rights~~Certificates. The Subsidiary Guarantor hereby agrees not to exercise any rights which may be acquired by way of contribution under this Subsidiary Guarantee or any other agreement, by any payment made hereunder or otherwise, including, without limitationDepositor, the ~~right~~ Master Servicer, the Trustee, the Trust Administrator and any agent of the Depositor, the Master Servicer, the Trust Administrator or 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 Trustee, the Trust Administrator nor any such agent shall be affected by notice to ~~take or receive from any other guarantor, directly or indirectly, in cash or other property or~~ the contrary. The obligations created by ~~setoff or in any other manner,~~ the Agreement and the Trust Fund created thereby shall terminate upon payment ~~or security on account~~ to the Certificateholders of ~~such contribution rights. If, notwithstanding~~ all amounts held by the ~~foregoing provisions, any amount shall~~ Trust Administrator and required to be paid to ~~any~~ them pursuant to the Agreement following the earlier of ~~the undersigned on account of any such Guarantor's Conditional Rights and either~~ (i) ~~such amount is paid to such undersigned party at~~ the final payment or other liquidation (or any ~~time when~~ advance with respect thereto) of the ~~indebtedness shall not have been paid or performed~~ last Mortgage Loan and REO Property remaining in ~~full, or~~ REMIC I and (ii) ~~regardless~~ the purchase by the party designated in the Agreement at a price determined as provided in the Agreement from REMIC I of ~~when~~ all the Mortgage Loans and all property acquired in respect of such ~~amount~~ Mortgage Loans. The Agreement permits, but does not require, the party designated in the Agreement to purchase from REMIC I all the Mortgage Loans and all property acquired in respect of any Mortgage Loan at a price determined as provided in the Agreement. The exercise of such right will effect early retirement of the Certificates; however, such right to purchase is ~~paid to such undersigned party, any payment made by Operating Partnership to a Holder that is at any time determined to be a Preferential Payment (as defined below), then such amount paid~~ subject to the ~~undersigned~~ aggregate Stated Principal Balance of the Mortgage Loans at the time of purchase being less than 10% of the aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-off Date. The recitals contained herein shall be ~~held in trust for the benefit~~ taken as statements of the ~~Holders~~ Depositor and ~~shall forthwith be paid such Holder to be credited and applied upon~~ the ~~indebtedness~~Trust Administrator assume no responsibility for their correctness. Unless the certificate of authentication hereon has been executed by the Trust Administrator, ~~whether matured or unmatured. Any such payment is herein referred to as a "Preferential Payment" to the extent the Operating Partnership makes any payment to Holder in connection with the Note~~by manual signature, and any or all of such payment is subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid or paid over to a trustee, receiver or any other entity, whether under any bankruptcy act or otherwise. To the extent that any of the provisions of the immediately preceding paragraph this Certificate shall not be ~~enforceable, each of~~ entitled to any benefit under the ~~undersigned agrees that until such time as the indebtedness has been paid and performed in full and the period of time has expired during which~~ Agreement or be valid for any payment made by the Operating Partnership or the undersigned to a Holder may be determined to be a Preferential Payment, Guarantor's Conditional Rights to the extent not validly waived shall be subordinate to Holders' right to full payment and performance of the indebtedness and each of the undersigned shall not enforce any of its respective portion of the Guarantors' Conditional Rights until such time as the indebtedness has been paid and performed in full and the period of time has expired during which any payment made by the Operating Partnership or the undersigned to Holders may be determined to be a Preferential Payment. The undersigned's liability (the "Base Guaranty Liability") shall be that amount from time to time equal to the aggregate liability of the undersigned hereunder, but shall be limited to the lesser of (A) the aggregate amount of the obligation as stated in the second sentence of Section 1401 of the Indenture, and (B) the amount, if any, which would not have (i) rendered the undersigned "insolvent" (as such term is defined in Section 101(29) of the Federal Bankruptcy Code and in Section 271 of the Debtor and Creditor Law of the State of New York, as each is in effect at the date of the Indenture) or (ii) left the undersigned with unreasonably small capital at the time its Guarantee was entered into, after giving effect to the incurrence of existing Debt (as defined in the Indenture) immediately prior to such time, provided that, it shall be a presumption in any lawsuit or other proceeding in which the undersigned is a party that the amount guaranteed is the amount set forth in (A) above unless a creditor, or representative of creditors of the undersigned or a trustee in bankruptcy of the undersigned, as debtor in possession, otherwise proves in such a lawsuit that the aggregate liability of the undersigned is limited to the amount set forth in (B). In making any determination as to the solvency or sufficiency of capital of the undersigned in accordance with the previous sentence, the right of the undersigned to contribution from other Guarantors, to subrogation and any other rights the undersigned may have, contractual or otherwise, shall be taken into account. The obligations of the undersigned to the Holders of the 2018 Notes and to the Trustee pursuant to the Subsidiary Guarantee and the Indenture are expressly set forth in Article 14 of the Indenture and reference is hereby made to the Indenture for the precise terms of the Subsidiary Guarantee and all of the other provisions of the Indenture to which this Subsidiary Guarantee relates. Capitalized terms in this Subsidiary Guarantee which are not defined herein shall have the meanings assigned to them in the Indenturepurpose.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (MASTR Asset Backed Securities Trust 2004-He1)

Dated. ~~Notice~~Signature by or on behalf of assignor --------------------------------------- Signature Guaranteed DISTRIBUTION INSTRUCTIONS ------------------------- The assignee should include the following for purposes of distribution: The signature to this assignment must correspond with the name as it appears upon the face of the within Note in every particular, without alteration or enlargement or any change whatever. ABBREVIATIONS The following abbreviations, when used in the inscription on the face of this instrument, Distributions shall be ~~construed as though they were written out~~ made, by wire transfer or otherwise, in ~~full according~~ immediately available funds to applicable laws or regulations: TEN COM--as tenants in common UNIF GIFT MIN ACT--_____ Custodian______ TEN ENT--as tenants by the entireties (Cust) (Minor) JT TEN--as joint tenants with right Under Uniform Gifts to Minors of survivorship and not as Act__________________________ tenants in common (State) Additional abbreviations may also be used though not in the above list. --------------------------- [FORM OF SCHEDULE FOR ENDORSEMENTS ON GLOBAL SECURITY TO REFLECT CHANGES IN PRINCIPAL AMOUNT] Schedule A Changes to Principal Amount of Global Security Principal Amount of Securities by which this Global Security is to be Reduced or Increased, and Reason for Remaining Principal Amount of Notation Date Reduction or Increase this Global Securities Made by ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- Exhibit B SUBSIDIARY GUARANTEE FOR VALUE RECEIVED, the undersigned hereby jointly and severally with the Parent Guarantor pursuant to the Parent Guarantee and any other subsidiary Guarantors under their respective Subsidiary Guarantees, unconditionally guarantees to the Holder of the accompanying _____~~% Note Due June~~ __________________, ~~2018 (~~for the ~~"2018 Note") issued by AMB Property, L.P. (the "Operating Partnership") under an Indenture dated as~~ account of ~~June~~ ______________________________, ~~1998 (together with the Second Supplemental Indenture thereto~~account number _____________, or, if mailed by check, to ______________________________. Applicable statements should be mailed to ___________________________________________________________. This information is provided by ______________________________________, the ~~"Indenture") among the Operating Partnership~~assignee named above, ~~AMB Property Corporation, and State Street Bank and Trust Company of California, N.A.~~or ____________________________________, as ~~trustee~~ its agent. EXHIBIT A-6 FORM OF CLASS A-6 CERTIFICATE SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT", AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986 (THE "CODE"). Series 1999-1, Class A-6 Aggregate Certificate Principal Balance of Class A-6 Certificates as of the Issue Pass-Through Rate: 6.50% per annum Date: $__________ Date of Trust Agreement: February 25, 1999 Denomination: $__________ First Distribution Date: March 26, 1999 Trustee: The Bank of New York No. __ Issue Date: February 25, 1999 CUSIP: 79548K DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE AS THE DENOMINATION OF THIS CERTIFICATE. MORTGAGE PASS-THROUGH CERTIFICATE evidencing a beneficial ownership interest in a Trust Fund consisting primarily of the Underlying Certificates, such Trust Fund formed and the Underlying Certificates deposited therein by SALOMON BROTHERS MORTGAGE SECURITIES VII, INC. THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN SALOMON BROTHERS MORTGAGE SECURITIES VII, INC., THE TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLY ING CERTIFICATES ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES. This certifies that ____________ is the registered owner of a Percentage Interest (obtained by dividing the denomination of this Certificate by the aggregate Certificate Principal Balance of the Class A-6 Certificates as of the Issue Date) in that certain beneficial ownership interest evidenced by all the Class A-6 Certificates in the Trust Fund created pursuant to a Trust Agreement, dated as specified above (the "~~Trustee~~Agreement"), between Salomon Brothers Mortgage Securities VII, Inc. (ahereinafter called the "Depositor," which term includes any successor entity under the Agreement) and the ~~full and prompt payment~~ Trustee, a summary of certain of the ~~principal~~ 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 Agreement. This Certificate is issued under and ~~premium~~is subject to the terms, ~~if any, on such 2018 Note when~~ provisions and ~~as the same shall become due and payable, whether at Stated Maturity, by acceleration, by redemption or otherwise, and (b) the full and prompt payment~~ conditions of the ~~interest on~~ Agreement, to which Agreement the Holder of this Certificate by virtue of the acceptance hereof assents and by which such ~~2018 Note when and as the same shall become due and payable, according~~ Holder is bound. Pursuant to the terms of the Agreement, distributions will be made on the 26th day of each month or, if such ~~2018 Note and~~ 26th day is not a Business Day, the Business Day immediately following (a "Distribution Date"), commencing on the First Distribution Date specified above, to the Person in whose name this Certificate is registered on the last Business Day of the ~~Indenture. The undersigned hereby agrees~~month immediately preceding the month of such distribution (the "Record Date"), ~~jointly~~ in an amount equal to the product of the Percentage Interest evidenced by this Certificate and ~~severally with~~ the ~~Parent Guarantor~~ amount required to be distributed to the Holders of Class A-6 Certificates on such Distribution Date pursuant to the ~~Parent Guarantee~~ Agreement. All distributions to the Holder of this Certificate under the Agreement will be made or caused to be made by or on behalf of the Trustee by wire transfer in immediately available funds to the account of the Person entitled thereto if such Person shall have so notified the Trustee in writing at least five Business Days prior to the Record Date immediately prior to such Distribution Date and is the registered owner of Class A-6 Certificates the aggregate initial Certificate Principal Balance of which is in excess of the lesser of (i) $5,000,000 or (ii) two-thirds of the aggregate initial Certificate Principal Balance of the Class A-6 Certificates, or otherwise by check mailed by first class mail to the address of the Person entitled thereto, as such name and address shall appear on the Certificate Register. Notwithstanding the above, the final distribution on this Certificate will be made after due notice by the Trustee of the pendency of such distribution and only upon presentation and surrender of this Certificate at the office or agency appointed by the Trustee for that purpose as provided in the Agreement. This Certificate is one of a duly authorized issue of Certificates designated as Trust Certificates of the Series specified on the face hereof (herein called the "Certificates") and representing a Percentage Interest in the Class of Certificates specified on the face hereof equal to the denomination specified on the face hereof divided by the aggregate Certificate Principal Balance of the Class of Certificates specified on the face hereof. The Certificates are limited in right of payment to certain collections and recoveries respecting the Underlying Certificates, all as more specifically set forth herein and in the Agreement. As provided in the Agreement, withdrawals from the Collection Account and the Distribution Account may be made from time to time for purposes other than distributions to Certificateholders, such purposes including reimbursement of advances made, or certain expenses incurred, with respect to the Underlying Certificates. The Agreement permits, with certain exceptions therein provided, the amendment thereof and the modification of the rights and obligations of the Depositor and the Trustee, and the rights of the Certificateholders under the Agreement at any ~~other Subsidiary Guarantors under their respective Subsidiary Guarantees, that its obligations hereunder~~ time by the Depositor and the Trustee with the consent of the Holders of Certificates entitled to at least 66% of the Voting Rights. Any such consent by the Holder of this Certificate shall be ~~as principal~~ conclusive and binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in exchange herefor or in lieu hereof whether or not ~~merely as surety~~notation of such consent is made upon this Certificate. The Agreement also permits the amendment thereof, ~~and shall be absolute and unconditional~~in certain limited circumstances, ~~and shall not be affected, modified or impaired by~~ without the ~~following: (a) the failure to give notice to the Guarantors~~ consent of the occurrence of an Event of Default under the Indenture; (b) the waiver, surrender, compromise, settlement, release or termination of the payment, performance or observance by the Operating Partnership or the Guarantors of any or all of the obligations, covenants or agreements of either of them contained in the Indenture or the 2018 Notes; (c) the acceleration, extension or any other changes in the time for payment of any principal of or interest or any premium on any 2018 Note or for any other payment under the Indenture or of the time for performance of any other obligations, covenants or agreements under or arising out of the Indenture or the 2018 Notes; (d) the modification or amendment (whether material or otherwise) of any obligation, covenant or agreement set forth in the Indenture or the 2018 Notes; (e) the taking or the omission Holders of any of the ~~actions referred to~~ Certificates. As provided in the ~~Indenture~~ Agreement and subject to certain limitations therein set forth, the transfer of this Certificate is registrable in ~~any~~ the Certificate Register upon surrender of this Certificate for registration of transfer at the offices or agencies appointed by the Trustee as provided in the Agreement, duly endorsed by, or accompanied by an assignment in the form below or other written instrument of transfer in form satisfactory to the Trustee and the Certificate Registrar duly executed by, the Holder hereof or such Holder's attorney duly authorized in writing, and thereupon one or more new Certificates of the ~~actions under~~ same Class in authorized denominations evidencing the ~~2018 Notes;~~ same aggregate Percentage Interest 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 Agreement. As provided in the Agreement and subject to certain limitations therein set forth, Certificates are exchangeable for new Certificates of the same Class in authorized denominations evidencing the same aggregate Percentage Interest, as requested by the Holder surrendering the same. No service charge will be made for any such registration of transfer or exchange of Certificates, but the Trustee 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 and the Certificate Registrar and any agent of the Depositor, the Trustee or the Certificate Registrar 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 Certificate Registrar nor any such agent shall be affected by notice to the contrary. The obligations created by the Agreement and the Trust Fund created thereby shall terminate upon payment (for provision for payment) ~~any failure, omission, delay~~ to the Certificateholders of all amounts held by or ~~lack~~ on ~~the part~~ behalf of the Trustee and required to ~~enforce, assert~~ be paid to them pursuant to the Agreement follow ing the final payment (or ~~exercise~~ any ~~right, power or remedy conferred~~ advance with respect thereto) on the ~~Trustee in the Indenture, or any other action or acts on the part~~ Underlying Certificates. The recitals contained herein shall be taken as statements of the Trustee or any of the Holders from time to time of the 2018 Notes; (g) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all the assets, marshaling of assets Depositor and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition with creditors or readjustment of, or other similar proceedings affecting the Guarantors or the Operating Partnership or any of the assets of any of them, or any allegation or contest of the validity of this Subsidiary Guarantee in any such proceeding; (h) to the extent permitted by law, the release or discharge by operation of law of the Guarantors from the performance or observance of any obligation, covenant or agreement contained in the Indenture; (i) to the extent permitted by law, the release or discharge by operation of law of the Operating Partnership from the performance or observance of any obligation, covenant or agreement contained in the Indenture; (j) the default or failure of the Operating Partnership or the Trustee ~~fully to perform any~~ assumes no responsibility for their correctness. Unless the certificate of its obligations set forth in the Indenture or the 2018 Notes; (k) the invalidity, irregularity or unenforceability of the Indenture or the 2018 Notes or any part of any thereof; (l) any judicial or governmental action affecting the Operating Partnership or any 2018 Notes or consent or indulgence granted authentication hereon has been executed by the ~~Operating Partnership~~ Certificate Registrar, by the Holders or by the Trustee; or (m) the recovery of any judgment against the Operating Partnership or any action to enforce the same or any other circumstance which might constitute a legal or equitable discharge of a surety or guarantor. The undersigned hereby waives diligencemanual signature, presentment, demand of payment, filing of claims with a court in the event of merger, sale, lease or conveyance of all or substantially all of its assets, insolvency or bankruptcy of the Operating Partnership, any right to require a proceeding first against the Operating Partnership, protest or notice with respect to such Notice or the indebtedness evidenced thereby and all demands whatsoever, and covenants that this Subsidiary Guarantee will not be discharged except by complete performance of the obligations contained in such 2018 Note and in this Subsidiary Guarantee. No reference herein to such Indenture and no provision of this Subsidiary Guarantee or of such Indenture shall alter or impair the guarantee of the undersigned, which is absolute and unconditional, of the full and prompt payment of the principal of and premium, if any, and interest on the 2018 Note. THIS SUBSIDIARY GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. The validity and enforceability of this Subsidiary Guarantee Certificate shall not be ~~affected by the fact that it is not affixed~~ entitled to any ~~particular 2018 Note. An Event of Default~~ benefit under the ~~Indenture~~ Agreement or the 2018 Notes shall constitute an event of default under this Subsidiary Guarantee, and shall entitle the Holders of 2018 Notes to accelerate the obligations of the undersigned hereunder in the same manner and to the same extent as the obligations of the Operating Partnership. Notwithstanding be valid for any other provision of this Subsidiary Guarantee to the contrary, the undersigned hereby waives any claims or other rights which it may now have or hereafter acquire against the Operating Partnership that arise from the existence or performance of its obligations under this Subsidiary Guarantee (all such claims and rights are referred to as "Guarantor's Conditional Rights"), including, without limitation, any right of subrogation, reimbursement, exoneration, contribution, or indemnification, any right to participate in any claim or remedy against the Operating Partnership, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, by any payment made hereunder or otherwise, including without limitation, the right to take or receive from Operating Partnership, directly or indirectly, in cash or other property or by setoff or in any other manner, payment or security on account of such claim or other rights. The Subsidiary Guarantor hereby agrees not to exercise any rights which may be acquired by way of contribution under this Subsidiary Guarantee or any other agreement, by any payment made hereunder or otherwise, including, without limitation, the right to take or receive from any other guarantor, directly or indirectly, in cash or other property or by setoff or in any other manner, payment or security on account of such contribution rights. If, notwithstanding the foregoing provisions, any amount shall be paid to any of the undersigned on account of any such Guarantor's Conditional Rights and either (i) such amount is paid to such undersigned party at any time when the indebtedness shall not have been paid or performed in full, or (ii) regardless of when such amount is paid to such undersigned party, any payment made by Operating Partnership to a Holder that is at any time determined to be a Preferential Payment (as defined below), then such amount paid to the undersigned shall be held in trust for the benefit of the Holders and shall forthwith be paid such Holder to be credited and applied upon the indebtedness, whether matured or unmatured. Any such payment is herein referred to as a "Preferential Payment" to the extent the Operating Partnership makes any payment to Holder in connection with the Note, and any or all of such payment is subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid or paid over to a trustee, receiver or any other entity, whether under any bankruptcy act or otherwise. To the extent that any of the provisions of the immediately preceding paragraph shall not be enforceable, each of the undersigned agrees that until such time as the indebtedness has been paid and performed in full and the period of time has expired during which any payment made by the Operating Partnership or the undersigned to a Holder may be determined to be a Preferential Payment, Guarantor's Conditional Rights to the extent not validly waived shall be subordinate to Holders' right to full payment and performance of the indebtedness and each of the undersigned shall not enforce any of its respective portion of the Guarantors' Conditional Rights until such time as the indebtedness has been paid and performed in full and the period of time has expired during which any payment made by the Operating Partnership or the undersigned to Holders may be determined to be a Preferential Payment. The undersigned's liability (the "Base Guaranty Liability") shall be that amount from time to time equal to the aggregate liability of the undersigned hereunder, but shall be limited to the lesser of (A) the aggregate amount of the obligation as stated in the second sentence of Section 1401 of the Indenture, and (B) the amount, if any, which would not have (i) rendered the undersigned "insolvent" (as such term is defined in Section 101(29) of the Federal Bankruptcy Code and in Section 271 of the Debtor and Creditor Law of the State of New York, as each is in effect at the date of the Indenture) or (ii) left the undersigned with unreasonably small capital at the time its Guarantee was entered into, after giving effect to the incurrence of existing Debt (as defined in the Indenture) immediately prior to such time, provided that, it shall be a presumption in any lawsuit or other proceeding in which the undersigned is a party that the amount guaranteed is the amount set forth in (A) above unless a creditor, or representative of creditors of the undersigned or a trustee in bankruptcy of the undersigned, as debtor in possession, otherwise proves in such a lawsuit that the aggregate liability of the undersigned is limited to the amount set forth in (B). In making any determination as to the solvency or sufficiency of capital of the undersigned in accordance with the previous sentence, the right of the undersigned to contribution from other Guarantors, to subrogation and any other rights the undersigned may have, contractual or otherwise, shall be taken into account. The obligations of the undersigned to the Holders of the 2018 Notes and to the Trustee pursuant to the Subsidiary Guarantee and the Indenture are expressly set forth in Article 14 of the Indenture and reference is hereby made to the Indenture for the precise terms of the Subsidiary Guarantee and all of the other provisions of the Indenture to which this Subsidiary Guarantee relates. Capitalized terms in this Subsidiary Guarantee which are not defined herein shall have the meanings assigned to them in the Indenturepurpose.

Appears in 1 contract

Samples: Distribution Instructions (Solomon Bros Mort Securities Vii Trust Cert Series 1999 1)

Dated. ~~Notice~~Signature by or on behalf of assignor ---------------------------------------- Signature Guaranteed DISTRIBUTION INSTRUCTIONS The assignee should include the following for purposes of distribution: The signature to this assignment must correspond with the name as it appears upon the face of the within Note in every particular, without alteration or enlargement or any change whatever. ABBREVIATIONS The following abbreviations, when used in the inscription on the face of this instrument, Distributions shall be ~~construed as though they were written out~~ made, by wire transfer or otherwise, in ~~full according~~ immediately available funds to ~~applicable laws or regulations: TEN COM--as tenants in common UNIF GIFT MIN ACT--_____ Custodian~~_____~~_ TEN ENT--as tenants~~ _______________________________________________________, for the account of ____________________________________________________________, account number ___________, or, if mailed by ~~the entireties (Cust) (Minor) JT TEN--as joint tenants with right Under Uniform Gifts~~ check, to ~~Minors of survivorship and not as Act~~________________________, Applicable statements should be mailed to _____________________________________ tenants in common (State) Additional abbreviations may also be used though not in the above list. --------------------------- [FORM OF SCHEDULE FOR ENDORSEMENTS ON GLOBAL SECURITY TO REFLECT CHANGES IN PRINCIPAL AMOUNT] Schedule A Changes to Principal Amount of Global Security Principal Amount of Securities by which this Global Security is to be Reduced or Increased, and Reason for Remaining Principal Amount of Notation Date Reduction or Increase this Global Securities Made by ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- Exhibit B SUBSIDIARY GUARANTEE FOR VALUE RECEIVED, the undersigned hereby jointly and severally with the Parent Guarantor pursuant to the Parent Guarantee and any other subsidiary Guarantors under their respective Subsidiary Guarantees, unconditionally guarantees to the Holder of the accompanying _____~~% Note Due June~~ __________________________________________________________________________. This information is provided by _______________________________________________, ~~2018 (~~the ~~"2018 Note") issued by AMB Property~~assignee named above, ~~L.P. (the "Operating Partnership") under an Indenture dated as of June~~ or __________________________________________________, ~~1998~~ as its agent. XXXXXXX X-0 FORM OF CLASS M-4 CERTIFICATE UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (~~together with~~ "DTC"), TO THE TRUSTEE OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986 (THE "CODE"). THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A CERTIFICATES, THE CLASS M-1 CERTIFICATES, THE CLASS M-2 CERTIFICATES AND THE CLASS M-3 CERTIFICATES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN. Series 2005-NC5 Pass-Through Rate: Variable Cut-off Date and date of Pooling and Servicing Agreement: October 1, 2005 First Distribution Date: November 25, 2005 No. 1 Aggregate Certificate Principal Balance of the ~~Second Supplemental Indenture thereto,~~ Class M-4 Certificates as of the ~~"Indenture") among the Operating Partnership, AMB Property Corporation, and State Street~~ Issue Date: $[______].00 Denomination: $[_______].00 Servicer: New Century Mortgage Corporation Trustee: Deutsche Bank ~~and~~ National Trust Company Issue Date: October 4, 2005 CUSIP: [_______] [__] [_] DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE AS THE DENOMINATION OF THIS CERTIFICATE. ASSET BACKED PASS-THROUGH CERTIFICATE evidencing a beneficial ownership interest in a portion of ~~California, N.A., as trustee~~ a Trust Fund (the "~~Trustee~~Trust Fund") consisting primarily of a pool of conventional one- to four-family, adjustable-rate and fixed-rate, interest-only and fully-amortizing, first lien and second lien mortgage loans (the "Mortgage Loans") formed and sold by STANWICH ASSET ACCEPTANCE COMPANY, L.L.C. THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN STANWICH ASSET ACCEPTANCE COMPANY, L.L.C., THE SERVICER, THE TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES. This certifies that Cede & Co. is the registered owner of a Percentage Interest (obtained by dividing the denomination of this Certificate by the aggregate Certificate Principal Balance of the Class M-4 Certificates as of the Issue Date) in that certain beneficial ownership interest evidenced by all the Class M-4 Certificates in REMIC II created pursuant to a Pooling and Servicing Agreement, dated as specified above (the "Agreement"), among Stanwich Asset Acceptance Company, L.L.C. (a) hereinafter called the ~~full~~ "Depositor," which term includes any successor entity under the Agreement), the Servicer and ~~prompt payment~~ the Trustee, a summary of certain of the ~~principal~~ 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 Agreement. This Certificate is issued under and ~~premium~~is subject to the terms, ~~if any, on such 2018 Note when~~ provisions and ~~as the same shall become due and payable, whether at Stated Maturity, by acceleration, by redemption or otherwise, and (b) the full and prompt payment~~ conditions of the ~~interest on~~ Agreement, to which Agreement the Holder of this Certificate by virtue of the acceptance hereof assents and by which such ~~2018 Note when and as the same shall become due and payable, according~~ Holder is bound. Pursuant to the terms of the Agreement, distributions will be made on the 25th day of each month or, if such ~~2018 Note and~~ 25th day is not a Business Day, the Business Day immediately following (a "Distribution Date"), commencing on the First Distribution Date specified above, to the Person in whose name this Certificate is registered on the Record Date, in an amount equal to the product of the ~~Indenture. The undersigned hereby agrees, jointly~~ Percentage Interest evidenced by this Certificate and ~~severally with~~ the ~~Parent Guarantor~~ amount required to be distributed to the Holders of Class M-4 Certificates on such Distribution Date pursuant to the ~~Parent Guarantee and any other Subsidiary Guarantors~~ Agreement. All distributions to the Holder of this Certificate under ~~their respective Subsidiary Guarantees, that its obligations hereunder shall~~ the Agreement will be ~~as principal and not merely as surety, and shall~~ made or caused to be ~~absolute and unconditional, and shall not be affected, modified or impaired~~ made by the ~~following: (a) the failure to give notice~~ Trustee by wire transfer in immediately available funds to the ~~Guarantors~~ account of the occurrence of an Event of Default under the Indenture; (b) the waiver, surrender, compromise, settlement, release or termination of the payment, performance or observance by the Operating Partnership or the Guarantors of any or all of the obligations, covenants or agreements of either of them contained in the Indenture or the 2018 Notes; (c) the acceleration, extension or any other changes in the time for payment of any principal of or interest or any premium on any 2018 Note or for any other payment under the Indenture or of the time for performance of any other obligations, covenants or agreements under or arising out of the Indenture or the 2018 Notes; (d) the modification or amendment (whether material or otherwise) of any obligation, covenant or agreement set forth in the Indenture or the 2018 Notes; (e) the taking or the omission of any of the actions referred to in the Indenture and in any of the actions under the 2018 Notes; (f) any failure, omission, delay or lack on the part of the Trustee to enforce, assert or exercise any right, power or remedy conferred on Person entitled thereto if such Person shall have so notified the Trustee in writing at least five Business Days prior to the ~~Indenture~~Record Date immediately prior to such Distribution Date or otherwise by check mailed by first class mail to the address of the Person entitled thereto, ~~or any other action or acts~~ as such name and address shall appear on the ~~part~~ Certificate Register. Notwithstanding the above, the final distribution on this Certificate will be made after due notice by the Trustee of the ~~Trustee or any~~ pendency of ~~the Holders from time to time of the 2018 Notes; (g) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all the assets, marshaling of assets~~ such distribution and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition with creditors or readjustment of, or other similar proceedings affecting the Guarantors or the Operating Partnership or any of the assets of any of them, or any allegation or contest of the validity only upon presentation and surrender of this ~~Subsidiary Guarantee~~ Certificate at the office or agency appointed by the Trustee for that purpose as provided in ~~any such proceeding; (h)~~ the Agreement. The Pass-Through Rate applicable to the ~~extent permitted by law, the release or discharge by operation~~ calculation of law of the Guarantors from the performance or observance of any obligation, covenant or agreement contained in the Indenture; (i) to the extent permitted by law, the release or discharge by operation of law of the Operating Partnership from the performance or observance of any obligation, covenant or agreement contained in the Indenture; (j) the default or failure of the Operating Partnership or the Trustee fully to perform any of its obligations set forth in the Indenture or the 2018 Notes; (k) the invalidity, irregularity or unenforceability of the Indenture or the 2018 Notes or any part of any thereof; (l) any judicial or governmental action affecting the Operating Partnership or any 2018 Notes or consent or indulgence granted by the Operating Partnership by the Holders or by the Trustee; or (m) the recovery of any judgment against the Operating Partnership or any action to enforce the same or any other circumstance which might constitute a legal or equitable discharge of a surety or guarantor. The undersigned hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of merger, sale, lease or conveyance of all or substantially all of its assets, insolvency or bankruptcy of the Operating Partnership, any right to require a proceeding first against the Operating Partnership, protest or notice interest payable with respect to ~~such Notice or the indebtedness evidenced thereby and all demands whatsoever, and covenants that~~ this Subsidiary Guarantee will not be discharged except by complete performance of the obligations contained in such 2018 Note and in this Subsidiary Guarantee. No reference herein to such Indenture and no provision of this Subsidiary Guarantee or of such Indenture Certificate on any Distribution Date shall alter or impair the guarantee of the undersigned, which is absolute and unconditional, of the full and prompt payment of the principal of and premium, if any, and interest on the 2018 Note. THIS SUBSIDIARY GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. The validity and enforceability of this Subsidiary Guarantee shall not be affected by the fact that it is not affixed to any particular 2018 Note. An Event of Default under the Indenture or the 2018 Notes shall constitute an event of default under this Subsidiary Guarantee, and shall entitle the Holders of 2018 Notes to accelerate the obligations of the undersigned hereunder in the same manner and to the same extent as the obligations of the Operating Partnership. Notwithstanding any other provision of this Subsidiary Guarantee to the contrary, the undersigned hereby waives any claims or other rights which it may now have or hereafter acquire against the Operating Partnership that arise from the existence or performance of its obligations under this Subsidiary Guarantee (all such claims and rights are referred to as "Guarantor's Conditional Rights"), including, without limitation, any right of subrogation, reimbursement, exoneration, contribution, or indemnification, any right to participate in any claim or remedy against the Operating Partnership, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, by any payment made hereunder or otherwise, including without limitation, the right to take or receive from Operating Partnership, directly or indirectly, in cash or other property or by setoff or in any other manner, payment or security on account of such claim or other rights. The Subsidiary Guarantor hereby agrees not to exercise any rights which may be acquired by way of contribution under this Subsidiary Guarantee or any other agreement, by any payment made hereunder or otherwise, including, without limitation, the right to take or receive from any other guarantor, directly or indirectly, in cash or other property or by setoff or in any other manner, payment or security on account of such contribution rights. If, notwithstanding the foregoing provisions, any amount shall be paid to any of the undersigned on account of any such Guarantor's Conditional Rights and either (i) such amount is paid to such undersigned party at any time when the indebtedness shall not have been paid or performed in full, or (ii) regardless of when such amount is paid to such undersigned party, any payment made by Operating Partnership to equal a Holder that is at any time determined to be a Preferential Payment (as defined below), then such amount paid to the undersigned shall be held in trust for the benefit of the Holders and shall forthwith be paid such Holder to be credited and applied upon the indebtedness, whether matured or unmatured. Any such payment is herein referred to as a "Preferential Payment" to the extent the Operating Partnership makes any payment to Holder in connection with the Note, and any or all of such payment is subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid or paid over to a trustee, receiver or any other entity, whether under any bankruptcy act or otherwise. To the extent that any of the provisions of the immediately preceding paragraph shall not be enforceable, each of the undersigned agrees that until such time as the indebtedness has been paid and performed in full and the period of time has expired during which any payment made by the Operating Partnership or the undersigned to a Holder may be determined to be a Preferential Payment, Guarantor's Conditional Rights to the extent not validly waived shall be subordinate to Holders' right to full payment and performance of the indebtedness and each of the undersigned shall not enforce any of its respective portion of the Guarantors' Conditional Rights until such time as the indebtedness has been paid and performed in full and the period of time has expired during which any payment made by the Operating Partnership or the undersigned to Holders may be determined to be a Preferential Payment. The undersigned's liability (the "Base Guaranty Liability") shall be that amount from time to time rate per annum equal ~~to the aggregate liability of the undersigned hereunder, but shall be limited~~ to the lesser of (i) the related Formula Rate for such Distribution Date and (ii) the related Net WAC Pass-Through Rate for such Distribution Date. This Certificate is one of a duly authorized issue of Certificates designated as Asset Backed Pass-Through Certificates of the Series specified on the face hereof (herein called the "Certificates") and representing a Percentage Interest in the Class of Certificates specified on the face hereof equal to the denomination specified on the face hereof divided by the aggregate Certificate Principal Balance of the Class of Certificates specified on the face hereof. The 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 Agreement. As provided in the Agreement, withdrawals from the Collection Account and the Distribution Account may be made from time to time for purposes other than distributions to Certificateholders, such purposes including reimbursement of advances made, or certain expenses incurred, with respect to the Mortgage Loans. The Agreement permits, with certain exceptions therein provided, the amendment thereof and the modification of the rights and obligations of the Depositor, the Servicer, the Trustee and the rights of the Certificateholders under the Agreement at any time by the Depositor, the Servicer and the Trustee with the consent of the Holders of Certificates entitled to at least 66% of the Voting Rights. Any such consent by the Holder of this Certificate shall be conclusive and binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in exchange herefor or in lieu hereof whether or not notation of such consent is made upon this Certificate. The Agreement also permits the amendment thereof, in certain limited circumstances, without the consent of the Holders of any of the Certificates. As provided in the Agreement and subject to certain limitations therein set forth, the transfer of this Certificate is registrable in the Certificate Register upon surrender of this Certificate for registration of transfer at the offices or agencies appointed by the Trustee as provided in the Agreement, duly endorsed by, or accompanied by an assignment in the form below or other written instrument of transfer in form satisfactory to the Trustee duly executed by, the Holder hereof or such Holder's attorney duly authorized in writing, and thereupon one or more new Certificates of the same Class in authorized denominations evidencing the same aggregate Percentage Interest will be issued to the designated transferee or transferees. Each beneficial owner of this Certificate or any interest therein shall be deemed to have represented, by virtue of its acquisition or holding of such Certificate or interest therein, that either (A) ~~the aggregate amount~~ it is not an "employee benefit plan" as defined in Section 3(3) of the ~~obligation~~ Employee Retirement Income Security Act of 1974, as ~~stated~~ amended ("ERISA"), that is subject to Title I of ERISA, any "plan" as defined in ~~the second sentence of~~ Section ~~1401~~ 4975 of the ~~Indenture~~Internal Revenue Code of 1986, ~~and~~ as amended (the "Code"), that is subject to Section 4975 of the Code or any entity deemed to hold plan assets of any of the foregoing, (B) it has acquired and is holding this Certificate in reliance on the ~~amount~~underwriters' exemption, ~~if any~~and that it understands that there are certain conditions to the availability of the underwriters' exemption, ~~which would~~ including that this Certificate must be rated, at the time of purchase, not ~~have (i) rendered the undersigned~~ lower than "~~insolvent~~BBB-" (or its equivalent) by Fitch, S&P or Xxxxx'x and the Certificate is so rated, that it is an accredited investor as defined in Rule 501(a)(1) of Regulation D of the Securities Act of 1933, as amended, and that it will obtain a representation from any transferee that such transferee is an accredited investor, or (C)(1) it is an insurance company, (2) the source of funds used to acquire or hold this Certificate or interest therein is an "insurance company general account," as such term is defined in Prohibited Transaction Class Exemption ("PTCE") 95-60, and (3) the conditions in Sections I and III of PTCE 95-60 have been satisfied. If this Certificate or any interest therein is acquired or held in violation of the provisions of Section ~~101(29~~5.02(c) of the ~~Federal Bankruptcy Code and in Section 271~~ Agreement, the next preceding permitted beneficial owner will be treated as the beneficial owner of ~~the Debtor and Creditor Law of the State of New York, as each is in effect at~~ this Certificate retroactive to the date of transfer to the ~~Indenture~~purported beneficial owner. Any purported beneficial owner whose acquisition or holding of any this Certificate or interest therein was effected in violation of the provisions of Section 5.02(c) of the Agreement shall indemnify and hold harmless the Depositor, the Servicer, the Trustee and the Trust Fund from and against any and all liabilities, claims, costs or expenses incurred by those parties as a result of that acquisition or holding. The Certificates are issuable in fully registered form only without coupons in Classes and denominations representing Percentage Interests specified in the Agreement. As provided in the Agreement and subject to certain limitations therein set forth, the Certificates are exchangeable for new Certificates of the same Class in authorized denominations evidencing the same aggregate Percentage Interest, as requested by the Holder surrendering the same. No service charge will be made for any such registration of transfer or exchange of Certificates, but the Trustee 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 Servicer, the Trustee and any agent of the Depositor, the Servicer or 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 Servicer, the Trustee nor any such agent shall be affected by notice to the contrary. The obligations created by the Agreement and the Trust Fund created thereby shall terminate upon payment to the Certificateholders of all amounts held by the Trustee and required to be paid to them pursuant to the Agreement following the earlier of (i) the final payment or other liquidation (or any advance with respect thereto) of the last Mortgage Loan and REO Property remaining in REMIC I and (ii) ~~left~~ the ~~undersigned with unreasonably small capital~~ purchase by the party designated in the Agreement at a price determined as provided in the Agreement from REMIC I of all the Mortgage Loans and all property acquired in respect of such Mortgage Loans. The Agreement permits, but does not require, the party designated in the Agreement to purchase from REMIC I all the Mortgage Loans and all property acquired in respect of any Mortgage Loan at a price determined as provided in the Agreement. The exercise of such right will effect early retirement of the Certificates; however, such right to purchase is subject to the aggregate Stated Principal Balance of the Mortgage Loans at the time ~~its Guarantee was entered into, after giving effect to the incurrence~~ of existing Debt (as defined in the Indenture) immediately prior to such time, provided that, it shall be a presumption in any lawsuit or other proceeding in which the undersigned is a party that the amount guaranteed is the amount set forth in (A) above unless a creditor, or representative of creditors purchase being less than 10% of the ~~undersigned or a trustee in bankruptcy~~ aggregate Stated Principal Balance of the ~~undersigned,~~ Mortgage Loans as ~~debtor in possession, otherwise proves in such a lawsuit that the aggregate liability~~ of the ~~undersigned is limited to the amount set forth in (B)~~Cut-off Date. In making any determination as to the solvency or sufficiency of capital of the undersigned in accordance with the previous sentence, the right of the undersigned to contribution from other Guarantors, to subrogation and any other rights the undersigned may have, contractual or otherwise, The recitals contained herein shall be taken ~~into account. The obligations~~ as statements of the ~~undersigned to the Holders of the 2018 Notes~~ Depositor and to the Trustee ~~pursuant~~ assumes no responsibility for their correctness. Unless the certificate of authentication hereon has been executed by the Trustee, by manual signature, this Certificate shall not be entitled to any benefit under the ~~Subsidiary Guarantee and the Indenture are expressly set forth in Article 14 of the Indenture and reference is hereby made to the Indenture~~ Agreement or be valid for the precise terms of the Subsidiary Guarantee and all of the other provisions of the Indenture to which this Subsidiary Guarantee relates. Capitalized terms in this Subsidiary Guarantee which are not defined herein shall have the meanings assigned to them in the Indentureany purpose.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Carrington Mortgage Loan Trust, Series 2005-Nc5)

Dated. ~~Notice~~Signature by or on behalf of assignor -------------------------------------- Signature Guaranteed DISTRIBUTION INSTRUCTIONS The assignee should include the following for purposes of distribution: The signature to this assignment must correspond with the name as it appears upon the face of the within Note in every particular, without alteration or enlargement or any change whatever. ABBREVIATIONS The following abbreviations, when used in the inscription on the face of this instrument, Distributions shall be ~~construed as though they were written out~~ made, by wire transfer or otherwise, in ~~full according~~ immediately available funds to ~~applicable laws or regulations: TEN COM--as tenants in common UNIF GIFT MIN ACT--_____ Custodian~~_____~~_ TEN ENT--as tenants by the entireties (Cust) (Minor) JT TEN--as joint tenants with right Under Uniform Gifts to Minors of survivorship and not as Act~~____________________________________________ ~~tenants in common (State) Additional abbreviations may also be used though not in~~ for the ~~above list. --------------------------- [FORM OF SCHEDULE FOR ENDORSEMENTS ON GLOBAL SECURITY TO REFLECT CHANGES IN PRINCIPAL AMOUNT] Schedule A Changes to Principal Amount~~ account of Global Security Principal Amount of Securities by which this Global Security is to be Reduced or Increased, and Reason for Remaining Principal Amount of Notation Date Reduction or Increase this Global Securities Made by ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- Exhibit B SUBSIDIARY GUARANTEE FOR VALUE RECEIVED, the undersigned hereby jointly and severally with the Parent Guarantor pursuant to the Parent Guarantee and any other subsidiary Guarantors under their respective Subsidiary Guarantees, unconditionally guarantees to the Holder of the accompanying _____~~% Note Due June~~ _______________________________________________________, ~~2018 (the "2018 Note") issued by AMB Property, L.P. (the "Operating Partnership") under an Indenture dated as of June~~ account number ____________________, ~~1998 (together with the Second Supplemental Indenture thereto~~or, if mailed by check, to _______________ _______________________________________________________________________________. Applicable statements should be mailed to _____________________________________ _______________________________________________________________________________. This information is provided by________________________________________________, the assignee named above, or _________________________________, as its agent. EXHIBIT A-3 FORM OF CLASS II-A-1 CERTIFICATE SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "~~Indenture~~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 (THE "CODE"). UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE DEPOSITOR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE WILL BE DECREASED BY THE PRINCIPAL PAYMENTS HEREON AND REALIZED LOSSES ALLOCABLE HERETO AS DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN. ACCORDINGLY, FOLLOWING THE INITIAL ISSUANCE OF THE CERTIFICATES, THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE WILL BE DIFFERENT FROM THE DENOMINATION SHOWN BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CERTIFICATE PRINCIPAL BALANCE BY INQUIRY OF THE SECURITIES ADMINISTRATOR NAMED HEREIN. DBALT Series 2005-1, Class II-A-1 Aggregate Certificate Principal Balance of the II-A-1 Certificates as of the Issue Date: $ Pass-Through Rate: Variable Denomination: $ Date of Pooling and Servicing Agreement and Cut-off Date: Master Servicer: Xxxxx Fargo Bank, N.A. January 1, 2005 First Distribution Date: February 25, 2005 Trustee: HSBC Bank USA, National Association No.__ Issue Date: January 31, 2005 CUSIP:________________ DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE AS THE DENOMINATION OF THIS CERTIFICATE. DEUTSCHE ALT-A SECURITIES, INC. MORTGAGE LOAN TRUST, SERIES 2005-1 ASSET BACKED PASS-THROUGH CERTIFICATE evidencing a fractional undivided interest in the distributions allocable to the Class II-A-1 Certificates with respect to a trust fund consisting primarily of a pool of conventional one- to four-family fixed rate mortgage loans (the "Mortgage Loans") secured by one- to four- family residences, units in planned unit developments and individual condominium units (the "Trust Fund") sold by DEUTSCHE ALT-A SECURITIES, INC. THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN DEUTSCHE ALT-A SECURITIES, INC., THE MASTER SERVICER, THE SECURITIES ADMINISTRATOR, THE TRUSTEE, ANY SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES. This certifies that [Cede & Co.] is the registered owner of the Percentage Interest evidenced hereby in the beneficial ownership interest of Certificates of the same Class as this Certificate in certain assets of the Trust Fund generally consisting of the Group II Loans and related assets sold by Deutsche Alt-A Securities, Inc. (the "Depositor"). This Certificate i sprimarily backed by the Group II Mortgage Loans sold by DB Structured Products, Inc. to the Depositor. Xxxxx Fargo Bank, N.A. will act as master servicer of the Group II Loans (the "Master Servicer," which term includes any successors thereto under the Agreement referred to below). The Trust Fund was created pursuant to the Pooling and Servicing Agreement dated as of the Cut-Off Date specified above (the "Agreement"), among the ~~Operating Partnership~~Depositor, ~~AMB Property Corporation, and State Street Bank and Trust Company of California~~Xxxxx Fargo Bank, N.A., as Master Servicer and securities administrator (the "Securities Administrator") and HSBC Bank USA, National Association as trustee (the "Trustee"), ~~(a) the full and prompt payment~~ a summary of certain of the ~~principal~~ pertinent provisions of which is set forth hereafter. To the extent not defined herein, capitalized terms used herein shall have the meaning ascribed to them in the Agreement. This Certificate is issued under and ~~premium~~is subject to the terms, ~~if any, on such 2018 Note when~~ provisions and ~~as the same shall become due and payable, whether at Stated Maturity, by acceleration, by redemption or otherwise, and (b) the full and prompt payment~~ conditions of the ~~interest on~~ Agreement, to which Agreement the Holder of this Certificate by virtue of its acceptance hereof assents and by which such ~~2018 Note when and as the same shall become due and payable, according~~ Holder is bound. Pursuant to the terms of the Agreement, distributions will be made on the 25th day of each month or, if such ~~2018 Note and~~ 25th day is not a Business Day, the Business Day immediately following such 25th day (a "Distribution Date"), commencing on the First Distribution Date specified above, to the Person in whose name this Certificate is registered on the last Business Day of the ~~Indenture. The undersigned hereby agrees~~month immediately preceding the month in which such Distribution Date occurs (the "Record Date"), ~~jointly~~ in an amount equal to the product of the Percentage Interest evidenced by this Certificate and ~~severally with~~ the ~~Parent Guarantor~~ amount required to be distributed to the Holders of Class II-A-1 Certificates on such Distribution Date pursuant to the ~~Parent Guarantee~~ Agreement. All distributions to the Holder of this Certificate under the Agreement will be made or caused to be made by the Securities Administrator by wire transfer in immediately available funds to the account of the Person entitled thereto if such Person shall have so notified the Securities Administrator in writing at least five Business Days prior to the Record Date immediately prior to such Distribution Date and is the registered owner of Class II-A-1 Certificates or otherwise by check mailed by first class mail to the address of the Person entitled thereto, as such name and address shall appear on 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 appointed by the Securities Administrator for that purpose as provided in the Agreement. The Pass-Through Rate with respect to the first Distribution Date is equal to 5.8482% per annum and with respect to any ~~other Subsidiary Guarantors under their respective Subsidiary Guarantees, that its obligations hereunder~~ Distribution date thereafter shall be a rate per annum equal to the weighted average of the Net Mortgage Rates of the Group II Loans for that Distribution Date. This Certificate is one of a duly authorized issue of Certificates designated as ~~principal~~ Mortgage Pass-Through Certificate of the Series specified on the face hereof (herein called the "Certificates") and representing a Percentage Interest in the Class of Certificates specified on the face hereof equal to the denomination specified on the face hereof divided by the aggregate Certificate Principal Balance of the Class of Certificates specified on the face hereof. The Certificates are limited in right of payment to certain collections and recoveries respecting the Mortgage Loans and payments received pursuant to the Cap Contract, all as more specifically set forth herein and in the Agreement. As provided in the Agreement, withdrawals from the Collection Account and the Distribution Account may be made from time to time for purposes other than distributions to Certificateholders, such purposes including reimbursement of advances made, or certain expenses incurred, with respect to the Mortgage Loans. The Agreement permits, with certain exceptions therein provided, the amendment thereof and the modification of the rights and obligations of the Depositor, the Master Servicer, the Trustee, the Securities Administrator and the rights of the Certificateholders under the Agreement at any time by the Depositor, the Master Servicer, the Trustee and the Securities Administrator with the consent of the Holders of Certificates evidencing, in the aggregate, not ~~merely as surety, and~~ less than 66-2/3% of the Trust Fund. Any such consent by the Holder of this Certificate shall be ~~absolute~~ conclusive and ~~unconditional~~binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in exchange herefor or in lieu hereof whether or not notation of such consent is made upon this Certificate. The Agreement also permits the amendment thereof, ~~and shall not be affected~~in certain limited circumstances, ~~modified or impaired by~~ without the ~~following: (a) the failure to give notice to the Guarantors~~ consent of the occurrence of an Event of Default under the Indenture; (b) the waiver, surrender, compromise, settlement, release or termination of the payment, performance or observance by the Operating Partnership or the Guarantors of any or all of the obligations, covenants or agreements of either of them contained in the Indenture or the 2018 Notes; (c) the acceleration, extension or any other changes in the time for payment of any principal of or interest or any premium on any 2018 Note or for any other payment under the Indenture or of the time for performance of any other obligations, covenants or agreements under or arising out of the Indenture or the 2018 Notes; (d) the modification or amendment (whether material or otherwise) of any obligation, covenant or agreement set forth in the Indenture or the 2018 Notes; (e) the taking or the omission Holders of any of the ~~actions referred to~~ Certificates. As provided in the ~~Indenture~~ Agreement and subject to certain limitations therein set forth, the transfer of this Certificate is registrable in ~~any~~ the Certificate Register upon surrender of this Certificate for registration of transfer at the offices or agencies appointed by the Securities Administrator as provided in the Agreement, duly endorsed by, or accompanied by an assignment in the form below 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 ~~actions under~~ same Class in authorized denominations evidencing the ~~2018 Notes; (f) any failure~~same aggregate Percentage Interest 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 Agreement. As provided in the Agreement and subject to certain limitations therein set forth, ~~omission, delay or lack on~~ the ~~part~~ Certificates are exchangeable for new Certificates of the ~~Trustee~~ same Class in authorized denominations evidencing the same aggregate Percentage Interest, as requested by the Holder surrendering the same. No service charge will be made for any such registration of transfer or exchange of Certificates, but the Securities Administrator may require payment of a sum sufficient to ~~enforce~~cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates. The Depositor, ~~assert or exercise~~ the Master Servicer, the Trustee, the Securities Administrator and any ~~right~~agent of the Depositor, ~~power or remedy conferred on~~ the ~~Trustee in the Indenture~~Master Servicer, ~~or any other action or acts on the part of~~ the Trustee or ~~any~~ the Securities Administrator may treat the Person in whose name this Certificate is registered as the owner hereof for all purposes, and none of the ~~Holders from time~~ Depositor, the Master Servicer, the Trustee or the Securities Administrator nor any such agent shall be affected by notice to ~~time of~~ the ~~2018 Notes; (g)~~ contrary. The obligations created by the ~~voluntary or involuntary liquidation, dissolution, sale or other disposition~~ Agreement and the Trust Fund created thereby shall terminate upon payment to the Certificateholders of all ~~or substantially all~~ amounts held by the ~~assets, marshaling of assets~~ Securities Administrator and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition with creditors or readjustment of, or other similar proceedings affecting the Guarantors or the Operating Partnership or any of the assets of any of them, or any allegation or contest of the validity of this Subsidiary Guarantee in any such proceeding; (h) required to be paid to them pursuant to the ~~extent permitted by law,~~ Agreement following the ~~release or discharge by operation~~ earlier of ~~law of the Guarantors from the performance or observance of any obligation, covenant or agreement contained in the Indenture;~~ (i) the final payment or other liquidation (or any advance with respect thereto) of the last Mortgage Loan remaining in the Trust Fund and (ii) the purchase by the party designated in the Agreement at a price determined as provided in the Agreement of all the Mortgage Loans and all property acquired in respect of such Mortgage Loans. The Agreement permits, but does not require, the party designated in the Agreement to purchase all the Mortgage Loans and all property acquired in respect of any Mortgage Loan at a price determined as provided in the Agreement. The exercise of such right will effect early retirement of the Certificates; however, such right to purchase is subject to the ~~extent permitted by law, the release or discharge by operation of law~~ aggregate Stated Principal Balance of the ~~Operating Partnership from~~ Mortgage Loans at the ~~performance~~ time of purchase being less than or ~~observance of any obligation, covenant or agreement contained in the Indenture; (j) the default or failure~~ equal to 10% of the ~~Operating Partnership or~~ aggregate principal balance of the Mortgage Loans as of the Cut-off Date. The recitals contained herein shall be taken as statements of the Depositor and neither the Trustee ~~fully to perform~~ nor the Securities Administrator assumes any responsibility for their correctness. Unless the certificate of its obligations set forth in the Indenture or the 2018 Notes; (k) the invalidity, irregularity or unenforceability of the Indenture or the 2018 Notes or any part of any thereof; (l) any judicial or governmental action affecting the Operating Partnership or any 2018 Notes or consent or indulgence granted authentication hereon has been executed by the ~~Operating Partnership~~ Securities Administrator, by the Holders or by the Trustee; or (m) the recovery of any judgment against the Operating Partnership or any action to enforce the same or any other circumstance which might constitute a legal or equitable discharge of a surety or guarantor. The undersigned hereby waives diligencemanual signature, presentment, demand of payment, filing of claims with a court in the event of merger, sale, lease or conveyance of all or substantially all of its assets, insolvency or bankruptcy of the Operating Partnership, any right to require a proceeding first against the Operating Partnership, protest or notice with respect to such Notice or the indebtedness evidenced thereby and all demands whatsoever, and covenants that this Subsidiary Guarantee will not be discharged except by complete performance of the obligations contained in such 2018 Note and in this Subsidiary Guarantee. No reference herein to such Indenture and no provision of this Subsidiary Guarantee or of such Indenture shall alter or impair the guarantee of the undersigned, which is absolute and unconditional, of the full and prompt payment of the principal of and premium, if any, and interest on the 2018 Note. THIS SUBSIDIARY GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. The validity and enforceability of this Subsidiary Guarantee Certificate shall not be ~~affected by the fact that it is not affixed~~ entitled to any ~~particular 2018 Note. An Event of Default~~ benefit under the ~~Indenture~~ Agreement or the 2018 Notes shall constitute an event of default under this Subsidiary Guarantee, and shall entitle the Holders of 2018 Notes to accelerate the obligations of the undersigned hereunder in the same manner and to the same extent as the obligations of the Operating Partnership. Notwithstanding be valid for any other provision of this Subsidiary Guarantee to the contrary, the undersigned hereby waives any claims or other rights which it may now have or hereafter acquire against the Operating Partnership that arise from the existence or performance of its obligations under this Subsidiary Guarantee (all such claims and rights are referred to as "Guarantor's Conditional Rights"), including, without limitation, any right of subrogation, reimbursement, exoneration, contribution, or indemnification, any right to participate in any claim or remedy against the Operating Partnership, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, by any payment made hereunder or otherwise, including without limitation, the right to take or receive from Operating Partnership, directly or indirectly, in cash or other property or by setoff or in any other manner, payment or security on account of such claim or other rights. The Subsidiary Guarantor hereby agrees not to exercise any rights which may be acquired by way of contribution under this Subsidiary Guarantee or any other agreement, by any payment made hereunder or otherwise, including, without limitation, the right to take or receive from any other guarantor, directly or indirectly, in cash or other property or by setoff or in any other manner, payment or security on account of such contribution rights. If, notwithstanding the foregoing provisions, any amount shall be paid to any of the undersigned on account of any such Guarantor's Conditional Rights and either (i) such amount is paid to such undersigned party at any time when the indebtedness shall not have been paid or performed in full, or (ii) regardless of when such amount is paid to such undersigned party, any payment made by Operating Partnership to a Holder that is at any time determined to be a Preferential Payment (as defined below), then such amount paid to the undersigned shall be held in trust for the benefit of the Holders and shall forthwith be paid such Holder to be credited and applied upon the indebtedness, whether matured or unmatured. Any such payment is herein referred to as a "Preferential Payment" to the extent the Operating Partnership makes any payment to Holder in connection with the Note, and any or all of such payment is subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid or paid over to a trustee, receiver or any other entity, whether under any bankruptcy act or otherwise. To the extent that any of the provisions of the immediately preceding paragraph shall not be enforceable, each of the undersigned agrees that until such time as the indebtedness has been paid and performed in full and the period of time has expired during which any payment made by the Operating Partnership or the undersigned to a Holder may be determined to be a Preferential Payment, Guarantor's Conditional Rights to the extent not validly waived shall be subordinate to Holders' right to full payment and performance of the indebtedness and each of the undersigned shall not enforce any of its respective portion of the Guarantors' Conditional Rights until such time as the indebtedness has been paid and performed in full and the period of time has expired during which any payment made by the Operating Partnership or the undersigned to Holders may be determined to be a Preferential Payment. The undersigned's liability (the "Base Guaranty Liability") shall be that amount from time to time equal to the aggregate liability of the undersigned hereunder, but shall be limited to the lesser of (A) the aggregate amount of the obligation as stated in the second sentence of Section 1401 of the Indenture, and (B) the amount, if any, which would not have (i) rendered the undersigned "insolvent" (as such term is defined in Section 101(29) of the Federal Bankruptcy Code and in Section 271 of the Debtor and Creditor Law of the State of New York, as each is in effect at the date of the Indenture) or (ii) left the undersigned with unreasonably small capital at the time its Guarantee was entered into, after giving effect to the incurrence of existing Debt (as defined in the Indenture) immediately prior to such time, provided that, it shall be a presumption in any lawsuit or other proceeding in which the undersigned is a party that the amount guaranteed is the amount set forth in (A) above unless a creditor, or representative of creditors of the undersigned or a trustee in bankruptcy of the undersigned, as debtor in possession, otherwise proves in such a lawsuit that the aggregate liability of the undersigned is limited to the amount set forth in (B). In making any determination as to the solvency or sufficiency of capital of the undersigned in accordance with the previous sentence, the right of the undersigned to contribution from other Guarantors, to subrogation and any other rights the undersigned may have, contractual or otherwise, shall be taken into account. The obligations of the undersigned to the Holders of the 2018 Notes and to the Trustee pursuant to the Subsidiary Guarantee and the Indenture are expressly set forth in Article 14 of the Indenture and reference is hereby made to the Indenture for the precise terms of the Subsidiary Guarantee and all of the other provisions of the Indenture to which this Subsidiary Guarantee relates. Capitalized terms in this Subsidiary Guarantee which are not defined herein shall have the meanings assigned to them in the Indenturepurpose.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Deutsche Alt-a Securities, Inc. Mortgage Loan Trust, Series 2005-1)

Dated. ~~Notice~~Signature by or on behalf of assignor ------------------------------- Signature Guaranteed DISTRIBUTION INSTRUCTIONS The assignee should include the following for purposes of distribution: The signature to this assignment must correspond with the name as it appears upon the face of the within Note in every particular, without alteration or enlargement or any change whatever. ABBREVIATIONS The following abbreviations, when used in the inscription on the face of this instrument, Distributions shall be ~~construed as though they were written out~~ made, by wire transfer or otherwise, in ~~full according~~ immediately available funds to ~~applicable laws or regulations: TEN COM--as tenants in common UNIF GIFT MIN ACT--_____ Custodian~~_____~~_ TEN ENT--as tenants by the entireties (Cust) (Minor) JT TEN--as joint tenants with right Under Uniform Gifts to Minors of survivorship and not as Act~~____________________________________________ tenants in common (State) Additional abbreviations may also be used though not in the above list. --------------------------- [FORM OF SCHEDULE FOR ENDORSEMENTS ON GLOBAL SECURITY TO REFLECT CHANGES IN PRINCIPAL AMOUNT] Schedule A Changes to Principal Amount of Global Security Principal Amount of Securities by which this Global Security is to be Reduced or Increased, and Reason for Remaining Principal Amount of Notation Date Reduction or Increase this Global Securities Made by ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- Exhibit B SUBSIDIARY GUARANTEE FOR VALUE RECEIVED, the undersigned hereby jointly and severally with the Parent Guarantor pursuant to the Parent Guarantee and any other subsidiary Guarantors under their respective Subsidiary Guarantees, unconditionally guarantees to the Holder of the accompanying _____~~% Note Due June~~ ___________________________________________________________________________ _____________________________________________________________ for the account of _______________________________, ~~2018 (the "2018 Note") issued by AMB Property, L.P. (the "Operating Partnership") under an Indenture dated as of June~~ account number ___________________________, ~~1998 (together with the Second Supplemental Indenture thereto~~or, if mailed by check, to ________________________________________________________________________________ __________________________________________________________.Applicable statements should be mailed to ________________________________________________________________________________ ___________________________.This information is provided by ___________________________________________, the ~~"Indenture") among the Operating Partnership~~assignee named above, ~~AMB Property Corporation, and State Street Bank and Trust Company of California, N.A.~~or ________________________________________, as ~~trustee~~ its agent. XXXXXXX X-0 ----------- FORM OF CLASS P CERTIFICATE SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986 (THE "CODE"). THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE RESOLD OR TRANSFERRED UNLESS IT IS REGISTERED PURSUANT TO SUCH ACT AND LAWS OR IS SOLD OR TRANSFERRED IN TRANSACTIONS THAT ARE EXEMPT FROM REGISTRATION UNDER SUCH ACT AND UNDER APPLICABLE STATE LAW AND IS TRANSFERRED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE AGREEMENT. NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, OR THE CODE WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROCEDURES DESCRIBED HEREIN. Series 2002-1 Xxxxxxxxx Xxxxxxxxxxx Xxxxxxxxx Balance of the Class P Certificates as of the Issue Date: Pass-Through Rate: Variable $____________ Cut-off Date and date of Pooling and Denomination: $______________ Servicing Agreement: February 1, 2002 Master Servicer: Ocwen Federal Bank FSB First Distribution Date: March 25, 2002 Trustee: National City Bank No. __ Trust Administrator: U.S. Bank National Association Issue Date: February 26, 2002 DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE AS THE DENOMINATION OF THIS CERTIFICATE. ASSET BACKED PASS-THROUGH CERTIFICATE evidencing a beneficial ownership interest in a Trust Fund (the "~~Trustee~~Trust Fund") consisting primarily of a pool of conventional one- to four-family, adjustable-rate and fixed-rate, first lien mortgage loans (the "Mortgage Loans") formed and sold by NEW CENTURY MORTGAGE SECURITIES, INC. THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN NEW CENTURY MORTGAGE SECURITIES, INC., THE MASTER SERVICER, THE TRUSTEE, THE TRUST ADMINISTRATOR OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES. This certifies that ___________ is the registered owner of a Percentage Interest (obtained by dividing the denomination of this Certificate by the aggregate Certificate Principal Balance of the Class P Certificates as of the Issue Date) in that certain beneficial ownership interest evidenced by all the Class P Certificates in REMIC III created pursuant to a Pooling and Servicing Agreement, dated as specified above (the "Agreement"), among New Century Mortgage Securities, Inc. (a) hereinafter called the ~~full~~ "Depositor," which term includes any successor entity under the Agreement), the Master Servicer, the Trustee and ~~prompt payment~~ the Trust Administrator, a summary of certain of the ~~principal~~ 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 Agreement. This Certificate is issued under and ~~premium~~is subject to the terms, ~~if any, on such 2018 Note when~~ provisions and ~~as the same shall become due and payable, whether at Stated Maturity, by acceleration, by redemption or otherwise, and (b) the full and prompt payment~~ conditions of the ~~interest on~~ Agreement, to which Agreement the Holder of this Certificate by virtue of the acceptance hereof assents and by which such ~~2018 Note when and as the same shall become due and payable, according~~ Holder is bound. Pursuant to the terms of the Agreement, distributions will be made on the 25th day of each month or, if such ~~2018 Note and~~ 25th day is not a Business Day, the Business Day immediately following (a "Distribution Date"), commencing on the First Distribution Date specified above, to the Person in whose name this Certificate is registered on the Record Date, in an amount equal to the product of the ~~Indenture. The undersigned hereby agrees, jointly~~ Percentage Interest evidenced by this Certificate and ~~severally with~~ the ~~Parent Guarantor~~ amount required to be distributed to the Holders of Class P Certificates on such Distribution Date pursuant to the ~~Parent Guarantee~~ Agreement. All distributions to the Holder of this Certificate under the Agreement will be made or caused to be made by the Trust Administrator by wire transfer in immediately available funds to the account of the Person entitled thereto if such Person shall have so notified the Trust Administrator in writing at least five Business Days prior to the Record Date immediately prior to such Distribution Date and is the registered owner of Class P Certificates the aggregate initial Certificate Principal Balance of which is in excess of the lesser of (i) $5,000,000 or (ii) two-thirds of the aggregate initial Certificate Principal Balance of the Class P Certificates, or otherwise by check mailed by first class mail to the address of the Person entitled thereto, as such name and address shall appear on the Certificate Register. Notwithstanding the above, the final distribution on this Certificate will be made after due notice by the Trust Administrator of the pendency of such distribution and only upon presentation and surrender of this Certificate at the office or agency appointed by the Trust Administrator for that purpose as provided in the Agreement. This Certificate is one of a duly authorized issue of Certificates designated as Asset Backed Pass-Through Certificates of the Series specified on the face hereof (herein called the "Certificates") and representing a Percentage Interest in the Class of Certificates specified on the face hereof equal to the denomination specified on the face hereof divided by the aggregate Certificate Principal Balance of the Class of Certificates specified on the face hereof. The 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 Agreement. As provided in the Agreement, withdrawals from the Collection Account and the Distribution Account may be made from time to time for purposes other than distributions to Certificateholders, such purposes including reimbursement of advances made, or certain expenses incurred, with respect to the Mortgage Loans. The Agreement permits, with certain exceptions therein provided, the amendment thereof and the modification of the rights and obligations of the Depositor, the Master Servicer, the Trustee, the Trust Administrator and the rights of the Certificateholders under the Agreement at any ~~other Subsidiary Guarantors under their respective Subsidiary Guarantees~~time by the Depositor, ~~that its obligations hereunder~~ the Master Servicer, the Trustee and the Trust Administrator with the consent of the Holders of Certificates entitled to at least 66% of the Voting Rights. Any such consent by the Holder of this Certificate shall be ~~as principal~~ conclusive and binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in exchange herefor or in lieu hereof whether or not ~~merely as surety~~notation of such consent is made upon this Certificate. The Agreement also permits the amendment thereof, ~~and shall be absolute and unconditional~~in certain limited circumstances, ~~and shall not be affected, modified or impaired by~~ without the ~~following: (a) the failure to give notice to the Guarantors~~ consent of the occurrence of an Event of Default under the Indenture; (b) the waiver, surrender, compromise, settlement, release or termination of the payment, performance or observance by the Operating Partnership or the Guarantors of any or all of the obligations, covenants or agreements of either of them contained in the Indenture or the 2018 Notes; (c) the acceleration, extension or any other changes in the time for payment of any principal of or interest or any premium on any 2018 Note or for any other payment under the Indenture or of the time for performance of any other obligations, covenants or agreements under or arising out of the Indenture or the 2018 Notes; (d) the modification or amendment (whether material or otherwise) of any obligation, covenant or agreement set forth in the Indenture or the 2018 Notes; (e) the taking or the omission Holders of any of the ~~actions referred to~~ Certificates. As provided in the ~~Indenture~~ Agreement and subject to certain limitations therein set forth, the transfer of this Certificate is registrable in ~~any~~ the Certificate Register upon surrender of this Certificate for registration of transfer at the offices or agencies appointed by the Trust Administrator as provided in the Agreement, duly endorsed by, or accompanied by an assignment in the form below or other written instrument of transfer in form satisfactory to the Trust 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 ~~actions~~ same Class in authorized denominations evidencing the same aggregate Percentage Interest will be issued to the designated transferee or transferees. No transfer of this Certificate shall be made unless the transfer is made pursuant to an effective registration statement under the ~~2018 Notes;~~ Securities Act of 1933, as amended (fthe "1933 Act"), and an effective registration or qualification under applicable state securities laws, or is made in a transaction that does not require such registration or qualification. In the event that such a transfer of this Certificate is to be made without registration or qualification, the Trust Administrator shall require receipt of (i) ~~any failure~~if such transfer is purportedly being made in reliance upon Rule 144A under the 1933 Act, ~~omission~~written certifications from the Holder of the Certificate desiring to effect the transfer, ~~delay~~ and from such Holder's prospective transferee, substantially in the forms attached to the Agreement as Exhibit F-1, and (ii) in all other cases, an Opinion of Counsel satisfactory to it that such transfer may be made without such registration or ~~lack~~ qualification (which Opinion of Counsel shall not be an expense of the Trust Fund or of the Depositor, the Trustee, the Trust Administrator or the Master Servicer in their respective capacities as such), together with copies of the written certification(s) of the Holder of the Certificate desiring to effect the transfer and/or such Holder's prospective transferee upon which such Opinion of Counsel is based. None of the Depositor, the Trustee, or the Trust Administrator is obligated to register or qualify the Class of Certificates specified on the ~~part of~~ face hereof under the ~~Trustee to enforce, assert or exercise any right, power or remedy conferred on the Trustee in the Indenture,~~ 1933 Act or any other securities law or to take any action not otherwise required under the Agreement to permit the transfer of such Certificates without registration or ~~acts on~~ qualification. Any Holder desiring to effect a transfer of this Certificate shall be required to indemnify the ~~part~~ Trustee, the Trust Administrator, the Depositor and the Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such federal and state laws. No transfer of this Certificate to a Plan subject to ERISA or Section 4975 of the Trustee or any of the Holders from time to time of the 2018 Notes; (g) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all the assets, marshaling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition with creditors or readjustment of, or other similar proceedings affecting the Guarantors or the Operating Partnership or any of the assets of any of them, or any allegation or contest of the validity of this Subsidiary Guarantee in any such proceeding; (h) to the extent permitted by law, the release or discharge by operation of law of the Guarantors from the performance or observance of any obligation, covenant or agreement contained in the Indenture; (i) to the extent permitted by law, the release or discharge by operation of law of the Operating Partnership from the performance or observance of any obligation, covenant or agreement contained in the Indenture; (j) the default or failure of the Operating Partnership or the Trustee fully to perform any of its obligations set forth in the Indenture or the 2018 Notes; (k) the invalidity, irregularity or unenforceability of the Indenture or the 2018 Notes or any part of any thereof; (l) any judicial or governmental action affecting the Operating Partnership or any 2018 Notes or consent or indulgence granted by the Operating Partnership by the Holders or by the Trustee; or (m) the recovery of any judgment against the Operating Partnership or any action to enforce the same or any other circumstance which might constitute a legal or equitable discharge of a surety or guarantor. The undersigned hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of merger, sale, lease or conveyance of all or substantially all of its assets, insolvency or bankruptcy of the Operating PartnershipCode, any right to require a proceeding first against the Operating Partnership, protest or notice with respect to such Notice or the indebtedness evidenced thereby and all demands whatsoever, and covenants that this Subsidiary Guarantee will not be discharged except by complete performance of the obligations contained in such 2018 Note and in this Subsidiary Guarantee. No reference herein to such Indenture and no provision of this Subsidiary Guarantee or of such Indenture shall alter or impair the guarantee of the undersigned, which is absolute and unconditional, of the full and prompt payment of the principal of and premium, if any, and interest on the 2018 Note. THIS SUBSIDIARY GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. The validity and enforceability of this Subsidiary Guarantee shall not be affected by the fact that it is not affixed to any particular 2018 Note. An Event of Default under the Indenture or the 2018 Notes shall constitute an event of default under this Subsidiary Guarantee, and shall entitle the Holders of 2018 Notes to accelerate the obligations of the undersigned hereunder in the same manner and to the same extent as the obligations of the Operating Partnership. Notwithstanding any other provision of this Subsidiary Guarantee to the contrary, the undersigned hereby waives any claims or other rights which it may now have or hereafter acquire against the Operating Partnership that arise from the existence or performance of its obligations under this Subsidiary Guarantee (all such claims and rights are referred to as "Guarantor's Conditional Rights"), including, without limitation, any right of subrogation, reimbursement, exoneration, contribution, or indemnification, any right to participate in any claim or remedy against the Operating Partnership, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, by any payment made hereunder or otherwise, including without limitation, the right to take or receive from Operating PartnershipPerson acting, directly or indirectly, on behalf of any such Plan or any Person using "Plan Assets" to acquire this Certificate shall be made except in ~~cash~~ accordance with Section 5.02(c) of the Agreement. The Certificates are issuable in fully registered form only without coupons in Classes and denominations representing Percentage Interests specified in the Agreement. As provided in the Agreement and subject to certain limitations therein set forth, the Certificates are exchangeable for new Certificates of the same Class in authorized denominations evidencing the same aggregate Percentage Interest, as requested by the Holder surrendering the same. No service charge will be made for any such registration of transfer or exchange of Certificates, but the Trust Administrator may require payment of a sum sufficient to cover any tax or other ~~property~~ governmental charge that may be imposed in connection with any transfer or ~~by setoff or in any other manner, payment or security on account~~ exchange of ~~such claim or other rights~~Certificates. The Subsidiary Guarantor hereby agrees not to exercise any rights which may be acquired by way of contribution under this Subsidiary Guarantee or any other agreement, by any payment made hereunder or otherwise, including, without limitationDepositor, the ~~right~~ Master Servicer, the Trustee, the Trust Administrator and any agent of the Depositor, the Master Servicer, the Trustee or the Trust Administrator may treat the Person in whose name this Certificate is registered as the owner hereof for all purposes, and none of the Depositor, the Master Servicer, the Trustee, the Trust Administrator nor any such agent shall be affected by notice to ~~take or receive from any other guarantor, directly or indirectly, in cash or other property or~~ the contrary. The obligations created by ~~setoff or in any other manner,~~ the Agreement and the Trust Fund created thereby shall terminate upon payment ~~or security on account~~ to the Certificateholders of ~~such contribution rights. If, notwithstanding~~ all amounts held by the ~~foregoing provisions, any amount shall~~ Trust Administrator and required to be paid to ~~any~~ them pursuant to the Agreement following the earlier of ~~the undersigned on account of any such Guarantor's Conditional Rights and either~~ (i) ~~such amount is paid to such undersigned party at~~ the final payment or other liquidation (or any ~~time when~~ advance with respect thereto) of the ~~indebtedness shall not have been paid or performed~~ last Mortgage Loan remaining in ~~full, or~~ REMIC I and (ii) ~~regardless~~ the purchase by the party designated in the Agreement at a price determined as provided in the Agreement from REMIC I of ~~when~~ all the Mortgage Loans and all property acquired in respect of such ~~amount~~ Mortgage Loans. The Agreement permits, but does not require, the party designated in the Agreement to purchase from REMIC I all the Mortgage Loans and all property acquired in respect of any Mortgage Loan at a price determined as provided in the Agreement. The exercise of such right will effect early retirement of the Certificates; however, such right to purchase is ~~paid to such undersigned party, any payment made by Operating Partnership to a Holder that is at any time determined to be a Preferential Payment (as defined below), then such amount paid~~ subject to the ~~undersigned~~ aggregate Stated Principal Balance of the Mortgage Loans at the time of purchase being less than 10% of the aggregate principal balance of the Mortgage Loans as of the Cut-off Date. The recitals contained herein shall be ~~held in trust for the benefit~~ taken as statements of the ~~Holders~~ Depositor, the Trustee and ~~shall forthwith be paid such Holder to be credited and applied upon~~ the ~~indebtedness~~Trust Administrator assume no responsibility for their correctness. Unless the certificate of authentication hereon has been executed by the Trust Administrator, ~~whether matured or unmatured. Any such payment is herein referred to as a "Preferential Payment" to the extent the Operating Partnership makes any payment to Holder in connection with the Note~~by manual signature, and any or all of such payment is subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid or paid over to a trustee, receiver or any other entity, whether under any bankruptcy act or otherwise. To the extent that any of the provisions of the immediately preceding paragraph this Certificate shall not be ~~enforceable, each of~~ entitled to any benefit under the ~~undersigned agrees that until such time as the indebtedness has been paid and performed in full and the period of time has expired during which~~ Agreement or be valid for any payment made by the Operating Partnership or the undersigned to a Holder may be determined to be a Preferential Payment, Guarantor's Conditional Rights to the extent not validly waived shall be subordinate to Holders' right to full payment and performance of the indebtedness and each of the undersigned shall not enforce any of its respective portion of the Guarantors' Conditional Rights until such time as the indebtedness has been paid and performed in full and the period of time has expired during which any payment made by the Operating Partnership or the undersigned to Holders may be determined to be a Preferential Payment. The undersigned's liability (the "Base Guaranty Liability") shall be that amount from time to time equal to the aggregate liability of the undersigned hereunder, but shall be limited to the lesser of (A) the aggregate amount of the obligation as stated in the second sentence of Section 1401 of the Indenture, and (B) the amount, if any, which would not have (i) rendered the undersigned "insolvent" (as such term is defined in Section 101(29) of the Federal Bankruptcy Code and in Section 271 of the Debtor and Creditor Law of the State of New York, as each is in effect at the date of the Indenture) or (ii) left the undersigned with unreasonably small capital at the time its Guarantee was entered into, after giving effect to the incurrence of existing Debt (as defined in the Indenture) immediately prior to such time, provided that, it shall be a presumption in any lawsuit or other proceeding in which the undersigned is a party that the amount guaranteed is the amount set forth in (A) above unless a creditor, or representative of creditors of the undersigned or a trustee in bankruptcy of the undersigned, as debtor in possession, otherwise proves in such a lawsuit that the aggregate liability of the undersigned is limited to the amount set forth in (B). In making any determination as to the solvency or sufficiency of capital of the undersigned in accordance with the previous sentence, the right of the undersigned to contribution from other Guarantors, to subrogation and any other rights the undersigned may have, contractual or otherwise, shall be taken into account. The obligations of the undersigned to the Holders of the 2018 Notes and to the Trustee pursuant to the Subsidiary Guarantee and the Indenture are expressly set forth in Article 14 of the Indenture and reference is hereby made to the Indenture for the precise terms of the Subsidiary Guarantee and all of the other provisions of the Indenture to which this Subsidiary Guarantee relates. Capitalized terms in this Subsidiary Guarantee which are not defined herein shall have the meanings assigned to them in the Indenturepurpose.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (New Century Home Equity Loan Trust Series 2002-1)

Dated. ~~Notice~~Signature by or on behalf of assignor DISTRIBUTION INSTRUCTIONS The assignee should include the following for purposes of distribution: The signature to this assignment must correspond with the name as it appears upon the face of the within Note in every particular, without alteration or enlargement or any change whatever. ABBREVIATIONS The following abbreviations, when used in the inscription on the face of this instrument, Distributions shall be ~~construed as though they were written out~~ made, by wire transfer or otherwise, in ~~full according~~ immediately available funds to applicable laws or regulations: TEN COM--as tenants in common UNIF GIFT MIN ACT--_____ Custodian______ TEN ENT--as tenants by the entireties (Cust) (Minor) JT TEN--as joint tenants with right Under Uniform Gifts to Minors of survivorship and not as Act__________________________ tenants in common (State) Additional abbreviations may also be used though not in the above list. --------------------------- [FORM OF SCHEDULE FOR ENDORSEMENTS ON GLOBAL SECURITY TO REFLECT CHANGES IN PRINCIPAL AMOUNT] Schedule A Changes to Principal Amount of Global Security Principal Amount of Securities by which this Global Security is to be Reduced or Increased, and Reason for Remaining Principal Amount of Notation Date Reduction or Increase this Global Securities Made by ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- Exhibit B SUBSIDIARY GUARANTEE FOR VALUE RECEIVED, the undersigned hereby jointly and severally with the Parent Guarantor pursuant to the Parent Guarantee and any other subsidiary Guarantors under their respective Subsidiary Guarantees, unconditionally guarantees to the Holder of the accompanying _____~~% Note Due June~~ __________________, ~~2018 (the "2018 Note") issued by AMB Property, L.P. (the "Operating Partnership") under an Indenture dated as of June~~ _______________________________________________________________________________, ~~1998 (together with~~ for the ~~Second Supplemental Indenture thereto~~account of ____________________________________________________________, account number , or, if mailed by check, to ___________________________________. Applicable statements should be mailed to _____________________________________, _______________________________________________________________________________. This information is provided by ___________________________________, the assignee named above, or __________________________________________________, as its agent. EXHIBIT B NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE PROPOSED TRANSFEROR DELIVERS TO THE TRUSTEE A TRANSFEROR LETTER IN THE FORM OF EXHIBIT H TO THE AGREEMENT REFERRED TO HEREIN AND EITHER (I) THE TRUSTEE RECEIVES A RULE 144A LETTER IN THE FORM OF EXHIBIT I TO THE AGREEMENT REFERRED TO HEREIN OR (II) THE TRUSTEE RECEIVES AN OPINION OF COUNSEL, DELIVERED AT THE EXPENSE OF THE TRANSFEROR, THAT SUCH TRANSFER MAY BE MADE WITHOUT REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED. NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE TRANSFEREE DELIVERS TO THE TRUSTEE A REPRESENTATION LETTER TO THE EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, ("~~Indenture~~ERISA"), OR A PLAN SUBJECT TO SECTION 4975 OF THE CODE OR A PLAN SUBJECT TO MATERIALLY SIMILAR PROVISIONS OF APPLICABLE FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") OR A PERSON INVESTING ON BEHALF OF OR WITH PLAN ASSETS OF SUCH A PLAN. IN THE EVENT THAT SUCH REPRESENTATION IS VIOLATED, OR ANY ATTEMPT IS MADE TO TRANSFER TO A PLAN OR ARRANGEMENT SUBJECT TO SECTION 406 OF ERISA, A PLAN SUBJECT TO SECTION 4975 OF THE CODE OR A PLAN SUBJECT TO SIMILAR LAW, OR A PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR ARRANGEMENT OR USING THE ASSETS OF ANY SUCH PLAN OR ARRANGEMENT, SUCH ATTEMPTED TRANSFER OR ACQUISITION SHALL BE VOID AND OF NO EFFECT. Certificate No. : P-1 Cut-off Date : May 1, 2005 First Distribution Date : June 27, 2005 Percentage Interest of this Certificate ("Denomination") : [___]% XXXXXX XXXXXXX ABS CAPITAL I INC. Xxxxxx Xxxxxxx ABS Capital I Inc. Trust 2005-WMC4 Mortgage Pass-Through Certificates, Series 2005-WMC4 Class P evidencing a percentage interest in the distributions allocable to the Certificates of the above-referenced Class. Distributions in respect of this Certificate are distributable monthly as set forth herein. This Certificate does not evidence an obligation of, or an interest in, and is not guaranteed by the Depositor, the Responsible Party, the Servicer or the Trustee referred to below or any of their respective affiliates. Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any governmental agency or instrumentality. This certifies that _________________ is the registered owner of the Percentage Interest evidenced by this Certificate (obtained by dividing the denomination of this Certificate by the aggregate of the denominations of all Certificates of the Class to which this Certificate belongs) in certain monthly distributions pursuant to a Pooling and Servicing Agreement dated as of the Cut-off Date specified above (the "Agreement") among Xxxxxx Xxxxxxx ABS Capital I Inc., as depositor (the ~~Operating Partnership~~"Depositor"), ~~AMB Property Corporation~~Countrywide Home Loans Servicing LP, as servicer (the "Servicer"), WMC Mortgage Corp., as responsible party (the "Responsible Party"), and ~~State Street Bank and Trust Company of California~~Xxxxx Fargo Bank, ~~N.A.~~National Association, as trustee (the "Trustee"). To the extent not defined herein, ~~(a)~~ the ~~full~~ capitalized terms used herein have the meanings assigned in the Agreement. This Certificate is issued under and ~~prompt payment~~ is subject to the terms, provisions and conditions of the ~~principal~~ Agreement, to which Agreement the Holder of ~~and premium, if any, on such 2018 Note when and as the same shall become due and payable, whether at Stated Maturity,~~ this Certificate by ~~acceleration, by redemption or otherwise, and (b) the full and prompt payment~~ virtue of the ~~interest on~~ acceptance hereof assents and by which such ~~2018 Note when~~ Holder is bound. This Certificate does not have a Pass-Through Rate and ~~as the same shall become due and payable, according~~ will be entitled to distributions only to the terms of such 2018 Note and of the Indenture. The undersigned hereby agrees, jointly and severally with the Parent Guarantor pursuant to the Parent Guarantee and any other Subsidiary Guarantors under their respective Subsidiary Guarantees, that its obligations hereunder shall be as principal and not merely as surety, and shall be absolute and unconditional, and shall not be affected, modified or impaired by the following: (a) the failure to give notice to the Guarantors of the occurrence of an Event of Default under the Indenture; (b) the waiver, surrender, compromise, settlement, release or termination of the payment, performance or observance by the Operating Partnership or the Guarantors of any or all of the obligations, covenants or agreements of either of them contained in the Indenture or the 2018 Notes; (c) the acceleration, extension or any other changes in the time for payment of any principal of or interest or any premium on any 2018 Note or for any other payment under the Indenture or of the time for performance of any other obligations, covenants or agreements under or arising out of the Indenture or the 2018 Notes; (d) the modification or amendment (whether material or otherwise) of any obligation, covenant or agreement extent set forth in the ~~Indenture or~~ Agreement. In addition, any distribution of the ~~2018 Notes; (e) the taking or the omission~~ proceeds of any remaining assets of the ~~actions referred to~~ Trust will be made only upon presentment and surrender of this Certificate at the offices designated by the Trustee for such purposes, or such other location specified in the ~~Indenture and in any~~ notice to Certificateholders. No transfer of a Certificate of this Class shall be made unless such disposition is exempt from the registration requirements of the ~~actions under~~ Securities Act of 1933, as amended (the ~~2018 Notes; (f)~~ "1933 Act"), and any ~~failure, omission, delay~~ applicable state securities laws or ~~lack on~~ is made in accordance with the part of the Trustee to enforce, assert or exercise any right, power or remedy conferred on the Trustee in the Indenture, or any other action or acts on the part of the Trustee or any of the Holders from time to time of the 2018 Notes; (g) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all the assets, marshaling of assets 1933 Act and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition with creditors or readjustment of, or other similar proceedings affecting the Guarantors or the Operating Partnership or any of the assets of any of them, or any allegation or contest of the validity of this Subsidiary Guarantee in any such proceeding; (h) to the extent permitted by law, the release or discharge by operation of law of the Guarantors from the performance or observance of any obligation, covenant or agreement contained in the Indenture; (i) to the extent permitted by law, the release or discharge by operation of law of the Operating Partnership from the performance or observance of any obligation, covenant or agreement contained in the Indenture; (j) the default or failure of the Operating Partnership or the Trustee fully to perform any of its obligations set forth in the Indenture or the 2018 Notes; (k) the invalidity, irregularity or unenforceability of the Indenture or the 2018 Notes or any part of any thereof; (l) any judicial or governmental action affecting the Operating Partnership or any 2018 Notes or consent or indulgence granted by the Operating Partnership by the Holders or by the Trustee; or (m) the recovery of any judgment against the Operating Partnership or any action to enforce the same or any other circumstance which might constitute a legal or equitable discharge of a surety or guarantorlaws. ~~The undersigned hereby waives diligence, presentment, demand of payment, filing of claims with a court in~~ In the event of ~~merger~~any such transfer, ~~sale, lease or conveyance of all or~~ the Trustee shall require the transferor to execute a transferor certificate (in substantially ~~all of its assets, insolvency or bankruptcy of~~ the Operating Partnership, any right to require a proceeding first against the Operating Partnership, protest or notice with respect to such Notice or the indebtedness evidenced thereby and all demands whatsoever, and covenants that this Subsidiary Guarantee will not be discharged except by complete performance of the obligations contained in such 2018 Note and in this Subsidiary Guarantee. No reference herein to such Indenture and no provision of this Subsidiary Guarantee or of such Indenture shall alter or impair the guarantee of the undersigned, which is absolute and unconditional, of the full and prompt payment of the principal of and premium, if any, and interest on the 2018 Note. THIS SUBSIDIARY GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. The validity and enforceability of this Subsidiary Guarantee shall not be affected by the fact that it is not affixed to any particular 2018 Note. An Event of Default under the Indenture or the 2018 Notes shall constitute an event of default under this Subsidiary Guarantee, and shall entitle the Holders of 2018 Notes to accelerate the obligations of the undersigned hereunder in the same manner and form attached to the same extent as the obligations of the Operating Partnership. Notwithstanding any other provision of this Subsidiary Guarantee to the contrary, the undersigned hereby waives any claims or other rights which it may now have or hereafter acquire against the Operating Partnership that arise from the existence or performance of its obligations under this Subsidiary Guarantee (all such claims Pooling and rights are referred to as "Guarantor's Conditional Rights"), including, without limitation, any right of subrogation, reimbursement, exoneration, contribution, or indemnification, any right to participate in any claim or remedy against the Operating Partnership, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, by any payment made hereunder or otherwise, including without limitation, the right to take or receive from Operating Partnership, directly or indirectly, in cash or other property or by setoff or in any other manner, payment or security on account of such claim or other rights. The Subsidiary Guarantor hereby agrees not to exercise any rights which may be acquired by way of contribution under this Subsidiary Guarantee or any other agreement, by any payment made hereunder or otherwise, including, without limitation, the right to take or receive from any other guarantor, directly or indirectly, in cash or other property or by setoff or in any other manner, payment or security on account of such contribution rights. If, notwithstanding the foregoing provisions, any amount shall be paid to any of the undersigned on account of any such Guarantor's Conditional Rights Servicing Agreement) and deliver either (i) ~~such amount is paid~~ a Rule 144A Letter, in either case substantially in the form attached to ~~such undersigned party at any time when~~ the ~~indebtedness shall not have been paid or performed in full~~Agreement, or (ii) ~~regardless~~ a written Opinion of ~~when~~ Counsel to the Trustee that such ~~amount~~ transfer may be made pursuant to an exemption, describing the applicable exemption and the basis therefor, from the 1933 Act or is ~~paid~~ being made pursuant to the 1933 Act, which Opinion of Counsel shall be an expense of the transferor. No transfer of a Certificate of this Class shall be made unless the Trustee shall have received a representation letter from the transferee of such ~~undersigned party~~Certificate, acceptable to and in form and substance satisfactory to the Trustee, to the effect that such transferee is not an employee benefit plan subject to Section 406 of ERISA, Section 4975 of the Code or any ~~payment made by Operating Partnership to a Holder that is at any time determined to be a Preferential Payment~~ materially similar provisions of applicable federal, state or local law (~~as defined below~~"Similar Law"), ~~then~~ or a person acting on behalf of or investing plan assets of any such ~~amount paid to the undersigned shall be held in trust for the benefit of the Holders and shall forthwith be paid such Holder to be credited and applied upon the indebtedness~~plan, whether matured or unmatured. Any such payment is herein referred to as a "Preferential Payment" to the extent the Operating Partnership makes any payment to Holder in connection with the Note, and any or all of such payment is subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid or paid over to a trustee, receiver or any other entity, whether under any bankruptcy act or otherwise. To the extent that any of the provisions of the immediately preceding paragraph which representation letter shall not be ~~enforceable, each~~ an expense of the undersigned agrees that until such time as the indebtedness has been paid and performed in full and the period of time has expired during which any payment made by the Operating Partnership or the undersigned to a Holder may be determined to be a Preferential Payment, Guarantor's Conditional Rights to the extent not validly waived shall be subordinate to Holders' right to full payment and performance of the indebtedness and each of the undersigned shall not enforce any of its respective portion of the Guarantors' Conditional Rights until such time as the indebtedness has been paid and performed in full and the period of time has expired during which any payment made by the Operating Partnership or the undersigned to Holders may be determined to be a Preferential PaymentTrustee. The undersigned's liability (the "Base Guaranty Liability") shall be that amount from time to time equal to the aggregate liability of the undersigned hereunder, but shall be limited to the lesser of (A) the aggregate amount of the obligation as stated in the second sentence of Section 1401 of the Indenture, and (B) the amount, if any, which would not have (i) rendered the undersigned "insolvent" (as such term is defined in Section 101(29) of the Federal Bankruptcy Code and in Section 271 of the Debtor and Creditor Law of the State of New York, as each is in effect at the date of the Indenture) or (ii) left the undersigned with unreasonably small capital at the time its Guarantee was entered into, after giving effect to the incurrence of existing Debt (as defined in the Indenture) immediately prior to such time, provided that, it shall be a presumption in any lawsuit or other proceeding in which the undersigned is a party that the amount guaranteed is the amount set forth in (A) above unless a creditor, or representative of creditors of the undersigned or a trustee in bankruptcy of the undersigned, as debtor in possession, otherwise proves in such a lawsuit that the aggregate liability of the undersigned is limited to the amount set forth in (B). In making any determination as to the solvency or sufficiency of capital of the undersigned in accordance with the previous sentence, the right of the undersigned to contribution from other Guarantors, to subrogation and any other rights the undersigned may have, contractual or otherwise, shall be taken into account. The obligations of the undersigned to the Holders of the 2018 Notes and to the Trustee pursuant to the Subsidiary Guarantee and the Indenture are expressly set forth in Article 14 of the Indenture and reference Reference is hereby made to the ~~Indenture~~ further provisions of this Certificate set forth on the reverse hereof, which further provisions shall for all purposes have the ~~precise terms~~ same effect as if set forth at this place. This Certificate shall not be entitled to any benefit under the Agreement or be valid for any purpose unless manually authenticated by an authorized signatory of the ~~Subsidiary Guarantee and all of the other provisions of the Indenture to which this Subsidiary Guarantee relates~~Trustee. ~~Capitalized terms in this Subsidiary Guarantee which are not defined herein shall have the meanings assigned to them in the Indenture.~~* * *

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Morgan Stanley ABS Capital I Inc. Trust 2005-Wmc4)

Dated. ~~Notice~~Signature by or on behalf of assignor ------------------------------------- Signature Guaranteed DISTRIBUTION INSTRUCTIONS The assignee should include the following for purposes of distribution: The signature to this assignment must correspond with the name as it appears upon the face of the within Note in every particular, without alteration or enlargement or any change whatever. ABBREVIATIONS The following abbreviations, when used in the inscription on the face of this instrument, Distributions shall be ~~construed as though they were written out~~ made, by wire transfer or otherwise, in ~~full according~~ immediately available funds to ~~applicable laws or regulations: TEN COM--as tenants in common UNIF GIFT MIN ACT--_____ Custodian~~_____~~_ TEN ENT--as tenants~~ _______________________________________________________, for the account of ____________________________________________________________, account number___________, or, if mailed by ~~the entireties (Cust) (Minor) JT TEN--as joint tenants with right Under Uniform Gifts~~ check, to ~~Minors of survivorship and not as Act~~_________________________, Applicable statements should be mailed to _____________________________________ tenants in common (State) Additional abbreviations may also be used though not in the above list. --------------------------- [FORM OF SCHEDULE FOR ENDORSEMENTS ON GLOBAL SECURITY TO REFLECT CHANGES IN PRINCIPAL AMOUNT] Schedule A Changes to Principal Amount of Global Security Principal Amount of Securities by which this Global Security is to be Reduced or Increased, and Reason for Remaining Principal Amount of Notation Date Reduction or Increase this Global Securities Made by ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- Exhibit B SUBSIDIARY GUARANTEE FOR VALUE RECEIVED, the undersigned hereby jointly and severally with the Parent Guarantor pursuant to the Parent Guarantee and any other subsidiary Guarantors under their respective Subsidiary Guarantees, unconditionally guarantees to the Holder of the accompanying _____~~% Note Due June~~ __________________________________________________________________________. This information is provided by _______________________________________________, ~~2018 (~~the ~~"2018 Note") issued by AMB Property~~assignee named above, ~~L.P. (the "Operating Partnership") under an Indenture dated as of June~~ or __________________________________________________, ~~1998~~ as its agent. XXXXXXX X-0 FORM OF CLASS M-6 CERTIFICATE UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (~~together with~~ "DTC"), TO THE TRUSTEE OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986 (THE "CODE"). THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A CERTIFICATES, THE CLASS M-1 CERTIFICATES, THE CLASS M-2 CERTIFICATES, THE CLASS M-3 CERTIFICATES, THE CLASS M-4 CERTIFICATES AND THE CLASS M-5 CERTIFICATES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN. <TABLE> Series 0000-XX0 Xxxxxxxxx Certificate Principal Balance of the ~~Second Supplemental Indenture thereto~~Class M-6 Certificates as of the Issue Pass-Through Rate: Variable Date: $[______].00 Cut-off Date and date of Pooling and Denomination: $[________].00 Servicing Agreement: August 1, ~~the "Indenture") among the Operating Partnership~~2005 Servicer: New Century Mortgage Corporation First Distribution Date: September 26, ~~AMB Property Corporation, and State Street~~ 2005 Trustee: Deutsche Bank ~~and~~ National Trust Company No. 1 Issue Date: August 16, 2005 CUSIP: [______] [__] [_] </TABLE> DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE AS THE DENOMINATION OF THIS CERTIFICATE. ASSET BACKED PASS-THROUGH CERTIFICATE evidencing a beneficial ownership interest in a portion of ~~California, N.A., as trustee~~ a Trust Fund (the "~~Trustee~~Trust Fund") consisting primarily of a pool of conventional one- to four-family, adjustable-rate, first lien mortgage loans (the "Mortgage Loans") formed and sold by STANWICH ASSET ACCEPTANCE COMPANY, L.L.C. THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN STANWICH ASSET ACCEPTANCE COMPANY, L.L.C., THE SERVICER, THE TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES. This certifies that Cede & Co. is the registered owner of a Percentage Interest (obtained by dividing the denomination of this Certificate by the aggregate Certificate Principal Balance of the Class M-6 Certificates as of the Issue Date) in that certain beneficial ownership interest evidenced by all the Class M-6 Certificates in REMIC II created pursuant to a Pooling and Servicing Agreement, dated as specified above (the "Agreement"), among Stanwich Asset Acceptance Company, L.L.C. (a) hereinafter called the ~~full~~ "Depositor," which term includes any successor entity under the Agreement), the Servicer and ~~prompt payment~~ the Trustee, a summary of certain of the ~~principal~~ 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 Agreement. This Certificate is issued under and ~~premium~~is subject to the terms, ~~if any, on such 2018 Note when~~ provisions and ~~as the same shall become due and payable, whether at Stated Maturity, by acceleration, by redemption or otherwise, and (b) the full and prompt payment~~ conditions of the ~~interest on~~ Agreement, to which Agreement the Holder of this Certificate by virtue of the acceptance hereof assents and by which such ~~2018 Note when and as the same shall become due and payable, according~~ Holder is bound. Pursuant to the terms of the Agreement, distributions will be made on the 25th day of each month or, if such ~~2018 Note and~~ 25th day is not a Business Day, the Business Day immediately following (a "Distribution Date"), commencing on the First Distribution Date specified above, to the Person in whose name this Certificate is registered on the Record Date, in an amount equal to the product of the ~~Indenture. The undersigned hereby agrees, jointly~~ Percentage Interest evidenced by this Certificate and ~~severally with~~ the ~~Parent Guarantor~~ amount required to be distributed to the Holders of Class M-6 Certificates on such Distribution Date pursuant to the ~~Parent Guarantee and any other Subsidiary Guarantors~~ Agreement. All distributions to the Holder of this Certificate under ~~their respective Subsidiary Guarantees, that its obligations hereunder shall~~ the Agreement will be ~~as principal and not merely as surety, and shall~~ made or caused to be ~~absolute and unconditional, and shall not be affected, modified or impaired~~ made by the ~~following: (a) the failure to give notice~~ Trustee by wire transfer in immediately available funds to the ~~Guarantors~~ account of the occurrence of an Event of Default under the Indenture; (b) the waiver, surrender, compromise, settlement, release or termination of the payment, performance or observance by the Operating Partnership or the Guarantors of any or all of the obligations, covenants or agreements of either of them contained in the Indenture or the 2018 Notes; (c) the acceleration, extension or any other changes in the time for payment of any principal of or interest or any premium on any 2018 Note or for any other payment under the Indenture or of the time for performance of any other obligations, covenants or agreements under or arising out of the Indenture or the 2018 Notes; (d) the modification or amendment (whether material or otherwise) of any obligation, covenant or agreement set forth in the Indenture or the 2018 Notes; (e) the taking or the omission of any of the actions referred to in the Indenture and in any of the actions under the 2018 Notes; (f) any failure, omission, delay or lack on the part of the Trustee to enforce, assert or exercise any right, power or remedy conferred on Person entitled thereto if such Person shall have so notified the Trustee in writing at least five Business Days prior to the ~~Indenture~~Record Date immediately prior to such Distribution Date or otherwise by check mailed by first class mail to the address of the Person entitled thereto, ~~or any other action or acts~~ as such name and address shall appear on the ~~part~~ Certificate Register. Notwithstanding the above, the final distribution on this Certificate will be made after due notice by the Trustee of the ~~Trustee or any~~ pendency of ~~the Holders from time to time of the 2018 Notes; (g) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all the assets, marshaling of assets~~ such distribution and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition with creditors or readjustment of, or other similar proceedings affecting the Guarantors or the Operating Partnership or any of the assets of any of them, or any allegation or contest of the validity only upon presentation and surrender of this ~~Subsidiary Guarantee~~ Certificate at the office or agency appointed by the Trustee for that purpose as provided in ~~any such proceeding; (h)~~ the Agreement. The Pass-Through Rate applicable to the ~~extent permitted by law, the release or discharge by operation~~ calculation of law of the Guarantors from the performance or observance of any obligation, covenant or agreement contained in the Indenture; (i) to the extent permitted by law, the release or discharge by operation of law of the Operating Partnership from the performance or observance of any obligation, covenant or agreement contained in the Indenture; (j) the default or failure of the Operating Partnership or the Trustee fully to perform any of its obligations set forth in the Indenture or the 2018 Notes; (k) the invalidity, irregularity or unenforceability of the Indenture or the 2018 Notes or any part of any thereof; (l) any judicial or governmental action affecting the Operating Partnership or any 2018 Notes or consent or indulgence granted by the Operating Partnership by the Holders or by the Trustee; or (m) the recovery of any judgment against the Operating Partnership or any action to enforce the same or any other circumstance which might constitute a legal or equitable discharge of a surety or guarantor. The undersigned hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of merger, sale, lease or conveyance of all or substantially all of its assets, insolvency or bankruptcy of the Operating Partnership, any right to require a proceeding first against the Operating Partnership, protest or notice interest payable with respect to ~~such Notice or the indebtedness evidenced thereby and all demands whatsoever, and covenants that~~ this Subsidiary Guarantee will not be discharged except by complete performance of the obligations contained in such 2018 Note and in this Subsidiary Guarantee. No reference herein to such Indenture and no provision of this Subsidiary Guarantee or of such Indenture Certificate on any Distribution Date shall alter or impair the guarantee of the undersigned, which is absolute and unconditional, of the full and prompt payment of the principal of and premium, if any, and interest on the 2018 Note. THIS SUBSIDIARY GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. The validity and enforceability of this Subsidiary Guarantee shall not be affected by the fact that it is not affixed to any particular 2018 Note. An Event of Default under the Indenture or the 2018 Notes shall constitute an event of default under this Subsidiary Guarantee, and shall entitle the Holders of 2018 Notes to accelerate the obligations of the undersigned hereunder in the same manner and to the same extent as the obligations of the Operating Partnership. Notwithstanding any other provision of this Subsidiary Guarantee to the contrary, the undersigned hereby waives any claims or other rights which it may now have or hereafter acquire against the Operating Partnership that arise from the existence or performance of its obligations under this Subsidiary Guarantee (all such claims and rights are referred to as "Guarantor's Conditional Rights"), including, without limitation, any right of subrogation, reimbursement, exoneration, contribution, or indemnification, any right to participate in any claim or remedy against the Operating Partnership, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, by any payment made hereunder or otherwise, including without limitation, the right to take or receive from Operating Partnership, directly or indirectly, in cash or other property or by setoff or in any other manner, payment or security on account of such claim or other rights. The Subsidiary Guarantor hereby agrees not to exercise any rights which may be acquired by way of contribution under this Subsidiary Guarantee or any other agreement, by any payment made hereunder or otherwise, including, without limitation, the right to take or receive from any other guarantor, directly or indirectly, in cash or other property or by setoff or in any other manner, payment or security on account of such contribution rights. If, notwithstanding the foregoing provisions, any amount shall be paid to any of the undersigned on account of any such Guarantor's Conditional Rights and either (i) such amount is paid to such undersigned party at any time when the indebtedness shall not have been paid or performed in full, or (ii) regardless of when such amount is paid to such undersigned party, any payment made by Operating Partnership to equal a Holder that is at any time determined to be a Preferential Payment (as defined below), then such amount paid to the undersigned shall be held in trust for the benefit of the Holders and shall forthwith be paid such Holder to be credited and applied upon the indebtedness, whether matured or unmatured. Any such payment is herein referred to as a "Preferential Payment" to the extent the Operating Partnership makes any payment to Holder in connection with the Note, and any or all of such payment is subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid or paid over to a trustee, receiver or any other entity, whether under any bankruptcy act or otherwise. To the extent that any of the provisions of the immediately preceding paragraph shall not be enforceable, each of the undersigned agrees that until such time as the indebtedness has been paid and performed in full and the period of time has expired during which any payment made by the Operating Partnership or the undersigned to a Holder may be determined to be a Preferential Payment, Guarantor's Conditional Rights to the extent not validly waived shall be subordinate to Holders' right to full payment and performance of the indebtedness and each of the undersigned shall not enforce any of its respective portion of the Guarantors' Conditional Rights until such time as the indebtedness has been paid and performed in full and the period of time has expired during which any payment made by the Operating Partnership or the undersigned to Holders may be determined to be a Preferential Payment. The undersigned's liability (the "Base Guaranty Liability") shall be that amount from time to time rate per annum equal ~~to the aggregate liability of the undersigned hereunder, but shall be limited~~ to the lesser of (i) the related Formula Rate for such Distribution Date and (ii) the related Net WAC Pass-Through Rate for such Distribution Date. This Certificate is one of a duly authorized issue of Certificates designated as Asset Backed Pass-Through Certificates of the Series specified on the face hereof (herein called the "Certificates") and representing a Percentage Interest in the Class of Certificates specified on the face hereof equal to the denomination specified on the face hereof divided by the aggregate Certificate Principal Balance of the Class of Certificates specified on the face hereof. The 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 Agreement. As provided in the Agreement, withdrawals from the Collection Account and the Distribution Account may be made from time to time for purposes other than distributions to Certificateholders, such purposes including reimbursement of advances made, or certain expenses incurred, with respect to the Mortgage Loans. The Agreement permits, with certain exceptions therein provided, the amendment thereof and the modification of the rights and obligations of the Depositor, the Servicer, the Trustee and the rights of the Certificateholders under the Agreement at any time by the Depositor, the Servicer and the Trustee with the consent of the Holders of Certificates entitled to at least 66% of the Voting Rights. Any such consent by the Holder of this Certificate shall be conclusive and binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in exchange herefor or in lieu hereof whether or not notation of such consent is made upon this Certificate. The Agreement also permits the amendment thereof, in certain limited circumstances, without the consent of the Holders of any of the Certificates. As provided in the Agreement and subject to certain limitations therein set forth, the transfer of this Certificate is registrable in the Certificate Register upon surrender of this Certificate for registration of transfer at the offices or agencies appointed by the Trustee as provided in the Agreement, duly endorsed by, or accompanied by an assignment in the form below or other written instrument of transfer in form satisfactory to the Trustee duly executed by, the Holder hereof or such Holder's attorney duly authorized in writing, and thereupon one or more new Certificates of the same Class in authorized denominations evidencing the same aggregate Percentage Interest will be issued to the designated transferee or transferees. Each beneficial owner of this Certificate or any interest therein shall be deemed to have represented, by virtue of its acquisition or holding of such Certificate or interest therein, that either (A) ~~the aggregate amount~~ it is not an "employee benefit plan" as defined in Section 3(3) of the ~~obligation~~ Employee Retirement Income Security Act of 1974, as ~~stated~~ amended ("ERISA"), that is subject to Title I of ERISA, any "plan" as defined in ~~the second sentence of~~ Section ~~1401~~ 4975 of the ~~Indenture~~Internal Revenue Code of 1986, ~~and~~ as amended (the "Code"), that is subject to Section 4975 of the Code or any entity deemed to hold plan assets of any of the foregoing, (B) it has acquired and is holding this Certificate in reliance on the ~~amount~~underwriters' exemption, ~~if any~~and that it understands that there are certain conditions to the availability of the underwriters' exemption, ~~which would~~ including that this Certificate must be rated, at the time of purchase, not ~~have (i) rendered the undersigned~~ lower than "~~insolvent~~BBB-" (or its equivalent) by Fitch, S&P or Xxxxx'x and the Certificate is so rated, that it is an accredited investor as defined in Rule 501(a)(1) of Regulation D of the Securities Act of 1933, as amended, and that it will obtain a representation from any transferee that such transferee is an accredited investor, or (C)(1) it is an insurance company, (2) the source of funds used to acquire or hold this Certificate or interest therein is an "insurance company general account," as such term is defined in Prohibited Transaction Class Exemption ("PTCE") 95-60, and (3) the conditions in Sections I and III of PTCE 95-60 have been satisfied. If this Certificate or any interest therein is acquired or held in violation of the provisions of Section ~~101(29~~5.02(c) of the ~~Federal Bankruptcy Code and in Section 271~~ Agreement, the next preceding permitted beneficial owner will be treated as the beneficial owner of ~~the Debtor and Creditor Law of the State of New York, as each is in effect at~~ this Certificate retroactive to the date of transfer to the ~~Indenture~~purported beneficial owner. Any purported beneficial owner whose acquisition or holding of any this Certificate or interest therein was effected in violation of the provisions of Section 5.02(c) of the Agreement shall indemnify and hold harmless the Depositor, the Servicer, the Trustee and the Trust Fund from and against any and all liabilities, claims, costs or expenses incurred by those parties as a result of that acquisition or holding. The Certificates are issuable in fully registered form only without coupons in Classes and denominations representing Percentage Interests specified in the Agreement. As provided in the Agreement and subject to certain limitations therein set forth, the Certificates are exchangeable for new Certificates of the same Class in authorized denominations evidencing the same aggregate Percentage Interest, as requested by the Holder surrendering the same. No service charge will be made for any such registration of transfer or exchange of Certificates, but the Trustee 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 Servicer, the Trustee and any agent of the Depositor, the Servicer or 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 Servicer, the Trustee nor any such agent shall be affected by notice to the contrary. The obligations created by the Agreement and the Trust Fund created thereby shall terminate upon payment to the Certificateholders of all amounts held by the Trustee and required to be paid to them pursuant to the Agreement following the earlier of (i) the final payment or other liquidation (or any advance with respect thereto) of the last Mortgage Loan and REO Property remaining in REMIC I and (ii) ~~left~~ the ~~undersigned with unreasonably small capital~~ purchase by the party designated in the Agreement at a price determined as provided in the Agreement from REMIC I of all the Mortgage Loans and all property acquired in respect of such Mortgage Loans. The Agreement permits, but does not require, the party designated in the Agreement to purchase from REMIC I all the Mortgage Loans and all property acquired in respect of any Mortgage Loan at a price determined as provided in the Agreement. The exercise of such right will effect early retirement of the Certificates; however, such right to purchase is subject to the aggregate Stated Principal Balance of the Mortgage Loans at the time ~~its Guarantee was entered into, after giving effect to the incurrence~~ of existing Debt (as defined in the Indenture) immediately prior to such time, provided that, it shall be a presumption in any lawsuit or other proceeding in which the undersigned is a party that the amount guaranteed is the amount set forth in (A) above unless a creditor, or representative of creditors purchase being less than 10% of the ~~undersigned or a trustee in bankruptcy~~ aggregate Stated Principal Balance of the ~~undersigned,~~ Mortgage Loans as ~~debtor in possession, otherwise proves in such a lawsuit that the aggregate liability~~ of the ~~undersigned is limited to the amount set forth in (B)~~Cut-off Date. In making any determination as to the solvency or sufficiency of capital of the undersigned in accordance with the previous sentence, the right of the undersigned to contribution from other Guarantors, to subrogation and any other rights the undersigned may have, contractual or otherwise, The recitals contained herein shall be taken ~~into account. The obligations~~ as statements of the ~~undersigned to the Holders of the 2018 Notes~~ Depositor and to the Trustee ~~pursuant~~ assumes no responsibility for their correctness. Unless the certificate of authentication hereon has been executed by the Trustee, by manual signature, this Certificate shall not be entitled to any benefit under the ~~Subsidiary Guarantee and the Indenture are expressly set forth in Article 14 of the Indenture and reference is hereby made to the Indenture~~ Agreement or be valid for the precise terms of the Subsidiary Guarantee and all of the other provisions of the Indenture to which this Subsidiary Guarantee relates. Capitalized terms in this Subsidiary Guarantee which are not defined herein shall have the meanings assigned to them in the Indentureany purpose.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Carrington Home Equity Loan Trust, Series 2005-Nc4 Asset-Backed Pass-Through Certificates)

Dated. ~~Notice~~Signature by or on behalf of assignor ------------------------------------- Signature Guaranteed DISTRIBUTION INSTRUCTIONS The assignee should include the following for purposes of distribution: The signature to this assignment must correspond with the name as it appears upon the face of the within Note in every particular, without alteration or enlargement or any change whatever. ABBREVIATIONS The following abbreviations, when used in the inscription on the face of this instrument, Distributions shall be ~~construed as though they were written out~~ made, by wire transfer or otherwise, in ~~full according~~ immediately available funds to ~~applicable laws or regulations: TEN COM--as tenants in common UNIF GIFT MIN ACT--_____ Custodian~~_____~~_ TEN ENT--as tenants~~ _______________________________________________________, for the account of ____________________________________________________________, account number __________, or, if mailed by ~~the entireties (Cust) (Minor) JT TEN--as joint tenants with right Under Uniform Gifts~~ check, to ~~Minors of survivorship and not as Act~~_________________________, Applicable statements should be mailed to _____________________________________ tenants in common (State) Additional abbreviations may also be used though not in the above list. --------------------------- [FORM OF SCHEDULE FOR ENDORSEMENTS ON GLOBAL SECURITY TO REFLECT CHANGES IN PRINCIPAL AMOUNT] Schedule A Changes to Principal Amount of Global Security Principal Amount of Securities by which this Global Security is to be Reduced or Increased, and Reason for Remaining Principal Amount of Notation Date Reduction or Increase this Global Securities Made by ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- Exhibit B SUBSIDIARY GUARANTEE FOR VALUE RECEIVED, the undersigned hereby jointly and severally with the Parent Guarantor pursuant to the Parent Guarantee and any other subsidiary Guarantors under their respective Subsidiary Guarantees, unconditionally guarantees to the Holder of the accompanying _____~~% Note Due June~~ __________________________________________________________________________. This information is provided by _______________________________________________, ~~2018 (~~the ~~"2018 Note") issued by AMB Property~~assignee named above, ~~L.P. (the "Operating Partnership") under an Indenture dated as of June~~ or __________________________________________________, ~~1998~~ as its agent. XXXXXXX X-0 FORM OF CLASS M-5 CERTIFICATE UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (~~together with~~ "DTC"), TO THE TRUSTEE OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986 (THE "CODE"). THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A CERTIFICATES, THE CLASS M-1 CERTIFICATES, THE CLASS M-2 CERTIFICATES, THE CLASS M-3 CERTIFICATES AND THE CLASS M-4 CERTIFICATES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN. Series 2005-NC5 Pass-Through Rate: Variable Cut-off Date and date of Pooling and Servicing Agreement: October 1, 2005 First Distribution Date: November 25, 2005 No. 1 Aggregate Certificate Principal Balance of the ~~Second Supplemental Indenture thereto,~~ Class M-5 Certificates as of the ~~"Indenture") among the Operating Partnership, AMB Property Corporation, and State Street~~ Issue Date: $[________].00 Denomination: $[________].00 Servicer: New Century Mortgage Corporation Trustee: Deutsche Bank ~~and~~ National Trust Company Issue Date: October 4, 2005 CUSIP: [_______] [__] [_] DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE AS THE DENOMINATION OF THIS CERTIFICATE. ASSET BACKED PASS-THROUGH CERTIFICATE evidencing a beneficial ownership interest in a portion of ~~California, N.A., as trustee~~ a Trust Fund (the "~~Trustee~~Trust Fund") consisting primarily of a pool of conventional one- to four-family, adjustable-rate and fixed-rate, interest-only and fully-amortizing, first lien and second lien mortgage loans (the "Mortgage Loans") formed and sold by STANWICH ASSET ACCEPTANCE COMPANY, L.L.C. THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN STANWICH ASSET ACCEPTANCE COMPANY, L.L.C., THE SERVICER, THE TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES. This certifies that Cede & Co. is the registered owner of a Percentage Interest (obtained by dividing the denomination of this Certificate by the aggregate Certificate Principal Balance of the Class M-5 Certificates as of the Issue Date) in that certain beneficial ownership interest evidenced by all the Class M-5 Certificates in REMIC II created pursuant to a Pooling and Servicing Agreement, dated as specified above (the "Agreement"), among Stanwich Asset Acceptance Company, L.L.C. (a) hereinafter called the ~~full~~ "Depositor," which term includes any successor entity under the Agreement), the Servicer and ~~prompt payment~~ the Trustee, a summary of certain of the ~~principal~~ 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 Agreement. This Certificate is issued under and ~~premium~~is subject to the terms, ~~if any, on such 2018 Note when~~ provisions and ~~as the same shall become due and payable, whether at Stated Maturity, by acceleration, by redemption or otherwise, and (b) the full and prompt payment~~ conditions of the ~~interest on~~ Agreement, to which Agreement the Holder of this Certificate by virtue of the acceptance hereof assents and by which such ~~2018 Note when and as the same shall become due and payable, according~~ Holder is bound. Pursuant to the terms of the Agreement, distributions will be made on the 25th day of each month or, if such ~~2018 Note and~~ 25th day is not a Business Day, the Business Day immediately following (a "Distribution Date"), commencing on the First Distribution Date specified above, to the Person in whose name this Certificate is registered on the Record Date, in an amount equal to the product of the ~~Indenture. The undersigned hereby agrees, jointly~~ Percentage Interest evidenced by this Certificate and ~~severally with~~ the ~~Parent Guarantor~~ amount required to be distributed to the Holders of Class M-5 Certificates on such Distribution Date pursuant to the ~~Parent Guarantee and any other Subsidiary Guarantors~~ Agreement. All distributions to the Holder of this Certificate under ~~their respective Subsidiary Guarantees, that its obligations hereunder shall~~ the Agreement will be ~~as principal and not merely as surety, and shall~~ made or caused to be ~~absolute and unconditional, and shall not be affected, modified or impaired~~ made by the ~~following: (a) the failure to give notice~~ Trustee by wire transfer in immediately available funds to the ~~Guarantors~~ account of the occurrence of an Event of Default under the Indenture; (b) the waiver, surrender, compromise, settlement, release or termination of the payment, performance or observance by the Operating Partnership or the Guarantors of any or all of the obligations, covenants or agreements of either of them contained in the Indenture or the 2018 Notes; (c) the acceleration, extension or any other changes in the time for payment of any principal of or interest or any premium on any 2018 Note or for any other payment under the Indenture or of the time for performance of any other obligations, covenants or agreements under or arising out of the Indenture or the 2018 Notes; (d) the modification or amendment (whether material or otherwise) of any obligation, covenant or agreement set forth in the Indenture or the 2018 Notes; (e) the taking or the omission of any of the actions referred to in the Indenture and in any of the actions under the 2018 Notes; (f) any failure, omission, delay or lack on the part of the Trustee to enforce, assert or exercise any right, power or remedy conferred on Person entitled thereto if such Person shall have so notified the Trustee in writing at least five Business Days prior to the ~~Indenture~~Record Date immediately prior to such Distribution Date or otherwise by check mailed by first class mail to the address of the Person entitled thereto, ~~or any other action or acts~~ as such name and address shall appear on the ~~part~~ Certificate Register. Notwithstanding the above, the final distribution on this Certificate will be made after due notice by the Trustee of the ~~Trustee or any~~ pendency of ~~the Holders from time to time of the 2018 Notes; (g) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all the assets, marshaling of assets~~ such distribution and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition with creditors or readjustment of, or other similar proceedings affecting the Guarantors or the Operating Partnership or any of the assets of any of them, or any allegation or contest of the validity only upon presentation and surrender of this ~~Subsidiary Guarantee~~ Certificate at the office or agency appointed by the Trustee for that purpose as provided in ~~any such proceeding; (h)~~ the Agreement. The Pass-Through Rate applicable to the ~~extent permitted by law, the release or discharge by operation~~ calculation of law of the Guarantors from the performance or observance of any obligation, covenant or agreement contained in the Indenture; (i) to the extent permitted by law, the release or discharge by operation of law of the Operating Partnership from the performance or observance of any obligation, covenant or agreement contained in the Indenture; (j) the default or failure of the Operating Partnership or the Trustee fully to perform any of its obligations set forth in the Indenture or the 2018 Notes; (k) the invalidity, irregularity or unenforceability of the Indenture or the 2018 Notes or any part of any thereof; (l) any judicial or governmental action affecting the Operating Partnership or any 2018 Notes or consent or indulgence granted by the Operating Partnership by the Holders or by the Trustee; or (m) the recovery of any judgment against the Operating Partnership or any action to enforce the same or any other circumstance which might constitute a legal or equitable discharge of a surety or guarantor. The undersigned hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of merger, sale, lease or conveyance of all or substantially all of its assets, insolvency or bankruptcy of the Operating Partnership, any right to require a proceeding first against the Operating Partnership, protest or notice interest payable with respect to ~~such Notice or the indebtedness evidenced thereby and all demands whatsoever, and covenants that~~ this Subsidiary Guarantee will not be discharged except by complete performance of the obligations contained in such 2018 Note and in this Subsidiary Guarantee. No reference herein to such Indenture and no provision of this Subsidiary Guarantee or of such Indenture Certificate on any Distribution Date shall alter or impair the guarantee of the undersigned, which is absolute and unconditional, of the full and prompt payment of the principal of and premium, if any, and interest on the 2018 Note. THIS SUBSIDIARY GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. The validity and enforceability of this Subsidiary Guarantee shall not be affected by the fact that it is not affixed to any particular 2018 Note. An Event of Default under the Indenture or the 2018 Notes shall constitute an event of default under this Subsidiary Guarantee, and shall entitle the Holders of 2018 Notes to accelerate the obligations of the undersigned hereunder in the same manner and to the same extent as the obligations of the Operating Partnership. Notwithstanding any other provision of this Subsidiary Guarantee to the contrary, the undersigned hereby waives any claims or other rights which it may now have or hereafter acquire against the Operating Partnership that arise from the existence or performance of its obligations under this Subsidiary Guarantee (all such claims and rights are referred to as "Guarantor's Conditional Rights"), including, without limitation, any right of subrogation, reimbursement, exoneration, contribution, or indemnification, any right to participate in any claim or remedy against the Operating Partnership, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, by any payment made hereunder or otherwise, including without limitation, the right to take or receive from Operating Partnership, directly or indirectly, in cash or other property or by setoff or in any other manner, payment or security on account of such claim or other rights. The Subsidiary Guarantor hereby agrees not to exercise any rights which may be acquired by way of contribution under this Subsidiary Guarantee or any other agreement, by any payment made hereunder or otherwise, including, without limitation, the right to take or receive from any other guarantor, directly or indirectly, in cash or other property or by setoff or in any other manner, payment or security on account of such contribution rights. If, notwithstanding the foregoing provisions, any amount shall be paid to any of the undersigned on account of any such Guarantor's Conditional Rights and either (i) such amount is paid to such undersigned party at any time when the indebtedness shall not have been paid or performed in full, or (ii) regardless of when such amount is paid to such undersigned party, any payment made by Operating Partnership to equal a Holder that is at any time determined to be a Preferential Payment (as defined below), then such amount paid to the undersigned shall be held in trust for the benefit of the Holders and shall forthwith be paid such Holder to be credited and applied upon the indebtedness, whether matured or unmatured. Any such payment is herein referred to as a "Preferential Payment" to the extent the Operating Partnership makes any payment to Holder in connection with the Note, and any or all of such payment is subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid or paid over to a trustee, receiver or any other entity, whether under any bankruptcy act or otherwise. To the extent that any of the provisions of the immediately preceding paragraph shall not be enforceable, each of the undersigned agrees that until such time as the indebtedness has been paid and performed in full and the period of time has expired during which any payment made by the Operating Partnership or the undersigned to a Holder may be determined to be a Preferential Payment, Guarantor's Conditional Rights to the extent not validly waived shall be subordinate to Holders' right to full payment and performance of the indebtedness and each of the undersigned shall not enforce any of its respective portion of the Guarantors' Conditional Rights until such time as the indebtedness has been paid and performed in full and the period of time has expired during which any payment made by the Operating Partnership or the undersigned to Holders may be determined to be a Preferential Payment. The undersigned's liability (the "Base Guaranty Liability") shall be that amount from time to time rate per annum equal ~~to the aggregate liability of the undersigned hereunder, but shall be limited~~ to the lesser of (i) the related Formula Rate for such Distribution Date and (ii) the related Net WAC Pass-Through Rate for such Distribution Date. This Certificate is one of a duly authorized issue of Certificates designated as Asset Backed Pass-Through Certificates of the Series specified on the face hereof (herein called the "Certificates") and representing a Percentage Interest in the Class of Certificates specified on the face hereof equal to the denomination specified on the face hereof divided by the aggregate Certificate Principal Balance of the Class of Certificates specified on the face hereof. The 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 Agreement. As provided in the Agreement, withdrawals from the Collection Account and the Distribution Account may be made from time to time for purposes other than distributions to Certificateholders, such purposes including reimbursement of advances made, or certain expenses incurred, with respect to the Mortgage Loans. The Agreement permits, with certain exceptions therein provided, the amendment thereof and the modification of the rights and obligations of the Depositor, the Servicer, the Trustee and the rights of the Certificateholders under the Agreement at any time by the Depositor, the Servicer and the Trustee with the consent of the Holders of Certificates entitled to at least 66% of the Voting Rights. Any such consent by the Holder of this Certificate shall be conclusive and binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in exchange herefor or in lieu hereof whether or not notation of such consent is made upon this Certificate. The Agreement also permits the amendment thereof, in certain limited circumstances, without the consent of the Holders of any of the Certificates. As provided in the Agreement and subject to certain limitations therein set forth, the transfer of this Certificate is registrable in the Certificate Register upon surrender of this Certificate for registration of transfer at the offices or agencies appointed by the Trustee as provided in the Agreement, duly endorsed by, or accompanied by an assignment in the form below or other written instrument of transfer in form satisfactory to the Trustee duly executed by, the Holder hereof or such Holder's attorney duly authorized in writing, and thereupon one or more new Certificates of the same Class in authorized denominations evidencing the same aggregate Percentage Interest will be issued to the designated transferee or transferees. Each beneficial owner of this Certificate or any interest therein shall be deemed to have represented, by virtue of its acquisition or holding of such Certificate or interest therein, that either (A) ~~the aggregate amount~~ it is not an "employee benefit plan" as defined in Section 3(3) of the ~~obligation~~ Employee Retirement Income Security Act of 1974, as ~~stated~~ amended ("ERISA"), that is subject to Title I of ERISA, any "plan" as defined in ~~the second sentence of~~ Section ~~1401~~ 4975 of the ~~Indenture~~Internal Revenue Code of 1986, ~~and~~ as amended (the "Code"), that is subject to Section 4975 of the Code or any entity deemed to hold plan assets of any of the foregoing, (B) it has acquired and is holding this Certificate in reliance on the ~~amount~~underwriters' exemption, ~~if any~~and that it understands that there are certain conditions to the availability of the underwriters' exemption, ~~which would~~ including that this Certificate must be rated, at the time of purchase, not ~~have (i) rendered the undersigned~~ lower than "~~insolvent~~BBB-" (or its equivalent) by Fitch, S&P or Xxxxx'x and the Certificate is so rated, that it is an accredited investor as defined in Rule 501(a)(1) of Regulation D of the Securities Act of 1933, as amended, and that it will obtain a representation from any transferee that such transferee is an accredited investor, or (C)(1) it is an insurance company, (2) the source of funds used to acquire or hold this Certificate or interest therein is an "insurance company general account," as such term is defined in Prohibited Transaction Class Exemption ("PTCE") 95-60, and (3) the conditions in Sections I and III of PTCE 95-60 have been satisfied. If this Certificate or any interest therein is acquired or held in violation of the provisions of Section ~~101(29~~5.02(c) of the ~~Federal Bankruptcy Code and in Section 271~~ Agreement, the next preceding permitted beneficial owner will be treated as the beneficial owner of ~~the Debtor and Creditor Law of the State of New York, as each is in effect at~~ this Certificate retroactive to the date of transfer to the ~~Indenture~~purported beneficial owner. Any purported beneficial owner whose acquisition or holding of any this Certificate or interest therein was effected in violation of the provisions of Section 5.02(c) of the Agreement shall indemnify and hold harmless the Depositor, the Servicer, the Trustee and the Trust Fund from and against any and all liabilities, claims, costs or expenses incurred by those parties as a result of that acquisition or holding. The Certificates are issuable in fully registered form only without coupons in Classes and denominations representing Percentage Interests specified in the Agreement. As provided in the Agreement and subject to certain limitations therein set forth, the Certificates are exchangeable for new Certificates of the same Class in authorized denominations evidencing the same aggregate Percentage Interest, as requested by the Holder surrendering the same. No service charge will be made for any such registration of transfer or exchange of Certificates, but the Trustee 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 Servicer, the Trustee and any agent of the Depositor, the Servicer or 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 Servicer, the Trustee nor any such agent shall be affected by notice to the contrary. The obligations created by the Agreement and the Trust Fund created thereby shall terminate upon payment to the Certificateholders of all amounts held by the Trustee and required to be paid to them pursuant to the Agreement following the earlier of (i) the final payment or other liquidation (or any advance with respect thereto) of the last Mortgage Loan and REO Property remaining in REMIC I and (ii) ~~left~~ the ~~undersigned with unreasonably small capital~~ purchase by the party designated in the Agreement at a price determined as provided in the Agreement from REMIC I of all the Mortgage Loans and all property acquired in respect of such Mortgage Loans. The Agreement permits, but does not require, the party designated in the Agreement to purchase from REMIC I all the Mortgage Loans and all property acquired in respect of any Mortgage Loan at a price determined as provided in the Agreement. The exercise of such right will effect early retirement of the Certificates; however, such right to purchase is subject to the aggregate Stated Principal Balance of the Mortgage Loans at the time ~~its Guarantee was entered into, after giving effect to the incurrence~~ of existing Debt (as defined in the Indenture) immediately prior to such time, provided that, it shall be a presumption in any lawsuit or other proceeding in which the undersigned is a party that the amount guaranteed is the amount set forth in (A) above unless a creditor, or representative of creditors purchase being less than 10% of the ~~undersigned or a trustee in bankruptcy~~ aggregate Stated Principal Balance of the ~~undersigned,~~ Mortgage Loans as ~~debtor in possession, otherwise proves in such a lawsuit that the aggregate liability~~ of the ~~undersigned is limited to the amount set forth in (B)~~Cut-off Date. In making any determination as to the solvency or sufficiency of capital of the undersigned in accordance with the previous sentence, the right of the undersigned to contribution from other Guarantors, to subrogation and any other rights the undersigned may have, contractual or otherwise, The recitals contained herein shall be taken ~~into account. The obligations~~ as statements of the ~~undersigned to the Holders of the 2018 Notes~~ Depositor and to the Trustee ~~pursuant~~ assumes no responsibility for their correctness. Unless the certificate of authentication hereon has been executed by the Trustee, by manual signature, this Certificate shall not be entitled to any benefit under the ~~Subsidiary Guarantee and the Indenture are expressly set forth in Article 14 of the Indenture and reference is hereby made to the Indenture~~ Agreement or be valid for the precise terms of the Subsidiary Guarantee and all of the other provisions of the Indenture to which this Subsidiary Guarantee relates. Capitalized terms in this Subsidiary Guarantee which are not defined herein shall have the meanings assigned to them in the Indentureany purpose.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Carrington Mortgage Loan Trust, Series 2005-Nc5)

Appears in 1 contract

Samples: Distribution Instructions (Salomon Brothers Mort Sec Vii Asset Backed Cert 1996-Lb2)

Dated. ~~Notice~~Signature by or on behalf of assignor DISTRIBUTION INSTRUCTIONS The assignee should include the following for purposes of distribution: The signature to this assignment must correspond with the name as it appears upon the face of the within Note in every particular, without alteration or enlargement or any change whatever. ABBREVIATIONS The following abbreviations, when used in the inscription on the face of this instrument, Distributions shall be ~~construed as though they were written out~~ made, by wire transfer or otherwise, in ~~full according~~ immediately available funds to applicable laws or regulations: TEN COM--as tenants in common UNIF GIFT MIN ACT--_____ Custodian______ TEN ENT--as tenants by the entireties (Cust) (Minor) JT TEN--as joint tenants with right Under Uniform Gifts to Minors of survivorship and not as Act__________________________ tenants in common (State) Additional abbreviations may also be used though not in the above list. --------------------------- [FORM OF SCHEDULE FOR ENDORSEMENTS ON GLOBAL SECURITY TO REFLECT CHANGES IN PRINCIPAL AMOUNT] Schedule A Changes to Principal Amount of Global Security Principal Amount of Securities by which this Global Security is to be Reduced or Increased, and Reason for Remaining Principal Amount of Notation Date Reduction or Increase this Global Securities Made by ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- Exhibit B SUBSIDIARY GUARANTEE FOR VALUE RECEIVED, the undersigned hereby jointly and severally with the Parent Guarantor pursuant to the Parent Guarantee and any other subsidiary Guarantors under their respective Subsidiary Guarantees, unconditionally guarantees to the Holder of the accompanying _____~~% Note Due June~~ __________________, ~~2018 (the "2018 Note") issued by AMB Property, L.P. (the "Operating Partnership") under an Indenture dated as of June~~ _______________________________________________________________________________, ~~1998 (together with~~ for the ~~Second Supplemental Indenture thereto~~account of ____________________________________________________________, account number ________, or, if mailed by check, to ___________________________. Applicable statements should be mailed to______________________________________, _______________________________________________________________________________. This information is provided by____________________________________, the assignee named above, or __________________________________________________, as its agent. EXHIBIT D SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS AN INTEREST IN A "~~Indenture~~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 ASSETS. NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE PROPOSED TRANSFEROR DELIVERS TO THE TRUSTEE A TRANSFEROR LETTER IN THE FORM OF EXHIBIT H TO THE AGREEMENT REFERRED TO HEREIN AND EITHER (I) THE TRUSTEE RECEIVES A RULE 144A LETTER IN THE FORM OF EXHIBIT I TO THE AGREEMENT REFERRED TO HEREIN OR (II) THE TRUSTEE RECEIVES AN OPINION OF COUNSEL, DELIVERED AT THE EXPENSE OF THE TRANSFEROR, THAT SUCH TRANSFER MAY BE MADE WITHOUT REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED. NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE TRANSFEREE DELIVERS TO THE TRUSTEE EITHER A REPRESENTATION LETTER TO THE EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO SECTION 4975 OF THE CODE, OR, A PLAN SUBJECT TO APPLICABLE FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE OR A PERSON ACTING ON BEHALF OF OR INVESTING PLAN ASSETS OF ANY SUCH PLAN, OTHER THAN AN INSURANCE COMPANY WHICH IS PURCHASING SUCH CERTIFICATES WITH FUNDS CONTAINED IN AN "INSURANCE COMPANY GENERAL ACCOUNT" (AS SUCH TERM IS DEFINED IN SECTION V(E) OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 ("PTCE 95-60")) UNDER SUCH CONDITIONS THAT THE PURCHASE AND HOLDING OF THIS CERTIFICATE ARE COVERED UNDER SECTIONS I AND III OF PTCE 95-60, OR AN OPINION OF COUNSEL IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, ANY PURPORTED TRANSFER OF THIS CERTIFICATE TO OR ON BEHALF OF AN EMPLOYEE BENEFIT PLAN SUBJECT TO ERISA OR TO THE CODE WITHOUT THE REPRESENTATION LETTER OR THE OPINION OF COUNSEL SATISFACTORY TO THE TRUSTEE AS DESCRIBED ABOVE SHALL BE VOID AND OF NO EFFECT. Certificate No. : X-1 Cut-off Date : February 1, 2004 First Distribution Date : March 25, 2004 Initial Certificate Balance of this Certificate : $[__________] Initial Certificate Balances of all Certificates of this Class : $[__________] Percentage Interest of this Certificate ("Denomination") : 100% MORGAN STANLEY ABS CAPITAL I INC. Morgan Stanley ABS Cxxxxxx X Xxx. Trust 2004-NC2 Mortgagx Xxxx-Xxxxxxx Certificates, Series 2004-NC2 Class X evidencing a percentage interest in the distributions allocable to the Certificates of the above-referenced Class. Distributions in respect of this Certificate are distributable monthly as set forth herein. This Certificate does not evidence an obligation of, or an interest in, and is not guaranteed by the Depositor, the Servicer, the Responsible Party or the Trustee referred to below or any of their respective affiliates. Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any governmental agency or instrumentality. This certifies that Deutsche Bank National Trust Company, as indenture trustee, is the registered owner of the Percentage Interest evidenced by this Certificate (obtained by dividing the denomination of this Certificate by the aggregate of the denominations of all Certificates of the Class to which this Certificate belongs) in certain monthly distributions pursuant to a Pooling and Servicing Agreement dated as of the Cut-off Date specified above (the "Agreement") among Morgan Stanley ABS Capital I Inc., as depositor (the ~~Operating Partnership~~"Depositor"), ~~AMB Property~~ Counxxxxxxe Xxxx Xoans Servicing LP, as servicer (the "Servicer"), NC Capital Corporation, as responsible party (the "Responsible Party"), and ~~State Street~~ Deutsche Bank ~~and~~ National Trust ~~Company of California, N.A.~~Company, as trustee (the "Trustee"). To the extent not defined herein, ~~(a)~~ the ~~full~~ capitalized terms used herein have the meanings assigned in the Agreement. This Certificate is issued under and ~~prompt payment~~ is subject to the terms, provisions and conditions of the ~~principal~~ Agreement, to which Agreement the Holder of ~~and premium, if any, on such 2018 Note when and as the same shall become due and payable, whether at Stated Maturity,~~ this Certificate by ~~acceleration, by redemption or otherwise, and (b) the full and prompt payment~~ virtue of the ~~interest on~~ acceptance hereof assents and by which such ~~2018 Note when~~ Holder is bound. This Certificate does not have a Pass-Through Rate and ~~as the same shall become due and payable, according~~ will be entitled to distributions only to the terms of such 2018 Note and of the Indenture. The undersigned hereby agrees, jointly and severally with the Parent Guarantor pursuant to the Parent Guarantee and any other Subsidiary Guarantors under their respective Subsidiary Guarantees, that its obligations hereunder shall be as principal and not merely as surety, and shall be absolute and unconditional, and shall not be affected, modified or impaired by the following: (a) the failure to give notice to the Guarantors of the occurrence of an Event of Default under the Indenture; (b) the waiver, surrender, compromise, settlement, release or termination of the payment, performance or observance by the Operating Partnership or the Guarantors of any or all of the obligations, covenants or agreements of either of them contained in the Indenture or the 2018 Notes; (c) the acceleration, extension or any other changes in the time for payment of any principal of or interest or any premium on any 2018 Note or for any other payment under the Indenture or of the time for performance of any other obligations, covenants or agreements under or arising out of the Indenture or the 2018 Notes; (d) the modification or amendment (whether material or otherwise) of any obligation, covenant or agreement extent set forth in the ~~Indenture or~~ Agreement. In addition, any distribution of the ~~2018 Notes; (e) the taking or the omission~~ proceeds of any remaining assets of the ~~actions referred to~~ Trust will be made only upon presentment and surrender of this Certificate at the offices designated by the Trustee for such purposes or such other location specified in the ~~Indenture and in any~~ notice to Certificateholders. No transfer of a Certificate of this Class shall be made unless such disposition is exempt from the registration requirements of the ~~actions under~~ Securities Act of 1933, as amended (the ~~2018 Notes; (f)~~ "1933 Act"), and any ~~failure, omission, delay~~ applicable state securities laws or ~~lack on~~ is made in accordance with the part of the Trustee to enforce, assert or exercise any right, power or remedy conferred on the Trustee in the Indenture, or any other action or acts on the part of the Trustee or any of the Holders from time to time of the 2018 Notes; (g) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all the assets, marshaling of assets 1933 Act and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition with creditors or readjustment of, or other similar proceedings affecting the Guarantors or the Operating Partnership or any of the assets of any of them, or any allegation or contest of the validity of this Subsidiary Guarantee in any such proceeding; (h) to the extent permitted by law, the release or discharge by operation of law of the Guarantors from the performance or observance of any obligation, covenant or agreement contained in the Indenture; (i) to the extent permitted by law, the release or discharge by operation of law of the Operating Partnership from the performance or observance of any obligation, covenant or agreement contained in the Indenture; (j) the default or failure of the Operating Partnership or the Trustee fully to perform any of its obligations set forth in the Indenture or the 2018 Notes; (k) the invalidity, irregularity or unenforceability of the Indenture or the 2018 Notes or any part of any thereof; (l) any judicial or governmental action affecting the Operating Partnership or any 2018 Notes or consent or indulgence granted by the Operating Partnership by the Holders or by the Trustee; or (m) the recovery of any judgment against the Operating Partnership or any action to enforce the same or any other circumstance which might constitute a legal or equitable discharge of a surety or guarantorlaws. ~~The undersigned hereby waives diligence, presentment, demand of payment, filing of claims with a court in~~ In the event of ~~merger~~any such transfer, ~~sale, lease or conveyance of all or~~ the Trustee shall require the transferor to execute a transferor certificate (in substantially ~~all of its assets, insolvency or bankruptcy of~~ the Operating Partnership, any right to require a proceeding first against the Operating Partnership, protest or notice with respect to such Notice or the indebtedness evidenced thereby and all demands whatsoever, and covenants that this Subsidiary Guarantee will not be discharged except by complete performance of the obligations contained in such 2018 Note and in this Subsidiary Guarantee. No reference herein to such Indenture and no provision of this Subsidiary Guarantee or of such Indenture shall alter or impair the guarantee of the undersigned, which is absolute and unconditional, of the full and prompt payment of the principal of and premium, if any, and interest on the 2018 Note. THIS SUBSIDIARY GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. The validity and enforceability of this Subsidiary Guarantee shall not be affected by the fact that it is not affixed to any particular 2018 Note. An Event of Default under the Indenture or the 2018 Notes shall constitute an event of default under this Subsidiary Guarantee, and shall entitle the Holders of 2018 Notes to accelerate the obligations of the undersigned hereunder in the same manner and form attached to the same extent as the obligations of the Operating Partnership. Notwithstanding any other provision of this Subsidiary Guarantee to the contrary, the undersigned hereby waives any claims or other rights which it may now have or hereafter acquire against the Operating Partnership that arise from the existence or performance of its obligations under this Subsidiary Guarantee (all such claims Pooling and rights are referred to as "Guarantor's Conditional Rights"), including, without limitation, any right of subrogation, reimbursement, exoneration, contribution, or indemnification, any right to participate in any claim or remedy against the Operating Partnership, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, by any payment made hereunder or otherwise, including without limitation, the right to take or receive from Operating Partnership, directly or indirectly, in cash or other property or by setoff or in any other manner, payment or security on account of such claim or other rights. The Subsidiary Guarantor hereby agrees not to exercise any rights which may be acquired by way of contribution under this Subsidiary Guarantee or any other agreement, by any payment made hereunder or otherwise, including, without limitation, the right to take or receive from any other guarantor, directly or indirectly, in cash or other property or by setoff or in any other manner, payment or security on account of such contribution rights. If, notwithstanding the foregoing provisions, any amount shall be paid to any of the undersigned on account of any such Guarantor's Conditional Rights Servicing Agreement) and deliver either (i) ~~such amount is paid~~ a Rule 144A Letter, in either case substantially in the form attached to ~~such undersigned party at any time when~~ the ~~indebtedness shall not have been paid or performed in full~~Agreement, or (ii) ~~regardless~~ a written Opinion of when such amount is paid to such undersigned party, any payment made by Operating Partnership to a Holder that is at any time determined to be a Preferential Payment (as defined below), then such amount paid Counsel to the ~~undersigned~~ Trustee that such transfer may be made pursuant to an exemption, describing the applicable exemption and the basis therefor, from the 1933 Act or is being made pursuant to the 1933 Act, which Opinion of Counsel shall be ~~held in trust for the benefit~~ an expense of the ~~Holders~~ transferor. No transfer of a Certificate of this Class shall be made unless the Trustee shall have received either (i) a representation letter from the transferee of such Certificate, acceptable to and ~~shall forthwith be paid such Holder to be credited~~ in form and ~~applied upon the indebtedness, whether matured or unmatured. Any such payment is herein referred to as a "Preferential Payment"~~ substance satisfactory to the ~~extent~~ Trustee, to the ~~Operating Partnership makes any payment~~ effect that such transferee is not an employee benefit plan subject to ~~Holder in connection with~~ Section 406 of ERISA or Section 4975 of the ~~Note, and any or all of such payment is subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid or paid over to a trustee, receiver~~ Code or any ~~other entity, whether under any bankruptcy act or otherwise. To the extent that any of the~~ materially similar provisions of ~~the immediately preceding paragraph~~ applicable Federal, state or local law ("Similar Law") or a person acting on behalf of or investing plan assets of any such plan, which representation letter shall not be ~~enforceable, each~~ an expense of the undersigned agrees that until such time as the indebtedness has been paid and performed in full and the period of time has expired during which any payment made by the Operating Partnership or the undersigned to a Holder may be determined to be a Preferential PaymentTrustee, Guarantor's Conditional Rights to the extent not validly waived shall be subordinate to Holders' right to full payment and performance of the indebtedness and each of the undersigned shall not enforce any of its respective portion of the Guarantors' Conditional Rights until such time as the indebtedness has been paid and performed in full and the period of time has expired during which any payment made by the Operating Partnership or the undersigned to Holders may be determined to be a Preferential Payment. The undersigned's liability (the "Base Guaranty Liability") shall be that amount from time to time equal to the aggregate liability of the undersigned hereunder, but shall be limited to the lesser of (A) the aggregate amount of the obligation as stated in the second sentence of Section 1401 of the Indenture, and (B) the amount, if any, which would not have (i) rendered the undersigned "insolvent" (as such term is defined in Section 101(29) of the Federal Bankruptcy Code and in Section 271 of the Debtor and Creditor Law of the State of New York, as each is in effect at the date of the Indenture) or (ii) ~~left~~ if the ~~undersigned~~ transferee is an insurance company, a representation letter that it is purchasing such Certificates with ~~unreasonably small capital at~~ the ~~time~~ assets of its ~~Guarantee was entered into~~general account and that the purchase and holding of such Certificates are covered under Sections I and III of PTCE 95-60, ~~after giving effect to the incurrence of existing Debt~~ or (~~as defined~~ iii) in the ~~Indenture) immediately prior~~ case of a Certificate presented for registration in the name of an employee benefit plan subject to such time, provided that, it shall be a presumption in any lawsuit or other proceeding in which the undersigned is a party that the amount guaranteed is the amount set forth in (A) above unless a creditorERISA, or ~~representative of creditors~~ a plan or arrangement subject to Section 4975 of the ~~undersigned~~ Code (or comparable provisions of any subsequent enactments) or a plan subject to Similar Law, or a trustee ~~in bankruptcy~~ of ~~the undersigned, as debtor in possession, otherwise proves in~~ any such ~~a lawsuit that the aggregate liability of the undersigned is limited to the amount set forth in (B). In making any determination as to the solvency~~ plan or ~~sufficiency of capital of the undersigned in accordance with the previous sentence, the right of the undersigned to contribution from other Guarantors, to subrogation and~~ any other ~~rights the undersigned may have~~person acting on behalf of any such plan or arrangement or using such plan's or arrangement's assets, ~~contractual or otherwise, shall be taken into account. The obligations~~ an Opinion of ~~the undersigned to the Holders of the 2018 Notes and~~ Counsel satisfactory to the Trustee ~~pursuant~~ and the Servicer, which Opinion of Counsel shall not be an expense of the Trustee, the Servicer or the Trust Fund, addressed to the ~~Subsidiary Guarantee~~ Trustee, to the effect that the purchase or holding of such Certificate will not result in the assets of the Trust Fund being deemed to be "plan assets" and subject to the prohibited transaction provisions of ERISA and the ~~Indenture are~~ Code and will not subject the Trustee or the Servicer to any obligation in addition to those expressly ~~set forth~~ undertaken in ~~Article 14 of the Indenture and reference~~ this Agreement or to any liability. Reference is hereby made to the ~~Indenture~~ further provisions of this Certificate set forth on the reverse hereof, which further provisions shall for all purposes have the ~~precise terms~~ same effect as if set forth at this place. This Certificate shall not be entitled to any benefit under the Agreement or be valid for any purpose unless manually countersigned by an authorized signatory of the ~~Subsidiary Guarantee and all of the other provisions of the Indenture to which this Subsidiary Guarantee relates~~Trustee. ~~Capitalized terms in this Subsidiary Guarantee which are not defined herein shall have the meanings assigned to them in the Indenture.~~* * *

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Mortgage Pass-Through Certificates Series 2004-Nc2)

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Home Equity Loan Trust Series 2004-Hs1)

Appears in 1 contract

Samples: Pooling and Servicing Agreement (IndyMac INDX Mortgage Loan Trust 2007-Flx1)

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Deutsche Alt-a Securities, Inc. Mortgage Loan Trust, Series 2005-1)

Dated. ~~Notice~~Signature by or on behalf of assignor -------------------------------------- Signature Guaranteed DISTRIBUTION INSTRUCTIONS The assignee should include the following for purposes of distribution: The signature to this assignment must correspond with the name as it appears upon the face of the within Note in every particular, without alteration or enlargement or any change whatever. ABBREVIATIONS The following abbreviations, when used in the inscription on the face of this instrument, Distributions shall be ~~construed as though they were written out~~ made, by wire transfer or otherwise, in ~~full according~~ immediately available funds to ~~applicable laws or regulations: TEN COM--as tenants in common UNIF GIFT MIN ACT--_____ Custodian~~_____~~_ TEN ENT--as tenants by the entireties (Cust) (Minor) JT TEN--as joint tenants with right Under Uniform Gifts to Minors of survivorship and not as Act~~____________________________________________ ~~tenants in common (State) Additional abbreviations may also be used though not in~~ for the ~~above list. --------------------------- [FORM OF SCHEDULE FOR ENDORSEMENTS ON GLOBAL SECURITY TO REFLECT CHANGES IN PRINCIPAL AMOUNT] Schedule A Changes to Principal Amount~~ account of Global Security Principal Amount of Securities by which this Global Security is to be Reduced or Increased, and Reason for Remaining Principal Amount of Notation Date Reduction or Increase this Global Securities Made by ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- Exhibit B SUBSIDIARY GUARANTEE FOR VALUE RECEIVED, the undersigned hereby jointly and severally with the Parent Guarantor pursuant to the Parent Guarantee and any other subsidiary Guarantors under their respective Subsidiary Guarantees, unconditionally guarantees to the Holder of the accompanying _____~~% Note Due June~~ _______________________________________________________, ~~2018 (the "2018 Note") issued by AMB Property, L.P. (the "Operating Partnership") under an Indenture dated as of June~~ account number ____________________, ~~1998 (together with the Second Supplemental Indenture thereto~~or, if mailed by check, to _______________ _______________________________________________________________________________. Applicable statements should be mailed to _____________________________________ _______________________________________________________________________________. This information is provided by________________________________________________, the assignee named above, or _________________________________, as its agent. EXHIBIT A-2 FORM OF CLASS I-A-2 CERTIFICATE SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "~~Indenture~~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 (THE "CODE"). UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE DEPOSITOR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. DBALT Series 2005-1, Class I-A-2 Initial Notional Amount of the I-A-2 Certificates as of the Issue Date: Pass-Through Rate: Variable Master Servicer: Xxxxx Fargo Bank, N.A. Date of Pooling and Servicing Agreement and Cut-off Date: Trustee: HSBC Bank USA, National Association January 1, 2005 First Distribution Date: February 25, 2005 Issue Date: January 31, 2005 No.__ CUSIP:________________ DEUTSCHE ALT-A SECURITIES, INC. MORTGAGE LOAN TRUST, SERIES 2005-1 ASSET BACKED PASS-THROUGH CERTIFICATE evidencing a fractional undivided interest in the distributions allocable to the Class I-A 2 Certificates with respect to a trust fund consisting primarily of a pool of conventional one- to four-family fixed rate mortgage loans (the "Mortgage Loans") secured by one- to four- family residences, units in planned unit developments and individual condominium units (the "Trust Fund") sold by DEUTSCHE ALT-A SECURITIES, INC. THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN DEUTSCHE ALT-A SECURITIES, INC., THE MASTER SERVICER, THE SECURITIES ADMINISTRATOR, THE TRUSTEE, ANY SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES. This certifies that [Cede & Co.] is the registered owner of the Percentage Interest evidenced hereby in the beneficial ownership interest of Certificates of the same Class as this Certificate in certain assets of the Trust Fund generally consisting of the Mortgage Loans and related assets sold by Deutsche Alt-A Securities, Inc. (the "Depositor"). The Mortgage Loans were sold by DB Structured Products, Inc. to the Depositor. Xxxxx Fargo Bank, N.A. will act as master servicer of the Mortgage Loans (the "Master Servicer," which term includes any successors thereto under the Agreement referred to below). The Trust Fund was created pursuant to the Pooling and Servicing Agreement dated as of the Cut-Off Date specified above (the "Agreement"), among the ~~Operating Partnership~~Depositor, ~~AMB Property Corporation, and State Street Bank and Trust Company of California~~Xxxxx Fargo Bank, N.A., as Master Servicer and securities administrator (the "Securities Administrator") and HSBC Bank USA, National Association as trustee (the "Trustee"), a summary of certain of the pertinent provisions of which is set forth hereafter. To the extent not defined herein, capitalized terms used herein shall have the meaning ascribed to them in the Agreement. This Certificate is issued under and is subject to the terms, provisions and conditions of the Agreement, to which Agreement the Holder of this Certificate by virtue of its acceptance hereof assents and by which such Holder is bound. Pursuant to the terms of the Agreement, distributions will be made on the 25th day of each month or, if such 25th day is not a Business Day, the Business Day immediately following such 25th day (a "Distribution Date"), commencing on the First Distribution Date specified above, to the Person in whose name this Certificate is registered on the Business Day immediately preceding such Distribution Date (the "Record Date"), in an amount equal to the product of the Percentage Interest evidenced by this Certificate and the amount required to be distributed to the Holders of Class I-A-2 Certificates on such Distribution Date pursuant to the Agreement. All distributions to the Holder of this Certificate under the Agreement will be made or caused to be made by the Securities Administrator by wire transfer in immediately available funds to the account of the Person entitled thereto if such Person shall have so notified the Securities Administrator in writing at least five Business Days prior to the Record Date immediately prior to such Distribution Date, or otherwise by check mailed by first class mail to the address of the Person entitled thereto, as such name and address shall appear on 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 appointed by the Securities Administrator for that purpose as provided in the Agreement. The Pass-Through Rate with respect to the first Distribution Date shall be equal to 2.7356% per annum, and with respect to any Distribution Date thereafter shall be a rate per annum, expressed as a fraction, the numerator of which is equal to the sum of (i) the product of (x) the excess of the weighted average of the Net Mortgage Rates of the Group I Mortgage Loans over the lesser of (a) the full and prompt payment of the principal of and premium, if any, on such 2018 Note when and as the same shall become due and payable, whether at Stated Maturity, by acceleration, by redemption or otherwise, One-Month LIBOR plus 0.50% per annum and (b) the ~~full and prompt payment~~ weighted average of the Net Mortgage Rates of the Group I Mortgage Loans for that Distribution Date and (y) the aggregate Certificate Principal Balance of the Group I Senior Certificates (other than the Class I-A-2 Certificates) and (ii) the product of (x) the excess of the weighted average of the Net Mortgage Rates of the Group I Mortgage Loans and the Group II Mortgage Loans (weighted on the basis of the results of subtracting from the aggregate principal balance of each loan group the current aggregate certificate principal balance of the related Senior Certificates (other than the Class I-A-2 Certificates)), over the rate at which the Subordinate Certificates accrue interest ~~on such 2018 Note when~~ and as (y) the ~~same shall become due~~ aggregate Certificate Principal Balance of the Subordinate Certificates, and ~~payable, according~~ the denominator of which is equal to the ~~terms of such 2018 Note and~~ notional amount of the ~~Indenture~~Class I-A-2 Certificates. This Certificate is one of a duly authorized issue of Certificates designated as Mortgage Pass-Through Certificate of the Series specified on the face hereof (herein called the "Certificates"). The ~~undersigned hereby agrees~~Certificates, ~~jointly and severally with~~ in the ~~Parent Guarantor~~ aggregate, evidence the entire beneficial ownership interest in the Trust Fund formed pursuant to the ~~Parent Guarantee~~ Agreement. The Certificates are limited in right of payment to certain collections and recoveries respecting the Mortgage Loans as more specifically set forth herein and in the Agreement. As provided in the Agreement, withdrawals from the Collection Account and the Distribution Account may be made from time to time for purposes other than distributions to Certificateholders, such purposes including reimbursement of advances made, or certain expenses incurred, with respect to the Mortgage Loans. The Agreement permits, with certain exceptions therein provided, the amendment thereof and the modification of the rights and obligations of the Depositor, the Master Servicer, the Trustee, the Securities Administrator and the rights of the Certificateholders under the Agreement at any ~~other Subsidiary Guarantors under their respective Subsidiary Guarantees~~time by the Depositor, ~~that its obligations hereunder~~ the Master Servicer, the Trustee and the Securities Administrator with the consent of the Holders of Certificates evidencing, in the aggregate, not less than 66-2/3% of the Trust Fund. Any such consent by the Holder of this Certificate shall be ~~as principal~~ conclusive and binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in exchange herefor or in lieu hereof whether or not ~~merely as surety~~notation of such consent is made upon this Certificate. The Agreement also permits the amendment thereof, ~~and shall be absolute and unconditional~~in certain limited circumstances, ~~and shall not be affected, modified or impaired by~~ without the ~~following: (a) the failure to give notice to the Guarantors~~ consent of the occurrence of an Event of Default under the Indenture; (b) the waiver, surrender, compromise, settlement, release or termination of the payment, performance or observance by the Operating Partnership or the Guarantors of any or all of the obligations, covenants or agreements of either of them contained in the Indenture or the 2018 Notes; (c) the acceleration, extension or any other changes in the time for payment of any principal of or interest or any premium on any 2018 Note or for any other payment under the Indenture or of the time for performance of any other obligations, covenants or agreements under or arising out of the Indenture or the 2018 Notes; (d) the modification or amendment (whether material or otherwise) of any obligation, covenant or agreement set forth in the Indenture or the 2018 Notes; (e) the taking or the omission Holders of any of the ~~actions referred to~~ Certificates. As provided in the ~~Indenture~~ Agreement and subject to certain limitations therein set forth, the transfer of this Certificate is registrable in ~~any~~ the Certificate Register upon surrender of this Certificate for registration of transfer at the offices or agencies appointed by the Securities Administrator as provided in the Agreement, duly endorsed by, or accompanied by an assignment in the form below 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 ~~actions under~~ same Class in authorized denominations evidencing the ~~2018 Notes; (f) any failure~~same aggregate Percentage Interest 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 Agreement. As provided in the Agreement and subject to certain limitations therein set forth, ~~omission, delay or lack on~~ the ~~part~~ Certificates are exchangeable for new Certificates of the ~~Trustee~~ same Class in authorized denominations evidencing the same aggregate Percentage Interest, as requested by the Holder surrendering the same. No service charge will be made for any such registration of transfer or exchange of Certificates, but the Securities Administrator may require payment of a sum sufficient to ~~enforce~~cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates. The Depositor, ~~assert or exercise~~ the Master Servicer, the Trustee, the Securities Administrator and any ~~right~~agent of the Depositor, ~~power or remedy conferred on~~ the ~~Trustee in the Indenture~~Master Servicer, ~~or any other action or acts on the part of~~ the Trustee or ~~any~~ the Securities Administrator may treat the Person in whose name this Certificate is registered as the owner hereof for all purposes, and none of the ~~Holders from time~~ Depositor, the Master Servicer, the Trustee or the Securities Administrator nor any such agent shall be affected by notice to ~~time of~~ the ~~2018 Notes; (g)~~ contrary. The obligations created by the ~~voluntary or involuntary liquidation, dissolution, sale or other disposition~~ Agreement and the Trust Fund created thereby shall terminate upon payment to the Certificateholders of all ~~or substantially all~~ amounts held by the ~~assets, marshaling of assets~~ Securities Administrator and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition with creditors or readjustment of, or other similar proceedings affecting the Guarantors or the Operating Partnership or any of the assets of any of them, or any allegation or contest of the validity of this Subsidiary Guarantee in any such proceeding; (h) required to be paid to them pursuant to the ~~extent permitted by law,~~ Agreement following the ~~release or discharge by operation~~ earlier of ~~law of the Guarantors from the performance or observance of any obligation, covenant or agreement contained in the Indenture;~~ (i) the final payment or other liquidation (or any advance with respect thereto) of the last Mortgage Loan remaining in the Trust Fund and (ii) the purchase by the party designated in the Agreement at a price determined as provided in the Agreement of all the Mortgage Loans and all property acquired in respect of such Mortgage Loans. The Agreement permits, but does not require, the party designated in the Agreement to purchase all the Mortgage Loans and all property acquired in respect of any Mortgage Loan at a price determined as provided in the Agreement. The exercise of such right will effect early retirement of the Certificates; however, such right to purchase is subject to the ~~extent permitted by law, the release or discharge by operation of law~~ aggregate Stated Principal Balance of the ~~Operating Partnership from~~ Mortgage Loans at the ~~performance~~ time of purchase being less than or ~~observance of any obligation, covenant or agreement contained in the Indenture; (j) the default or failure~~ equal to 10% of the ~~Operating Partnership or~~ aggregate principal balance of the Mortgage Loans as of the Cut-off Date. The recitals contained herein shall be taken as statements of the Depositor and neither the Trustee ~~fully to perform~~ nor the Securities Administrator assumes any responsibility for their correctness. Unless the certificate of its obligations set forth in the Indenture or the 2018 Notes; (k) the invalidity, irregularity or unenforceability of the Indenture or the 2018 Notes or any part of any thereof; (l) any judicial or governmental action affecting the Operating Partnership or any 2018 Notes or consent or indulgence granted authentication hereon has been executed by the ~~Operating Partnership~~ Securities Administrator, by the Holders or by the Trustee; or (m) the recovery of any judgment against the Operating Partnership or any action to enforce the same or any other circumstance which might constitute a legal or equitable discharge of a surety or guarantor. The undersigned hereby waives diligencemanual signature, presentment, demand of payment, filing of claims with a court in the event of merger, sale, lease or conveyance of all or substantially all of its assets, insolvency or bankruptcy of the Operating Partnership, any right to require a proceeding first against the Operating Partnership, protest or notice with respect to such Notice or the indebtedness evidenced thereby and all demands whatsoever, and covenants that this Subsidiary Guarantee will not be discharged except by complete performance of the obligations contained in such 2018 Note and in this Subsidiary Guarantee. No reference herein to such Indenture and no provision of this Subsidiary Guarantee or of such Indenture shall alter or impair the guarantee of the undersigned, which is absolute and unconditional, of the full and prompt payment of the principal of and premium, if any, and interest on the 2018 Note. THIS SUBSIDIARY GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. The validity and enforceability of this Subsidiary Guarantee Certificate shall not be ~~affected by the fact that it is not affixed~~ entitled to any ~~particular 2018 Note. An Event of Default~~ benefit under the ~~Indenture~~ Agreement or the 2018 Notes shall constitute an event of default under this Subsidiary Guarantee, and shall entitle the Holders of 2018 Notes to accelerate the obligations of the undersigned hereunder in the same manner and to the same extent as the obligations of the Operating Partnership. Notwithstanding be valid for any other provision of this Subsidiary Guarantee to the contrary, the undersigned hereby waives any claims or other rights which it may now have or hereafter acquire against the Operating Partnership that arise from the existence or performance of its obligations under this Subsidiary Guarantee (all such claims and rights are referred to as "Guarantor's Conditional Rights"), including, without limitation, any right of subrogation, reimbursement, exoneration, contribution, or indemnification, any right to participate in any claim or remedy against the Operating Partnership, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, by any payment made hereunder or otherwise, including without limitation, the right to take or receive from Operating Partnership, directly or indirectly, in cash or other property or by setoff or in any other manner, payment or security on account of such claim or other rights. The Subsidiary Guarantor hereby agrees not to exercise any rights which may be acquired by way of contribution under this Subsidiary Guarantee or any other agreement, by any payment made hereunder or otherwise, including, without limitation, the right to take or receive from any other guarantor, directly or indirectly, in cash or other property or by setoff or in any other manner, payment or security on account of such contribution rights. If, notwithstanding the foregoing provisions, any amount shall be paid to any of the undersigned on account of any such Guarantor's Conditional Rights and either (i) such amount is paid to such undersigned party at any time when the indebtedness shall not have been paid or performed in full, or (ii) regardless of when such amount is paid to such undersigned party, any payment made by Operating Partnership to a Holder that is at any time determined to be a Preferential Payment (as defined below), then such amount paid to the undersigned shall be held in trust for the benefit of the Holders and shall forthwith be paid such Holder to be credited and applied upon the indebtedness, whether matured or unmatured. Any such payment is herein referred to as a "Preferential Payment" to the extent the Operating Partnership makes any payment to Holder in connection with the Note, and any or all of such payment is subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid or paid over to a trustee, receiver or any other entity, whether under any bankruptcy act or otherwise. To the extent that any of the provisions of the immediately preceding paragraph shall not be enforceable, each of the undersigned agrees that until such time as the indebtedness has been paid and performed in full and the period of time has expired during which any payment made by the Operating Partnership or the undersigned to a Holder may be determined to be a Preferential Payment, Guarantor's Conditional Rights to the extent not validly waived shall be subordinate to Holders' right to full payment and performance of the indebtedness and each of the undersigned shall not enforce any of its respective portion of the Guarantors' Conditional Rights until such time as the indebtedness has been paid and performed in full and the period of time has expired during which any payment made by the Operating Partnership or the undersigned to Holders may be determined to be a Preferential Payment. The undersigned's liability (the "Base Guaranty Liability") shall be that amount from time to time equal to the aggregate liability of the undersigned hereunder, but shall be limited to the lesser of (A) the aggregate amount of the obligation as stated in the second sentence of Section 1401 of the Indenture, and (B) the amount, if any, which would not have (i) rendered the undersigned "insolvent" (as such term is defined in Section 101(29) of the Federal Bankruptcy Code and in Section 271 of the Debtor and Creditor Law of the State of New York, as each is in effect at the date of the Indenture) or (ii) left the undersigned with unreasonably small capital at the time its Guarantee was entered into, after giving effect to the incurrence of existing Debt (as defined in the Indenture) immediately prior to such time, provided that, it shall be a presumption in any lawsuit or other proceeding in which the undersigned is a party that the amount guaranteed is the amount set forth in (A) above unless a creditor, or representative of creditors of the undersigned or a trustee in bankruptcy of the undersigned, as debtor in possession, otherwise proves in such a lawsuit that the aggregate liability of the undersigned is limited to the amount set forth in (B). In making any determination as to the solvency or sufficiency of capital of the undersigned in accordance with the previous sentence, the right of the undersigned to contribution from other Guarantors, to subrogation and any other rights the undersigned may have, contractual or otherwise, shall be taken into account. The obligations of the undersigned to the Holders of the 2018 Notes and to the Trustee pursuant to the Subsidiary Guarantee and the Indenture are expressly set forth in Article 14 of the Indenture and reference is hereby made to the Indenture for the precise terms of the Subsidiary Guarantee and all of the other provisions of the Indenture to which this Subsidiary Guarantee relates. Capitalized terms in this Subsidiary Guarantee which are not defined herein shall have the meanings assigned to them in the Indenturepurpose.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Deutsche Alt-a Securities, Inc. Mortgage Loan Trust, Series 2005-1)

Dated. ~~Notice~~Signature by or on behalf of assignor ------------------------------------- Signature Guaranteed DISTRIBUTION INSTRUCTIONS The assignee should include the following for purposes of distribution: The signature to this assignment must correspond with the name as it appears upon the face of the within Note in every particular, without alteration or enlargement or any change whatever. ABBREVIATIONS The following abbreviations, when used in the inscription on the face of this instrument, Distributions shall be ~~construed as though they were written out~~ made, by wire transfer or otherwise, in ~~full according~~ immediately available funds to ~~applicable laws or regulations: TEN COM--as tenants in common UNIF GIFT MIN ACT--_____ Custodian~~_____~~_ TEN ENT--as tenants~~ _______________________________________________________, for the account of ____________________________________________________________, account number __________, or, if mailed by ~~the entireties (Cust) (Minor) JT TEN--as joint tenants with right Under Uniform Gifts~~ check, to ~~Minors of survivorship and not as Act~~_________________________, Applicable statements should be mailed to _____________________________________ tenants in common (State) Additional abbreviations may also be used though not in the above list. --------------------------- [FORM OF SCHEDULE FOR ENDORSEMENTS ON GLOBAL SECURITY TO REFLECT CHANGES IN PRINCIPAL AMOUNT] Schedule A Changes to Principal Amount of Global Security Principal Amount of Securities by which this Global Security is to be Reduced or Increased, and Reason for Remaining Principal Amount of Notation Date Reduction or Increase this Global Securities Made by ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- Exhibit B SUBSIDIARY GUARANTEE FOR VALUE RECEIVED, the undersigned hereby jointly and severally with the Parent Guarantor pursuant to the Parent Guarantee and any other subsidiary Guarantors under their respective Subsidiary Guarantees, unconditionally guarantees to the Holder of the accompanying _____~~% Note Due June~~ __________________________________________________________________________. This information is provided by _______________________________________________, ~~2018 (~~the ~~"2018 Note") issued by AMB Property~~assignee named above, ~~L.P. (the "Operating Partnership") under an Indenture dated as of June~~ or __________________________________________________, ~~1998~~ as its agent. EXHIBIT A-11 FORM OF CLASS M-8 CERTIFICATE UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (~~together with~~ "DTC"), TO THE TRUSTEE OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986 (THE "CODE"). THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A CERTIFICATES, THE CLASS M-1 CERTIFICATES, THE CLASS M-2 CERTIFICATES, THE CLASS M-3 CERTIFICATES, THE CLASS M-4 CERTIFICATES, THE CLASS M-5 CERTIFICATES, THE CLASS M-6 CERTIFICATES AND THE CLASS M-7 CERTIFICATES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN. Series 2005-NC5 Pass-Through Rate: Variable Cut-off Date and date of Pooling and Servicing Agreement: October 1, 2005 First Distribution Date: November 25, 2005 No. 1 Aggregate Certificate Principal Balance of the ~~Second Supplemental Indenture thereto,~~ Class M-8 Certificates as of the ~~"Indenture") among the Operating Partnership, AMB Property Corporation, and State Street~~ Issue Date: $[_______].00 Denomination: $[_______].00 Servicer: New Century Mortgage Corporation Trustee: Deutsche Bank ~~and~~ National Trust Company Issue Date: October 4, 2005 CUSIP: [______] [__] [_] DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE AS THE DENOMINATION OF THIS CERTIFICATE. ASSET BACKED PASS-THROUGH CERTIFICATE evidencing a beneficial ownership interest in a portion of ~~California, N.A., as trustee~~ a Trust Fund (the "~~Trustee~~Trust Fund") consisting primarily of a pool of conventional one- to four-family, adjustable-rate and fixed-rate, interest-only and fully-amortizing, first lien and second lien mortgage loans (the "Mortgage Loans") formed and sold by STANWICH ASSET ACCEPTANCE COMPANY, L.L.C. THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN STANWICH ASSET ACCEPTANCE COMPANY, L.L.C., THE SERVICER, THE TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES. This certifies that Cede & Co. is the registered owner of a Percentage Interest (obtained by dividing the denomination of this Certificate by the aggregate Certificate Principal Balance of the Class M-8 Certificates as of the Issue Date) in that certain beneficial ownership interest evidenced by all the Class M-8 Certificates in REMIC II created pursuant to a Pooling and Servicing Agreement, dated as specified above (the "Agreement"), among Stanwich Asset Acceptance Company, L.L.C. (a) hereinafter called the ~~full~~ "Depositor," which term includes any successor entity under the Agreement), the Servicer and ~~prompt payment~~ the Trustee, a summary of certain of the ~~principal~~ 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 Agreement. This Certificate is issued under and ~~premium~~is subject to the terms, ~~if any, on such 2018 Note when~~ provisions and ~~as the same shall become due and payable, whether at Stated Maturity, by acceleration, by redemption or otherwise, and (b) the full and prompt payment~~ conditions of the ~~interest on~~ Agreement, to which Agreement the Holder of this Certificate by virtue of the acceptance hereof assents and by which such ~~2018 Note when and as the same shall become due and payable, according~~ Holder is bound. Pursuant to the terms of the Agreement, distributions will be made on the 25th day of each month or, if such ~~2018 Note and~~ 25th day is not a Business Day, the Business Day immediately following (a "Distribution Date"), commencing on the First Distribution Date specified above, to the Person in whose name this Certificate is registered on the Record Date, in an amount equal to the product of the ~~Indenture. The undersigned hereby agrees, jointly~~ Percentage Interest evidenced by this Certificate and ~~severally with~~ the ~~Parent Guarantor~~ amount required to be distributed to the Holders of Class M-8 Certificates on such Distribution Date pursuant to the ~~Parent Guarantee and any other Subsidiary Guarantors~~ Agreement. All distributions to the Holder of this Certificate under ~~their respective Subsidiary Guarantees, that its obligations hereunder shall~~ the Agreement will be ~~as principal and not merely as surety, and shall~~ made or caused to be ~~absolute and unconditional, and shall not be affected, modified or impaired~~ made by the ~~following: (a) the failure to give notice~~ Trustee by wire transfer in immediately available funds to the ~~Guarantors~~ account of the occurrence of an Event of Default under the Indenture; (b) the waiver, surrender, compromise, settlement, release or termination of the payment, performance or observance by the Operating Partnership or the Guarantors of any or all of the obligations, covenants or agreements of either of them contained in the Indenture or the 2018 Notes; (c) the acceleration, extension or any other changes in the time for payment of any principal of or interest or any premium on any 2018 Note or for any other payment under the Indenture or of the time for performance of any other obligations, covenants or agreements under or arising out of the Indenture or the 2018 Notes; (d) the modification or amendment (whether material or otherwise) of any obligation, covenant or agreement set forth in the Indenture or the 2018 Notes; (e) the taking or the omission of any of the actions referred to in the Indenture and in any of the actions under the 2018 Notes; (f) any failure, omission, delay or lack on the part of the Trustee to enforce, assert or exercise any right, power or remedy conferred on Person entitled thereto if such Person shall have so notified the Trustee in writing at least five Business Days prior to the ~~Indenture~~Record Date immediately prior to such Distribution Date or otherwise by check mailed by first class mail to the address of the Person entitled thereto, ~~or any other action or acts~~ as such name and address shall appear on the ~~part~~ Certificate Register. Notwithstanding the above, the final distribution on this Certificate will be made after due notice by the Trustee of the ~~Trustee or any~~ pendency of ~~the Holders from time to time of the 2018 Notes; (g) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all the assets, marshaling of assets~~ such distribution and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition with creditors or readjustment of, or other similar proceedings affecting the Guarantors or the Operating Partnership or any of the assets of any of them, or any allegation or contest of the validity only upon presentation and surrender of this ~~Subsidiary Guarantee~~ Certificate at the office or agency appointed by the Trustee for that purpose as provided in ~~any such proceeding; (h)~~ the Agreement. The Pass-Through Rate applicable to the ~~extent permitted by law, the release or discharge by operation~~ calculation of law of the Guarantors from the performance or observance of any obligation, covenant or agreement contained in the Indenture; (i) to the extent permitted by law, the release or discharge by operation of law of the Operating Partnership from the performance or observance of any obligation, covenant or agreement contained in the Indenture; (j) the default or failure of the Operating Partnership or the Trustee fully to perform any of its obligations set forth in the Indenture or the 2018 Notes; (k) the invalidity, irregularity or unenforceability of the Indenture or the 2018 Notes or any part of any thereof; (l) any judicial or governmental action affecting the Operating Partnership or any 2018 Notes or consent or indulgence granted by the Operating Partnership by the Holders or by the Trustee; or (m) the recovery of any judgment against the Operating Partnership or any action to enforce the same or any other circumstance which might constitute a legal or equitable discharge of a surety or guarantor. The undersigned hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of merger, sale, lease or conveyance of all or substantially all of its assets, insolvency or bankruptcy of the Operating Partnership, any right to require a proceeding first against the Operating Partnership, protest or notice interest payable with respect to ~~such Notice or the indebtedness evidenced thereby and all demands whatsoever, and covenants that~~ this Subsidiary Guarantee will not be discharged except by complete performance of the obligations contained in such 2018 Note and in this Subsidiary Guarantee. No reference herein to such Indenture and no provision of this Subsidiary Guarantee or of such Indenture Certificate on any Distribution Date shall alter or impair the guarantee of the undersigned, which is absolute and unconditional, of the full and prompt payment of the principal of and premium, if any, and interest on the 2018 Note. THIS SUBSIDIARY GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. The validity and enforceability of this Subsidiary Guarantee shall not be affected by the fact that it is not affixed to any particular 2018 Note. An Event of Default under the Indenture or the 2018 Notes shall constitute an event of default under this Subsidiary Guarantee, and shall entitle the Holders of 2018 Notes to accelerate the obligations of the undersigned hereunder in the same manner and to the same extent as the obligations of the Operating Partnership. Notwithstanding any other provision of this Subsidiary Guarantee to the contrary, the undersigned hereby waives any claims or other rights which it may now have or hereafter acquire against the Operating Partnership that arise from the existence or performance of its obligations under this Subsidiary Guarantee (all such claims and rights are referred to as "Guarantor's Conditional Rights"), including, without limitation, any right of subrogation, reimbursement, exoneration, contribution, or indemnification, any right to participate in any claim or remedy against the Operating Partnership, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, by any payment made hereunder or otherwise, including without limitation, the right to take or receive from Operating Partnership, directly or indirectly, in cash or other property or by setoff or in any other manner, payment or security on account of such claim or other rights. The Subsidiary Guarantor hereby agrees not to exercise any rights which may be acquired by way of contribution under this Subsidiary Guarantee or any other agreement, by any payment made hereunder or otherwise, including, without limitation, the right to take or receive from any other guarantor, directly or indirectly, in cash or other property or by setoff or in any other manner, payment or security on account of such contribution rights. If, notwithstanding the foregoing provisions, any amount shall be paid to any of the undersigned on account of any such Guarantor's Conditional Rights and either (i) such amount is paid to such undersigned party at any time when the indebtedness shall not have been paid or performed in full, or (ii) regardless of when such amount is paid to such undersigned party, any payment made by Operating Partnership to equal a Holder that is at any time determined to be a Preferential Payment (as defined below), then such amount paid to the undersigned shall be held in trust for the benefit of the Holders and shall forthwith be paid such Holder to be credited and applied upon the indebtedness, whether matured or unmatured. Any such payment is herein referred to as a "Preferential Payment" to the extent the Operating Partnership makes any payment to Holder in connection with the Note, and any or all of such payment is subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid or paid over to a trustee, receiver or any other entity, whether under any bankruptcy act or otherwise. To the extent that any of the provisions of the immediately preceding paragraph shall not be enforceable, each of the undersigned agrees that until such time as the indebtedness has been paid and performed in full and the period of time has expired during which any payment made by the Operating Partnership or the undersigned to a Holder may be determined to be a Preferential Payment, Guarantor's Conditional Rights to the extent not validly waived shall be subordinate to Holders' right to full payment and performance of the indebtedness and each of the undersigned shall not enforce any of its respective portion of the Guarantors' Conditional Rights until such time as the indebtedness has been paid and performed in full and the period of time has expired during which any payment made by the Operating Partnership or the undersigned to Holders may be determined to be a Preferential Payment. The undersigned's liability (the "Base Guaranty Liability") shall be that amount from time to time rate per annum equal ~~to the aggregate liability of the undersigned hereunder, but shall be limited~~ to the lesser of (i) the related Formula Rate for such Distribution Date and (ii) the related Net WAC Pass-Through Rate for such Distribution Date. This Certificate is one of a duly authorized issue of Certificates designated as Asset Backed Pass-Through Certificates of the Series specified on the face hereof (herein called the "Certificates") and representing a Percentage Interest in the Class of Certificates specified on the face hereof equal to the denomination specified on the face hereof divided by the aggregate Certificate Principal Balance of the Class of Certificates specified on the face hereof. The 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 Agreement. As provided in the Agreement, withdrawals from the Collection Account and the Distribution Account may be made from time to time for purposes other than distributions to Certificateholders, such purposes including reimbursement of advances made, or certain expenses incurred, with respect to the Mortgage Loans. The Agreement permits, with certain exceptions therein provided, the amendment thereof and the modification of the rights and obligations of the Depositor, the Servicer, the Trustee and the rights of the Certificateholders under the Agreement at any time by the Depositor, the Servicer and the Trustee with the consent of the Holders of Certificates entitled to at least 66% of the Voting Rights. Any such consent by the Holder of this Certificate shall be conclusive and binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in exchange herefor or in lieu hereof whether or not notation of such consent is made upon this Certificate. The Agreement also permits the amendment thereof, in certain limited circumstances, without the consent of the Holders of any of the Certificates. As provided in the Agreement and subject to certain limitations therein set forth, the transfer of this Certificate is registrable in the Certificate Register upon surrender of this Certificate for registration of transfer at the offices or agencies appointed by the Trustee as provided in the Agreement, duly endorsed by, or accompanied by an assignment in the form below or other written instrument of transfer in form satisfactory to the Trustee duly executed by, the Holder hereof or such Holder's attorney duly authorized in writing, and thereupon one or more new Certificates of the same Class in authorized denominations evidencing the same aggregate Percentage Interest will be issued to the designated transferee or transferees. Each beneficial owner of this Certificate or any interest therein shall be deemed to have represented, by virtue of its acquisition or holding of such Certificate or interest therein, that either (A) ~~the aggregate amount~~ it is not an "employee benefit plan" as defined in Section 3(3) of the ~~obligation~~ Employee Retirement Income Security Act of 1974, as ~~stated~~ amended ("ERISA"), that is subject to Title I of ERISA, any "plan" as defined in ~~the second sentence of~~ Section ~~1401~~ 4975 of the ~~Indenture~~Internal Revenue Code of 1986, ~~and~~ as amended (the "Code"), that is subject to Section 4975 of the Code or any entity deemed to hold plan assets of any of the foregoing, (B) it has acquired and is holding this Certificate in reliance on the ~~amount~~underwriters' exemption, ~~if any~~and that it understands that there are certain conditions to the availability of the underwriters' exemption, ~~which would~~ including that this Certificate must be rated, at the time of purchase, not ~~have (i) rendered the undersigned~~ lower than "~~insolvent~~BBB-" (or its equivalent) by Fitch, S&P or Xxxxx'x and the Certificate is so rated, that it is an accredited investor as defined in Rule 501(a)(1) of Regulation D of the Securities Act of 1933, as amended, and that it will obtain a representation from any transferee that such transferee is an accredited investor, or (C)(1) it is an insurance company, (2) the source of funds used to acquire or hold this Certificate or interest therein is an "insurance company general account," as such term is defined in Prohibited Transaction Class Exemption ("PTCE") 95-60, and (3) the conditions in Sections I and III of PTCE 95-60 have been satisfied. If this Certificate or any interest therein is acquired or held in violation of the provisions of Section ~~101(29~~5.02(c) of the ~~Federal Bankruptcy Code and in Section 271~~ Agreement, the next preceding permitted beneficial owner will be treated as the beneficial owner of ~~the Debtor and Creditor Law of the State of New York, as each is in effect at~~ this Certificate retroactive to the date of transfer to the ~~Indenture~~purported beneficial owner. Any purported beneficial owner whose acquisition or holding of any this Certificate or interest therein was effected in violation of the provisions of Section 5.02(c) of the Agreement shall indemnify and hold harmless the Depositor, the Servicer, the Trustee and the Trust Fund from and against any and all liabilities, claims, costs or expenses incurred by those parties as a result of that acquisition or holding. The Certificates are issuable in fully registered form only without coupons in Classes and denominations representing Percentage Interests specified in the Agreement. As provided in the Agreement and subject to certain limitations therein set forth, the Certificates are exchangeable for new Certificates of the same Class in authorized denominations evidencing the same aggregate Percentage Interest, as requested by the Holder surrendering the same. No service charge will be made for any such registration of transfer or exchange of Certificates, but the Trustee 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 Servicer, the Trustee and any agent of the Depositor, the Servicer or 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 Servicer, the Trustee nor any such agent shall be affected by notice to the contrary. The obligations created by the Agreement and the Trust Fund created thereby shall terminate upon payment to the Certificateholders of all amounts held by the Trustee and required to be paid to them pursuant to the Agreement following the earlier of (i) the final payment or other liquidation (or any advance with respect thereto) of the last Mortgage Loan and REO Property remaining in REMIC I and (ii) ~~left~~ the ~~undersigned with unreasonably small capital~~ purchase by the party designated in the Agreement at a price determined as provided in the Agreement from REMIC I of all the Mortgage Loans and all property acquired in respect of such Mortgage Loans. The Agreement permits, but does not require, the party designated in the Agreement to purchase from REMIC I all the Mortgage Loans and all property acquired in respect of any Mortgage Loan at a price determined as provided in the Agreement. The exercise of such right will effect early retirement of the Certificates; however, such right to purchase is subject to the aggregate Stated Principal Balance of the Mortgage Loans at the time ~~its Guarantee was entered into, after giving effect to the incurrence~~ of existing Debt (as defined in the Indenture) immediately prior to such time, provided that, it shall be a presumption in any lawsuit or other proceeding in which the undersigned is a party that the amount guaranteed is the amount set forth in (A) above unless a creditor, or representative of creditors purchase being less than 10% of the ~~undersigned or a trustee in bankruptcy~~ aggregate Stated Principal Balance of the ~~undersigned,~~ Mortgage Loans as ~~debtor in possession, otherwise proves in such a lawsuit that the aggregate liability~~ of the ~~undersigned is limited to the amount set forth in (B)~~Cut-off Date. In making any determination as to the solvency or sufficiency of capital of the undersigned in accordance with the previous sentence, the right of the undersigned to contribution from other Guarantors, to subrogation and any other rights the undersigned may have, contractual or otherwise, The recitals contained herein shall be taken ~~into account. The obligations~~ as statements of the ~~undersigned to the Holders of the 2018 Notes~~ Depositor and to the Trustee ~~pursuant~~ assumes no responsibility for their correctness. Unless the certificate of authentication hereon has been executed by the Trustee, by manual signature, this Certificate shall not be entitled to any benefit under the ~~Subsidiary Guarantee and the Indenture are expressly set forth in Article 14 of the Indenture and reference is hereby made to the Indenture~~ Agreement or be valid for the precise terms of the Subsidiary Guarantee and all of the other provisions of the Indenture to which this Subsidiary Guarantee relates. Capitalized terms in this Subsidiary Guarantee which are not defined herein shall have the meanings assigned to them in the Indentureany purpose.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Carrington Mortgage Loan Trust, Series 2005-Nc5)

Appears in 1 contract

Samples: Pooling and Servicing Agreement (GS Mortgage GSAMP Trust 2004-Sea2)

Dated. ~~Notice~~Signature by or on behalf of assignor ------------------------------------- Signature Guaranteed DISTRIBUTION INSTRUCTIONS The assignee should include the following for purposes of distribution: The signature to this assignment must correspond with the name as it appears upon the face of the within Note in every particular, without alteration or enlargement or any change whatever. ABBREVIATIONS The following abbreviations, when used in the inscription on the face of this instrument, Distributions shall be ~~construed as though they were written out~~ made, by wire transfer or otherwise, in ~~full according~~ immediately available funds to applicable laws or regulations: TEN COM--as tenants in common UNIF GIFT MIN ACT--_____ Custodian______ TEN ENT--as tenants by the entireties (Cust) (Minor) JT TEN--as joint tenants with right Under Uniform Gifts to Minors of survivorship and not as Act__________________________ tenants in common (State) Additional abbreviations may also be used though not in the above list. --------------------------- [FORM OF SCHEDULE FOR ENDORSEMENTS ON GLOBAL SECURITY TO REFLECT CHANGES IN PRINCIPAL AMOUNT] Schedule A Changes to Principal Amount of Global Security Principal Amount of Securities by which this Global Security is to be Reduced or Increased, and Reason for Remaining Principal Amount of Notation Date Reduction or Increase this Global Securities Made by ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- Exhibit B SUBSIDIARY GUARANTEE FOR VALUE RECEIVED, the undersigned hereby jointly and severally with the Parent Guarantor pursuant to the Parent Guarantee and any other subsidiary Guarantors under their respective Subsidiary Guarantees, unconditionally guarantees to the Holder of the accompanying _____~~% Note Due June~~ ______________________________, ~~2018 (~~for the ~~"2018 Note") issued by AMB Property, L.P. (the "Operating Partnership") under an Indenture dated as~~ account of ~~June~~ ____________________________________________________________, ~~1998 (together with the Second Supplemental Indenture thereto~~account number___________, or, if mailed by check, to _________________________, Applicable statements should be mailed to _____________________________________, _______________________________________________________________________________. This information is provided by _______________________________________________, the ~~"Indenture") among the Operating Partnership~~assignee named above, ~~AMB Property Corporation, and State Street Bank and Trust Company of California, N.A.~~or __________________________________________________, as ~~trustee~~ its agent. XXXXXXX X-0 FORM OF CLASS [B-_] [RULE 144A] [REG S] CERTIFICATE SOLELY FOR FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS 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. THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE DEPOSITOR, THE TRUSTEE, THE MASTER SERVICER OR THE SECURITIES ADMINISTRATOR REFERRED TO BELOW OR ANY OF THEIR AFFILIATES. NONE OF THIS CERTIFICATE, THE REMIC REGULAR INTEREST REPRESENTED HEREBY OR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED OR INSURED BY THE DEPOSITOR, THE TRUSTEE, THE MASTER SERVICER, THE SECURITIES ADMINISTRATOR OR BY ANY OF THEIR AFFILIATES OR BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY. FOLLOWING THE INITIAL ISSUANCE OF THE CERTIFICATES, THE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE DIFFERENT FROM THE ORIGINAL DENOMINATION SHOWN BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT PRINCIPAL BALANCE BY INQUIRY OF THE SECURITIES ADMINISTRATOR. THIS CERTIFICATE IS SUBORDINATE TO THE SENIOR CERTIFICATES, THE CLASS M CERTIFICATES AND THE RESIDUAL CERTIFICATES TO THE EXTENT DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE DEPOSITOR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. IF ANY BOOK-ENTRY CERTIFICATE (~~the~~ OR ANY INTEREST THEREIN) IS ACQUIRED OR HELD IN VIOLATION OF THE CERTIFICATE TRANSFER RESTRICTIONS IN THE AGREEMENT, THEN THE LAST PRECEDING TRANSFEREE THAT IS IN COMPLIANCE WITH SUCH PROVISIONS SHALL BE RESTORED, TO THE EXTENT PERMITTED BY LAW, TO ALL RIGHTS AND OBLIGATIONS AS CERTIFICATE OWNER THEREOF RETROACTIVE TO THE DATE OF SUCH TRANSFER OF SUCH CERTIFICATE. NEITHER THE TRUSTEE NOR THE SECURITIES ADMINISTRATOR SHALL BE UNDER ANY LIABILITY TO ANY PERSON FOR MAKING ANY PAYMENTS DUE ON SUCH CERTIFICATE TO SUCH PRECEDING TRANSFEREE. ANY PURPORTED CERTIFICATE OWNER WHOSE ACQUISITION OR HOLDING OF ANY BOOK-ENTRY CERTIFICATE (OR INTEREST THEREIN) WAS EFFECTED IN VIOLATION OF THE CERTIFICATE TRANSFER RESTRICTIONS IN THE AGREEMENT SHALL INDEMNIFY AND HOLD HARMLESS THE DEPOSITOR, THE TRUSTEE, THE SECURITIES ADMINISTRATOR, THE MASTER SERVICER AND THE TRUST FUND FROM AND AGAINST ANY AND ALL LIABILITIES, CLAIMS, COSTS OR EXPENSES INCURRED BY SUCH PARTIES AS A RESULT OF SUCH ACQUISITION OR HOLDING. NO TRANSFER OF THIS CERTIFICATE SHALL BE REGISTERED UNLESS THE PROSPECTIVE TRANSFEREE PROVIDES THE SECURITIES ADMINISTRATOR WITH (A) A REPRESENTATION THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN OR OTHER ARRANGEMENT SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("~~Trustee~~ERISA"), A PLAN SUBJECT TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (aTHE "CODE") ~~the full and prompt payment of the principal of and premium~~OR A PLAN SUBJECT TO ANY PROVISION UNDER ANY FEDERAL, ~~if any~~STATE, ~~on such 2018 Note when and as the same shall become due and payable~~LOCAL, ~~whether at Stated Maturity~~NON-U.S. OR OTHER LAWS OR REGULATIONS THAT ARE SUBSTANTIVELY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE ("SIMILAR LAW") (COLLECTIVELY, ~~by acceleration~~A "PLAN"), ~~by redemption or otherwise~~AND IS NOT DIRECTLY OR INDIRECTLY ACQUIRING THIS CERTIFICATE FOR, ~~and~~ ON BEHALF OF, OR WITH ANY ASSETS OF ANY SUCH PLAN, (bB) ~~the full and prompt payment of the interest on such 2018 Note when and as the same shall become due and payable~~IF THIS CERTIFICATE HAS BEEN THE SUBJECT OF AN ERISA-QUALIFYING UNDERWRITING, ~~according to the terms of such 2018 Note and of the Indenture~~A REPRESENTATION THAT SUCH TRANSFEREE IS AN INSURANCE COMPANY THAT IS ACQUIRING THIS CERTIFICATE WITH ASSETS OF AN "INSURANCE COMPANY GENERAL ACCOUNT" AS DEFINED IN SECTION V(E) OF PROHIBITED TRANSACTION CLASS EXEMPTION ("PTCE") 95-60 AND THE ACQUISITION AND HOLDING OF THIS CERTIFICATE ARE COVERED AND EXEMPT UNDER SECTIONS I AND III OF PTCE 95-60 OR (C) SOLELY IN THE CASE OF A DEFINITIVE CERTIFICATE, AN OPINION OF COUNSEL SATISFACTORY TO THE SECURITIES ADMINISTRATOR, AND UPON WHICH THE SECURITIES ADMINISTRATOR SHALL BE ENTITLED TO RELY, TO THE EFFECT THAT THE ACQUISITION AND HOLDING OF THIS CERTIFICATE BY THE PROSPECTIVE TRANSFEREE WILL NOT CONSTITUTE OR RESULT IN A NONEXEMPT PROHIBITED TRANSACTION UNDER ERISA OR THE CODE, OR A VIOLATION OF SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE SECURITIES ADMINISTRATOR, THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, ANY SERVICER OR THE DEPOSITOR TO ANY OBLIGATION IN ADDITION TO THOSE UNDERTAKEN BY SUCH ENTITIES IN THE AGREEMENT, WHICH OPINION OF COUNSEL SHALL NOT BE AN EXPENSE OF THE TRUSTEE, THE SECURITIES ADMINISTRATOR, THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, ANY SERVICER OR THE DEPOSITOR. ~~The undersigned hereby agrees~~IF THE CERTIFICATE IS NOT A DEFINITIVE CERTIFICATE, jointly and severally with the Parent Guarantor pursuant to the Parent Guarantee and any other Subsidiary Guarantors under their respective Subsidiary Guarantees, that its obligations hereunder shall be as principal and not merely as surety, and shall be absolute and unconditional, and shall not be affected, modified or impaired by the following: THE TRANSFEREE IS DEEMED TO HAVE MADE THE REPRESENTATION IN (aA) ~~the failure to give notice to the Guarantors of the occurrence of an Event of Default under the Indenture;~~ OR (bB) the waiver, surrender, compromise, settlement, release or termination of the payment, performance or observance by the Operating Partnership or the Guarantors of any or all of the obligations, covenants or agreements of either of them contained in the Indenture or the 2018 Notes; (c) the acceleration, extension or any other changes in the time for payment of any principal of or interest or any premium on any 2018 Note or for any other payment under the Indenture or of the time for performance of any other obligations, covenants or agreements under or arising out of the Indenture or the 2018 Notes; (d) the modification or amendment (whether material or otherwise) of any obligation, covenant or agreement set forth in the Indenture or the 2018 Notes; (e) the taking or the omission of any of the actions referred to in the Indenture and in any of the actions under the 2018 Notes; (f) any failure, omission, delay or lack on the part of the Trustee to enforce, assert or exercise any right, power or remedy conferred on the Trustee in the Indenture, or any other action or acts on the part of the Trustee or any of the Holders from time to time of the 2018 Notes; (g) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all the assets, marshaling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition with creditors or readjustment of, or other similar proceedings affecting the Guarantors or the Operating Partnership or any of the assets of any of them, or any allegation or contest of the validity of this Subsidiary Guarantee in any such proceeding; (h) to the extent permitted by law, the release or discharge by operation of law of the Guarantors from the performance or observance of any obligation, covenant or agreement contained in the Indenture; (i) to the extent permitted by law, the release or discharge by operation of law of the Operating Partnership from the performance or observance of any obligation, covenant or agreement contained in the Indenture; (j) the default or failure of the Operating Partnership or the Trustee fully to perform any of its obligations set forth in the Indenture or the 2018 Notes; (k) the invalidity, irregularity or unenforceability of the Indenture or the 2018 Notes or any part of any thereof; (l) any judicial or governmental action affecting the Operating Partnership or any 2018 Notes or consent or indulgence granted by the Operating Partnership by the Holders or by the Trustee; or (m) the recovery of any judgment against the Operating Partnership or any action to enforce the same or any other circumstance which might constitute a legal or equitable discharge of a surety or guarantor. The undersigned hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of merger, sale, lease or conveyance of all or substantially all of its assets, insolvency or bankruptcy of the Operating Partnership, any right to require a proceeding first against the Operating Partnership, protest or notice with respect to such Notice or the indebtedness evidenced thereby and all demands whatsoever, and covenants that this Subsidiary Guarantee will not be discharged except by complete performance of the obligations contained in such 2018 Note and in this Subsidiary Guarantee. No reference herein to such Indenture and no provision of this Subsidiary Guarantee or of such Indenture shall alter or impair the guarantee of the undersigned, which is absolute and unconditional, of the full and prompt payment of the principal of and premium, if any, and interest on the 2018 NoteABOVE. THIS ~~SUBSIDIARY GUARANTEE SHALL~~ CERTIFICATE HAS NOT BEEN AND WILL NOT BE ~~GOVERNED BY~~ REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND ~~CONSTRUED~~ MAY NOT BE RESOLD OR TRANSFERRED UNLESS IT IS REGISTERED PURSUANT TO SUCH ACT AND LAWS OR IS SOLD OR TRANSFERRED IN TRANSACTIONS THAT ARE EXEMPT FROM REGISTRATION UNDER SUCH ACT AND UNDER APPLICABLE STATE LAW AND IS TRANSFERRED IN ACCORDANCE WITH THE ~~LAWS~~ CERTIFICATE TRANSFER RESTRICTIONS IN THE AGREEMENT. MLMBS Series 2007-3, Class [B-__] Aggregate Certificate Principal (RULE 144A) Balance of Class [B-__] Certificates as of the Issue Date: $[______] Pass Through Rate: Variable(1) Initial Class Certificate Principal Balance of this Class [B-__] Certificate as of the Issue Date: $[______] Date of Agreement and Cut-off Date: Master Servicer and Securities July 1, 2007 Administrator: Xxxxx Fargo Bank, N.A. First Distribution Date: August 27, 2007 Trustee: HSBC Bank USA, National Association No. 07-3-[B-__]-(144A)-1 Issue Date: [______] CUSIP: [______] DISTRIBUTIONS IN REDUCTION OF THE ~~STATE~~ CERTIFICATE PRINCIPAL BALANCE OF ~~NEW YORK~~THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN. ~~The validity and enforceability of this Subsidiary Guarantee shall not be affected by the fact that it is not affixed to any particular 2018 Note~~ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE AS THE DENOMINATION OF THIS CERTIFICATE. An Event of Default under the Indenture or the 2018 Notes shall constitute an event of default under this Subsidiary Guarantee, and shall entitle the Holders of 2018 Notes to accelerate the obligations of the undersigned hereunder MORTGAGE PASS-THROUGH CERTIFICATE MLMBS SERIES 2007-3 evidencing a beneficial ownership interest in the same manner and to the same extent as the obligations of the Operating Partnership. Notwithstanding any other provision of this Subsidiary Guarantee to the contrary, the undersigned hereby waives any claims or other rights which it may now have or hereafter acquire against the Operating Partnership that arise from the existence or performance of its obligations under this Subsidiary Guarantee (all such claims and rights are referred to as "Guarantor's Conditional Rights"), including, without limitation, any right of subrogation, reimbursement, exoneration, contribution, or indemnification, any right to participate in any claim or remedy against the Operating Partnership, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, by any payment made hereunder or otherwise, including without limitation, the right to take or receive from Operating Partnership, directly or indirectly, in cash or other property or by setoff or in any other manner, payment or security on account of such claim or other rights. The Subsidiary Guarantor hereby agrees not to exercise any rights which may be acquired by way of contribution under this Subsidiary Guarantee or any other agreement, by any payment made hereunder or otherwise, including, without limitation, the right to take or receive from any other guarantor, directly or indirectly, in cash or other property or by setoff or in any other manner, payment or security on account of such contribution rights. If, notwithstanding the foregoing provisions, any amount shall be paid to any of the undersigned on account of any such Guarantor's Conditional Rights and either (i) such amount is paid to such undersigned party at any time when the indebtedness shall not have been paid or performed in full, or (ii) regardless of when such amount is paid to such undersigned party, any payment made by Operating Partnership to a Holder that is at any time determined to be a Preferential Payment (as defined below), then such amount paid to the undersigned shall be held in trust for the benefit of the Holders and shall forthwith be paid such Holder to be credited and applied upon the indebtedness, whether matured or unmatured. Any such payment is herein referred to as a "Preferential Payment" to the extent the Operating Partnership makes any payment to Holder in connection with the Note, and any or all of such payment is subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid or paid over to a trustee, receiver or any other entity, whether under any bankruptcy act or otherwise. To the extent that any of the provisions of the immediately preceding paragraph shall not be enforceable, each of the undersigned agrees that until such time as the indebtedness has been paid and performed in full and the period of time has expired during which any payment made by the Operating Partnership or the undersigned to a Holder may be determined to be a Preferential Payment, Guarantor's Conditional Rights to the extent not validly waived shall be subordinate to Holders' right to full payment and performance of the indebtedness and each of the undersigned shall not enforce any of its respective portion of the Guarantors' Conditional Rights until such time as the indebtedness has been paid and performed in full and the period of time has expired during which any payment made by the Operating Partnership or the undersigned to Holders may be determined to be a Preferential Payment. The undersigned's liability Trust Fund (the "~~Base Guaranty Liability~~Trust Fund") ~~shall be that amount from time~~ consisting primarily of three pools of conventional, one- to ~~time equal to~~ four-family, adjustable-rate, fully amortizing mortgage loans secured by first liens on residential property (the ~~aggregate liability of the undersigned hereunder~~"Mortgage Loans") formed and sold by XXXXXXX XXXXX MORTGAGE INVESTORS, ~~but shall be limited to the lesser of (A) the aggregate amount of the obligation as stated in the second sentence of Section 1401 of the Indenture~~INC. THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN XXXXXXX XXXXX MORTGAGE INVESTORS, ~~and (B) the amount~~INC., ~~if any~~THE MASTER SERVICER, which would not have (i) rendered the undersigned "insolvent" (as such term is defined in Section 101(29) of the Federal Bankruptcy Code and in Section 271 of the Debtor and Creditor Law of the State of New YorkTHE SECURITIES ADMINISTRATOR, as each is in effect at the date of the Indenture) or (ii) left the undersigned with unreasonably small capital at the time its Guarantee was entered into, after giving effect to the incurrence of existing Debt (as defined in the Indenture) immediately prior to such time, provided that, it shall be a presumption in any lawsuit or other proceeding in which the undersigned is a party that the amount guaranteed is the amount set forth in (A) above unless a creditor, or representative of creditors of the undersigned or a trustee in bankruptcy of the undersigned, as debtor in possession, otherwise proves in such a lawsuit that the aggregate liability of the undersigned is limited to the amount set forth in (B)THE TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. In making any determination as to the solvency or sufficiency of capital of the undersigned in accordance with the previous sentence, the right of the undersigned to contribution from other Guarantors, to subrogation and any other rights the undersigned may have, contractual or otherwise, shall be taken into account. The obligations of the undersigned to the Holders of the 2018 Notes and to the Trustee pursuant to the Subsidiary Guarantee and the Indenture are expressly set forth in Article 14 of the Indenture and reference is hereby made to the Indenture for the precise terms of the Subsidiary Guarantee and all of the other provisions of the Indenture to which this Subsidiary Guarantee relates. Capitalized terms in this Subsidiary Guarantee which are not defined herein shall have the meanings assigned to them in the IndentureNEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Merrill Lynch Mortgage Backed Securities Trust, Series 2007-3)

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Carrington Mortgage Loan Trust, Series 2005-Nc5)

Appears in 1 contract

Samples: Distribution Instructions (Salomon Brothers Mort Sec Vii Asset Backed Cert 1996-Lb2)

Dated. ~~Notice~~Signature by or on behalf of assignor DISTRIBUTION INSTRUCTIONS The assignee should include the following for purposes of distribution: The signature to this assignment must correspond with the name as it appears upon the face of the within Note in every particular, without alteration or enlargement or any change whatever. ABBREVIATIONS The following abbreviations, when used in the inscription on the face of this instrument, Distributions shall be ~~construed as though they were written out~~ made, by wire transfer or otherwise, in ~~full according~~ immediately available funds to applicable laws or regulations: TEN COM--as tenants in common UNIF GIFT MIN ACT--_____ Custodian______ TEN ENT--as tenants by the entireties (Cust) (Minor) JT TEN--as joint tenants with right Under Uniform Gifts to Minors of survivorship and not as Act__________________________ tenants in common (State) Additional abbreviations may also be used though not in the above list. --------------------------- [FORM OF SCHEDULE FOR ENDORSEMENTS ON GLOBAL SECURITY TO REFLECT CHANGES IN PRINCIPAL AMOUNT] Schedule A Changes to Principal Amount of Global Security Principal Amount of Securities by which this Global Security is to be Reduced or Increased, and Reason for Remaining Principal Amount of Notation Date Reduction or Increase this Global Securities Made by ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- Exhibit B SUBSIDIARY GUARANTEE FOR VALUE RECEIVED, the undersigned hereby jointly and severally with the Parent Guarantor pursuant to the Parent Guarantee and any other subsidiary Guarantors under their respective Subsidiary Guarantees, unconditionally guarantees to the Holder of the accompanying _____~~% Note Due June~~ _________________, ~~2018 (the "2018 Note") issued by AMB Property, L.P. (the "Operating Partnership") under an Indenture dated as of June~~ ______________________________________________________________________________, ~~1998 (together with~~ for the ~~Second Supplemental Indenture thereto~~account of ___________________________________________________________, account number ________, or, if mailed by check, to __________________________, Applicable statements should be mailed to ____________________________________, ______________________________________________________________________________. This information is provided by __________________________________________, the assignee named above, or _____________________________________________, as its agent. EXHIBIT D FORM OF CLASS X CERTIFICATE SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "~~Indenture~~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 ASSETS NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE PROPOSED TRANSFEROR DELIVERS TO THE SECURITIES ADMINISTRATOR A TRANSFEROR CERTIFICATE (THE "TRANSFEROR CERTIFICATE") IN THE FORM OF EXHIBIT H TO THE AGREEMENT REFERRED TO HEREIN AND EITHER (I) THE SECURITIES ADMINISTRATOR RECEIVES A RULE 144A LETTER (THE "RULE 144A LETTER") IN THE FORM OF EXHIBIT I TO THE AGREEMENT REFERRED TO HEREIN OR (II) THE SECURITIES ADMINISTRATOR RECEIVES AN OPINION OF COUNSEL, DELIVERED AT THE EXPENSE OF THE TRANSFEROR, THAT SUCH TRANSFER MAY BE MADE WITHOUT REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED. NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE TRANSFEREE DELIVERS TO THE SECURITIES ADMINISTRATOR EITHER A REPRESENTATION LETTER TO THE EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO SECTION 4975 OF THE CODE, OR A PLAN SUBJECT TO APPLICABLE FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE OR A PERSON INVESTING ON BEHALF OF OR WITH PLAN ASSETS OF SUCH A PLAN, OR IF THE TRANSFEREE IS AN INSURANCE COMPANY AND THE CERTIFICATE HAS BEEN THE SUBJECT OF AN ERISA-QUALIFYING UNDERWRITING, A REPRESENTATION LETTER THAT IT IS USING THE ASSETS OF ITS GENERAL ACCOUNT AND THAT THE PURCHASE AND HOLDING OF THIS CERTIFICATE SATISFY THE REQUIREMENTS FOR EXEMPTIVE RELIEF UNDER SECTIONS I AND III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60, OR AN OPINION OF COUNSEL SATISFACTORY TO THE TRUSTEE, THE SECURITIES ADMINISTRATOR AND THE DEPOSITOR, TO THE EFFECT THAT THE PURCHASE AND HOLDING OF THIS CERTIFICATE WILL NOT CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION WITHIN THE MEANING OF ERISA, SECTION 4975 OF THE CODE OR ANY SIMILAR LAW AND WILL NOT SUBJECT THE TRUSTEE, THE MASTER SERVICER, THE DEPOSITOR OR THE SECURITIES ADMINISTRATOR TO ANY OBLIGATION IN ADDITION TO THOSE EXPRESSLY UNDERTAKEN IN THIS AGREEMENT OR TO ANY LIABILITY. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, ANY PURPORTED TRANSFER OF THIS CERTIFICATE TO OR ON BEHALF OF AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF ERISA, SECTION 4975 OF THE CODE OR SIMILAR LAW WITHOUT THE REPRESENTATION LETTER OR OPINION OF COUNSEL SATISFACTORY TO THE SECURITIES ADMINISTRATOR AS DESCRIBED ABOVE SHALL BE VOID AND OF NO EFFECT. Certificate No. : X-1 Cut-off Date : February 1, 2007 First Distribution Date : March 26, 2007 Percentage Interest of this Certificate ("Denomination") : 100% CUSIP : ISIN : GS MORTGAGE SECURITIES CORP. GSAA Home Equity Trust 2007-2 Asset-Backed Certificates, Series 2007-2 Class X evidencing a percentage interest in the distributions allocable to the Certificates of the above-referenced Class. Distributions in respect of this Certificate are distributable monthly as set forth herein. This Certificate does not evidence an obligation of, or an interest in, and is not guaranteed by the Depositor the Master Servicer, to Securities Administrator or the Trustee referred to below or any of their respective affiliates. Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any governmental agency or instrumentality. This certifies that [_______________________] is the registered owner of the Percentage Interest evidenced by this Certificate (obtained by dividing the denomination of this Certificate by the aggregate of the denominations of all Certificates of the Class to which this Certificate belongs) in certain monthly distributions pursuant to a Master Servicing and Trust Agreement dated as of the Cut-off Date specified above (the "Agreement") among GS Mortgage Securities Corp., as depositor (the ~~Operating Partnership~~"Depositor"), ~~AMB Property Corporation, and State Street~~ Deutsche Bank ~~and~~ National Trust ~~Company of California, N.A.~~Company, as trustee (in such capacity, the "Trustee") and as a custodian, Wells Fargo Bank, National Association, as master servicer (in suxx xxpacity, the "Master Servicer") and as securities administrator (in such capacity, the "Securities Administrator"), ~~(a)~~ The Bank of New York Trust Company, National Association, as a custodian, and U.S. Bank National Association, as a custodian. To the ~~full~~ extent not defined herein, the capitalized terms used herein have the meanings assigned in the Agreement. This Certificate is issued under and ~~prompt payment~~ is subject to the terms, provisions and conditions of the ~~principal~~ Agreement, to which Agreement the Holder of ~~and premium, if any, on such 2018 Note when and as the same shall become due and payable, whether at Stated Maturity,~~ this Certificate by ~~acceleration, by redemption or otherwise, and (b) the full and prompt payment~~ virtue of the ~~interest on~~ acceptance hereof assents and by which such ~~2018 Note when~~ Holder is bound. This Certificate does not have a Pass-Through Rate and ~~as the same shall become due and payable, according~~ will be entitled to distributions only to the terms of such 2018 Note and of the Indenture. The undersigned hereby agrees, jointly and severally with the Parent Guarantor pursuant to the Parent Guarantee and any other Subsidiary Guarantors under their respective Subsidiary Guarantees, that its obligations hereunder shall be as principal and not merely as surety, and shall be absolute and unconditional, and shall not be affected, modified or impaired by the following: (a) the failure to give notice to the Guarantors of the occurrence of an Event of Default under the Indenture; (b) the waiver, surrender, compromise, settlement, release or termination of the payment, performance or observance by the Operating Partnership or the Guarantors of any or all of the obligations, covenants or agreements of either of them contained in the Indenture or the 2018 Notes; (c) the acceleration, extension or any other changes in the time for payment of any principal of or interest or any premium on any 2018 Note or for any other payment under the Indenture or of the time for performance of any other obligations, covenants or agreements under or arising out of the Indenture or the 2018 Notes; (d) the modification or amendment (whether material or otherwise) of any obligation, covenant or agreement extent set forth in the ~~Indenture~~ Agreement. In addition, any distribution of the proceeds of any remaining assets of the Trust will be made only upon presentment and surrender of this Certificate at the office designated by the Securities Administrator for such purposes or the ~~2018 Notes; (e)~~ office or agency maintained by the ~~taking or~~ Securities Administrator. No transfer of a Certificate of this Class shall be made unless such disposition is exempt from the ~~omission of any~~ registration requirements of the ~~actions referred to~~ Securities Act of 1933, as amended (the "1933 Act"), and any applicable state securities laws or is made in accordance with the ~~Indenture~~ 1933 Act and in any of the actions under the 2018 Notes; (f) any failure, omission, delay or lack on the part of the Trustee to enforce, assert or exercise any right, power or remedy conferred on the Trustee in the Indenture, or any other action or acts on the part of the Trustee or any of the Holders from time to time of the 2018 Notes; (g) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all the assets, marshaling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition with creditors or readjustment of, or other similar proceedings affecting the Guarantors or the Operating Partnership or any of the assets of any of them, or any allegation or contest of the validity of this Subsidiary Guarantee in any such proceeding; (h) to the extent permitted by law, the release or discharge by operation of law of the Guarantors from the performance or observance of any obligation, covenant or agreement contained in the Indenture; (i) to the extent permitted by law, the release or discharge by operation of law of the Operating Partnership from the performance or observance of any obligation, covenant or agreement contained in the Indenture; (j) the default or failure of the Operating Partnership or the Trustee fully to perform any of its obligations set forth in the Indenture or the 2018 Notes; (k) the invalidity, irregularity or unenforceability of the Indenture or the 2018 Notes or any part of any thereof; (l) any judicial or governmental action affecting the Operating Partnership or any 2018 Notes or consent or indulgence granted by the Operating Partnership by the Holders or by the Trustee; or (m) the recovery of any judgment against the Operating Partnership or any action to enforce the same or any other circumstance which might constitute a legal or equitable discharge of a surety or guarantorlaws. ~~The undersigned hereby waives diligence, presentment, demand of payment, filing of claims with a court in~~ In the event of ~~merger~~any such transfer, ~~sale, lease or conveyance of all or~~ the Securities Administrator shall require the transferor to execute a transferor certificate (in substantially ~~all of its assets, insolvency or bankruptcy of~~ the Operating Partnership, any right to require a proceeding first against the Operating Partnership, protest or notice with respect to such Notice or the indebtedness evidenced thereby and all demands whatsoever, and covenants that this Subsidiary Guarantee will not be discharged except by complete performance of the obligations contained in such 2018 Note and in this Subsidiary Guarantee. No reference herein to such Indenture and no provision of this Subsidiary Guarantee or of such Indenture shall alter or impair the guarantee of the undersigned, which is absolute and unconditional, of the full and prompt payment of the principal of and premium, if any, and interest on the 2018 Note. THIS SUBSIDIARY GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. The validity and enforceability of this Subsidiary Guarantee shall not be affected by the fact that it is not affixed to any particular 2018 Note. An Event of Default under the Indenture or the 2018 Notes shall constitute an event of default under this Subsidiary Guarantee, and shall entitle the Holders of 2018 Notes to accelerate the obligations of the undersigned hereunder in the same manner and form attached to the same extent as the obligations of the Operating Partnership. Notwithstanding any other provision of this Subsidiary Guarantee to the contrary, the undersigned hereby waives any claims or other rights which it may now have or hereafter acquire against the Operating Partnership that arise from the existence or performance of its obligations under this Subsidiary Guarantee (all such claims Agreement) and rights are referred to as "Guarantor's Conditional Rights"), including, without limitation, any right of subrogation, reimbursement, exoneration, contribution, or indemnification, any right to participate in any claim or remedy against the Operating Partnership, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, by any payment made hereunder or otherwise, including without limitation, the right to take or receive from Operating Partnership, directly or indirectly, in cash or other property or by setoff or in any other manner, payment or security on account of such claim or other rights. The Subsidiary Guarantor hereby agrees not to exercise any rights which may be acquired by way of contribution under this Subsidiary Guarantee or any other agreement, by any payment made hereunder or otherwise, including, without limitation, the right to take or receive from any other guarantor, directly or indirectly, in cash or other property or by setoff or in any other manner, payment or security on account of such contribution rights. If, notwithstanding the foregoing provisions, any amount shall be paid to any of the undersigned on account of any such Guarantor's Conditional Rights and deliver either (i) ~~such amount is paid~~ a Rule 144A Letter (in substantially the form attached to ~~such undersigned party at any time when~~ the ~~indebtedness shall not have been paid or performed in full~~Agreement), or (ii) ~~regardless~~ a written Opinion of when such amount is paid to such undersigned party, any payment made by Operating Partnership to a Holder that is at any time determined to be a Preferential Payment (as defined below), then such amount paid Counsel to the ~~undersigned~~ Securities Administrator that such transfer may be made pursuant to an exemption, describing the applicable exemption and the basis therefor, from the 1933 Act or is being made pursuant to the 1933 Act, which Opinion of Counsel shall be ~~held in trust for the benefit~~ an expense of the ~~Holders~~ transferor. No transfer of a Certificate of this Class shall be made unless the Securities Administrator shall have received either (i) a representation letter from the transferee of such Certificate, acceptable to and ~~shall forthwith be paid such Holder to be credited~~ in form and ~~applied upon the indebtedness, whether matured or unmatured. Any such payment is herein referred to as a "Preferential Payment"~~ substance satisfactory to the ~~extent~~ Securities Administrator, to the ~~Operating Partnership makes any payment~~ effect that such transferee is not an employee benefit plan subject to ~~Holder in connection with~~ Section 406 of ERISA or Section 4975 of the ~~Note, and any or all of such payment is subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid or paid over to a trustee, receiver~~ Code or any ~~other entity, whether under any bankruptcy act or otherwise. To the extent that any of the~~ materially similar provisions of ~~the immediately preceding paragraph~~ applicable federal, state or local law ("Similar Law") or a person acting on behalf of or investing plan assets of any such plan, which representation letter shall not be ~~enforceable, each~~ an expense of the undersigned agrees that until such time as the indebtedness has been paid and performed in full and the period of time has expired during which any payment made by the Operating Partnership or the undersigned to a Holder may be determined to be a Preferential PaymentSecurities Administrator, Guarantor's Conditional Rights to the extent not validly waived shall be subordinate to Holders' right to full payment and performance of the indebtedness and each of the undersigned shall not enforce any of its respective portion of the Guarantors' Conditional Rights until such time as the indebtedness has been paid and performed in full and the period of time has expired during which any payment made by the Operating Partnership or the undersigned to Holders may be determined to be a Preferential Payment. The undersigned's liability (the "Base Guaranty Liability") shall be that amount from time to time equal to the aggregate liability of the undersigned hereunder, but shall be limited to the lesser of (A) the aggregate amount of the obligation as stated in the second sentence of Section 1401 of the Indenture, and (B) the amount, if any, which would not have (i) rendered the undersigned "insolvent" (as such term is defined in Section 101(29) of the Federal Bankruptcy Code and in Section 271 of the Debtor and Creditor Law of the State of New York, as each is in effect at the date of the Indenture) or (ii) ~~left~~ if the ~~undersigned~~ transferee is an insurance company and the certificate has been the subject of an ERISA-Qualifying Underwriting, a representation letter that it is purchasing such Certificates with ~~unreasonably small capital at~~ the ~~time~~ assets of its ~~Guarantee was entered into~~general account and that the purchase and holding of such Certificates satisfy the requirements for exemptive relief under Sections I and III of PTCE 95-60, ~~after giving effect to the incurrence of existing Debt~~ or (~~as defined~~ iii) in the ~~Indenture) immediately prior~~ case of a Certificate presented for registration in the name of an employee benefit plan subject to such time, provided that, it shall be a presumption in any lawsuit or other proceeding in which the undersigned is a party that the amount guaranteed is the amount set forth in (A) above unless a creditorERISA, or ~~representative of creditors~~ a plan or arrangement subject to Section 4975 of the ~~undersigned~~ Code (or comparable provisions of any subsequent enactments) or a plan subject to Similar Law, or a trustee ~~in bankruptcy~~ of any such plan or any other person acting on behalf of any such plan or arrangement or using such plan's or arrangement's assets, an Opinion of Counsel satisfactory to the Securities Administrator, which Opinion of Counsel shall not be an expense of the ~~undersigned~~Securities Administrator, ~~as debtor in possession~~the Depositor, ~~otherwise proves in such a lawsuit~~ the Trustee or the Trust Fund, addressed to the Securities Administrator, the Trustee and the Depositor to the effect that the ~~aggregate liability~~ purchase and holding of such Certificate will not constitute or result in a non-exempt prohibited transaction within the meaning of ERISA, Section 4975 of the ~~undersigned is limited to the amount set forth in (B). In making~~ Code or any determination as to the solvency or sufficiency of capital of the undersigned in accordance with the previous sentence, the right of the undersigned to contribution from other Guarantors, to subrogation Similar Law and ~~any other rights the undersigned may have, contractual or otherwise, shall be taken into account. The obligations of the undersigned to the Holders of the 2018 Notes and to~~ will not subject the Trustee ~~pursuant~~ to ~~the Subsidiary Guarantee and the Indenture are~~ any obligation in addition to those expressly ~~set forth~~ undertaken in ~~Article 14 of the Indenture and reference~~ this Agreement or to any liability. Reference is hereby made to the ~~Indenture~~ further provisions of this Certificate set forth on the reverse hereof, which further provisions shall for all purposes have the ~~precise terms~~ same effect as if set forth at this place. This Certificate shall not be entitled to any benefit under the Agreement or be valid for any purpose unless manually authenticated by an authorized signatory of the ~~Subsidiary Guarantee and all of the other provisions of the Indenture to which this Subsidiary Guarantee relates~~Securities Administrator. ~~Capitalized terms in this Subsidiary Guarantee which are not defined herein shall have the meanings assigned to them in the Indenture.~~* * *

Appears in 1 contract

Samples: Trust Agreement (GSAA Home Equity Trust 2007-2)

Appears in 1 contract

Samples: Pooling and Servicing Agreement (New Century Home Equity Loan Trust Series 2002-1)

Dated. ~~Notice~~Signature by or on behalf of assignor ---------------------------------------- Signature Guaranteed NOTICE: The signature to this assignment must correspond with the name as ~~it appears~~ written upon the face of the within ~~Note~~ instrument in every particular, without alteration or enlargement or any change whatever~~. ABBREVIATIONS The following abbreviations~~, ~~when used~~ and must be guaranteed by a commercial bank or trust company on the continental United States or by a firm or corporation having membership in any national securities exchange or in the ~~inscription on~~ National Association of Securities Dealers, Inc. DISTRIBUTION INSTRUCTIONS The assignee should include the ~~face~~ following for purposes of ~~this instrument,~~ distribution: Distributions shall be ~~construed as though they were written out~~ made, by wire transfer or otherwise, in ~~full according~~ immediately available funds to ~~applicable laws or regulations: TEN COM--as tenants in common UNIF GIFT MIN ACT--_____ Custodian~~_____~~_ TEN ENT--as tenants by the entireties (Cust) (Minor) JT TEN--as joint tenants with right Under Uniform Gifts to Minors of survivorship and not as Act~~_____________________________________________________ ~~tenants in common (State) Additional abbreviations may also~~ _____________________________________________________________________________ _____________________________________________________________________________ for the account of ___________________________________________, account number ______________________, or, if mailed by check, to ___________________________. Applicable statements should be ~~used though not in~~ mailed to ____________________________________. This information is provided by ___________________________, the ~~above list~~assignee named above, or __________________________________,as its agent. ~~--------------------------- [~~EXHIBIT B-2 FORM OF ~~SCHEDULE~~ CLASS B-2 CERTIFICATE SOLELY FOR ~~ENDORSEMENTS~~ U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986 (THE "CODE")) CREATED BY THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN (THE "AGREEMENT"). THIS CLASS B-2 CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, 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 WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE AGREEMENT. THIS CLASS B-2 CERTIFICATE IS SUBORDINATE TO THE CLASS S CERTIFICATES, THE CLASS A-1 CERTIFICATES, THE CLASS A-2 CERTIFICATES AND THE CLASS B-1 CERTIFICATES OF THE SAME SERIES TO THE EXTENT DESCRIBED HEREIN AND IN THE AGREEMENT. NO TRANSFER OF THIS CERTIFICATE MAY BE MADE TO AN EMPLOYEE BENEFIT PLAN, OR PERSON USING "PLAN ASSETS" OF ANY PLAN TO EFFECT SUCH ACQUISITION (INCLUDING ANY INSURANCE COMPANY UNDER THE CIRCUMSTANCES DESCRIBED IN THE AGREEMENT), SUBJECT TO SECTION 406 OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE CODE, UNLESS THE TRANSFEREE PROVIDES AN OPINION OF COUNSEL OR CERTIFICATION OF FACTS (UNDER THE LIMITED CIRCUMSTANCES DESCRIBED IN THE AGREEMENT), SATISFACTORY TO THE DEPOSITOR AND THE TRUSTEE OR THE CERTIFICATE REGISTRAR, THAT SUCH DISPOSITION WILL NOT VIOLATE THE PROHIBITED TRANSACTION PROVISIONS OF SECTION 406 OF ERISA AND SECTION 4975 OF THE CODE. [THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE U.S. FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS CERTIFICATE. ASSUMING THAT THE MORTGAGE LOANS PREPAY AT AN ASSUMED RATE OF PREPAYMENT, USED SOLELY FOR THE PURPOSES OF APPLYING THE OID RULES TO THE CERTIFICATES, EQUAL TO A CONSTANT PREPAYMENT RATE OF __% PER ANNUM UNTIL THE 27TH DUE DATE AFTER THE CUT-OFF DATE (EACH AS DEFINED HEREIN) AND __% PER ANNUM THEREAFTER (THE "PREPAYMENT ASSUMPTION"), THIS CERTIFICATE HAS BEEN ISSUED WITH NO MORE THAN $____ OF OID PER $1,000 OF INITIAL CERTIFICATE PRINCIPAL BALANCE, THE YIELD TO MATURITY IS ___% AND THE AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL PERIOD IS NO MORE THAN $___ PER $1,000 OF INITIAL CERTIFICATE PRINCIPAL BALANCE, COMPUTED USING THE EXACT METHOD. NO REPRESENTATION IS MADE THAT THE MORTGAGE LOANS WILL PREPAY AT RATES BASED ON ~~GLOBAL SECURITY TO REFLECT CHANGES IN PRINCIPAL AMOUNT~~THE PREPAYMENT ASSUMPTION OR AT ANY OTHER RATE.] ~~Schedule A Changes to~~ Series 1995-Q6 Aggregate Certificate Principal Amount of Global Security Principal Amount of Securities by which this Global Security is to be Reduced or Increased, and Reason for Remaining Principal Amount of Notation Date Reduction or Increase this Global Securities Made by ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- Exhibit B SUBSIDIARY GUARANTEE FOR VALUE RECEIVED, the undersigned hereby jointly and severally with the Parent Guarantor pursuant to the Parent Guarantee and any other subsidiary Guarantors under their respective Subsidiary Guarantees, unconditionally guarantees to the Holder Balance of the ~~accompanying~~ Class B-2 Certificates: _______ Class B-2 Initial Certificate Principal Balance of this Certificate: $_______________ Adjustable Pass-Through Rate Initial Pass-Through Rate: ______ Date of Pooling and Servicing Percentage Interest Evidenced Agreement and Cut-off Date: by this Certificate: _________% ~~Note Due June ___~~November 1, 2018 (the "2018 Note") issued by AMB Property, L.P. (the "Operating Partnership") under an Indenture dated as of June ___, 1998 (together with the Second Supplemental Indenture thereto, the "Indenture") among the Operating Partnership, AMB Property Corporation, and State Street Bank and Trust Company of California, N.A., as trustee (the "Trustee"), (a) the full and prompt payment of the principal of and premium, if any, on such 2018 Note when and as the same shall become due and payable, whether at Stated Maturity, by acceleration, by redemption or otherwise, and (b) the full and prompt payment of the interest on such 2018 Note when and as the same shall become due and payable, according to the terms of such 2018 Note and of the Indenture. The undersigned hereby agrees, jointly and severally with the Parent Guarantor pursuant to the Parent Guarantee and any other Subsidiary Guarantors under their respective Subsidiary Guarantees, that its obligations hereunder shall be as principal and not merely as surety, and shall be absolute and unconditional, and shall not be affected, modified or impaired by the following: (a) the failure to give notice to the Guarantors of the occurrence of an Event of Default under the Indenture; (b) the waiver, surrender, compromise, settlement, release or termination of the payment, performance or observance by the Operating Partnership or the Guarantors of any or all of the obligations, covenants or agreements of either of them contained in the Indenture or the 2018 Notes; (c) the acceleration, extension or any other changes in the time for payment of any principal of or interest or any premium on any 2018 Note or for any other payment under the Indenture or of the time for performance of any other obligations, covenants or agreements under or arising out of the Indenture or the 2018 Notes; (d) the modification or amendment (whether material or otherwise) of any obligation, covenant or agreement set forth in the Indenture or the 2018 Notes; (e) the taking or the omission of any of the actions referred to in the Indenture and in any of the actions under the 2018 Notes; (f) any failure, omission, delay or lack on the part of the Trustee to enforce, assert or exercise any right, power or remedy conferred on the Trustee in the Indenture, or any other action or acts on the part of the Trustee or any of the Holders from time to time of the 2018 Notes; (g) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all the assets, marshaling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition with creditors or readjustment of, or other similar proceedings affecting the Guarantors or the Operating Partnership or any of the assets of any of them, or any allegation or contest of the validity of this Subsidiary Guarantee in any such proceeding; (h) to the extent permitted by law, the release or discharge by operation of law of the Guarantors from the performance or observance of any obligation, covenant or agreement contained in the Indenture; (i) to the extent permitted by law, the release or discharge by operation of law of the Operating Partnership from the performance or observance of any obligation, covenant or agreement contained in the Indenture; (j) the default or failure of the Operating Partnership or the Trustee fully to perform any of its obligations set forth in the Indenture or the 2018 Notes; (k) the invalidity, irregularity or unenforceability of the Indenture or the 2018 Notes or any part of any thereof; (l) any judicial or governmental action affecting the Operating Partnership or any 2018 Notes or consent or indulgence granted by the Operating Partnership by the Holders or by the Trustee; or (m) the recovery of any judgment against the Operating Partnership or any action to enforce the same or any other circumstance which might constitute a legal or equitable discharge of a surety or guarantor. The undersigned hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of merger, sale, lease or conveyance of all or substantially all of its assets, insolvency or bankruptcy of the Operating Partnership, any right to require a proceeding first against the Operating Partnership, protest or notice with respect to such Notice or the indebtedness evidenced thereby and all demands whatsoever, and covenants that this Subsidiary Guarantee will not be discharged except by complete performance of the obligations contained in such 2018 Note and in this Subsidiary Guarantee. No reference herein to such Indenture and no provision of this Subsidiary Guarantee or of such Indenture shall alter or impair the guarantee of the undersigned, which is absolute and unconditional, of the full and prompt payment of the principal of and premium, if any, and interest on the 2018 Note. THIS SUBSIDIARY GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. The validity and enforceability of this Subsidiary Guarantee shall not be affected by the fact that it is not affixed to any particular 2018 Note. An Event of Default under the Indenture or the 2018 Notes shall constitute an event of default under this Subsidiary Guarantee, and shall entitle the Holders of 2018 Notes to accelerate the obligations of the undersigned hereunder in the same manner and to the same extent as the obligations of the Operating Partnership. Notwithstanding any other provision of this Subsidiary Guarantee to the contrary, the undersigned hereby waives any claims or other rights which it may now have or hereafter acquire against the Operating Partnership that arise from the existence or performance of its obligations under this Subsidiary Guarantee (all such claims and rights are referred to as "Guarantor's Conditional Rights"), including, without limitation, any right of subrogation, reimbursement, exoneration, contribution, or indemnification, any right to participate in any claim or remedy against the Operating Partnership, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, by any payment made hereunder or otherwise, including without limitation, the right to take or receive from Operating Partnership, directly or indirectly, in cash or other property or by setoff or in any other manner, payment or security on account of such claim or other rights. The Subsidiary Guarantor hereby agrees not to exercise any rights which may be acquired by way of contribution under this Subsidiary Guarantee or any other agreement, by any payment made hereunder or otherwise, including, without limitation, the right to take or receive from any other guarantor, directly or indirectly, in cash or other property or by setoff or in any other manner, payment or security on account of such contribution rights. If, notwithstanding the foregoing provisions, any amount shall be paid to any of the undersigned on account of any such Guarantor's Conditional Rights and either (i) such amount is paid to such undersigned party at any time when the indebtedness shall not have been paid or performed in full, or (ii) regardless of when such amount is paid to such undersigned party, any payment made by Operating Partnership to a Holder that is at any time determined to be a Preferential Payment (as defined below), then such amount paid to the undersigned shall be held in trust for the benefit of the Holders and shall forthwith be paid such Holder to be credited and applied upon the indebtedness, whether matured or unmatured. Any such payment is herein referred to as a "Preferential Payment" to the extent the Operating Partnership makes any payment to Holder in connection with the Note, and any or all of such payment is subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid or paid over to a trustee, receiver or any other entity, whether under any bankruptcy act or otherwise. To the extent that any of the provisions of the immediately preceding paragraph shall not be enforceable, each of the undersigned agrees that until such time as the indebtedness has been paid and performed in full and the period of time has expired during which any payment made by the Operating Partnership or the undersigned to a Holder may be determined to be a Preferential Payment, Guarantor's Conditional Rights to the extent not validly waived shall be subordinate to Holders' right to full payment and performance of the indebtedness and each of the undersigned shall not enforce any of its respective portion of the Guarantors' Conditional Rights until such time as the indebtedness has been paid and performed in full and the period of time has expired during which any payment made by the Operating Partnership or the undersigned to Holders may be determined to be a Preferential Payment. The undersigned's liability (the "Base Guaranty Liability") shall be that amount from time to time equal to the aggregate liability of the undersigned hereunder, but shall be limited to the lesser of (A) the aggregate amount of the obligation as stated in the second sentence of Section 1401 of the Indenture, and (B) the amount, if any, which would not have (i) rendered the undersigned "insolvent" (as such term is defined in Section 101(29) of the Federal Bankruptcy Code and in Section 271 of the Debtor and Creditor Law of the State of New York, as each is in effect at the date of the Indenture) or (ii) left the undersigned with unreasonably small capital at the time its Guarantee was entered into, after giving effect to the incurrence of existing Debt (as defined in the Indenture) immediately prior to such time, provided that, it shall be a presumption in any lawsuit or other proceeding in which the undersigned is a party that the amount guaranteed is the amount set forth in (A) above unless a creditor, or representative of creditors of the undersigned or a trustee in bankruptcy of the undersigned, as debtor in possession, otherwise proves in such a lawsuit that the aggregate liability of the undersigned is limited to the amount set forth in (B). In making any determination as to the solvency or sufficiency of capital of the undersigned in accordance with the previous sentence, the right of the undersigned to contribution from other Guarantors, to subrogation and any other rights the undersigned may have, contractual or otherwise, shall be taken into account. The obligations of the undersigned to the Holders of the 2018 Notes and to the Trustee pursuant to the Subsidiary Guarantee and the Indenture are expressly set forth in Article 14 of the Indenture and reference is hereby made to the Indenture for the precise terms of the Subsidiary Guarantee and all of the other provisions of the Indenture to which this Subsidiary Guarantee relates. Capitalized terms in this Subsidiary Guarantee which are not defined herein shall have the meanings assigned to them in the Indenture.1995

Appears in 1 contract

Samples: Pooling and Servicing Agreement (DLJ Mortgage Acceptance Corp Mort Pass THR Cert Ser 1995 Q6)

Dated. ~~Notice~~Signature by or on behalf of assignor --------------------------------------- Signature Guaranteed DISTRIBUTION INSTRUCTIONS ------------------------- The assignee should include the following for purposes of distribution: The signature to this assignment must correspond with the name as it appears upon the face of the within Note in every particular, without alteration or enlargement or any change whatever. ABBREVIATIONS The following abbreviations, when used in the inscription on the face of this instrument, Distributions shall be ~~construed as though they were written out~~ made, by wire transfer or otherwise, in ~~full according~~ immediately available funds to ~~applicable laws or regulations: TEN COM--as tenants in common UNIF GIFT MIN ACT--_____ Custodian~~_____~~_ TEN ENT--as tenants~~ ___________________________________________, for the account of ___________________________, account number _____________, or, if mailed by ~~the entireties (Cust) (Minor) JT TEN--as joint tenants with right Under Uniform Gifts~~ check, to ~~Minors of survivorship and not as Act~~_____________________________________________________ ~~tenants in common (State) Additional abbreviations may also~~ Applicable statements should be ~~used though not in the above list. --------------------------- [FORM OF SCHEDULE FOR ENDORSEMENTS ON GLOBAL SECURITY TO REFLECT CHANGES IN PRINCIPAL AMOUNT] Schedule A Changes~~ mailed to Principal Amount of Global Security Principal Amount of Securities by which this Global Security is to be Reduced or Increased, and Reason for Remaining Principal Amount of Notation Date Reduction or Increase this Global Securities Made by ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- Exhibit B SUBSIDIARY GUARANTEE FOR VALUE RECEIVED, the undersigned hereby jointly and severally with the Parent Guarantor pursuant to the Parent Guarantee and any other subsidiary Guarantors under their respective Subsidiary Guarantees, unconditionally guarantees to the Holder of the accompanying _____~~% Note Due June~~ ________________________________. This information is provided by _____________________________________, ~~2018 (~~the ~~"2018 Note") issued by AMB Property~~assignee named above, ~~L.P. (the "Operating Partnership") under an Indenture dated as of June~~ or ________________________, ~~1998~~ as its agent. EXHIBIT A-9 FORM OF CLASS XS CERTIFICATE SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS 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 (~~together with the Second Supplemental Indenture thereto, the~~ THE "~~Indenture~~CODE"). THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE U.S. FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") ~~among~~ RULES TO THIS CERTIFICATE. THE ISSUE DATE OF THIS CERTIFICATE IS OCTOBER 25, 1996. BASED ON THE OID REGULATIONS AND ASSUMING THAT THE MORTGAGE LOANS PREPAY AT ____% OF THE PREPAYMENT VECTOR (AS DEFINED IN THE PROSPECTUS SUPPLEMENT UNDER WHICH THIS CERTIFICATE WAS ISSUED), USED SOLELY FOR THE PURPOSES OF APPLYING THE OID RULES TO THE CERTIFICATES (THE "PREPAYMENT ASSUMPTION"), THIS CERTIFICATE HAS BEEN ISSUED WITH NO MORE THAN $___ OF OID PER $100,000 OF INITIAL NOTIONAL AMOUNT, THE YIELD TO MATURITY IS ____% AND THE AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL PERIOD IS NO MORE THAN $____ PER $100,000 OF INITIAL NOTIONAL AMOUNT, COMPUTED UNDER THE EXACT METHOD. NO REPRESENTATION IS MADE THAT THE MORTGAGE LOANS WILL PREPAY AT A RATE BASED ON THE PREPAYMENT ASSUMPTION OR AT ANY OTHER RATE. Series 1996-LB2, Class XS Pass-Through Rate: ____% per annum Date of Pooling and Servicing Agreement and Cut-off Date: October 1, 1996 First Distribution Date: November 25, 1996 No. Aggregate Notional Amount of Class XS Certificates as of the ~~Operating Partnership~~Issue Date: $________________ Notional Amount: $_____________________ Master Servicer: Long Beach Mortgage Company Trustee: Norwest Bank Minnesota, ~~AMB Property Corporation~~National Association Issue Date: October 25, ~~and State Street Bank and~~ 1996 CUSIP: ASSET-BACKED CERTIFICATE evidencing a beneficial ownership interest in a Trust ~~Company of California, N.A., as trustee~~ Fund (the "~~Trustee~~Trust Fund") consisting primarily of a pool of conventional, one- to four-family, fixed-rate, first lien mortgage loans (the "Mortgage Loans") formed and sold by SALOMON BROTHERS MORTGAGE SECURITIES VII, INC. THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN SALOMON BROTHERS MORTGAGE SECURITIES VII, INC., THE MASTER SERVICER, THE TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES. This certifies that ____________________ is the registered owner of a Percentage Interest (obtained by dividing the Notional Amount of this Certificate by the aggregate Notional Amount of the Class XS Certificates as of the Issue Date) in that certain beneficial ownership interest evidenced by all the Class XS Certificates in REMIC II created pursuant to a Pooling and Servicing Agreement, dated as specified above (the "Agreement"), among Salomon Brothers Mortgage Securities VII, Inc. (a) hereinafter called the ~~full~~ "Depositor," which term includes any successor entity under the Agreement), the Master Servicer and ~~prompt payment~~ the Trustee, a summary of certain of the ~~principal~~ 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 Agreement. This Certificate is issued under and ~~premium~~is subject to the terms, ~~if any, on such 2018 Note when~~ provisions and ~~as the same shall become due and payable, whether at Stated Maturity, by acceleration, by redemption or otherwise, and (b) the full and prompt payment~~ conditions of the ~~interest on~~ Agreement, to which Agreement the Holder of this Certificate by virtue of the acceptance hereof assents and by which such ~~2018 Note when and as the same shall become due and payable, according~~ Holder is bound. Pursuant to the terms of the Agreement, distributions will be made on the 25th day of each month or, if such ~~2018 Note and~~ 25th day is not a Business Day, the Business Day immediately following (a "Distribution Date"), commencing on the First Distribution Date specified above, to the Person in whose name this Certificate is registered on the last Business Day of the ~~Indenture. The undersigned hereby agrees~~month immediately preceding the month of such distribution (the "Record Date"), ~~jointly~~ in an amount equal to the product of the Percentage Interest evidenced by this Certificate and ~~severally with~~ the ~~Parent Guarantor~~ amount required to be distributed to the Holders of Class XS Certificates on such Distribution Date pursuant to the ~~Parent Guarantee~~ Agreement. All distributions to the Holder of this Certificate under the Agreement will be made or caused to be made by or on behalf of the Trustee by wire transfer in immediately available funds to the account of the Person entitled thereto if such Person shall have so notified the Trustee in writing at least five Business Days prior to the Record Date immediately prior to such Distribution Date and is the registered owner of Class XS Certificates, the aggregate initial Notional Amount of which is in excess of the lesser of (i) $5,000,000 or (ii) two-thirds of the aggregate initial Notional Amount of the Class XS Certificates, or otherwise by check mailed by first class mail to the address of the Person entitled thereto, as such name and address shall appear on the Certificate Register. Notwithstanding the above, the final distribution on this Certificate will be made after due notice by the Trustee of the pendency of such distribution and only upon the presentation and surrender of this Certificate at the office or agency appointed by the Trustee for that purpose as provided in the Agreement. This Certificate is one of a duly authorized issue of Certificates designated as Asset-Backed Certificates of the Series specified on the face hereof (hereinafter called the "Certificates") and representing a Percentage Interest in the Class of Certificates specified on the face hereof equal to the denomination specified on the face hereof divided by the aggregate Notional Amount of the Class of Certificates specified on the face hereof. The 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 Agreement. As provided in the Agreement, withdrawals from the Collection Account and the Distribution Account may be made from time to time for purposes other than distributions to Holders of the Certificates, such purposes including reimbursement of advances made, or certain expenses incurred, with respect to the Mortgage Loans. The Agreement permits, with certain exceptions and conditions provided therein, the amendment thereof and the modification of the rights and obligations of the Depositor, the Master Servicer and the Trustee and the rights of the Holders of the Certificates under the Agreement at any ~~other Subsidiary Guarantors under their respective Subsidiary Guarantees~~time by the Depositor, ~~that its obligations hereunder~~ the Master Servicer and the Trustee, with the consent of the Holders of Certificates entitled to at least 66% of the Voting Rights. Any such consent by the Holder of this Certificate shall be ~~as principal~~ conclusive and binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in exchange herefor or in lieu hereof whether or not ~~merely as surety~~notation of such consent is made upon this Certificate. The Agreement also permits the amendment thereof, ~~and shall be absolute and unconditional~~in certain limited circumstances, ~~and shall not be affected, modified or impaired by~~ without the ~~following: (a) the failure to give notice to the Guarantors~~ consent of the occurrence of an Event of Default under the Indenture; (b) the waiver, surrender, compromise, settlement, release or termination of the payment, performance or observance by the Operating Partnership or the Guarantors of any or all of the obligations, covenants or agreements of either of them contained in the Indenture or the 2018 Notes; (c) the acceleration, extension or any other changes in the time for payment of any principal of or interest or any premium on any 2018 Note or for any other payment under the Indenture or of the time for performance of any other obligations, covenants or agreements under or arising out of the Indenture or the 2018 Notes; (d) the modification or amendment (whether material or otherwise) of any obligation, covenant or agreement set forth in the Indenture or the 2018 Notes; (e) the taking or the omission Holders of any of the ~~actions referred to~~ Certificates. As provided in the ~~Indenture~~ Agreement and subject to certain limitations set forth therein, the transfer of this Certificate is registrable in ~~any~~ the Certificate Register upon surrender of this Certificate for registration of transfer at the offices or agencies appointed by the Trustee as provided in the Agreement, duly endorsed by, or accompanied by an assignment in the form below or other written instrument of transfer in form satisfactory to the Trustee and the Certificate Registrar duly executed by, the Holder hereof or such Holder's attorney duly authorized in writing, and thereupon one or more new Certificates of the ~~actions under~~ same Class in authorized denominations evidencing the ~~2018 Notes; (f) any failure~~same aggregate Percentage Interest 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 Agreement. As provided in the Agreement and subject to certain limitations set forth therein, ~~omission, delay or lack on the part~~ Certificates are exchangeable for new Certificates of the ~~Trustee~~ same Class in authorized denominations evidencing the same aggregate Percentage Interest, as requested by the Holder surrendering the same. No service charge will be made for any such registration of transfer or exchange of Certificates, but the Certificate Registrar may require payment of a sum sufficient to ~~enforce~~cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates. The Depositor, ~~assert or exercise any right~~the Master Servicer, ~~power or remedy conferred on~~ the Trustee in and the ~~Indenture~~Certificate Registrar and any agent of the Depositor, ~~or any other action or acts on~~ the ~~part of~~ Master Servicer, the Trustee or ~~any~~ the Certificate Registrar may treat the Person in whose name this Certificate is registered as the owner hereof for all purposes, and none of the ~~Holders from time to time of~~ Depositor, the ~~2018 Notes; (g)~~ Master Servicer, the ~~voluntary or involuntary liquidation~~Trustee, ~~dissolution, sale or other disposition of all or substantially all~~ the assets, marshaling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition with creditors or readjustment of, or other similar proceedings affecting the Guarantors or the Operating Partnership or any of the assets of any of them, or any allegation or contest of the validity of this Subsidiary Guarantee in Certificate Registrar nor any such proceeding; (h) to the extent permitted by law, the release or discharge by operation of law of the Guarantors from the performance or observance of any obligation, covenant or agreement contained in the Indenture; (i) to the extent permitted by law, the release or discharge by operation of law of the Operating Partnership from the performance or observance of any obligation, covenant or agreement contained in the Indenture; (j) the default or failure of the Operating Partnership or the Trustee fully to perform any of its obligations set forth in the Indenture or the 2018 Notes; (k) the invalidity, irregularity or unenforceability of the Indenture or the 2018 Notes or any part of any thereof; (l) any judicial or governmental action affecting the Operating Partnership or any 2018 Notes or consent or indulgence granted by the Operating Partnership by the Holders or by the Trustee; or (m) the recovery of any judgment against the Operating Partnership or any action to enforce the same or any other circumstance which might constitute a legal or equitable discharge of a surety or guarantor. The undersigned hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of merger, sale, lease or conveyance of all or substantially all of its assets, insolvency or bankruptcy of the Operating Partnership, any right to require a proceeding first against the Operating Partnership, protest or notice with respect to such Notice or the indebtedness evidenced thereby and all demands whatsoever, and covenants that this Subsidiary Guarantee will not be discharged except by complete performance of the obligations contained in such 2018 Note and in this Subsidiary Guarantee. No reference herein to such Indenture and no provision of this Subsidiary Guarantee or of such Indenture agent shall alter or impair the guarantee of the undersigned, which is absolute and unconditional, of the full and prompt payment of the principal of and premium, if any, and interest on the 2018 Note. THIS SUBSIDIARY GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. The validity and enforceability of this Subsidiary Guarantee shall not be affected by the fact that it is not affixed to any particular 2018 Note. An Event of Default under the Indenture or the 2018 Notes shall constitute an event of default under this Subsidiary Guarantee, and shall entitle the Holders of 2018 Notes to accelerate the obligations of the undersigned hereunder in the same manner and to the same extent as the obligations of the Operating Partnership. Notwithstanding any other provision of this Subsidiary Guarantee notice to the contrary, the undersigned hereby waives any claims or other rights which it may now have or hereafter acquire against the Operating Partnership that arise from the existence or performance of its obligations under this Subsidiary Guarantee (all such claims and rights are referred to as "Guarantor's Conditional Rights"), including, without limitation, any right of subrogation, reimbursement, exoneration, contribution, or indemnification, any right to participate in any claim or remedy against the Operating Partnership, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, by any payment made hereunder or otherwise, including without limitation, the right to take or receive from Operating Partnership, directly or indirectly, in cash or other property or by setoff or in any other manner, payment or security on account of such claim or other rights. The Subsidiary Guarantor hereby agrees not to exercise any rights which may be acquired by way of contribution under this Subsidiary Guarantee or any other agreement, by any payment made hereunder or otherwise, including, without limitation, the right to take or receive from any other guarantor, directly or indirectly, in cash or other property or by setoff or in any other manner, payment or security on account of such contribution rights. If, notwithstanding the foregoing provisions, any amount shall be paid to any of the undersigned on account of any such Guarantor's Conditional Rights and either (i) such amount is paid to such undersigned party at any time when the indebtedness shall not have been paid or performed in full, or (ii) regardless of when such amount is paid to such undersigned party, any payment made by Operating Partnership to a Holder that is at any time determined to be a Preferential Payment (as defined below), then such amount paid to the undersigned shall be held in trust for the benefit of the Holders and shall forthwith be paid such Holder to be credited and applied upon the indebtedness, whether matured or unmatured. Any such payment is herein referred to as a "Preferential Payment" to the extent the Operating Partnership makes any payment to Holder in connection with the Note, and any or all of such payment is subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid or paid over to a trustee, receiver or any other entity, whether under any bankruptcy act or otherwise. To the extent that any of the provisions of the immediately preceding paragraph shall not be enforceable, each of the undersigned agrees that until such time as the indebtedness has been paid and performed in full and the period of time has expired during which any payment made by the Operating Partnership or the undersigned to a Holder may be determined to be a Preferential Payment, Guarantor's Conditional Rights to the extent not validly waived shall be subordinate to Holders' right to full payment and performance of the indebtedness and each of the undersigned shall not enforce any of its respective portion of the Guarantors' Conditional Rights until such time as the indebtedness has been paid and performed in full and the period of time has expired during which any payment made by the Operating Partnership or the undersigned to Holders may be determined to be a Preferential Payment. The undersigned's liability (the "Base Guaranty Liability") shall be that amount from time to time equal to the aggregate liability of the undersigned hereunder, but shall be limited to the lesser of (A) the aggregate amount of the obligation as stated in the second sentence of Section 1401 of the Indenture, and (B) the amount, if any, which would not have (i) rendered the undersigned "insolvent" (as such term is defined in Section 101(29) of the Federal Bankruptcy Code and in Section 271 of the Debtor and Creditor Law of the State of New York, as each is in effect at the date of the Indenture) or (ii) left the undersigned with unreasonably small capital at the time its Guarantee was entered into, after giving effect to the incurrence of existing Debt (as defined in the Indenture) immediately prior to such time, provided that, it shall be a presumption in any lawsuit or other proceeding in which the undersigned is a party that the amount guaranteed is the amount set forth in (A) above unless a creditor, or representative of creditors of the undersigned or a trustee in bankruptcy of the undersigned, as debtor in possession, otherwise proves in such a lawsuit that the aggregate liability of the undersigned is limited to the amount set forth in (B). In making any determination as to the solvency or sufficiency of capital of the undersigned in accordance with the previous sentence, the right of the undersigned to contribution from other Guarantors, to subrogation and any other rights the undersigned may have, contractual or otherwise, shall be taken into account. The obligations of created by the ~~undersigned~~ Agreement and the Trust Fund created thereby shall terminate upon payment (or provision for payment) to the Holders of the ~~2018 Notes and to~~ Certificates of all amounts held by or on behalf of the Trustee and required to be paid to them pursuant to the ~~Subsidiary Guarantee~~ Agreement following the earlier of (i) the purchase by the party designated in the Agreement at a price determined as provided in the Agreement from REMIC I of all the Mortgage Loans and each REO Property remaining therein, and (ii) the final payment (or any advance with respect thereto) on or other liquidation of the last Mortgage Loan or REO Property remaining in REMIC I. The Agreement permits, but does not require, the party designated in the Agreement to purchase from REMIC I all the Mortgage Loans and all property acquired in respect of any Mortgage Loan remaining therein at a price determined as provided in the Agreement. The exercise of such right will effect early retirement of the Certificates; however, such right to purchase is subject to the aggregate Stated Principal Balance of the Mortgage Loans at the time of purchase being less than 10% of the aggregate Stated Principal Balance of the Mortgage Loans at the Cut-off Date. The recitals contained herein shall be taken as statements of the Depositor and the ~~Indenture are expressly set forth in Article 14~~ Trustee assumes no responsibility for their correctness. Unless the certificate of authentication hereon has been executed by the ~~Indenture and reference is hereby made~~ Certificate Registrar, by manual signature, this Certificate shall not be entitled to any benefit under the ~~Indenture~~ Agreement or be valid for the precise terms of the Subsidiary Guarantee and all of the other provisions of the Indenture to which this Subsidiary Guarantee relates. Capitalized terms in this Subsidiary Guarantee which are not defined herein shall have the meanings assigned to them in the Indentureany purpose.

Appears in 1 contract

Samples: Distribution Instructions (Salomon Brothers Mort Sec Vii Asset Backed Cert 1996-Lb2)

Dated. ~~Notice~~Signature by or on behalf of assignor DISTRIBUTION INSTRUCTIONS The assignee should include the following for purposes of distribution: The signature to this assignment must correspond with the name as it appears upon the face of the within Note in every particular, without alteration or enlargement or any change whatever. ABBREVIATIONS The following abbreviations, when used in the inscription on the face of this instrument, Distributions shall be ~~construed as though they were written out~~ made, by wire transfer or otherwise, in ~~full according~~ immediately available funds to ~~applicable laws or regulations: TEN COM--as tenants in common UNIF GIFT MIN ACT--_____ Custodian~~_____~~_ TEN ENT--as tenants by the entireties (Cust) (Minor) JT TEN--as joint tenants with right Under Uniform Gifts to Minors of survivorship and not as Act~~__________________________________________________________________ ~~tenants in common (State) Additional abbreviations may also be used though not in~~ for the ~~above list. --------------------------- [FORM OF SCHEDULE FOR ENDORSEMENTS ON GLOBAL SECURITY TO REFLECT CHANGES IN PRINCIPAL AMOUNT] Schedule A Changes to Principal Amount~~ account of Global Security Principal Amount of Securities by which this Global Security is to be Reduced or Increased, and Reason for Remaining Principal Amount of Notation Date Reduction or Increase this Global Securities Made by ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- Exhibit B SUBSIDIARY GUARANTEE FOR VALUE RECEIVED, the undersigned hereby jointly and severally with the Parent Guarantor pursuant to the Parent Guarantee and any other subsidiary Guarantors under their respective Subsidiary Guarantees, unconditionally guarantees to the Holder of the accompanying _____~~% Note Due June~~ _______________________________________________________, ~~2018 (the "2018 Note") issued~~ account number , or, if mailed by ~~AMB Property~~check, ~~L.P. (the "Operating Partnership") under an Indenture dated as of June~~ to ______________________ Applicable statements should be mailed to ______________________________________ _______________________________________________________________________________, ~~1998 (together with the Second Supplemental Indenture thereto~~This information is provided by ________________________________________ _____________________________________________________, the assignee named above, or ________________________________________________________________, as its agent. STATE OF ___________________ ) )ss.: COUNTY OF __________________ ) On the th day of , 20 before me, a notary public in and for said State, personally appeared , known to me who, being by me duly sworn, did depose and say that he executed the foregoing instrument. ----------------------------------- Notary Public [Notarial Seal] [FORM OF CLASS L CERTIFICATE] THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "~~Indenture~~ACT"). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT REGISTRATION THEREOF UNDER THE ACT MAY ONLY BE MADE IN A TRANSACTION EXEMPTED FROM THE REGISTRATION REQUIREMENTS OF THE ACT AND IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN. NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE TRANSFEREE DELIVERS TO THE TRUSTEE EITHER A REPRESENTATION LETTER TO THE EFFECT THAT SUCH TRANSFEREE IS NOT, AND IS NOT INVESTING ON BEHALF OF OR WITH PLAN ASSETS OF, AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN OR ARRANGEMENT SUBJECT TO SECTION 4975 OF THE CODE, OR IF THE TRANSFEREE IS AN INSURANCE COMPANY AND THE CERTIFICATES HAVE BEEN THE SUBJECT OF AN ERISA QUALIFYING UNDERWRITING, A REPRESENTATION IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN OR AN OPINION OF COUNSEL IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, ANY PURPORTED TRANSFER OF THIS CERTIFICATE TO OR ON BEHALF OF AN EMPLOYEE BENEFIT PLAN OR ARRANGEMENT SUBJECT TO ERISA OR TO SECTION 4975 OF THE CODE WITHOUT THE OPINION OF COUNSEL SATISFACTORY TO THE TRUSTEE AS DESCRIBED ABOVE SHALL BE VOID AND OF NO EFFECT. Certificate No. : Cut-off Date : First Distribution Date : Initial Notional Balance of this Certificate ("Denomination") : $ Initial Notional Balances of all Certificates of this Class : $ CUSIP : ISIN : Interest Rate : Not Applicable Maturity Date : Not Applicable INDYMAC MBS, INC. Residential Asset Securitization Trust 2007-A8 Mortgage Pass-Through Certificates, Series 2007-H Class L evidencing a percentage interest in the distributions allocable to the Certificates of the above-referenced Class with respect to a Trust Fund consisting primarily of a pool of 30-year conventional fixed-rate mortgage loans (the "Mortgage Loans") secured by first liens on one- to four-family residential properties. Distributions in respect of this Certificate are distributable monthly as set forth herein. Accordingly, the Certificate Balance at any time may be less than the Certificate Balance as set forth herein. This Certificate does not evidence an obligation of, or an interest in, and is not guaranteed by the Depositor, the Seller, the Servicer or the Trustee referred to below or any of their respective affiliates. Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any governmental agency or instrumentality. This certifies that ________________ is the registered owner of the Percentage Interest evidenced by this Certificate (obtained by dividing the denomination of this Certificate by the aggregate of the denominations of all Certificates of the Class to which this Certificate belongs) in certain monthly distributions with respect to a Trust Fund consisting primarily of the Mortgage Loans deposited by IndyMac MBS, Inc. (the "Depositor"). The Trust Fund was created pursuant to a Pooling and Servicing Agreement dated as of the Cut-off Date specified above (the "Agreement") among the ~~Operating Partnership~~Depositor, ~~AMB Property Corporation~~IndyMac Bank, F.S.B., as seller and servicer (the "Seller" or the "Servicer", as appropriate), and ~~State Street~~ Deutsche Bank ~~and~~ National Trust ~~Company of California, N.A.~~Company, as trustee (the "Trustee"). To the extent not defined herein, ~~(a)~~ the ~~full~~ capitalized terms used herein have the meanings assigned in the Agreement. This Certificate is issued under and ~~prompt payment~~ is subject to the terms, provisions and conditions of the ~~principal~~ Agreement, to which Agreement the Holder of ~~and premium, if any, on such 2018 Note when and as the same shall become due and payable, whether at Stated Maturity,~~ this Certificate by ~~acceleration, by redemption or otherwise, and (b) the full and prompt payment~~ virtue of the ~~interest on~~ acceptance hereof assents and by which such ~~2018 Note when~~ Holder is bound. The 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 ~~same shall become due~~ Agreement. As provided in the Agreement, withdrawals from the Collection Account and ~~payable~~the Distribution Account may be made from time to time for purposes other than distributions to Certificateholders, ~~according~~ such purposes including reimbursement of advances made, or certain expenses incurred, with respect to the ~~terms of such 2018 Note~~ Mortgage Loans. This Certificate does not have a Certificate Balance or Pass-Through Rate and ~~of the Indenture. The undersigned hereby agrees, jointly and severally with the Parent Guarantor pursuant~~ will be entitled to distributions only to the Parent Guarantee and any other Subsidiary Guarantors under their respective Subsidiary Guarantees, that its obligations hereunder shall be as principal and not merely as surety, and shall be absolute and unconditional, and shall not be affected, modified or impaired by the following: (a) the failure to give notice to the Guarantors of the occurrence of an Event of Default under the Indenture; (b) the waiver, surrender, compromise, settlement, release or termination of the payment, performance or observance by the Operating Partnership or the Guarantors of any or all of the obligations, covenants or agreements of either of them contained in the Indenture or the 2018 Notes; (c) the acceleration, extension or any other changes in the time for payment of any principal of or interest or any premium on any 2018 Note or for any other payment under the Indenture or of the time for performance of any other obligations, covenants or agreements under or arising out of the Indenture or the 2018 Notes; (d) the modification or amendment (whether material or otherwise) of any obligation, covenant or agreement extent set forth in the ~~Indenture~~ Agreement. In addition, any distribution of the proceeds of any remaining assets of the Trust will be made only upon presentment and surrender of this Certificate at the Corporate Trust Office or the ~~2018 Notes; (e) the taking~~ office or the omission of any of the actions referred to in the Indenture and in any of the actions under the 2018 Notes; (f) any failure, omission, delay or lack on the part of the Trustee to enforce, assert or exercise any right, power or remedy conferred on the Trustee in the Indenture, or any other action or acts on the part of the Trustee or any of the Holders from time to time of the 2018 Notes; (g) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all the assets, marshaling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition with creditors or readjustment of, or other similar proceedings affecting the Guarantors or the Operating Partnership or any of the assets of any of them, or any allegation or contest of the validity of this Subsidiary Guarantee in any such proceeding; (h) to the extent permitted by law, the release or discharge by operation of law of the Guarantors from the performance or observance of any obligation, covenant or agreement contained in the Indenture; (i) to the extent permitted by law, the release or discharge by operation of law of the Operating Partnership from the performance or observance of any obligation, covenant or agreement contained in the Indenture; (j) the default or failure of the Operating Partnership or the Trustee fully to perform any of its obligations set forth in the Indenture or the 2018 Notes; (k) the invalidity, irregularity or unenforceability of the Indenture or the 2018 Notes or any part of any thereof; (l) any judicial or governmental action affecting the Operating Partnership or any 2018 Notes or consent or indulgence granted by the Operating Partnership by the Holders or agency maintained by the Trustee~~; or (m) the recovery of any judgment against the Operating Partnership or any action to enforce the same or any other circumstance which might constitute a legal or equitable discharge~~ . No transfer of a ~~surety~~ Certificate of this Class shall be made unless such disposition is exempt from the registration requirements of the Securities Act of 1933, as amended (the "1933 Act"), and any applicable state securities laws or ~~guarantor~~is made in accordance with the 1933 Act and such laws. ~~The undersigned hereby waives diligence, presentment, demand of payment, filing of claims with a court in~~ In the event of ~~merger~~any such transfer, ~~sale, lease or conveyance of all or~~ the Trustee shall require the transferor to execute a transferor certificate (in substantially ~~all of its assets, insolvency or bankruptcy of~~ the Operating Partnership, any right to require a proceeding first against the Operating Partnership, protest or notice with respect to such Notice or the indebtedness evidenced thereby and all demands whatsoever, and covenants that this Subsidiary Guarantee will not be discharged except by complete performance of the obligations contained in such 2018 Note and in this Subsidiary Guarantee. No reference herein to such Indenture and no provision of this Subsidiary Guarantee or of such Indenture shall alter or impair the guarantee of the undersigned, which is absolute and unconditional, of the full and prompt payment of the principal of and premium, if any, and interest on the 2018 Note. THIS SUBSIDIARY GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. The validity and enforceability of this Subsidiary Guarantee shall not be affected by the fact that it is not affixed to any particular 2018 Note. An Event of Default under the Indenture or the 2018 Notes shall constitute an event of default under this Subsidiary Guarantee, and shall entitle the Holders of 2018 Notes to accelerate the obligations of the undersigned hereunder in the same manner and form attached to the same extent as the obligations of the Operating Partnership. Notwithstanding any other provision of this Subsidiary Guarantee to the contrary, the undersigned hereby waives any claims or other rights which it may now have or hereafter acquire against the Operating Partnership that arise from the existence or performance of its obligations under this Subsidiary Guarantee (all such claims Pooling and rights are referred to as "Guarantor's Conditional Rights"), including, without limitation, any right of subrogation, reimbursement, exoneration, contribution, or indemnification, any right to participate in any claim or remedy against the Operating Partnership, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, by any payment made hereunder or otherwise, including without limitation, the right to take or receive from Operating Partnership, directly or indirectly, in cash or other property or by setoff or in any other manner, payment or security on account of such claim or other rights. The Subsidiary Guarantor hereby agrees not to exercise any rights which may be acquired by way of contribution under this Subsidiary Guarantee or any other agreement, by any payment made hereunder or otherwise, including, without limitation, the right to take or receive from any other guarantor, directly or indirectly, in cash or other property or by setoff or in any other manner, payment or security on account of such contribution rights. If, notwithstanding the foregoing provisions, any amount shall be paid to any of the undersigned on account of any such Guarantor's Conditional Rights Servicing Agreement) and deliver either (i) ~~such amount is paid~~ an Investment Letter or the Rule 144A Letter, in either case substantially in the form attached to ~~such undersigned party at any time when~~ the ~~indebtedness shall not have been paid or performed in full~~Agreement, or (ii) ~~regardless~~ a written Opinion of when such amount is paid to such undersigned party, any payment made by Operating Partnership to a Holder that is at any time determined to be a Preferential Payment (as defined below), then such amount paid Counsel to the ~~undersigned~~ Trustee that such transfer may be made pursuant to an exemption, describing the applicable exemption and the basis therefor, from the 1933 Act or is being made pursuant to the 1933 Act, which Opinion of Counsel shall be ~~held in trust for the benefit~~ an expense of the ~~Holders~~ transferor. No transfer of a Certificate of this Class shall be made unless the Trustee shall have received either (i) a representation letter from the transferee of such Certificate, acceptable to and ~~shall forthwith be paid such Holder to be credited~~ in form and ~~applied upon the indebtedness, whether matured or unmatured. Any such payment is herein referred to as a "Preferential Payment"~~ substance satisfactory to the ~~extent~~ Trustee, to the ~~Operating Partnership makes any payment~~ effect that such transferee is not an employee benefit plan or arrangement subject to ~~Holder in connection with the Note, and any~~ Section 406 of ERISA or all of such payment is subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid or paid over to a trustee, receiver or any other entity, whether under any bankruptcy act or otherwise. To the extent that any Section 4975 of the ~~provisions~~ Code, or a person investing on behalf of ~~the immediately preceding paragraph~~ or with plan assets of any such plan, which representation letter shall not be ~~enforceable, each~~ an expense of the ~~undersigned agrees that until such time as~~ Trustee, or (ii) if the ~~indebtedness has been paid and performed in full~~ transferee is an insurance company and the ~~period~~ Certificates have been the subject of ~~time has expired during~~ an ERISA-Qualifying Underwriting, a representation that the purchaser is an insurance company which any payment made by the Operating Partnership or the undersigned to a Holder may be determined to be a Preferential Payment, Guarantor's Conditional Rights to the extent not validly waived shall be subordinate to Holders' right to full payment and performance of the indebtedness and each of the undersigned shall not enforce any of its respective portion of the Guarantors' Conditional Rights until is purchasing such ~~time as the indebtedness has been paid and performed~~ Certificates with funds contained in full and the period of time has expired during which any payment made by the Operating Partnership or the undersigned to Holders may be determined to be a Preferential Payment. The undersigned's liability (the an "Base Guaranty Liability") shall be that amount from time to time equal to the aggregate liability of the undersigned hereunder, but shall be limited to the lesser of (A) the aggregate amount of the obligation as stated in the second sentence of Section 1401 of the Indenture, and (B) the amount, if any, which would not have (i) rendered the undersigned "insolventinsurance company general account" (as such term is defined in Section ~~101(29~~V(e) of Prohibited Transaction Class Exemption 95-60 ("PTCE 95-60")) and that the ~~Federal Bankruptcy~~ purchase and holding of such Certificates are covered under Sections I and III of PTCE 95-60, or (iii) in the case of a Certificate presented for registration in the name of an employee benefit plan or arrangement subject to ERISA, or a plan or arrangement subject to Section 4975 of the Code (or comparable provisions of any subsequent enactments), or a trustee of any such plan or arrangement or any other person acting on behalf of any such plan or arrangement or using such plan's or arrangement's assets, an Opinion of Counsel satisfactory to the Trustee and addressed to the Trustee and the Servicer, which Opinion of Counsel shall not be an expense of the Trustee, the Servicer or the Trust Fund, to the effect that the purchase and holding of such Certificate will not result in a non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of the Code and will not subject the Trustee or the Servicer to any obligation in ~~Section 271~~ addition to those expressly undertaken in this Agreement or to any liability. If no written representation or Opinion of Counsel as described above is delivered to the ~~Debtor and Creditor Law of~~ Trustee, the ~~State of New York, as each is~~ representation in ~~effect at the date of the Indenture~~(i) or (ii) left the undersigned with unreasonably small capital at the time its Guarantee was entered into, after giving effect to the incurrence of existing Debt (as defined in the Indenture) immediately prior to such time, provided that, it shall be a presumption in any lawsuit or other proceeding in which the undersigned is a party that the amount guaranteed is the amount set forth in (A) above unless a creditor, or representative of creditors of the undersigned or a trustee in bankruptcy of the undersignedabove, as debtor in possession, otherwise proves in such a lawsuit that the aggregate liability of the undersigned is limited to the amount set forth in (B). In making any determination as to the solvency or sufficiency of capital of the undersigned in accordance with the previous sentence, the right of the undersigned to contribution from other Guarantors, to subrogation and any other rights the undersigned may have, contractual or otherwiseappropriate, shall be ~~taken into account. The obligations of the undersigned~~ deemed to ~~the Holders of the 2018 Notes and~~ have been made to the Trustee ~~pursuant~~ by the Transferee's acceptance of this Certificate and by a beneficial owner's acceptance of its interest in such Certificate. Notwithstanding anything else to the ~~Subsidiary Guarantee~~ contrary herein, any purported transfer of a Certificate of this Class to or on behalf of an employee benefit plan or arrangement subject to ERISA or to the Code without the Opinion of Counsel satisfactory to the Trustee as described above shall be void and ~~the Indenture are expressly set forth in Article 14~~ of ~~the Indenture and reference~~ no effect. Reference is hereby made to the ~~Indenture~~ further provisions of this Certificate set forth on the reverse hereof, which further provisions shall for all purposes have the ~~precise terms~~ same effect as if set forth at this place. This Certificate shall not be entitled to any benefit under the Agreement or be valid for any purpose unless manually countersigned by an authorized signatory of the Subsidiary Guarantee and all of the other provisions of the Indenture to which this Subsidiary Guarantee relates. Capitalized terms in this Subsidiary Guarantee which are not defined herein shall have the meanings assigned to them in the IndentureTrustee.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Residential Asset Securitization Trust 2007-A8)

Appears in 1 contract

Samples: Distribution Instructions (Salomon Brothers Mort Sec Vii Inc Asst Back Cert Se 1997-Lb2)

Dated. ~~Notice~~Signature by or on behalf of assignor ------------------------------- Signature Guaranteed DISTRIBUTION INSTRUCTIONS The assignee should include the following for purposes of distribution: The signature to this assignment must correspond with the name as it appears upon the face of the within Note in every particular, without alteration or enlargement or any change whatever. ABBREVIATIONS The following abbreviations, when used in the inscription on the face of this instrument, Distributions shall be ~~construed as though they were written out~~ made, by wire transfer or otherwise, in ~~full according~~ immediately available funds to ~~applicable laws or regulations: TEN COM--as tenants in common UNIF GIFT MIN ACT--_____ Custodian~~_____~~_ TEN ENT--as tenants by the entireties (Cust) (Minor) JT TEN--as joint tenants with right Under Uniform Gifts to Minors of survivorship and not as Act~~___________________________________________ tenants in common (State) Additional abbreviations may also be used though not in the above list. --------------------------- [FORM OF SCHEDULE FOR ENDORSEMENTS ON GLOBAL SECURITY TO REFLECT CHANGES IN PRINCIPAL AMOUNT] Schedule A Changes to Principal Amount of Global Security Principal Amount of Securities by which this Global Security is to be Reduced or Increased, and Reason for Remaining Principal Amount of Notation Date Reduction or Increase this Global Securities Made by ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- Exhibit B SUBSIDIARY GUARANTEE FOR VALUE RECEIVED, the undersigned hereby jointly and severally with the Parent Guarantor pursuant to the Parent Guarantee and any other subsidiary Guarantors under their respective Subsidiary Guarantees, unconditionally guarantees to the Holder of the accompanying _____~~% Note Due June~~ ___________________________________________________________ for the account of _______________________________, ~~2018 (the "2018 Note") issued by AMB Property, L.P. (the "Operating Partnership") under an Indenture dated as of June~~ account number ________________________, ~~1998 (together with the Second Supplemental Indenture thereto~~or, if mailed by check, to__________________________________________________________ _______________________________________________________________________________. Applicable statements should be mailed to_______________________________________ ________________________________________________________________________________ _______________________________________________. This information is provided by __________________________________________________, the assignee named above, or ________________________________________, as its agent. XXXXXXX X-0 ----------- FORM OF CLASS A-2 CERTIFICATE UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("~~Indenture~~DTC"~~) among~~ ), TO THE TRUST ADMINISTRATOR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986 (THE "CODE"). Series: 2004-HE1 Xxxxxxxxx Xxxxxxxxxxx Xxxncipal Balance of the ~~Operating Partnership~~Class A-2 Certificates as of the Issue Date: Pass-Through Rate: Variable $157,216,000.00 Cut-off Date and date of Pooling and Denomination: $157,216,000.00 Servicing Agreement: September 1, ~~AMB Property Corporation, and State Street Bank~~ 2004 Master Servicer and Trust ~~Company~~ Administrator: First Distribution Date: October 25, 2004 Wells Fargo Bank, X.X. No. 1 Trustee: U.S. Bank National Association Issue Date: September 29, 2004 CUSIP: 57643L EF 9 DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE AS THE DENOMINATION OF THIS CERTIFICATE. MORTGAGE PASS-THROUGH CERTIFICATE evidencing a beneficial ownership interest in a portion of ~~California, N.A., as trustee~~ a Trust Fund (the "~~Trustee~~Trust Fund") consisting primarily of a pool of conventional one- to four-family, fixed-rate and adjustable-rate, first and second lien mortgage loans (the "Mortgage Loans") formed and sold by MORTGAGE ASSET SECURITIZATION TRANSACTIONS, INC. THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN MORTGAGE ASSET SECURITIZATION TRANSACTIONS, INC., THE MASTER SERVICER, THE TRUSTEE, THE TRUST ADMINISTRATOR OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES. This certifies that Cede & Co. is the registered owner of a Percentage Interest (obtained by dividing the denomination of this Certificate by the aggregate Certificate Principal Balance of the Class A-2 Certificates as of the Issue Date) in that certain beneficial ownership interest evidenced by all the Class A-2 Certificates in REMIC II created pursuant to a Pooling and Servicing Agreement, dated as specified above (the "Agreement"), among Mortgage Asset Securitization Transactions, Inc. (a) hereinafter called the ~~full~~ "Depositor," which term includes any successor entity under the Agreement), the Master Servicer, the Trust Administrator and ~~prompt payment~~ the Trustee, a summary of certain of the ~~principal~~ 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 Agreement. This Certificate is issued under and ~~premium~~is subject to the terms, ~~if any, on such 2018 Note when~~ provisions and ~~as the same shall become due and payable, whether at Stated Maturity, by acceleration, by redemption or otherwise, and (b) the full and prompt payment~~ conditions of the ~~interest on~~ Agreement, to which Agreement the Holder of this Certificate by virtue of the acceptance hereof assents and by which such ~~2018 Note when and as the same shall become due and payable, according~~ Holder is bound. Pursuant to the terms of the Agreement, distributions will be made on the 25th day of each month or, if such ~~2018 Note and~~ 25th day is not a Business Day, the Business Day immediately following (a "Distribution Date"), commencing on the First Distribution Date specified above, to the Person in whose name this Certificate is registered on the Record Date, in an amount equal to the product of the ~~Indenture. The undersigned hereby agrees, jointly~~ Percentage Interest evidenced by this Certificate and ~~severally with~~ the ~~Parent Guarantor~~ amount required to be distributed to the Holders of Class A-2 Certificates on such Distribution Date pursuant to the ~~Parent Guarantee and any other Subsidiary Guarantors~~ Agreement. All distributions to the Holder of this Certificate under ~~their respective Subsidiary Guarantees, that its obligations hereunder shall~~ the Agreement will be ~~as principal and not merely as surety, and shall~~ made or caused to be ~~absolute and unconditional, and shall not be affected, modified or impaired~~ made by the ~~following: (a) the failure to give notice~~ Trust Administrator by wire transfer in immediately available funds to the ~~Guarantors~~ account of the ~~occurrence~~ Person entitled thereto if such Person shall have so notified the Trust Administrator in writing at least five Business Days prior to the Record Date immediately prior to such Distribution Date and is the registered owner of ~~an Event~~ Class A-2 Certificates the aggregate initial Certificate Principal Balance of ~~Default under the Indenture; (b) the waiver, surrender, compromise, settlement, release or termination~~ which is in excess of the ~~payment, performance or observance by the Operating Partnership or the Guarantors~~ lesser of any or all of the obligations, covenants or agreements of either of them contained in the Indenture or the 2018 Notes; (c) the acceleration, extension or any other changes in the time for payment of any principal of or interest or any premium on any 2018 Note or for any other payment under the Indenture or of the time for performance of any other obligations, covenants or agreements under or arising out of the Indenture or the 2018 Notes; (d) the modification or amendment (whether material or otherwise) of any obligation, covenant or agreement set forth in the Indenture or the 2018 Notes; (e) the taking or the omission of any of the actions referred to in the Indenture and in any of the actions under the 2018 Notes; (f) any failure, omission, delay or lack on the part of the Trustee to enforce, assert or exercise any right, power or remedy conferred on the Trustee in the Indenture, or any other action or acts on the part of the Trustee or any of the Holders from time to time of the 2018 Notes; (g) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all the assets, marshaling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition with creditors or readjustment of, or other similar proceedings affecting the Guarantors or the Operating Partnership or any of the assets of any of them, or any allegation or contest of the validity of this Subsidiary Guarantee in any such proceeding; (h) to the extent permitted by law, the release or discharge by operation of law of the Guarantors from the performance or observance of any obligation, covenant or agreement contained in the Indenture; (i) to the extent permitted by law, the release or discharge by operation of law of the Operating Partnership from the performance or observance of any obligation, covenant or agreement contained in the Indenture; (j) the default or failure of the Operating Partnership or the Trustee fully to perform any of its obligations set forth in the Indenture or the 2018 Notes; (k) the invalidity, irregularity or unenforceability of the Indenture or the 2018 Notes or any part of any thereof; (l) any judicial or governmental action affecting the Operating Partnership or any 2018 Notes or consent or indulgence granted by the Operating Partnership by the Holders or by the Trustee; or (m) the recovery of any judgment against the Operating Partnership or any action to enforce the same or any other circumstance which might constitute a legal or equitable discharge of a surety or guarantor. The undersigned hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of merger, sale, lease or conveyance of all or substantially all of its assets, insolvency or bankruptcy of the Operating Partnership, any right to require a proceeding first against the Operating Partnership, protest or notice with respect to such Notice or the indebtedness evidenced thereby and all demands whatsoever, and covenants that this Subsidiary Guarantee will not be discharged except by complete performance of the obligations contained in such 2018 Note and in this Subsidiary Guarantee. No reference herein to such Indenture and no provision of this Subsidiary Guarantee or of such Indenture shall alter or impair the guarantee of the undersigned, which is absolute and unconditional, of the full and prompt payment of the principal of and premium, if any, and interest on the 2018 Note. THIS SUBSIDIARY GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. The validity and enforceability of this Subsidiary Guarantee shall not be affected by the fact that it is not affixed to any particular 2018 Note. An Event of Default under the Indenture or the 2018 Notes shall constitute an event of default under this Subsidiary Guarantee, and shall entitle the Holders of 2018 Notes to accelerate the obligations of the undersigned hereunder in the same manner and to the same extent as the obligations of the Operating Partnership. Notwithstanding any other provision of this Subsidiary Guarantee to the contrary, the undersigned hereby waives any claims or other rights which it may now have or hereafter acquire against the Operating Partnership that arise from the existence or performance of its obligations under this Subsidiary Guarantee (all such claims and rights are referred to as "Guarantor's Conditional Rights"), including, without limitation, any right of subrogation, reimbursement, exoneration, contribution, or indemnification, any right to participate in any claim or remedy against the Operating Partnership, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, by any payment made hereunder or otherwise, including without limitation, the right to take or receive from Operating Partnership, directly or indirectly, in cash or other property or by setoff or in any other manner, payment or security on account of such claim or other rights. The Subsidiary Guarantor hereby agrees not to exercise any rights which may be acquired by way of contribution under this Subsidiary Guarantee or any other agreement, by any payment made hereunder or otherwise, including, without limitation, the right to take or receive from any other guarantor, directly or indirectly, in cash or other property or by setoff or in any other manner, payment or security on account of such contribution rights. If, notwithstanding the foregoing provisions, any amount shall be paid to any of the undersigned on account of any such Guarantor's Conditional Rights and either (i) such amount is paid to such undersigned party at any time when the indebtedness shall not have been paid or performed in full, $5,000,000 or (ii) ~~regardless~~ two-thirds of ~~when such amount is paid to such undersigned party~~the aggregate initial Certificate Principal Balance of the Class A-2 Certificates, ~~any payment made~~ or otherwise by ~~Operating Partnership to a Holder that is at any time determined to be a Preferential Payment (as defined below), then such amount paid~~ check mailed by first class mail to the ~~undersigned shall be held in trust for the benefit~~ address of the ~~Holders~~ Person entitled thereto, as such name and address shall ~~forthwith~~ appear on the Certificate Register. Notwithstanding the above, the final distribution on this Certificate will be ~~paid~~ made after due notice by the Trust Administrator of the pendency of such ~~Holder to be credited~~ distribution and ~~applied~~ only upon presentation and surrender of this Certificate at the ~~indebtedness, whether matured~~ office or ~~unmatured~~agency appointed by the Trust Administrator for that purpose as provided in the Agreement. ~~Any such payment is herein referred to as a "Preferential Payment"~~ The Pass-Through Rate applicable to the ~~extent the Operating Partnership makes~~ calculation of interest payable with respect to this Certificate on any ~~payment to Holder in connection with the Note, and any or all of such payment is subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid or paid over to~~ Distribution Date shall equal a trustee, receiver or any other entity, whether under any bankruptcy act or otherwise. To the extent that any of the provisions of the immediately preceding paragraph shall not be enforceable, each of the undersigned agrees that until such time as the indebtedness has been paid and performed in full and the period of time has expired during which any payment made by the Operating Partnership or the undersigned to a Holder may be determined to be a Preferential Payment, Guarantor's Conditional Rights to the extent not validly waived shall be subordinate to Holders' right to full payment and performance of the indebtedness and each of the undersigned shall not enforce any of its respective portion of the Guarantors' Conditional Rights until such time as the indebtedness has been paid and performed in full and the period of time has expired during which any payment made by the Operating Partnership or the undersigned to Holders may be determined to be a Preferential Payment. The undersigned's liability (the "Base Guaranty Liability") shall be that amount from time to time rate per annum equal ~~to the aggregate liability of the undersigned hereunder, but shall be limited~~ to the lesser of (Ai) the ~~aggregate amount~~ related Formula Rate for such Distribution Date and (ii) the related Net WAC Rate for such Distribution Date. This Certificate is one of a duly authorized issue of Certificates designated as Mortgage Pass-Through Certificates of the ~~obligation as stated~~ Series specified on the face hereof (herein called the "Certificates") and representing a Percentage Interest in the ~~second sentence~~ Class of ~~Section 1401~~ Certificates specified on the face hereof equal to the denomination specified on the face hereof divided by the aggregate Certificate Principal Balance of the ~~Indenture~~Class of Certificates specified on the face hereof. The 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 Agreement. As provided in the Agreement, withdrawals from the Distribution Account may be made from time to time for purposes other than distributions to Certificateholders, such purposes including reimbursement of advances made, or certain expenses incurred, with respect to the Mortgage Loans. The Agreement permits, with certain exceptions therein provided, the amendment thereof and the modification of the rights and obligations of the Depositor, the Master Servicer, the Trustee, the Trust Administrator and the rights of the Certificateholders under the Agreement at any time by the Depositor, the Master Servicer, the Trustee and the Trust Administrator with the consent of the Holders of Certificates entitled to at least 66% of the Voting Rights. Any such consent by the Holder of this Certificate shall be conclusive and binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in exchange herefor or in lieu hereof whether or not notation of such consent is made upon this Certificate. The Agreement also permits the amendment thereof, in certain limited circumstances, without the consent of the Holders of any of the Certificates. As provided in the Agreement and subject to certain limitations therein set forth, the transfer of this Certificate is registrable in the Certificate Register upon surrender of this Certificate for registration of transfer at the offices or agencies appointed by the Trust Administrator as provided in the Agreement, duly endorsed by, or accompanied by an assignment in the form below or other written instrument of transfer in form satisfactory to the Trust Administrator duly executed by, the Holder hereof or such Holder's attorney duly authorized in writing, and ~~(B)~~ thereupon one or more new Certificates of the ~~amount~~same Class in authorized denominations evidencing the same aggregate Percentage Interest 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 Agreement. As provided in the Agreement and subject to certain limitations therein set forth, ~~if any~~the Certificates are exchangeable for new Certificates of the same Class in authorized denominations evidencing the same aggregate Percentage Interest, ~~which would not have~~ as requested by the Holder surrendering the same. No service charge will be made for any such registration of transfer or exchange of Certificates, but the Trust 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 Trustee, the Trust Administrator and any agent of the Depositor, the Master Servicer, the Trust Administrator or 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 Trustee, the Trust Administrator nor any such agent shall be affected by notice to the contrary. The obligations created by the Agreement and the Trust Fund created thereby shall terminate upon payment to the Certificateholders of all amounts held by the Trust Administrator and required to be paid to them pursuant to the Agreement following the earlier of (i) ~~rendered~~ the ~~undersigned "insolvent"~~ final payment or other liquidation (~~as such term is defined in Section 101(29~~or any advance with respect thereto) of the ~~Federal Bankruptcy Code~~ last Mortgage Loan and REO Property remaining in ~~Section 271 of the Debtor~~ REMIC I and ~~Creditor Law of the State of New York, as each is in effect at the date of the Indenture) or~~ (ii) ~~left~~ the ~~undersigned with unreasonably small capital~~ purchase by the party designated in the Agreement at a price determined as provided in the Agreement from REMIC I of all the Mortgage Loans and all property acquired in respect of such Mortgage Loans. The Agreement permits, but does not require, the party designated in the Agreement to purchase from REMIC I all the Mortgage Loans and all property acquired in respect of any Mortgage Loan at a price determined as provided in the Agreement. The exercise of such right will effect early retirement of the Certificates; however, such right to purchase is subject to the aggregate Stated Principal Balance of the Mortgage Loans at the time ~~its Guarantee was entered into, after giving effect to the incurrence~~ of existing Debt (as defined in the Indenture) immediately prior to such time, provided that, it shall be a presumption in any lawsuit or other proceeding in which the undersigned is a party that the amount guaranteed is the amount set forth in (A) above unless a creditor, or representative of creditors purchase being less than 10% of the ~~undersigned or a trustee in bankruptcy~~ aggregate Stated Principal Balance of the ~~undersigned,~~ Mortgage Loans as ~~debtor in possession, otherwise proves in such a lawsuit that the aggregate liability~~ of the ~~undersigned is limited to the amount set forth in (B)~~Cut-off Date. In making any determination as to the solvency or sufficiency of capital of the undersigned in accordance with the previous sentence, the right of the undersigned to contribution from other Guarantors, to subrogation and any other rights the undersigned may have, contractual or otherwise, The recitals contained herein shall be taken ~~into account. The obligations~~ as statements of the ~~undersigned to the Holders of the 2018 Notes and to the Trustee pursuant to the Subsidiary Guarantee~~ Depositor and the ~~Indenture are expressly set forth in Article 14~~ Trust Administrator assume no responsibility for their correctness. Unless the certificate of authentication hereon has been executed by the ~~Indenture and reference is hereby made~~ Trust Administrator, by manual signature, this Certificate shall not be entitled to any benefit under the ~~Indenture~~ Agreement or be valid for the precise terms of the Subsidiary Guarantee and all of the other provisions of the Indenture to which this Subsidiary Guarantee relates. Capitalized terms in this Subsidiary Guarantee which are not defined herein shall have the meanings assigned to them in the Indentureany purpose.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (MASTR Asset Backed Securities Trust 2004-He1)

Dated. ~~Notice~~Signature by or on behalf of assignor DISTRIBUTION INSTRUCTIONS The assignee should include the following for purposes of distribution: The signature to this assignment must correspond with the name as it appears upon the face of the within Note in every particular, without alteration or enlargement or any change whatever. ABBREVIATIONS The following abbreviations, when used in the inscription on the face of this instrument, Distributions shall be ~~construed as though they were written out~~ made, by wire transfer or otherwise, in ~~full according~~ immediately available funds to ~~applicable laws or regulations: TEN COM--as tenants in common UNIF GIFT MIN ACT--_____ Custodian~~_____~~_ TEN ENT--as tenants by the entireties (Cust) (Minor) JT TEN--as joint tenants with right Under Uniform Gifts to Minors of survivorship and not as Act~~________________________________________________________ tenants in common (State) Additional abbreviations may also be used though not in the above list. --------------------------- [FORM OF SCHEDULE FOR ENDORSEMENTS ON GLOBAL SECURITY TO REFLECT CHANGES IN PRINCIPAL AMOUNT] Schedule A Changes to Principal Amount of Global Security Principal Amount of Securities by which this Global Security is to be Reduced or Increased, and Reason for Remaining Principal Amount of Notation Date Reduction or Increase this Global Securities Made by ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- Exhibit B SUBSIDIARY GUARANTEE FOR VALUE RECEIVED, the undersigned hereby jointly and severally with the Parent Guarantor pursuant to the Parent Guarantee and any other subsidiary Guarantors under their respective Subsidiary Guarantees, unconditionally guarantees to the Holder of the accompanying _____~~% Note Due June~~ ___________________________________________________________________________ ________________________________________________________________________________ for the account of _____________________________________________________________ account number _______, ~~2018~~ or, if mailed by check, to _____________________________ Applicable statements should be mailed to ______________________________________ ________________________________________________________________________________ This information is provided by ________________________________________________ the assignee named above, or ___________________________________________________ as its agent. EXHIBIT B [RESERVED] EXHIBIT C NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE PROPOSED TRANSFEROR DELIVERS TO THE SECURITIES ADMINISTRATOR A TRANSFEROR LETTER IN THE FORM OF EXHIBIT H TO THE AGREEMENT REFERRED TO HEREIN AND EITHER (I) THE SECURITIES ADMINISTRATOR RECEIVES A RULE 144A LETTER IN THE FORM OF EXHIBIT I TO THE AGREEMENT REFERRED TO HEREIN OR (II) THE SECURITIES ADMINISTRATOR RECEIVES AN OPINION OF COUNSEL, DELIVERED AT THE EXPENSE OF THE TRANSFEROR, THAT SUCH TRANSFER MAY BE MADE WITHOUT REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED. EXCEPT AS PROVIDED IN THE AGREEMENT, NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE TRANSFEREE DELIVERS TO THE SECURITIES ADMINISTRATOR A REPRESENTATION LETTER TO THE EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN OR ARRANGEMENT SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR ANY FEDERAL, STATE OR LOCAL LAW MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE, (EACH, A "PLAN"), AND IS NOT ACTING ON BEHALF OF ANY PLAN OR USING THE ASSETS OF ANY PLAN TO EFFECT SUCH TRANSFER. ANY PURPORTED TRANSFER OF THIS CERTIFICATE IN VIOLATION OF THE TRANSFER RESTRICTIONS SET FORTH IN THE AGREEMENT SHALL BE VOID AND OF NO EFFECT. Certificate No. : P-1 Cut-off Date : May 1, 2006 First Distribution Date : June 26, 2006 Initial Certificate Balance of this Certificate ("Denomination") : $100 Initial Certificate Balance of all : $100 Certificates of this Class CUSIP : N/A XXXXXX XXXXXXX ABS CAPITAL I INC. IXIS Real Estate Capital Trust 2006-HE2 Mortgage Pass-Through Certificates, Series 2006-HE2 Class P evidencing a percentage interest in the distributions allocable to the Certificates of the above-referenced Class. Distributions in respect of this Certificate are distributable monthly as set forth herein. This Certificate does not evidence an obligation of, or an interest in, and is not guaranteed by the Depositor, the Unaffiliated Seller, the Securities Administrator, the Master Servicer, the Backup Servicer, any Originator, the Servicers or the Trustee referred to below or any of their respective affiliates. Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any governmental agency or instrumentality. This certifies that XXXXXX & CO. is the registered owner of the Percentage Interest evidenced by this Certificate (obtained by dividing the denomination of this Certificate by the aggregate of the denominations of all Certificates of the Class to which this Certificate belongs) in certain monthly distributions pursuant to a Pooling and Servicing Agreement dated as of the Cut-off Date specified above (the "~~2018 Note~~Agreement") ~~issued by AMB Property~~among Xxxxxx Xxxxxxx ABS Capital I Inc., ~~L.P.~~ as depositor (the "~~Operating Partnership~~Depositor"~~) under an Indenture dated~~ ), Master Financial, Inc., as ~~of June ___~~a servicer ("Master Financial"), ~~1998~~ Saxon Mortgage Services Inc., as a servicer ("Saxon" and together with ~~the Second Supplemental Indenture thereto~~Master Financial, the "~~Indenture~~Servicers"~~) among~~ ), IXIS Real Estate Capital Inc., as unaffiliated seller (the ~~Operating Partnership~~"Unaffiliated Seller"), ~~AMB Property Corporation, and State Street~~ Deutsche Bank ~~and~~ National Trust ~~Company of California, N.A.~~Company, as trustee and custodian (in each such capacity, respectively, the "Trustee" and the "Custodian") and JPMorgan Chase Bank, National Association, as securities administrator, master servicer and backup servicer (in each such capacity, respectively, the "Securities Administrator", the "Master Servicer" and the "Backup Servicer"). To the extent not defined herein, ~~(a)~~ the ~~full~~ capitalized terms used herein have the meanings assigned in the Agreement. This Certificate is issued under and ~~prompt payment~~ is subject to the terms, provisions and conditions of the ~~principal~~ Agreement, to which Agreement the Holder of ~~and premium, if any, on such 2018 Note when and as the same shall become due and payable, whether at Stated Maturity,~~ this Certificate by ~~acceleration, by redemption or otherwise, and (b) the full and prompt payment~~ virtue of the ~~interest on~~ acceptance hereof assents and by which such ~~2018 Note when~~ Holder is bound. This Certificate does not have a Pass-Through Rate and ~~as the same shall become due and payable, according~~ will be entitled to distributions only to the terms of such 2018 Note and of the Indenture. The undersigned hereby agrees, jointly and severally with the Parent Guarantor pursuant to the Parent Guarantee and any other Subsidiary Guarantors under their respective Subsidiary Guarantees, that its obligations hereunder shall be as principal and not merely as surety, and shall be absolute and unconditional, and shall not be affected, modified or impaired by the following: (a) the failure to give notice to the Guarantors of the occurrence of an Event of Default under the Indenture; (b) the waiver, surrender, compromise, settlement, release or termination of the payment, performance or observance by the Operating Partnership or the Guarantors of any or all of the obligations, covenants or agreements of either of them contained in the Indenture or the 2018 Notes; (c) the acceleration, extension or any other changes in the time for payment of any principal of or interest or any premium on any 2018 Note or for any other payment under the Indenture or of the time for performance of any other obligations, covenants or agreements under or arising out of the Indenture or the 2018 Notes; (d) the modification or amendment (whether material or otherwise) of any obligation, covenant or agreement extent set forth in the ~~Indenture or~~ Agreement. In addition, any distribution of the ~~2018 Notes; (e) the taking or the omission~~ proceeds of any remaining assets of the ~~actions referred to~~ Trust will be made only upon presentment and surrender of this Certificate at the offices designated by the Securities Administrator for such purposes, or such other location specified in the ~~Indenture and in any~~ notice to Certificateholders of such final distribution. No transfer of a Certificate of this Class shall be made unless such disposition is exempt from the registration requirements of the ~~actions under~~ Securities Act of 1933, as amended (the ~~2018 Notes; (f)~~ "1933 Act"), and any ~~failure, omission, delay~~ applicable state securities laws or ~~lack on~~ is made in accordance with the part of the Trustee to enforce, assert or exercise any right, power or remedy conferred on the Trustee in the Indenture, or any other action or acts on the part of the Trustee or any of the Holders from time to time of the 2018 Notes; (g) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all the assets, marshaling of assets 1933 Act and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition with creditors or readjustment of, or other similar proceedings affecting the Guarantors or the Operating Partnership or any of the assets of any of them, or any allegation or contest of the validity of this Subsidiary Guarantee in any such proceeding; (h) to the extent permitted by law, the release or discharge by operation of law of the Guarantors from the performance or observance of any obligation, covenant or agreement contained in the Indenture; (i) to the extent permitted by law, the release or discharge by operation of law of the Operating Partnership from the performance or observance of any obligation, covenant or agreement contained in the Indenture; (j) the default or failure of the Operating Partnership or the Trustee fully to perform any of its obligations set forth in the Indenture or the 2018 Notes; (k) the invalidity, irregularity or unenforceability of the Indenture or the 2018 Notes or any part of any thereof; (l) any judicial or governmental action affecting the Operating Partnership or any 2018 Notes or consent or indulgence granted by the Operating Partnership by the Holders or by the Trustee; or (m) the recovery of any judgment against the Operating Partnership or any action to enforce the same or any other circumstance which might constitute a legal or equitable discharge of a surety or guarantorlaws. ~~The undersigned hereby waives diligence, presentment, demand of payment, filing of claims with a court in~~ In the event of ~~merger~~any such transfer, ~~sale, lease or conveyance of all or~~ the Securities Administrator shall require the transferor to execute a transferor certificate (in substantially ~~all of its assets, insolvency or bankruptcy of~~ the Operating Partnership, any right to require a proceeding first against the Operating Partnership, protest or notice with respect to such Notice or the indebtedness evidenced thereby and all demands whatsoever, and covenants that this Subsidiary Guarantee will not be discharged except by complete performance of the obligations contained in such 2018 Note and in this Subsidiary Guarantee. No reference herein to such Indenture and no provision of this Subsidiary Guarantee or of such Indenture shall alter or impair the guarantee of the undersigned, which is absolute and unconditional, of the full and prompt payment of the principal of and premium, if any, and interest on the 2018 Note. THIS SUBSIDIARY GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. The validity and enforceability of this Subsidiary Guarantee shall not be affected by the fact that it is not affixed to any particular 2018 Note. An Event of Default under the Indenture or the 2018 Notes shall constitute an event of default under this Subsidiary Guarantee, and shall entitle the Holders of 2018 Notes to accelerate the obligations of the undersigned hereunder in the same manner and form attached to the same extent as the obligations of the Operating Partnership. Notwithstanding any other provision of this Subsidiary Guarantee to the contrary, the undersigned hereby waives any claims or other rights which it may now have or hereafter acquire against the Operating Partnership that arise from the existence or performance of its obligations under this Subsidiary Guarantee (all such claims Agreement) and rights are referred to as "Guarantor's Conditional Rights"), including, without limitation, any right of subrogation, reimbursement, exoneration, contribution, or indemnification, any right to participate in any claim or remedy against the Operating Partnership, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, by any payment made hereunder or otherwise, including without limitation, the right to take or receive from Operating Partnership, directly or indirectly, in cash or other property or by setoff or in any other manner, payment or security on account of such claim or other rights. The Subsidiary Guarantor hereby agrees not to exercise any rights which may be acquired by way of contribution under this Subsidiary Guarantee or any other agreement, by any payment made hereunder or otherwise, including, without limitation, the right to take or receive from any other guarantor, directly or indirectly, in cash or other property or by setoff or in any other manner, payment or security on account of such contribution rights. If, notwithstanding the foregoing provisions, any amount shall be paid to any of the undersigned on account of any such Guarantor's Conditional Rights and deliver either (i) ~~such amount is paid~~ a Rule 144A Letter, in either case substantially in the form attached to ~~such undersigned party at any time when~~ the ~~indebtedness shall not have been paid or performed in full~~Agreement, or (ii) ~~regardless~~ a written Opinion of when such amount is paid to such undersigned party, any payment made by Operating Partnership to a Holder that is at any time determined to be a Preferential Payment (as defined below), then such amount paid Counsel to the ~~undersigned~~ Securities Administrator that such transfer may be made pursuant to an exemption, describing the applicable exemption and the basis therefor, from the 1933 Act or is being made pursuant to the 1933 Act, which Opinion of Counsel shall be ~~held in trust for the benefit~~ an expense of the ~~Holders~~ transferor. Except as provided in the Agreement, no transfer of a Certificate of this Class shall be made unless the Securities Administrator shall have received a representation letter from the transferee of this Certificate, acceptable to and ~~shall forthwith be paid~~ in form and substance satisfactory to the Securities Administrator, to the effect that such ~~Holder~~ transferee is not a Plan, and is not acting on behalf of any Plan or using the assets of any Plan to ~~be credited and applied upon the indebtedness, whether matured or unmatured~~effect such transfer. Any ~~such payment is herein referred to as~~ purported transfer of a ~~"Preferential Payment" to the extent the Operating Partnership makes any payment to Holder~~ Certificate of this Class in connection with the Note, and any or all of such payment is subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid or paid over to a trustee, receiver or any other entity, whether under any bankruptcy act or otherwise. To the extent that any violation of the provisions of the immediately preceding paragraph shall not be enforceable, each of the undersigned agrees that until such time as the indebtedness has been paid and performed in full and the period of time has expired during which any payment made by the Operating Partnership or the undersigned to a Holder may be determined to be a Preferential Payment, Guarantor's Conditional Rights to the extent not validly waived shall be subordinate to Holders' right to full payment and performance of the indebtedness and each of the undersigned shall not enforce any of its respective portion of the Guarantors' Conditional Rights until such time as the indebtedness has been paid and performed in full and the period of time has expired during which any payment made by the Operating Partnership or the undersigned to Holders may be determined to be a Preferential Payment. The undersigned's liability (the "Base Guaranty Liability") shall be that amount from time to time equal to the aggregate liability of the undersigned hereunder, but shall be limited to the lesser of (A) the aggregate amount of the obligation as stated in the second sentence of Section 1401 of the Indenture, and (B) the amount, if any, which would not have (i) rendered the undersigned "insolvent" (as such term is defined in Section 101(29) of the Federal Bankruptcy Code and in Section 271 of the Debtor and Creditor Law of the State of New York, as each is in effect at the date of the Indenture) or (ii) left the undersigned with unreasonably small capital at the time its Guarantee was entered into, after giving effect to the incurrence of existing Debt (as defined in the Indenture) immediately prior to such time, provided that, it shall be a presumption in any lawsuit or other proceeding in which the undersigned is a party that the amount guaranteed is the amount transfer restrictions set forth in ~~(A) above unless a creditor, or representative of creditors of~~ the undersigned or a trustee in bankruptcy of the undersigned, as debtor in possession, otherwise proves in such a lawsuit that the aggregate liability of the undersigned is limited to the amount set forth in (B). In making any determination as to the solvency or sufficiency of capital of the undersigned in accordance with the previous sentence, the right of the undersigned to contribution from other Guarantors, to subrogation and any other rights the undersigned may have, contractual or otherwise, Agreement shall be ~~taken into account~~void and of no effect. The obligations of the undersigned to the Holders of the 2018 Notes and to the Trustee pursuant to the Subsidiary Guarantee and the Indenture are expressly set forth in Article 14 of the Indenture and reference Reference is hereby made to the ~~Indenture~~ further provisions of this Certificate set forth on the reverse hereof, which further provisions shall for all purposes have the ~~precise terms~~ same effect as if set forth at this place. This Certificate shall not be entitled to any benefit under the Agreement or be valid for any purpose unless manually authenticated by an authorized signatory of the ~~Subsidiary Guarantee and all of the other provisions of the Indenture to which this Subsidiary Guarantee relates~~Securities Administrator. ~~Capitalized terms in this Subsidiary Guarantee which are not defined herein shall have the meanings assigned to them in the Indenture.~~* * *

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Morgan Stanley ABS Capital I Inc. IXIS Real Estate Capital Trust 2006-He2)

Dated. ~~Notice~~Signature by or on behalf of assignor DISTRIBUTION INSTRUCTIONS The assignee should include the following for purposes of distribution: The signature to this assignment must correspond with the name as it appears upon the face of the within Note in every particular, without alteration or enlargement or any change whatever. ABBREVIATIONS The following abbreviations, when used in the inscription on the face of this instrument, Distributions shall be ~~construed as though they were written out~~ made, by wire transfer or otherwise, in ~~full according to applicable laws or regulations: TEN COM--as tenants in common UNIF GIFT MIN ACT--__~~immediately available funds to___ ~~Custodian~~_____~~_ TEN ENT--as tenants~~ _________________________________________________________________________, for the account of _____________________________________________________________________, account number , or, if mailed by ~~the entireties (Cust) (Minor) JT TEN--as joint tenants with right Under Uniform Gifts~~ check, to ~~Minors of survivorship and not as Act~~___________________________________________ tenants in common (State) Additional abbreviations may also be used though not in the above list. --------------------------- [FORM OF SCHEDULE FOR ENDORSEMENTS ON GLOBAL SECURITY TO REFLECT CHANGES IN PRINCIPAL AMOUNT] Schedule A Changes to Principal Amount of Global Security Principal Amount of Securities by which this Global Security is to be Reduced or Increased, and Reason for Remaining Principal Amount of Notation Date Reduction or Increase this Global Securities Made by ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- Exhibit B SUBSIDIARY GUARANTEE FOR VALUE RECEIVED, the undersigned hereby jointly and severally with the Parent Guarantor pursuant to the Parent Guarantee and any other subsidiary Guarantors under their respective Subsidiary Guarantees, unconditionally guarantees to the Holder of the accompanying _____~~% Note Due June~~ __________________________________________________________________________ ______________________________________________________________________________. Applicable statements should be mailed to _____________________________________ _______________________________________________________________________________ This information is provided by _____________________________________, ~~2018 (~~the ~~"2018 Note") issued by AMB Property~~assignee named above, ~~L.P. (the "Operating Partnership") under an Indenture dated as of June~~ or _________________________________________________, ~~1998~~ as its agent. STATE OF CALIFORNIA ) : ss.: COUNTY OF _____________ ) On the th day of ____________, 20__ before me, a notary public in and for said State, personally appeared ____________, known to me who, being by me duly sworn, did depose and say that he executed the foregoing instrument. ------------------------------ Notary Public [Notarial Seal] EXHIBIT F [FORM OF CLASS P CERTIFICATE] SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (~~together~~ THE "CODE"). THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT REGISTRATION THEREOF UNDER THE ACT MAY ONLY BE MADE IN A TRANSACTION EXEMPTED FROM THE REGISTRATION REQUIREMENTS OF THE ACT AND IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN. NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE TRANSFEREE DELIVERS TO THE TRUSTEE A REPRESENTATION LETTER TO THE EFFECT THAT SUCH TRANSFEREE IS NOT AND IS NOT INVESTING ON BEHALF OF OR WITH PLAN ASSETS OF AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO SECTION 4975 OF THE CODE, OR, IF THE CERTIFICATE HAS BEEN THE SUBJECT OF AN ERISA-QUALIFYING UNDERWRITING, A REPRESENTATION IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN, OR DELIVERS AN OPINION OF COUNSEL IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, ANY PURPORTED TRANSFER OF THIS CERTIFICATE TO OR ON BEHALF OF AN EMPLOYEE BENEFIT PLAN SUBJECT TO ERISA OR TO SECTION 4975 OF THE CODE WITHOUT THE OPINION OF COUNSEL SATISFACTORY TO THE TRUSTEE AS DESCRIBED ABOVE SHALL BE VOID AND OF NO EFFECT. Certificate No. : Cut-off Date : First Distribution Date : Initial Certificate Balance of this Certificate ("Denomination") : $ Initial Certificate Balances of all Certificates of this Class : $ CUSIP : Interest Rate : Maturity Date : INDYMAC MBS, INC. IndyMac INDX Mortgage Loan Trust 200_-__ Mortgage Pass-Through Certificates, Series 200_-__ evidencing a percentage interest in the distributions allocable to the Certificates of the above-referenced Class with respect to a Trust Fund consisting primarily of a pool of conventional mortgage loans (the ~~Second Supplemental Indenture thereto~~"Mortgage Loans") secured by first liens on one- to four-family residential properties. Distributors in respect of this Certificate are distributable monthly as set forth herein. Accordingly, the Certificate Balance at any time may be less than the Certificate Balance as set forth herein. This Certificate does not evidence an obligation of, or an interest in, and is not guaranteed by the Depositor, the Seller, the Servicer or the Trustee referred to below or any of their respective affiliates. Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any governmental agency or instrumentality. This certifies that ________________ is the registered owner of the Percentage Interest evidenced by this Certificate (obtained by dividing the denomination of this Certificate by the aggregate of the denominations of all Certificates of the Class to which this Certificate belongs) in certain monthly distributions with respect to a Trust Fund consisting primarily of the Mortgage Loans deposited by IndyMac MBS, Inc. (the "~~Indenture~~Depositor"). The Trust Fund was created pursuant to a Pooling and Servicing Agreement dated as of the Cut-off Date specified above (the "Agreement") among the ~~Operating Partnership~~Depositor, ~~AMB Property Corporation~~IndyMac Bank, F.S.B., as seller and Servicer (the "Seller" or the "Servicer," as appropriate), and ~~State Street~~ Deutsche Bank ~~and~~ National Trust ~~Company of California, N.A.~~Company, as trustee (the "Trustee")) and as swap trustee. To the extent not defined herein, ~~(a)~~ the ~~full~~ capitalized terms used herein have the meanings assigned in the Agreement. This Certificate is issued under and ~~prompt payment~~ is subject to the terms, provisions and conditions of the ~~principal~~ Agreement, to which Agreement the Holder of ~~and premium, if any, on such 2018 Note when and as the same shall become due and payable, whether at Stated Maturity,~~ this Certificate by ~~acceleration, by redemption or otherwise, and (b) the full and prompt payment~~ virtue of the ~~interest on~~ acceptance hereof assents and by which such ~~2018 Note when~~ Holder is bound. The 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 ~~same shall become due and payable~~Agreement. As provided in the Agreement, ~~according~~ withdrawals from the Distribution Account may be made from time to time for purposes other than distributions to Certificateholders, such purposes including reimbursement of advances made, or certain expenses incurred, with respect to the ~~terms of such 2018 Note~~ Mortgage Loans. This Certificate does not have a Certificate Balance or Pass-Through Rate and ~~of the Indenture. The undersigned hereby agrees, jointly and severally with the Parent Guarantor pursuant~~ will be entitled to distributions only to the Parent Guarantee and any other Subsidiary Guarantors under their respective Subsidiary Guarantees, that its obligations hereunder shall be as principal and not merely as surety, and shall be absolute and unconditional, and shall not be affected, modified or impaired by the following: (a) the failure to give notice to the Guarantors of the occurrence of an Event of Default under the Indenture; (b) the waiver, surrender, compromise, settlement, release or termination of the payment, performance or observance by the Operating Partnership or the Guarantors of any or all of the obligations, covenants or agreements of either of them contained in the Indenture or the 2018 Notes; (c) the acceleration, extension or any other changes in the time for payment of any principal of or interest or any premium on any 2018 Note or for any other payment under the Indenture or of the time for performance of any other obligations, covenants or agreements under or arising out of the Indenture or the 2018 Notes; (d) the modification or amendment (whether material or otherwise) of any obligation, covenant or agreement extent set forth in the ~~Indenture~~ Agreement. In addition, any distribution of the proceeds of any remaining assets of the Trust will be made only upon presentment and surrender of this Certificate at the Corporate Trust Office or the ~~2018 Notes; (e) the taking~~ office or the omission of any of the actions referred to in the Indenture and in any of the actions under the 2018 Notes; (f) any failure, omission, delay or lack on the part of the Trustee to enforce, assert or exercise any right, power or remedy conferred on the Trustee in the Indenture, or any other action or acts on the part of the Trustee or any of the Holders from time to time of the 2018 Notes; (g) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all the assets, marshaling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition with creditors or readjustment of, or other similar proceedings affecting the Guarantors or the Operating Partnership or any of the assets of any of them, or any allegation or contest of the validity of this Subsidiary Guarantee in any such proceeding; (h) to the extent permitted by law, the release or discharge by operation of law of the Guarantors from the performance or observance of any obligation, covenant or agreement contained in the Indenture; (i) to the extent permitted by law, the release or discharge by operation of law of the Operating Partnership from the performance or observance of any obligation, covenant or agreement contained in the Indenture; (j) the default or failure of the Operating Partnership or the Trustee fully to perform any of its obligations set forth in the Indenture or the 2018 Notes; (k) the invalidity, irregularity or unenforceability of the Indenture or the 2018 Notes or any part of any thereof; (l) any judicial or governmental action affecting the Operating Partnership or any 2018 Notes or consent or indulgence granted by the Operating Partnership by the Holders or agency maintained by the Trustee~~; or (m) the recovery of any judgment against the Operating Partnership or any action to enforce the same or any other circumstance which might constitute a legal or equitable discharge~~ . No transfer of a ~~surety~~ Certificate of this Class shall be made unless such disposition is exempt from the registration requirements of the Securities Act of 1933, as amended (the "1933 Act"), and any applicable state securities laws or ~~guarantor~~is made in accordance with the 1933 Act and such laws. ~~The undersigned hereby waives diligence, presentment, demand of payment, filing of claims with a court in~~ In the event of ~~merger~~any such transfer, ~~sale, lease or conveyance of all or~~ the Trustee shall require the transferor to execute a transferor certificate (in substantially ~~all of its assets, insolvency or bankruptcy of~~ the Operating Partnership, any right to require a proceeding first against the Operating Partnership, protest or notice with respect to such Notice or the indebtedness evidenced thereby and all demands whatsoever, and covenants that this Subsidiary Guarantee will not be discharged except by complete performance of the obligations contained in such 2018 Note and in this Subsidiary Guarantee. No reference herein to such Indenture and no provision of this Subsidiary Guarantee or of such Indenture shall alter or impair the guarantee of the undersigned, which is absolute and unconditional, of the full and prompt payment of the principal of and premium, if any, and interest on the 2018 Note. THIS SUBSIDIARY GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. The validity and enforceability of this Subsidiary Guarantee shall not be affected by the fact that it is not affixed to any particular 2018 Note. An Event of Default under the Indenture or the 2018 Notes shall constitute an event of default under this Subsidiary Guarantee, and shall entitle the Holders of 2018 Notes to accelerate the obligations of the undersigned hereunder in the same manner and form attached to the same extent as the obligations of the Operating Partnership. Notwithstanding any other provision of this Subsidiary Guarantee to the contrary, the undersigned hereby waives any claims or other rights which it may now have or hereafter acquire against the Operating Partnership that arise from the existence or performance of its obligations under this Subsidiary Guarantee (all such claims Pooling and rights are referred to as "Guarantor's Conditional Rights"), including, without limitation, any right of subrogation, reimbursement, exoneration, contribution, or indemnification, any right to participate in any claim or remedy against the Operating Partnership, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, by any payment made hereunder or otherwise, including without limitation, the right to take or receive from Operating Partnership, directly or indirectly, in cash or other property or by setoff or in any other manner, payment or security on account of such claim or other rights. The Subsidiary Guarantor hereby agrees not to exercise any rights which may be acquired by way of contribution under this Subsidiary Guarantee or any other agreement, by any payment made hereunder or otherwise, including, without limitation, the right to take or receive from any other guarantor, directly or indirectly, in cash or other property or by setoff or in any other manner, payment or security on account of such contribution rights. If, notwithstanding the foregoing provisions, any amount shall be paid to any of the undersigned on account of any such Guarantor's Conditional Rights Servicing Agreement) and deliver either (i) ~~such amount is paid~~ an Investment Letter or the Rule 144A Letter, in either case substantially in the form attached to ~~such undersigned party at any time when~~ the ~~indebtedness shall not have been paid or performed in full~~Agreement, or (ii) ~~regardless~~ a written Opinion of when such amount is paid to such undersigned party, any payment made by Operating Partnership to a Holder that is at any time determined to be a Preferential Payment (as defined below), then such amount paid Counsel to the ~~undersigned~~ Trustee that such transfer may be made pursuant to an exemption, describing the applicable exemption and the basis therefor, from the 1933 Act or is being made pursuant to the 1933 Act, which Opinion of Counsel shall be ~~held in trust for the benefit~~ an expense of the ~~Holders~~ transferor. No transfer of a Certificate of this Class shall be made unless the Trustee shall have received either (i) a representation letter from the transferee of such Certificate, acceptable to and ~~shall forthwith be paid such Holder to be credited~~ in form and ~~applied upon the indebtedness, whether matured or unmatured. Any such payment is herein referred to as a "Preferential Payment"~~ substance satisfactory to the ~~extent~~ Trustee, to the ~~Operating Partnership makes any payment~~ effect that such (x) transferee is not an employee benefit plan subject to ~~Holder in connection with the Note, and any~~ Section 406 of ERISA or all of such payment is subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid or paid over to a trustee, receiver or any other entity, whether under any bankruptcy act or otherwise. To the extent that any Section 4975 of the ~~provisions~~ Code, or a person acting on behalf of ~~the immediately preceding paragraph~~ or investing plan assets of any such plan, which representation letter shall not be ~~enforceable, each~~ an expense of the ~~undersigned agrees that until such time as~~ Trustee or (y) if the ~~indebtedness~~ Certificate has been ~~paid and performed~~ the subject of an ERISA-Qualifying Underwriting, a representation that the transferee is an insurance company that is purchasing such Certificate with funds contained in full and the period of time has expired during which any payment made by the Operating Partnership or the undersigned to a Holder may be determined to be a Preferential Payment, Guarantor's Conditional Rights to the extent not validly waived shall be subordinate to Holders' right to full payment and performance of the indebtedness and each of the undersigned shall not enforce any of its respective portion of the Guarantors' Conditional Rights until such time as the indebtedness has been paid and performed in full and the period of time has expired during which any payment made by the Operating Partnership or the undersigned to Holders may be determined to be a Preferential Payment. The undersigned's liability (the an "Base Guaranty Liability") shall be that amount from time to time equal to the aggregate liability of the undersigned hereunder, but shall be limited to the lesser of (A) the aggregate amount of the obligation as stated in the second sentence of Section 1401 of the Indenture, and (B) the amount, if any, which would not have (i) rendered the undersigned "insolventinsurance company general account" (as such term is defined in Section ~~101(29~~V(e) of Prohibited Transaction Class Exemption 95-60 ("PTCE 95-60") and that the ~~Federal Bankruptcy Code~~ purchase and ~~in Section 271~~ holding of such Certificate satisfy the ~~Debtor~~ requirements for exemptive relief under Sections I and ~~Creditor Law~~ III of ~~the State of New York, as each is in effect at the date of the Indenture)~~ PTCE 95-60 or (ii) ~~left the undersigned with unreasonably small capital at the time its Guarantee was entered into, after giving effect to the incurrence of existing Debt (as defined~~ in the ~~Indenture) immediately prior~~ case of a Certificate presented for registration in the name of an employee benefit plan subject to such time, provided that, it shall be a presumption in any lawsuit or other proceeding in which the undersigned is a party that the amount guaranteed is the amount set forth in (A) above unless a creditorERISA, or ~~representative of creditors~~ a plan or arrangement subject to Section 4975 of the ~~undersigned~~ Code (or comparable provisions of any subsequent enactments), or a trustee ~~in bankruptcy~~ of any such plan or any other person acting on behalf of any such plan or arrangement or using such plan's or arrangement's assets, an Opinion of Counsel satisfactory to the Trustee, which Opinion of Counsel shall not be an expense of the undersigned, as debtor in possession, otherwise proves in such a lawsuit that the aggregate liability of the undersigned is limited to the amount set forth in (B). In making any determination as to the solvency or sufficiency of capital of the undersigned in accordance with the previous sentenceTrustee, the ~~right of~~ Servicer or the ~~undersigned to contribution from other Guarantors~~Trust Fund, ~~to subrogation and any other rights the undersigned may have, contractual or otherwise, shall be taken into account. The obligations of the undersigned to the Holders of the 2018 Notes and~~ addressed to the Trustee ~~pursuant~~ and the Servicer, to the ~~Subsidiary Guarantee~~ effect that the purchase and ~~the Indenture are expressly set forth~~ holding of such Certificate will not result in ~~Article 14~~ a nonexempt prohibited transaction under ERISA or Section 4975 of the ~~Indenture~~ Code and ~~reference~~ will not subject the Trustee or the Servicer to any obligation in addition to those expressly undertaken in this Agreement or to any liability. Reference is hereby made to the ~~Indenture~~ further provisions of this Certificate set forth on the reverse hereof, which further provisions shall for all purposes have the ~~precise terms~~ same effect as if set forth at this place. This Certificate shall not be entitled to any benefit under the Agreement or be valid for any purpose unless manually countersigned by an authorized signatory of the ~~Subsidiary Guarantee and all of the other provisions of the Indenture to which this Subsidiary Guarantee relates~~Trustee. ~~Capitalized terms in this Subsidiary Guarantee which are not defined herein shall have the meanings assigned to them in the Indenture.~~* * *

Appears in 1 contract

Samples: Pooling and Servicing Agreement (IndyMac INDX Mortgage Loan Trust 2006-Ar35)

Dated. ~~Notice~~Signature by or on behalf of assignor --------------------------------------------- Signature Guaranteed DISTRIBUTION INSTRUCTIONS The assignee should include the following for purposes of distribution: The signature to this assignment must correspond with the name as it appears upon the face of the within Note in every particular, without alteration or enlargement or any change whatever. ABBREVIATIONS The following abbreviations, when used in the inscription on the face of this instrument, Distributions shall be ~~construed as though they were written out~~ made, by wire transfer or otherwise, in ~~full according~~ immediately available funds to ~~applicable laws or regulations: TEN COM--as tenants in common UNIF GIFT MIN ACT--_____ Custodian~~_____~~_ TEN ENT--as tenants by~~ ______________________________________________________________________, for the ~~entireties (Cust) (Minor) JT TEN--as joint tenants with right Under Uniform Gifts to Minors~~ account of ~~survivorship and not as Act~~,___________________________________________________________ tenants in common (State) Additional abbreviations may also be used though not in the above list. --------------------------- [FORM OF SCHEDULE FOR ENDORSEMENTS ON GLOBAL SECURITY TO REFLECT CHANGES IN PRINCIPAL AMOUNT] Schedule A Changes to Principal Amount of Global Security Principal Amount of Securities by which this Global Security is to be Reduced or Increased, and Reason for Remaining Principal Amount of Notation Date Reduction or Increase this Global Securities Made by ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- Exhibit B SUBSIDIARY GUARANTEE FOR VALUE RECEIVED, the undersigned hereby jointly and severally with the Parent Guarantor pursuant to the Parent Guarantee and any other subsidiary Guarantors under their respective Subsidiary Guarantees, unconditionally guarantees to the Holder of the accompanying account number_____~~% Note Due June~~ ______, ~~2018 (the "2018 Note") issued~~ or, if mailed by ~~AMB Property~~check, ~~L.P. (the "Operating Partnership") under an Indenture dated as of June~~ to ________________________, ~~1998~~ Applicable statements should be mailed to ____________________________________, ______________________________________________________________________________. This information is provided by ______________________________________________, the assignee named above, or _________________________________________________, as its agent. EXHIBIT A-4 FORM OF CLASS P CERTIFICATE THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE DEPOSITOR, THE TRUSTEE, THE MASTER SERVICER OR THE SECURITIES ADMINISTRATOR REFERRED TO BELOW OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED OR INSURED BY THE DEPOSITOR, THE TRUSTEE, THE MASTER SERVICER, THE SECURITIES ADMINISTRATOR OR BY ANY OF THEIR AFFILIATES OR BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY. NO TRANSFER OF THIS CERTIFICATE SHALL BE REGISTERED UNLESS THE PROSPECTIVE TRANSFEREE PROVIDES THE SECURITIES ADMINISTRATOR WITH (~~together with~~ A) A REPRESENTATION THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN OR OTHER ARRANGEMENT SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), A PLAN SUBJECT TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") OR A PLAN SUBJECT TO ANY PROVISION UNDER ANY FEDERAL, STATE, LOCAL, NON-U.S. OR OTHER LAWS OR REGULATIONS THAT ARE SUBSTANTIVELY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE ("SIMILAR LAW") (COLLECTIVELY, A "PLAN"), AND IS NOT DIRECTLY OR INDIRECTLY ACQUIRING THIS CERTIFICATE FOR, ON BEHALF OF, OR WITH ANY ASSETS OF ANY SUCH PLAN, (B) IF THIS CERTIFICATE HAS BEEN THE SUBJECT OF AN ERISA-QUALIFYING UNDERWRITING, A REPRESENTATION THAT SUCH TRANSFEREE IS AN INSURANCE COMPANY THAT IS ACQUIRING THIS CERTIFICATE WITH ASSETS OF AN "INSURANCE COMPANY GENERAL ACCOUNT" AS DEFINED IN SECTION V(E) OF PROHIBITED TRANSACTION CLASS EXEMPTION ("PTCE") 95-60 AND THE ACQUISITION AND HOLDING OF THIS CERTIFICATE ARE COVERED AND EXEMPT UNDER SECTIONS I AND III OF PTCE 95-60 OR (C) SOLELY IN THE CASE OF A DEFINITIVE CERTIFICATE, AN OPINION OF COUNSEL SATISFACTORY TO THE SECURITIES ADMINISTRATOR, AND UPON WHICH THE SECURITIES ADMINISTRATOR SHALL BE ENTITLED TO RELY, TO THE EFFECT THAT THE ACQUISITION AND HOLDING OF THIS CERTIFICATE BY THE PROSPECTIVE TRANSFEREE WILL NOT CONSTITUTE OR RESULT IN A NONEXEMPT PROHIBITED TRANSACTION UNDER ERISA OR THE CODE, OR A VIOLATION OF SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE SECURITIES ADMINISTRATOR, THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, ANY SERVICER OR THE DEPOSITOR TO ANY OBLIGATION IN ADDITION TO THOSE UNDERTAKEN BY SUCH ENTITIES IN THE POOLING AND SERVICING AGREEMENT, WHICH OPINION OF COUNSEL SHALL NOT BE AN EXPENSE OF THE TRUSTEE, THE SECURITIES ADMINISTRATOR, THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, ANY SERVICER OR THE DEPOSITOR. IF THE CERTIFICATE IS NOT A DEFINITIVE CERTIFICATE, THE TRANSFEREE IS DEEMED TO HAVE MADE THE REPRESENTATION IN (A) OR (B) ABOVE. THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE RESOLD OR TRANSFERRED UNLESS IT IS REGISTERED PURSUANT TO SUCH ACT AND LAWS OR IS SOLD OR TRANSFERRED IN TRANSACTIONS THAT ARE EXEMPT FROM REGISTRATION UNDER SUCH ACT AND UNDER APPLICABLE STATE LAW AND IS TRANSFERRED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE AGREEMENT. MLMI Series 2006-A4, Class P Percentage Interest: 100% Date of Agreement and Cut-off Date: Master Servicer and Securities July 1, 2006 Administrator: Xxxxx Fargo Bank, N.A. First Distribution Date: August 25, 2006 Trustee: HSBC Bank USA, National No. [ ] Association Issue Date: July 28, 2006 CUSIP: [ ] MORTGAGE PASS-THROUGH CERTIFICATE MLMI SERIES 2006-A4 evidencing a beneficial ownership interest in a Trust Fund (the ~~Second Supplemental Indenture thereto~~"Trust Fund") consisting primarily of five pools of conventional, one- to four-family, adjustable-rate, fully amortizing mortgage loans secured by first liens on residential property (the "Mortgage Loans") formed and sold by XXXXXXX XXXXX MORTGAGE INVESTORS, INC. THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN XXXXXXX XXXXX MORTGAGE INVESTORS, INC., THE MASTER SERVICER, THE SECURITIES ADMINISTRATOR, THE TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES. This certifies that ___________________________ is the registered owner of a 100% Percentage Interest in that certain beneficial ownership interest evidenced by all the Class P Certificates in the Trust Fund created pursuant to a Pooling and Servicing Agreement, dated as specified above (the "Agreement"), among Xxxxxxx Xxxxx Mortgage Investors, Inc., as depositor (hereinafter called the "Depositor," which term includes any successor entity under the Agreement), Xxxxx Fargo Bank, N.A., as master servicer (in such capacity, the "~~Indenture~~Master Servicer") ~~among~~ and securities administrator (in such capacity, the ~~Operating Partnership~~"Securities Administrator") and HSBC Bank USA, ~~AMB Property Corporation, and State Street Bank and Trust Company of California, N.A.~~National Association, as trustee (the "Trustee"), ~~(a) the full and prompt payment~~ a summary of certain of the ~~principal~~ 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 Agreement. This Certificate is issued under and ~~premium~~is subject to the terms, ~~if any, on such 2018 Note when~~ provisions and ~~as the same shall become due and payable, whether at Stated Maturity, by acceleration, by redemption or otherwise, and (b) the full and prompt payment~~ conditions of the ~~interest on~~ Agreement, to which Agreement the Holder of this Certificate by virtue of the acceptance hereof assents and by which such ~~2018 Note when and as the same shall become due and payable, according~~ Holder is bound. Pursuant to the terms of the Agreement, distributions will be made on the 25th day of each month or, if such ~~2018 Note and~~ 25th day is not a Business Day, the Business Day immediately following (a "Distribution Date"), commencing on the First Distribution Date specified above, to the Person in whose name this Certificate is registered on the Record Date, in an amount equal to the product of the ~~Indenture. The undersigned hereby agrees, jointly~~ Percentage Interest evidenced by this Certificate and ~~severally with~~ the ~~Parent Guarantor~~ amount required to be distributed to the Holders of Class P Certificates on such Distribution Date pursuant to the ~~Parent Guarantee and any other Subsidiary Guarantors~~ Agreement. All distributions to the Holder of this Certificate under ~~their respective Subsidiary Guarantees, that its obligations hereunder shall~~ the Agreement will be ~~as principal and not merely as surety, and shall~~ made or caused to be ~~absolute and unconditional, and shall not be affected, modified or impaired~~ made by the ~~following: (a) the failure to give notice~~ Securities Administrator by wire transfer in immediately available funds to the ~~Guarantors~~ account of the ~~occurrence~~ Person entitled thereto if such Person shall have so notified the Securities Administrator in writing at least five Business Days prior to the Record Date immediately prior to such Distribution Date and is the registered owner of ~~an Event of Default under~~ Class P Certificates, or otherwise by check mailed by first class mail to the ~~Indenture; (b) the waiver, surrender, compromise, settlement, release or termination~~ address of the ~~payment~~Person entitled thereto, ~~performance or observance~~ as such name and address shall appear on the Certificate Register. Notwithstanding the above, the final distribution on this Certificate will be made after due notice by the ~~Operating Partnership or the Guarantors of any or all~~ Securities Administrator of the ~~obligations, covenants~~ pendency of such distribution and only upon the presentation and surrender of this Certificate at the office or ~~agreements of either of them contained~~ agency appointed by the Securities Administrator for that purpose as provided in the ~~Indenture or~~ Agreement. This Certificate is one of a duly authorized issue of Certificates designated as Mortgage Pass-Through Certificates of the ~~2018 Notes;~~ Series specified on the face hereof (cherein called the "Certificates") ~~the acceleration, extension or any other changes~~ and representing a Percentage Interest in the ~~time for~~ Class of Certificates specified on the face hereof. The Certificates are limited in right of payment ~~of any principal of or interest or any premium on any 2018 Note or for any other payment under~~ to certain collections and recoveries respecting the ~~Indenture or of the time for performance of any other obligations~~Mortgage Loans, ~~covenants or agreements under or arising out of the Indenture or the 2018 Notes; (d) the modification or amendment (whether material or otherwise) of any obligation, covenant or agreement~~ all as more specifically set forth herein and in the ~~Indenture or the 2018 Notes; (e) the taking or the omission of any of the actions referred to~~ Agreement. As provided in the ~~Indenture~~ Agreement, withdrawals from the Master Servicer Collection Account and ~~in any of~~ the actions under the 2018 Notes; (f) any failure, omission, delay or lack on the part of the Trustee to enforce, assert or exercise any right, power or remedy conferred on the Trustee in the Indenture, or any other action or acts on the part of the Trustee or any of the Holders Distribution Account may be made from time to time for purposes other than distributions to Holders of the ~~2018 Notes; (g) the voluntary or involuntary liquidation~~Certificates, ~~dissolution, sale or other disposition~~ such purposes including reimbursement of all or substantially all the assets, marshaling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition with creditors or readjustment ofadvances made, or ~~other similar proceedings affecting the Guarantors or the Operating Partnership or any of the assets of any of them~~certain expenses incurred, or any allegation or contest of the validity of this Subsidiary Guarantee in any such proceeding; (h) to the extent permitted by law, the release or discharge by operation of law of the Guarantors from the performance or observance of any obligation, covenant or agreement contained in the Indenture; (i) to the extent permitted by law, the release or discharge by operation of law of the Operating Partnership from the performance or observance of any obligation, covenant or agreement contained in the Indenture; (j) the default or failure of the Operating Partnership or the Trustee fully to perform any of its obligations set forth in the Indenture or the 2018 Notes; (k) the invalidity, irregularity or unenforceability of the Indenture or the 2018 Notes or any part of any thereof; (l) any judicial or governmental action affecting the Operating Partnership or any 2018 Notes or consent or indulgence granted by the Operating Partnership by the Holders or by the Trustee; or (m) the recovery of any judgment against the Operating Partnership or any action to enforce the same or any other circumstance which might constitute a legal or equitable discharge of a surety or guarantor. The undersigned hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of merger, sale, lease or conveyance of all or substantially all of its assets, insolvency or bankruptcy of the Operating Partnership, any right to require a proceeding first against the Operating Partnership, protest or notice with respect to ~~such Notice or~~ the ~~indebtedness evidenced thereby~~ Mortgage Loans. The Agreement permits, with certain exceptions and ~~all demands whatsoever~~conditions provided therein, the amendment thereof and ~~covenants that this Subsidiary Guarantee will not be discharged except by complete performance~~ the modification of the rights and obligations contained in such 2018 Note and in this Subsidiary Guarantee. No reference herein to such Indenture and no provision of this Subsidiary Guarantee or of such Indenture shall alter or impair the guarantee of the ~~undersigned~~Depositor, ~~which is absolute~~ the Securities Administrator, the Master Servicer and ~~unconditional,~~ the Trustee and the rights of the full and prompt payment of the principal of and premium, if any, and interest on the 2018 Note. THIS SUBSIDIARY GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. The validity and enforceability of this Subsidiary Guarantee shall not be affected by the fact that it is not affixed to any particular 2018 Note. An Event of Default under the Indenture or the 2018 Notes shall constitute an event of default under this Subsidiary Guarantee, and shall entitle the Holders of ~~2018 Notes to accelerate~~ the ~~obligations of~~ Certificates under the undersigned hereunder in the same manner and to the same extent as the obligations of the Operating Partnership. Notwithstanding any other provision of this Subsidiary Guarantee to the contrary, the undersigned hereby waives any claims or other rights which it may now have or hereafter acquire against the Operating Partnership that arise from the existence or performance of its obligations under this Subsidiary Guarantee (all such claims and rights are referred to as "Guarantor's Conditional Rights"), including, without limitation, any right of subrogation, reimbursement, exoneration, contribution, or indemnification, any right to participate in any claim or remedy against the Operating Partnership, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, by any payment made hereunder or otherwise, including without limitation, the right to take or receive from Operating Partnership, directly or indirectly, in cash or other property or by setoff or in any other manner, payment or security on account of such claim or other rights. The Subsidiary Guarantor hereby agrees not to exercise any rights which may be acquired by way of contribution under this Subsidiary Guarantee or any other agreement, by any payment made hereunder or otherwise, including, without limitation, the right to take or receive from any other guarantor, directly or indirectly, in cash or other property or by setoff or in any other manner, payment or security on account of such contribution rights. If, notwithstanding the foregoing provisions, any amount shall be paid to any of the undersigned on account of any such Guarantor's Conditional Rights and either (i) such amount is paid to such undersigned party Agreement at any time ~~when~~ by the ~~indebtedness shall not have been paid or performed in full~~Depositor, ~~or (ii) regardless of when such amount is paid to such undersigned party~~the Securities Administrator, ~~any payment made by Operating Partnership to a Holder that is at any time determined to be a Preferential Payment (as defined below)~~the Master Servicer and the Trustee, ~~then such amount paid to~~ with the ~~undersigned shall be held in trust for the benefit~~ consent of the Holders ~~and shall forthwith be paid~~ of Certificates evidencing Percentage Interests aggregating not less than 51% of the Trust Fund or of the applicable Class or Classes, if such ~~Holder~~ amendment affects only such Class or Classes, for the purpose of adding any provisions to ~~be credited and applied upon the indebtedness, whether matured~~ or ~~unmatured. Any such payment is herein referred to as a "Preferential Payment" to the extent the Operating Partnership makes~~ changing in any ~~payment to Holder in connection with the Note, and any~~ manner or all of such payment is subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid or paid over to a trustee, receiver or any other entity, whether under any bankruptcy act or otherwise. To the extent that eliminating any of the provisions of this Agreement or of modifying in any manner the ~~immediately preceding paragraph shall not be enforceable, each~~ rights of the ~~undersigned agrees that until~~ Certificateholders. Any such ~~time~~ consent by the Holder of this Certificate shall be conclusive and binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in exchange herefor or in lieu hereof whether or not notation of such consent is made upon this Certificate. The Agreement also permits the amendment thereof, in certain limited circumstances, without the consent of the Holders of any of the Certificates. As provided in the Agreement and subject to certain limitations set forth therein, the transfer of this Certificate is registrable in the Certificate Register upon surrender of this Certificate for registration of transfer at the offices or agencies appointed by the Securities Administrator as provided in the ~~indebtedness has been paid and performed~~ Agreement, duly endorsed by, or accompanied by an assignment in ~~full~~ the form below or other written instrument of transfer in form satisfactory to the Securities Administrator and the ~~period~~ Certificate Registrar duly executed by, the Holder hereof or such Holder's attorney duly authorized in writing, and thereupon one or more new Certificates of ~~time has expired during which any payment made~~ the same Class in authorized denominations evidencing the same aggregate Percentage Interest 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 Agreement. As provided in the Agreement and subject to certain limitations set forth therein, Certificates are exchangeable for new Certificates of the same Class in authorized denominations evidencing the same aggregate Percentage Interest, as requested by the ~~Operating Partnership or~~ Certificateholder surrendering the ~~undersigned to a Holder may be determined to be a Preferential Payment, Guarantor's Conditional Rights to the extent not validly waived~~ same. No transfer of this Certificate shall be ~~subordinate~~ made unless the transfer is made pursuant to ~~Holders' right to full payment and performance~~ an effective registration statement under the Securities Act of ~~the indebtedness and each of the undersigned shall not enforce any of its respective portion of the Guarantors' Conditional Rights until such time~~ 1933, as the indebtedness has been paid and performed in full and the period of time has expired during which any payment made by the Operating Partnership or the undersigned to Holders may be determined to be a Preferential Payment. The undersigned's liability amended (the "~~Base Guaranty Liability~~1933 Act") ), and any applicable state securities laws or is exempt from the registration requirements under the 1933 Act and such state securities laws. .In the event that a transfer is to be made in reliance upon an exemption from the 1933 Act and such laws, the Certificateholder desiring to effect such transfer and such Certificateholder's prospective transferee shall ~~be that amount from time to time equal~~ each certify to the ~~aggregate liability of~~ Securities Administrator in writing the ~~undersigned hereunder, but shall be limited to~~ facts surrounding the ~~lesser of (A) the aggregate amount of the obligation~~ transfer in a Transferor Representation Letter as ~~stated~~ described in the ~~second sentence of Section 1401 of the Indenture,~~ Agreement and ~~(B) the amount, if any, which would not have~~ (i) ~~rendered~~ deliver to the ~~undersigned "insolvent" (~~Securities Administrator an Investor Representation Letter or Rule 144A Letter as ~~such term is defined~~ described in ~~Section 101(29) of~~ the ~~Federal Bankruptcy Code and in Section 271 of the Debtor and Creditor Law of the State of New York, as each is in effect at the date of the Indenture)~~ Agreement or (ii) ~~left the undersigned with unreasonably small capital at the time its Guarantee was entered into, after giving effect~~ have delivered to the ~~incurrence~~ Securities Administrator an Opinion of ~~existing Debt (~~Counsel that such transfer may be made pursuant to an exemption from the Securities Act, which Opinion of Counsel shall not be an expense of the Depositor or the Securities Administrator. Any Certificateholder desiring to effect a transfer of this Certificate shall indemnify the Securities Administrator and the Depositor against any liability that may result if the transfer is not so exempt or is not made in accordance with such federal and state laws. No service charge will be made for any such registration of transfer or exchange of Certificates, but the Certificate Registrar 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 Securities Administrator, the Master Servicer, the Trustee and the Certificate Registrar and any agent of the Depositor, the Securities Administrator, the Master Servicer, the Trustee or the Certificate Registrar may treat the Person in whose name this Certificate is registered as ~~defined in~~ the ~~Indenture) immediately prior to~~ owner hereof for all purposes, and none of the Depositor, the Securities Administrator, the Master Servicer, the Trustee, the Certificate Registrar nor any such ~~time, provided that, it~~ agent shall be a presumption in any lawsuit or other proceeding in which the undersigned is a party that the amount guaranteed is the amount set forth in (A) above unless a creditor, or representative of creditors of the undersigned or a trustee in bankruptcy of the undersigned, as debtor in possession, otherwise proves in such a lawsuit that the aggregate liability of the undersigned is limited affected by notice to the ~~amount set forth in (B)~~contrary. ~~In making any determination as to the solvency or sufficiency of capital of the undersigned~~ This certificate shall be governed by and construed in accordance with the ~~previous sentence, the right~~ laws of the ~~undersigned to contribution from other Guarantors, to subrogation and any other rights the undersigned may have, contractual or otherwise, shall be taken into account~~state of New York. The obligations of created by the ~~undersigned~~ Agreement and the Trust Fund created thereby shall terminate upon payment (or provision for payment) to the Holders of the ~~2018 Notes~~ Certificates of all amounts held by the Securities Administrator and required to ~~the Trustee~~ be paid to them pursuant to the ~~Subsidiary Guarantee~~ Agreement following the earlier of (i) the Distribution Date on which the Certificate Principal Balance of each Class of Certificates has been reduced to zero, (ii) the final payment (or any advance with respect thereto) on or other liquidation of the last Mortgage Loan remaining in the Trust Fund and (iii) the Optional Termination of the trust fund according to the procedures described in the Agreement, which can occur on any date after the first Distribution Date on which the aggregate Stated Principal Balance of the Mortgage Loans is less than 5% of the aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-off Date. The recitals contained herein shall be taken as statements of the Depositor and the ~~Indenture are expressly set forth in Article 14~~ Securities Administrator assumes no responsibility for their correctness. Unless the certificate of authentication hereon has been executed by the ~~Indenture and reference is hereby made~~ Certificate Registrar, by manual signature, this Certificate shall not be entitled to any benefit under the ~~Indenture~~ Agreement or be valid for the precise terms of the Subsidiary Guarantee and all of the other provisions of the Indenture to which this Subsidiary Guarantee relates. Capitalized terms in this Subsidiary Guarantee which are not defined herein shall have the meanings assigned to them in the Indentureany purpose.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Trust Series 2006-A4)

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Residential Asset Securitization Trust 2006-A12)

Dated. ~~Notice~~Signature by or on behalf of assignor DISTRIBUTION INSTRUCTIONS The assignee should include the following for purposes of distribution: The signature to this assignment must correspond with the name as it appears upon the face of the within Note in every particular, without alteration or enlargement or any change whatever. ABBREVIATIONS The following abbreviations, when used in the inscription on the face of this instrument, Distributions shall be ~~construed as though they were written out~~ made, by wire transfer or otherwise, in ~~full according~~ immediately available funds to applicable laws or regulations: TEN COM--as tenants in common UNIF GIFT MIN ACT--_____ Custodian______ TEN ENT--as tenants by the entireties (Cust) (Minor) JT TEN--as joint tenants with right Under Uniform Gifts to Minors of survivorship and not as Act__________________________ tenants in common (State) Additional abbreviations may also be used though not in the above list. --------------------------- [FORM OF SCHEDULE FOR ENDORSEMENTS ON GLOBAL SECURITY TO REFLECT CHANGES IN PRINCIPAL AMOUNT] Schedule A Changes to Principal Amount of Global Security Principal Amount of Securities by which this Global Security is to be Reduced or Increased, and Reason for Remaining Principal Amount of Notation Date Reduction or Increase this Global Securities Made by ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- Exhibit B SUBSIDIARY GUARANTEE FOR VALUE RECEIVED, the undersigned hereby jointly and severally with the Parent Guarantor pursuant to the Parent Guarantee and any other subsidiary Guarantors under their respective Subsidiary Guarantees, unconditionally guarantees to the Holder of the accompanying _____~~% Note Due June~~ __________________, ~~2018 (the "2018 Note") issued by AMB Property, L.P. (the "Operating Partnership") under an Indenture dated as of June~~ _______________________________________________________________________________, ~~1998 (together with~~ for the ~~Second Supplemental Indenture thereto~~account of , __________________________________________________________, account number ___________, or, if mailed by check, to ________________________. Applicable statements should be mailed to _____________________________________, _______________________________________________________________________________. This information is provided by ___________________________________, the assignee named above, or __________________________________________________, as its agent. EXHIBIT C SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "~~Indenture~~RESIDUAL INTEREST" IN TWO "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"). NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE PROPOSED TRANSFEREE DELIVERS TO THE TRUSTEE A TRANSFER AFFIDAVIT IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN. NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED (I) TO A PERSON OTHER THAN A PERMITTED TRANSFEREE IN COMPLIANCE WITH SECTION 5.02(C) OF THE AGREEMENT OR (II) UNLESS THE TRANSFEREE DELIVERS TO THE TRUSTEE A REPRESENTATION LETTER TO THE EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO SECTION 4975 OF THE CODE OR A PLAN SUBJECT TO MATERIALLY SIMILAR PROVISIONS OF APPLICABLE FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") OR A PERSON INVESTING ON BEHALF OF OR WITH PLAN ASSETS OF SUCH A PLAN. In the event that such representation is violated, or any attempt IS MADE to transfer to a plan or arrangement subject to Section 406 of ERISA, a plan subject to Section 4975 of the Code OR A PLAN SUBJECT TO SIMILAR LAW, or a person acting on behalf of any such plan or arrangement or using the assets of any such plan or arrangement, such attempted transfer or acquisition shall be void and of no effect. Certificate No. : R-1 Cut-off Date : July 1, 2003 First Distribution Date : August 25, 2003 Percentage Interest of : this Certificate ("Denomination") : 100% MORGAN STANLEY ABS CAPITAL I INC. Morgan Stanley XXX Xaxxxxx X Inc. Trust 2003-NC7 Mxxxxxxe Xxxx-Xhrough Certificates, Series 2003-NC7 Class R evidencing a percentage interest in the distributions allocable to the Certificates of the above-referenced Class. Distributions in respect of this Certificate is distributable monthly as set forth herein. This Class R Certificate has no Certificate Balance and is not entitled to distributions in respect of principal or interest. This Certificate does not evidence an obligation of, or an interest in, and is not guaranteed by the Depositor, the Servicer, the Responsible Party or the Trustee referred to below or any of their respective affiliates. Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any governmental agency or instrumentality. This certifies that Morgan Stanley & Co. Incorporated is the registered owner of the Xxxxxxtxxx Xxxerest specified above of any monthly distributions due to the Class R Certificates pursuant to a Pooling and Servicing Agreement dated as of the Cut-off Date specified above (the "Agreement") among Morgan Stanley ABS Capital I Inc., as depositor (the ~~Operating Partnership~~"Depositor"), ~~AMB Property~~ XxxXq Xxxxxxing Corporation, as servicer (the "Servicer"), NC Capital Corporation, as responsible party (the "Responsible Party"), and ~~State Street~~ Deutsche Bank ~~and~~ National Trust ~~Company of California, N.A.~~Company, as trustee (the "Trustee"). To the extent not defined herein, ~~(a)~~ the ~~full~~ capitalized terms used herein have the meanings assigned in the Agreement. This Certificate is issued under and ~~prompt payment~~ is subject to the terms, provisions and conditions of the ~~principal~~ Agreement, to which Agreement the Holder of ~~and premium, if any, on such 2018 Note when and as the same shall become due and payable, whether at Stated Maturity,~~ this Certificate by ~~acceleration, by redemption or otherwise, and (b) the full and prompt payment~~ virtue of the ~~interest on~~ acceptance hereof assents and by which such ~~2018 Note when and as the same shall become due and payable, according to the terms of such 2018 Note and~~ Holder is bound. Any distribution of the ~~Indenture. The undersigned hereby agrees, jointly~~ proceeds of any remaining assets of the Trust Fund will be made only upon presentment and ~~severally with~~ surrender of this Class R Certificate at the Parent Guarantor pursuant to the Parent Guarantee and any other Subsidiary Guarantors under their respective Subsidiary Guarantees, that its obligations hereunder shall be as principal and not merely as surety, and shall be absolute and unconditional, and shall not be affected, modified or impaired offices designated by the following: (a) the failure to give notice to the Guarantors of the occurrence of an Event of Default under the Indenture; (b) the waiver, surrender, compromise, settlement, release or termination of the payment, performance or observance by the Operating Partnership Trustee for such purposes or the ~~Guarantors of any~~ office or all of the obligations, covenants or agreements of either of them contained in the Indenture or the 2018 Notes; (c) the acceleration, extension or any other changes in the time for payment of any principal of or interest or any premium on any 2018 Note or for any other payment under the Indenture or of the time for performance of any other obligations, covenants or agreements under or arising out of the Indenture or the 2018 Notes; (d) the modification or amendment (whether material or otherwise) of any obligation, covenant or agreement set forth in the Indenture or the 2018 Notes; (e) the taking or the omission of any of the actions referred to in the Indenture and in any of the actions under the 2018 Notes; (f) any failure, omission, delay or lack on the part of the Trustee to enforce, assert or exercise any right, power or remedy conferred on agency maintained by the Trustee in New York, New York. No transfer of a Class R Certificate shall be made unless the ~~Indenture~~Trustee shall have received a representation letter from the transferee of such Certificate, acceptable to and in form and substance satisfactory to the Trustee, to the effect that such transferee is not an employee benefit plan or arrangement subject to Section 406 of ERISA, a plan or arrangement subject to Section 4975 of the Code or a plan subject to Similar Law, or a person acting on behalf of any ~~other action~~ such plan or acts on the part of the Trustee or any of the Holders from time to time of the 2018 Notes; (g) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all the assets, marshaling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition with creditors or readjustment of, or other similar proceedings affecting the Guarantors or the Operating Partnership or any of arrangement nor using the assets of any such plan or arrangement to effect such transfer, which representation letter shall not be an expense of ~~them~~the Trustee, the Servicer or the Trust Fund. In the event that such representation is violated, or any ~~allegation~~ attempt is made to transfer to a plan or ~~contest~~ arrangement subject to Section 406 of ERISA or a plan subject to Section 4975 of the ~~validity~~ Code or a plan subject to Similar Law, or a person acting on behalf of any such plan or arrangement or using the assets of any such plan or arrangement, such attempted transfer or acquisition shall be void and of no effect. Each Holder of this ~~Subsidiary Guarantee~~ Class R Certificate shall be deemed by the acceptance or acquisition an Ownership Interest in this Class R Certificate to have agreed to be bound by the following provisions, and the rights of each Person acquiring any ~~such proceeding; (h)~~ Ownership Interest in this Class R Certificate are expressly subject to the ~~extent permitted by law, the release or discharge by operation of law of the Guarantors from the performance or observance of any obligation, covenant or agreement contained in the Indenture;~~ following provisions: (i) each Person holding or acquiring any Ownership Interest in this Class R Certificate shall be a Permitted Transferee and shall promptly notify the Trustee of any change or impending change in its status as a Permitted Transferee, (ii) no Ownership Interest in this Class R Certificate may be registered on the Closing Date or thereafter transferred, and the Trustee shall not register the Transfer of this Certificate unless, in addition to the ~~extent permitted by law~~certificates required to be delivered to the Trustee under Section 5.02(b) of the Agreement, the ~~release or discharge by operation of law~~ Trustee shall have been furnished with a Transfer Affidavit of the ~~Operating Partnership from~~ initial owner or the ~~performance or observance of any obligation, covenant or agreement contained~~ proposed transferee in the ~~Indenture;~~ form attached as Exhibit G to the Agreement, (jiii) each Person holding or acquiring any Ownership Interest in this Class R Certificate shall agree (A) to obtain a Transfer Affidavit from any other Person to whom such Person attempts to Transfer its Ownership Interest this Class R Certificate, (B) to obtain a Transfer Affidavit from any Person for whom such Person is acting as nominee, trustee or agent in connection with any Transfer of this Class R Certificate, (C) not to cause income with respect to the ~~default~~ Class R Certificate to be attributable to a foreign permanent establishment or ~~failure~~ fixed base, within the meaning of ~~the Operating Partnership or the Trustee fully to perform any~~ an applicable income tax treaty, of its obligations set forth in the Indenture or the 2018 Notes; (k) the invalidity, irregularity or unenforceability of the Indenture or the 2018 Notes or any part of any thereof; (l) any judicial or governmental action affecting the Operating Partnership or any 2018 Notes or consent or indulgence granted by the Operating Partnership by the Holders or by the Trustee; or (m) the recovery of any judgment against the Operating Partnership or any action to enforce the same such Person or any other ~~circumstance which might constitute a legal~~ U.S. Person and (D) not to Transfer the Ownership Interest in this Class R Certificate or ~~equitable discharge of a surety or guarantor. The undersigned hereby waives diligence, presentment, demand of payment, filing of claims with a court in~~ to cause the ~~event of merger, sale, lease or conveyance of all or substantially all of its assets, insolvency or bankruptcy~~ Transfer of the ~~Operating Partnership,~~ Ownership Interest in this Class R Certificate to any ~~right to require~~ other Person if it has actual knowledge that such Person is a ~~proceeding first against the Operating Partnership, protest~~ Non-Permitted Transferee and (iv) any attempted or ~~notice with respect to such Notice or the indebtedness evidenced thereby and all demands whatsoever, and covenants that this Subsidiary Guarantee will not be discharged except by complete performance~~ purported Transfer of the ~~obligations contained in such 2018 Note and~~ Ownership Interest in this Subsidiary Guarantee. No reference herein to such Indenture and no provision of this Subsidiary Guarantee or of such Indenture shall alter or impair the guarantee of the undersigned, which is absolute and unconditional, of the full and prompt payment of the principal of and premium, if any, and interest on the 2018 Note. THIS SUBSIDIARY GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. The validity and enforceability of this Subsidiary Guarantee shall not be affected by the fact that it is not affixed to any particular 2018 Note. An Event of Default under the Indenture or the 2018 Notes shall constitute an event of default under this Subsidiary Guarantee, and shall entitle the Holders of 2018 Notes to accelerate the obligations of the undersigned hereunder Class R Certificate in the same manner and to the same extent as the obligations of the Operating Partnership. Notwithstanding any other provision of this Subsidiary Guarantee to the contrary, the undersigned hereby waives any claims or other rights which it may now have or hereafter acquire against the Operating Partnership that arise from the existence or performance of its obligations under this Subsidiary Guarantee (all such claims and rights are referred to as "Guarantor's Conditional Rights"), including, without limitation, any right of subrogation, reimbursement, exoneration, contribution, or indemnification, any right to participate in any claim or remedy against the Operating Partnership, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, by any payment made hereunder or otherwise, including without limitation, the right to take or receive from Operating Partnership, directly or indirectly, in cash or other property or by setoff or in any other manner, payment or security on account of such claim or other rights. The Subsidiary Guarantor hereby agrees not to exercise any rights which may be acquired by way of contribution under this Subsidiary Guarantee or any other agreement, by any payment made hereunder or otherwise, including, without limitation, the right to take or receive from any other guarantor, directly or indirectly, in cash or other property or by setoff or in any other manner, payment or security on account of such contribution rights. If, notwithstanding the foregoing provisions, any amount shall be paid to any of the undersigned on account of any such Guarantor's Conditional Rights and either (i) such amount is paid to such undersigned party at any time when the indebtedness shall not have been paid or performed in full, or (ii) regardless of when such amount is paid to such undersigned party, any payment made by Operating Partnership to a Holder that is at any time determined to be a Preferential Payment (as defined below), then such amount paid to the undersigned shall be held in trust for the benefit of the Holders and shall forthwith be paid such Holder to be credited and applied upon the indebtedness, whether matured or unmatured. Any such payment is herein referred to as a "Preferential Payment" to the extent the Operating Partnership makes any payment to Holder in connection with the Note, and any or all of such payment is subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid or paid over to a trustee, receiver or any other entity, whether under any bankruptcy act or otherwise. To the extent that any violation of the provisions of the immediately preceding paragraph shall not be enforceable, each of the undersigned agrees that until such time as the indebtedness has been paid and performed in full and the period of time has expired during which any payment made by the Operating Partnership or the undersigned to a Holder may be determined to be a Preferential Payment, Guarantor's Conditional Rights to the extent not validly waived herein shall be ~~subordinate to Holders' right to full payment~~ absolutely null and ~~performance of the indebtedness~~ void and ~~each of the undersigned~~ shall not enforce any of its respective portion of the Guarantors' Conditional Rights until such time as the indebtedness has been paid and performed in full and the period of time has expired during which any payment made by the Operating Partnership or the undersigned to Holders may be determined to be a Preferential Payment. The undersigned's liability (the "Base Guaranty Liability") shall be that amount from time to time equal to the aggregate liability of the undersigned hereunder, but shall be limited to the lesser of (A) the aggregate amount of the obligation as stated vest no rights in the second sentence of Section 1401 of the Indenture, and (B) the amount, if any, which would not have (i) rendered the undersigned "insolvent" (as such term is defined in Section 101(29) of the Federal Bankruptcy Code and in Section 271 of the Debtor and Creditor Law of the State of New York, as each is in effect at the date of the Indenture) or (ii) left the undersigned with unreasonably small capital at the time its Guarantee was entered into, after giving effect to the incurrence of existing Debt (as defined in the Indenture) immediately prior to such time, provided that, it shall be a presumption in any lawsuit or other proceeding in which the undersigned is a party that the amount guaranteed is the amount set forth in (A) above unless a creditor, or representative of creditors of the undersigned or a trustee in bankruptcy of the undersigned, as debtor in possession, otherwise proves in such a lawsuit that the aggregate liability of the undersigned is limited to the amount set forth in (B)purported Transferee. In making any determination as to the solvency or sufficiency of capital of the undersigned in accordance with the previous sentence, the right of the undersigned to contribution from other Guarantors, to subrogation and any other rights the undersigned may have, contractual or otherwise, shall be taken into account. The obligations of the undersigned to the Holders of the 2018 Notes and to the Trustee pursuant to the Subsidiary Guarantee and the Indenture are expressly set forth in Article 14 of the Indenture and reference Reference is hereby made to the ~~Indenture~~ further provisions of this Certificate set forth on the reverse hereof, which further provisions shall for all purposes have the ~~precise terms~~ same effect as if set forth at this place. This Certificate shall not be entitled to any benefit under the Agreement or be valid for any purpose unless manually countersigned by an authorized signatory of the ~~Subsidiary Guarantee and all of the other provisions of the Indenture to which this Subsidiary Guarantee relates~~Trustee. ~~Capitalized terms in this Subsidiary Guarantee which are not defined herein shall have the meanings assigned to them in the Indenture.~~* * *

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Morgan Stanley Abs Capital I Inc Trust 2003-Nc7)

Appears in 1 contract

Samples: Pooling and Servicing Agreement (IndyMac INDA Mortgage Loan Trust 2007-Ar8)

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Cendant Mortgage Capital LLC)

Appears in 1 contract

Samples: Distribution Instructions (Salomon Brothers Mort Sec Vii Inc Asst Back Cert Se 1997-Lb2)

Dated. ~~Notice~~Signature by or on behalf of assignor --------------------------------------- Signature Guaranteed DISTRIBUTION INSTRUCTIONS ------------------------- The assignee should include the following for purposes of distribution: The signature to this assignment must correspond with the name as it appears upon the face of the within Note in every particular, without alteration or enlargement or any change whatever. ABBREVIATIONS The following abbreviations, when used in the inscription on the face of this instrument, Distributions shall be ~~construed as though they were written out~~ made, by wire transfer or otherwise, in ~~full according~~ immediately available funds to applicable laws or regulations: TEN COM--as tenants in common UNIF GIFT MIN ACT--_____ Custodian______ TEN ENT--as tenants by the entireties (Cust) (Minor) JT TEN--as joint tenants with right Under Uniform Gifts to Minors of survivorship and not as Act__________________________ tenants in common (State) Additional abbreviations may also be used though not in the above list. --------------------------- [FORM OF SCHEDULE FOR ENDORSEMENTS ON GLOBAL SECURITY TO REFLECT CHANGES IN PRINCIPAL AMOUNT] Schedule A Changes to Principal Amount of Global Security Principal Amount of Securities by which this Global Security is to be Reduced or Increased, and Reason for Remaining Principal Amount of Notation Date Reduction or Increase this Global Securities Made by ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- ------------- --------------------- ----------------------------- ---------- Exhibit B SUBSIDIARY GUARANTEE FOR VALUE RECEIVED, the undersigned hereby jointly and severally with the Parent Guarantor pursuant to the Parent Guarantee and any other subsidiary Guarantors under their respective Subsidiary Guarantees, unconditionally guarantees to the Holder of the accompanying _____~~% Note Due June~~ __________________, ~~2018 (~~for the ~~"2018 Note") issued by AMB Property, L.P. (the "Operating Partnership") under an Indenture dated as~~ account of ~~June~~ ______________________________, ~~1998 (together with the Second Supplemental Indenture thereto~~account number _____________, or, if mailed by check, to ______________________________. Applicable statements should be mailed to ___________________________________________________________. This information is provided by ______________________________________, the assignee named above, or ____________________________________, as its agent. EXHIBIT A-6 ----------- FORM OF CLASS A1-6 CERTIFICATE SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "~~Indenture~~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 (THE "CODE"). THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A1-5 CERTIFICATES TO THE EXTENT DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN. NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT (EACH A "PLAN") ~~among~~ SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE CODE WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROCEDURES DESCRIBED HEREIN. Series 1999-2, Class A1-6 Aggregate Certificate Principal Balance of Class A1-6 Certificates as of the ~~Operating Partnership~~Pass-Through Rate: 6.50% per annum Issue Date: $200,000.00 Date of Agreement and Cut-off Date: Denomination: $______________ February 1, ~~AMB Property Corporation~~1999 Master Servicer: First Distribution Date: Cendant Mortgage Corporation March 25, ~~and State Street~~ 1999 No. _____ Trustee: The Chase Manhattan Bank ~~and~~ Issue Date: February 25, 1999 CUSIP: 79548K J6 6 DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE AS THE DENOMINATION OF THIS CERTIFICATE. MORTGAGE PASS-THROUGH CERTIFICATE evidencing a beneficial ownership interest in a Trust ~~Company of California, N.A., as trustee~~ Fund (the "~~Trustee~~Trust Fund") consisting primarily of a pool of conventional, one- to four-family, fixed-rate, first lien mortgage loans (the "Mortgage Loans") formed and sold by SALOMON BROTHERS MORTGAGE SECURITIES VII, INC. THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN SALOMON BROTHERS MORTGAGE SECURITIES VII, INC., THE MASTER SERVICER, THE TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES. This certifies that ____________________ is the registered owner of a Percentage Interest (obtained by dividing the denomination of this Certificate by the aggregate Certificate Principal Balance of the Class A1-6 Certificates as of the Issue Date) in that certain beneficial ownership interest evidenced by all the Class A1-6 Certificates in REMIC II created pursuant to a Pooling and Servicing Agreement, dated as specified above (the "Agreement"), among Salomon Brothers Mortgage Securities VII, Inc. (a) hereinafter called the ~~full~~ "Depositor," which term includes any successor entity under the Agreement), the Master Servicer and ~~prompt payment~~ the Trustee, a summary of certain of the ~~principal~~ 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 Agreement. This Certificate is issued under and ~~premium~~is subject to the terms, ~~if any, on such 2018 Note when~~ provisions and ~~as the same shall become due and payable, whether at Stated Maturity, by acceleration, by redemption or otherwise, and (b) the full and prompt payment~~ conditions of the ~~interest on~~ Agreement, to which Agreement the Holder of this Certificate by virtue of the acceptance hereof assents and by which such ~~2018 Note when and as the same shall become due and payable, according~~ Holder is bound. Pursuant to the terms of the Agreement, distributions will be made on the 25th day of each month or, if such ~~2018 Note and~~ 25th day is not a Business Day, the Business Day immediately following (a "Distribution Date"), commencing on the First Distribution Date specified above, to the Person in whose name this Certificate is registered on the Record Date, in an amount equal to the product of the ~~Indenture. The undersigned hereby agrees, jointly~~ Percentage Interest evidenced by this Certificate and ~~severally with~~ the ~~Parent Guarantor~~ amount required to be distributed to the Holders of Class A1-6 Certificates on such Distribution Date pursuant to the ~~Parent Guarantee~~ Agreement. All distributions to the Holder of this Certificate under the Agreement will be made or caused to be made by or on behalf of the Trustee by wire transfer in immediately available funds to the account of the Person entitled thereto if such Person shall have so notified the Trustee in writing at least five Business Days prior to the Record Date immediately prior to such Distribution Date and is the registered owner of Class A1-6 Certificates, the aggregate initial Certificate Principal Balance of which is in excess of the lesser of (i) $5,000,000 or (ii) two-thirds of the aggregate initial Certificate Principal Balance of the Class A1-6 Certificates, or otherwise by check mailed by first class mail to the address of the Person entitled thereto, as such name and address shall appear on the Certificate Register. Notwithstanding the above, the final distribution on this Certificate will be made after due notice by the Trustee of the pendency of such distribution and only upon the presentation and surrender of this Certificate at the office or agency appointed by the Trustee for that purpose as provided in the Agreement. This Certificate is one of a duly authorized issue of Certificates designated as Mortgage Pass-Through Certificates of the Series specified on the face hereof (hereinafter called the "Certificates") and representing a Percentage Interest in the Class of Certificates specified on the face hereof equal to the denomination specified on the face hereof divided by the aggregate Certificate Principal Balance of the Class of Certificates specified on the face hereof. The 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 Agreement. As provided in the Agreement, withdrawals from the Collection Account and the Distribution Account may be made from time to time for purposes other than distributions to Holders of the Certificates, such purposes including reimbursement of advances made, or certain expenses incurred, with respect to the Mortgage Loans. The Agreement permits, with certain exceptions and conditions provided therein, the amendment thereof and the modification of the rights and obligations of the Depositor, the Master Servicer and the Trustee and the rights of the Holders of the Certificates under the Agreement at any ~~other Subsidiary Guarantors under their respective Subsidiary Guarantees~~time by the Depositor, ~~that its obligations hereunder~~ the Master Servicer and the Trustee, with the consent of the Holders of Certificates entitled to at least 66% of the Voting Rights. Any such consent by the Holder of this Certificate shall be ~~as principal~~ conclusive and binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in exchange herefor or in lieu hereof whether or not ~~merely as surety~~notation of such consent is made upon this Certificate. The Agreement also permits the amendment thereof, ~~and shall be absolute and unconditional~~in certain limited circumstances, ~~and shall not be affected, modified or impaired by~~ without the ~~following: (a) the failure to give notice to the Guarantors~~ consent of the occurrence of an Event of Default under the Indenture; (b) the waiver, surrender, compromise, settlement, release or termination of the payment, performance or observance by the Operating Partnership or the Guarantors of any or all of the obligations, covenants or agreements of either of them contained in the Indenture or the 2018 Notes; (c) the acceleration, extension or any other changes in the time for payment of any principal of or interest or any premium on any 2018 Note or for any other payment under the Indenture or of the time for performance of any other obligations, covenants or agreements under or arising out of the Indenture or the 2018 Notes; (d) the modification or amendment (whether material or otherwise) of any obligation, covenant or agreement set forth in the Indenture or the 2018 Notes; (e) the taking or the omission Holders of any of the ~~actions referred to~~ Certificates. As provided in the ~~Indenture~~ Agreement and subject to certain limitations set forth therein, the transfer of this Certificate is registrable in ~~any~~ the Certificate Register upon surrender of this Certificate for registration of transfer at the offices or agencies appointed by the Trustee as provided in the Agreement, duly endorsed by, or accompanied by an assignment in the form below or other written instrument of transfer in form satisfactory to the Trustee and the Certificate Registrar duly executed by, the Holder hereof or such Holder's attorney duly authorized in writing, and thereupon one or more new Certificates of the ~~actions under~~ same Class in authorized denominations evidencing the ~~2018 Notes; (f) any failure~~same aggregate Percentage Interest 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 Agreement. As provided in the Agreement and subject to certain limitations set forth therein, ~~omission, delay or lack on the part~~ Certificates are exchangeable for new Certificates of the ~~Trustee~~ same Class in authorized denominations evidencing the same aggregate Percentage Interest, as requested by the Holder surrendering the same. No transfer of this Certificate to ~~enforce, assert~~ a Plan subject to ERISA or ~~exercise any right, power or remedy conferred on the Trustee in the Indenture, or any other action or acts on the part~~ Section 4975 of the Trustee or any of the Holders from time to time of the 2018 Notes; (g) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all the assets, marshaling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition with creditors or readjustment of, or other similar proceedings affecting the Guarantors or the Operating Partnership or any of the assets of any of them, or any allegation or contest of the validity of this Subsidiary Guarantee in any such proceeding; (h) to the extent permitted by law, the release or discharge by operation of law of the Guarantors from the performance or observance of any obligation, covenant or agreement contained in the Indenture; (i) to the extent permitted by law, the release or discharge by operation of law of the Operating Partnership from the performance or observance of any obligation, covenant or agreement contained in the Indenture; (j) the default or failure of the Operating Partnership or the Trustee fully to perform any of its obligations set forth in the Indenture or the 2018 Notes; (k) the invalidity, irregularity or unenforceability of the Indenture or the 2018 Notes or any part of any thereof; (l) any judicial or governmental action affecting the Operating Partnership or any 2018 Notes or consent or indulgence granted by the Operating Partnership by the Holders or by the Trustee; or (m) the recovery of any judgment against the Operating Partnership or any action to enforce the same or any other circumstance which might constitute a legal or equitable discharge of a surety or guarantor. The undersigned hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of merger, sale, lease or conveyance of all or substantially all of its assets, insolvency or bankruptcy of the Operating PartnershipCode, any right to require a proceeding first against the Operating Partnership, protest or notice with respect to such Notice or the indebtedness evidenced thereby and all demands whatsoever, and covenants that this Subsidiary Guarantee will not be discharged except by complete performance of the obligations contained in such 2018 Note and in this Subsidiary Guarantee. No reference herein to such Indenture and no provision of this Subsidiary Guarantee or of such Indenture shall alter or impair the guarantee of the undersigned, which is absolute and unconditional, of the full and prompt payment of the principal of and premium, if any, and interest on the 2018 Note. THIS SUBSIDIARY GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. The validity and enforceability of this Subsidiary Guarantee shall not be affected by the fact that it is not affixed to any particular 2018 Note. An Event of Default under the Indenture or the 2018 Notes shall constitute an event of default under this Subsidiary Guarantee, and shall entitle the Holders of 2018 Notes to accelerate the obligations of the undersigned hereunder in the same manner and to the same extent as the obligations of the Operating Partnership. Notwithstanding any other provision of this Subsidiary Guarantee to the contrary, the undersigned hereby waives any claims or other rights which it may now have or hereafter acquire against the Operating Partnership that arise from the existence or performance of its obligations under this Subsidiary Guarantee (all such claims and rights are referred to as "Guarantor's Conditional Rights"), including, without limitation, any right of subrogation, reimbursement, exoneration, contribution, or indemnification, any right to participate in any claim or remedy against the Operating Partnership, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, by any payment made hereunder or otherwise, including without limitation, the right to take or receive from Operating PartnershipPerson acting, directly or indirectly, ~~in cash or other property or by setoff or in any other manner, payment or security~~ on account of such claim or other rights. The Subsidiary Guarantor hereby agrees not to exercise any rights which may be acquired by way of contribution under this Subsidiary Guarantee or any other agreement, by any payment made hereunder or otherwise, including, without limitation, the right to take or receive from any other guarantor, directly or indirectly, in cash or other property or by setoff or in any other manner, payment or security on account of such contribution rights. If, notwithstanding the foregoing provisions, any amount shall be paid to any of the undersigned on account behalf of any such ~~Guarantor's Conditional Rights and either (i) such amount is paid~~ Plan or any person using Plan Assets to such undersigned party at any time when the indebtedness shall not have been paid or performed in full, or (ii) regardless of when such amount is paid to such undersigned party, any payment made by Operating Partnership to a Holder that is at any time determined to be a Preferential Payment (as defined below), then such amount paid to the undersigned acquire this Certificate shall be ~~held~~ made except in ~~trust for the benefit~~ accordance with Section 5.02(c) of the ~~Holders and shall forthwith~~ Agreement. No service charge will be ~~paid~~ made for any such ~~Holder~~ registration of transfer or exchange of Certificates, but the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be credited and applied upon the indebtedness, whether matured or unmatured. Any such payment is herein referred to as a "Preferential Payment" to the extent the Operating Partnership makes any payment to Holder imposed in connection with any transfer or exchange of Certificates. The Depositor, the ~~Note~~Master Servicer, the Trustee and the Certificate Registrar and any agent of the Depositor, the Master Servicer, the Trustee or the Certificate Registrar may treat the Person in whose name this Certificate is registered as the owner hereof for all purposes, and any or all of such payment is subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid or paid over to a trustee, receiver or any other entity, whether under any bankruptcy act or otherwise. To the extent that any none of the ~~provisions of~~ Depositor, the ~~immediately preceding paragraph~~ Master Servicer, the Trustee, the Certificate Registrar nor any such agent shall ~~not~~ be ~~enforceable, each of the undersigned agrees that until such time as the indebtedness has been paid and performed in full and the period of time has expired during which any payment made~~ affected by ~~the Operating Partnership or the undersigned to a Holder may be determined to be a Preferential Payment, Guarantor's Conditional Rights~~ notice to the extent not validly waived shall be subordinate to Holders' right to full payment and performance of the indebtedness and each of the undersigned shall not enforce any of its respective portion of the Guarantors' Conditional Rights until such time as the indebtedness has been paid and performed in full and the period of time has expired during which any payment made by the Operating Partnership or the undersigned to Holders may be determined to be a Preferential Payment. The undersigned's liability (the "Base Guaranty Liability") shall be that amount from time to time equal to the aggregate liability of the undersigned hereunder, but shall be limited to the lesser of (A) the aggregate amount of the obligation as stated in the second sentence of Section 1401 of the Indenture, and (B) the amount, if any, which would not have (i) rendered the undersigned "insolvent" (as such term is defined in Section 101(29) of the Federal Bankruptcy Code and in Section 271 of the Debtor and Creditor Law of the State of New York, as each is in effect at the date of the Indenture) or (ii) left the undersigned with unreasonably small capital at the time its Guarantee was entered into, after giving effect to the incurrence of existing Debt (as defined in the Indenture) immediately prior to such time, provided that, it shall be a presumption in any lawsuit or other proceeding in which the undersigned is a party that the amount guaranteed is the amount set forth in (A) above unless a creditor, or representative of creditors of the undersigned or a trustee in bankruptcy of the undersigned, as debtor in possession, otherwise proves in such a lawsuit that the aggregate liability of the undersigned is limited to the amount set forth in (B). In making any determination as to the solvency or sufficiency of capital of the undersigned in accordance with the previous sentence, the right of the undersigned to contribution from other Guarantors, to subrogation and any other rights the undersigned may have, contractual or otherwise, shall be taken into accountcontrary. The obligations of created by the ~~undersigned~~ Agreement and the Trust Fund created thereby shall terminate upon payment (or provision for payment) to the Holders of the ~~2018 Notes and to~~ Certificates of all amounts held by or on behalf of the Trustee and required to be paid to them pursuant to the ~~Subsidiary Guarantee~~ Agreement following the earlier of (i) the final payment (or any advance with respect thereto) on or other liquidation of the last Mortgage Loan remaining in REMIC I, and (ii) the purchase by the party designated in the Agreement at a price determined as provided in the Agreement from REMIC I of all the Mortgage Loans and all property acquired in respect of such Mortgage Loans remaining therein. The Agreement permits, but does not require, the party designated in the Agreement to purchase from REMIC I all the Mortgage Loans and all property acquired in respect of any Mortgage Loan remaining therein at a price determined as provided in the Agreement. The exercise of such right will effect early retirement of the Certificates; however, such right to purchase is subject to the aggregate Stated Principal Balance of the Mortgage Loans at the time of purchase being less than 10% of the aggregate principal balance of the Mortgage Loans as of the Cut-off Date. The recitals contained herein shall be taken as statements of the Depositor and the ~~Indenture are expressly set forth in Article 14~~ Trustee assumes no responsibility for their correctness. Unless the certificate of authentication hereon has been executed by the ~~Indenture and reference is hereby made~~ Certificate Registrar, by manual signature, this Certificate shall not be entitled to any benefit under the ~~Indenture~~ Agreement or be valid for the precise terms of the Subsidiary Guarantee and all of the other provisions of the Indenture to which this Subsidiary Guarantee relates. Capitalized terms in this Subsidiary Guarantee which are not defined herein shall have the meanings assigned to them in the Indentureany purpose.

Appears in 1 contract

Samples: Distribution Instructions (Salomon Brothers MRT Sec Vii Inc MRT Ps THR Cert 1999-2)

Common use of Dated Clause in Contracts