GREENWICH CAPITAL ACCEPTANCE, INC., Depositor GREENWICH CAPITAL FINANCIAL PRODUCTS, INC., Seller WELLS FARGO BANK, N.A., Master Servicer and Securities Administrator and DEUTSCHE BANK NATIONAL TRUST COMPANY, Trustee and a Custodian POOLING AND...
GREENWICH
CAPITAL ACCEPTANCE, INC.,
Depositor
GREENWICH
CAPITAL FINANCIAL PRODUCTS, INC.,
Seller
XXXXX
FARGO BANK, N.A.,
Master
Servicer and Securities Administrator
and
DEUTSCHE
BANK NATIONAL TRUST COMPANY,
Trustee
and a Custodian
Dated
as
of March 1, 2007
__________________________________
RBSGC
Mortgage Loan Trust
Mortgage
Loan Pass-Through Certificates, Series 2007-B
|
Page
|
||
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ARTICLE
I
|
DEFINITIONS;
DECLARATION OF TRUST
|
9
|
|
SECTION
1.01.
|
Defined
Terms.
|
9
|
|
SECTION
1.02.
|
Accounting.
|
56
|
|
ARTICLE
II
|
CONVEYANCE
OF MORTGAGE LOANS; ORIGINAL ISSUANCE OF CERTIFICATES
|
56
|
|
SECTION
2.01.
|
Conveyance
of Mortgage Loans.
|
56
|
|
SECTION
2.02.
|
Acceptance
by Trustee.
|
63
|
|
SECTION
2.03.
|
Repurchase
or Substitution of Mortgage Loans by the Originators and the
Seller.
|
65
|
|
SECTION
2.04.
|
Representations
and Warranties of the Seller with Respect to the Mortgage
Loans.
|
69
|
|
SECTION
2.05.
|
[Reserved]
|
70
|
|
SECTION
2.06.
|
Representations
and Warranties of the Depositor.
|
70
|
|
SECTION
2.07.
|
Issuance
of Certificates.
|
72
|
|
SECTION
2.08.
|
Representations
and Warranties of the Seller.
|
72
|
|
SECTION
2.09.
|
Covenants
of the Seller.
|
74
|
|
ARTICLE
III
|
ADMINISTRATION
AND MASTER SERVICING OF THE MORTGAGE LOANS
|
74
|
|
SECTION
3.01.
|
Master
Servicer to Service and Administer the Mortgage Loans.
|
74
|
|
SECTION
3.02.
|
REMIC-Related
Covenants.
|
75
|
|
SECTION
3.03.
|
Monitoring
of Servicers.
|
76
|
|
SECTION
3.04.
|
Fidelity
Bond.
|
77
|
|
SECTION
3.05.
|
Power
to Act; Procedures.
|
78
|
|
SECTION
3.06.
|
Due-on-Sale
Clauses; Assumption Agreements.
|
79
|
|
SECTION
3.07.
|
Release
of Mortgage Files.
|
79
|
|
SECTION
3.08.
|
Documents,
Records and Funds in Possession of Master Servicer to be Held for
Trust
Fund.
|
80
|
|
SECTION
3.09.
|
Standard
Hazard Insurance and Flood Insurance Policies.
|
81
|
|
SECTION
3.10.
|
Presentment
of Claims and Collection of Proceeds.
|
81
|
|
SECTION
3.11.
|
[Reserved]
|
81
|
|
SECTION
3.12.
|
Trustee
to Retain Possession of Certain Insurance Policies and
Documents.
|
81
|
|
SECTION
3.13.
|
Realization
Upon Defaulted Mortgage Loans.
|
82
|
|
SECTION
3.14.
|
Additional
Compensation to the Master Servicer.
|
82
|
|
SECTION
3.15.
|
REO
Property.
|
82
|
|
SECTION
3.16.
|
Assessments
of Compliance and Attestation Reports.
|
83
|
i
|
SECTION
3.17.
|
Annual
Compliance Statement.
|
85
|
|
SECTION
3.18.
|
Enforcement
of Regulation AB Deliverables.
|
86
|
|
SECTION
3.19.
|
Xxxxxxxx-Xxxxx
Certification.
|
86
|
|
SECTION
3.20.
|
Reports
Filed with Securities and Exchange Commission.
|
87
|
|
SECTION
3.21.
|
Additional
Information.
|
93
|
|
SECTION
3.22.
|
Intention
of the Parties and Interpretation.
|
93
|
|
SECTION
3.23.
|
Indemnification.
|
93
|
|
SECTION
3.24.
|
[Reserved]
|
94
|
|
SECTION
3.25.
|
[Reserved]
|
94
|
|
SECTION
3.26.
|
[Reserved]
|
94
|
|
SECTION
3.27.
|
[Reserved]
|
94
|
|
SECTION
3.28.
|
Closing
Opinion of Counsel.
|
94
|
|
SECTION
3.29.
|
[Reserved]
|
95
|
|
SECTION
3.30.
|
Merger
or Consolidation of the Master Servicer.
|
95
|
|
SECTION
3.31.
|
Indemnification
of the Trustee, the Master Servicer and the Securities
Administrator.
|
95
|
|
SECTION
3.32.
|
Limitations
on Liability of the Master Servicer and Others; Indemnification
of Trustee
and Others.
|
96
|
|
SECTION
3.33.
|
Master
Servicer Not to Resign.
|
97
|
|
SECTION
3.34.
|
Successor
Master Servicer.
|
98
|
|
SECTION
3.35.
|
Sale
and Assignment of Master Servicing.
|
98
|
|
SECTION
3.36.
|
Reporting
Requirements of the Commission.
|
99
|
|
ARTICLE
IV
|
ACCOUNTS
|
99
|
|
SECTION
4.01.
|
Servicing
Accounts
|
99
|
|
SECTION
4.02.
|
Distribution
Account.
|
100
|
|
SECTION
4.03.
|
Permitted
Withdrawals and Transfers from the Distribution Account.
|
102
|
|
SECTION
4.04.
|
[Reserved]
|
104
|
|
SECTION
4.05.
|
[Reserved]
|
104
|
|
SECTION
4.06.
|
Prefunding
Account.
|
104
|
|
SECTION
4.07.
|
Capitalized
Interest Account.
|
105
|
|
ARTICLE
V
|
FLOW
OF FUNDS
|
106
|
|
SECTION
5.01.
|
Distributions.
|
106
|
|
SECTION
5.02.
|
[Reserved].
|
112
|
|
SECTION
5.03.
|
Allocation
of Realized Losses.
|
112
|
|
SECTION
5.04.
|
Statements.
|
114
|
|
SECTION
5.05.
|
Remittance
Reports; Advances.
|
117
|
|
SECTION
5.06.
|
Compensating
Interest Payments.
|
118
|
|
SECTION
5.07.
|
Recoveries.
|
118
|
|
ARTICLE
VI
|
THE
CERTIFICATES
|
119
|
|
SECTION
6.01.
|
The
Certificates.
|
119
|
ii
|
SECTION
6.02.
|
Registration
of Transfer and Exchange of Certificates.
|
120
|
|
SECTION
6.03.
|
Mutilated,
Destroyed, Lost or Stolen Certificates.
|
129
|
|
SECTION
6.04.
|
Persons
Deemed Owners.
|
129
|
|
SECTION
6.05.
|
Appointment
of Paying Agent.
|
129
|
|
ARTICLE
VII
|
DEFAULT
|
130
|
|
SECTION
7.01.
|
Events
of Default.
|
130
|
|
SECTION
7.02.
|
Trustee
to Act.
|
132
|
|
SECTION
7.03.
|
Waiver
of Event of Default.
|
133
|
|
SECTION
7.04.
|
Notification
to Certificateholders.
|
134
|
|
ARTICLE
VIII
|
THE
TRUSTEE AND THE SECURITIES ADMINISTRATOR
|
134
|
|
SECTION
8.01.
|
Duties
of the Trustee and the Securities Administrator
|
134
|
|
SECTION
8.02.
|
Certain
Matters Affecting the Trustee and the Securities
Administrator.
|
136
|
|
SECTION
8.03.
|
Trustee
and the Securities Administrator Not Liable for Certificates or
Mortgage
Loans.
|
137
|
|
SECTION
8.04.
|
Trustee,
Custodian, Master Servicer and Securities Administrator May Own
Certificates.
|
138
|
|
SECTION
8.05.
|
Trustee’s
and Securities Administrator’s Fees and Expenses.
|
139
|
|
SECTION
8.06.
|
Eligibility
Requirements for Trustee and Securities Administrator.
|
139
|
|
SECTION
8.07.
|
Resignation
or Removal of Trustee and Securities Administrator.
|
140
|
|
SECTION
8.08.
|
Successor
Trustee and Successor Securities Administrator.
|
141
|
|
SECTION
8.09.
|
Merger
or Consolidation of Trustee or Securities Administrator.
|
142
|
|
SECTION
8.10.
|
Appointment
of Co-Trustee or Separate Trustee.
|
142
|
|
SECTION
8.11.
|
Limitation
of Liability.
|
143
|
|
SECTION
8.12.
|
Trustee
May Enforce Claims Without Possession of Certificates.
|
143
|
|
SECTION
8.13.
|
Suits
for Enforcement.
|
144
|
|
SECTION
8.14.
|
Waiver
of Bond Requirement.
|
144
|
|
SECTION
8.15.
|
Waiver
of Inventory, Accounting and Appraisal Requirement.
|
144
|
|
SECTION
8.16.
|
Appointment
of Custodians.
|
145
|
|
SECTION
8.17.
|
Closing
Opinion of Counsel.
|
145
|
|
ARTICLE
IX
|
REMIC
ADMINISTRATION
|
145
|
|
SECTION
9.01.
|
REMIC
Administration.
|
145
|
|
SECTION
9.02.
|
Prohibited
Transactions and Activities.
|
147
|
|
ARTICLE
X
|
TERMINATION
|
148
|
|
SECTION
10.01.
|
Termination.
|
148
|
|
SECTION
10.02.
|
Additional
Termination Requirements.
|
150
|
iii
|
ARTICLE
XI
|
[RESERVED]
|
150
|
|
ARTICLE
XII
|
MISCELLANEOUS
PROVISIONS
|
150
|
|
SECTION
12.01.
|
Amendment.
|
150
|
|
SECTION
12.02.
|
Recordation
of Agreement; Counterparts.
|
152
|
|
SECTION
12.03.
|
Limitation
on Rights of Certificateholders.
|
152
|
|
SECTION
12.04.
|
Governing
Law; Jurisdiction.
|
153
|
|
SECTION
12.05.
|
Notices.
|
153
|
|
SECTION
12.06.
|
Severability
of Provisions.
|
154
|
|
SECTION
12.07.
|
Article
and Section References.
|
154
|
|
SECTION
12.08.
|
Notices
to each Rating Agencies.
|
154
|
|
SECTION
12.09.
|
Further
Assurances.
|
155
|
|
SECTION
12.10.
|
Benefits
of Agreement.
|
155
|
|
SECTION
12.11.
|
Acts
of Certificateholders.
|
156
|
|
SECTION
12.12.
|
Successors
and Assigns.
|
156
|
|
SECTION
12.13.
|
Provision
of Information.
|
156
|
|
SECTION
12.14.
|
Transfer
of Servicing.
|
157
|
EXHIBITS
AND SCHEDULES:
|
Exhibit
A-1
|
Form
of Senior Certificate
|
X-0
|
|
Xxxxxxx
X-0
|
Form
of Class 1X Certificate
|
X-0
|
|
Xxxxxxx
X-0
|
Form
of Class 1PO Certificate
|
A-3
|
|
Exhibit
B
|
Form
of Residual Certificate
|
B-1
|
|
Exhibit
C
|
Form
of Subordinate Certificate
|
C-1
|
|
Exhibit
D
|
Form
of Class P Certificate
|
D-1
|
|
Exhibit
E
|
Form
of Reverse of the Certificates
|
E-1
|
|
Exhibit
F
|
Request
for Release
|
F-1
|
|
Exhibit
G-1
|
Form
of Receipt of Mortgage Note
|
G-1-1
|
|
Exhibit
G-2
|
Form
of Interim Certification of Trustee
|
G-2-1
|
|
Exhibit
G-3
|
Form
of Final Certification of Trustee
|
G-3-1
|
|
Exhibit
H
|
Form
of Lost Note Affidavit
|
H-1
|
|
Exhibit
I-1
|
Form
of ERISA Representation for Residual Certificates
|
I-1-1
|
|
Exhibit
I-2
|
Form
of ERISA Representation for ERISA-Restricted Certificates
|
I-2-1
|
|
Exhibit
J-1
|
Form
of Investment Letter [Non-Rule 000X]
|
X-0-0
|
|
Xxxxxxx
X-0
|
Form
of Rule 144A Investment Letter
|
J-2-1
|
|
Exhibit
K
|
Form
of Transferor Certificate
|
K-1
|
|
Exhibit
L
|
Transfer
Affidavit for Residual Certificate Pursuant to Section
6.02(e)
|
L-1
|
|
Exhibit
M
|
List
of Servicing Agreements
|
M-1
|
|
Exhibit
N-1
|
Form
of Transfer Certificate (Restricted Global Security to Regulation
S
Security)
|
N-1-1
|
|
Exhibit
N-2
|
Form
of Transfer Certificate (Regulation S Security to Restricted Global
Security)
|
N-2-1
|
iv
|
Exhibit
O
|
Form
of Back-Up Xxxxxxxx-Xxxxx Certification
|
O-1
|
|
Exhibit
P
|
Form
of Subsequent Transfer Agreement
|
P-1
|
|
Exhibit
Q
|
Form
of Securities Administrator Certification
|
Q-1
|
|
Exhibit
R
|
Form
of Certification Regarding Servicing Criteria to be Addressed in
Report on
Assessment of Compliance
|
R-1
|
|
Exhibit
S
|
Transaction
Parties
|
S-1
|
|
Exhibit
T
|
Form
10-D, Form 8-K and Form 10-K Reporting Responsibility
|
T-1
|
|
Exhibit
U
|
Form
of Additional Disclosure Notification
|
U-1
|
|
Exhibit
V
|
List
of Originators and Purchase Agreements
|
V-1
|
Schedule
I Mortgage
Loan Schedule
v
This
Pooling and Servicing Agreement is dated as of March 1, 2007 (the “Agreement”),
among
GREENWICH CAPITAL ACCEPTANCE, INC., a Delaware corporation, as depositor
(the
“Depositor”),
GREENWICH CAPITAL FINANCIAL PRODUCTS, INC., a Delaware corporation, as seller
(the “Seller”),
XXXXX
FARGO BANK, N.A., a national banking association, as master servicer (in
such
capacity, the “Master
Servicer”)
and as
securities administrator (in such capacity, the “Securities
Administrator”)
and
DEUTSCHE BANK NATIONAL TRUST COMPANY, a national banking association, as
trustee
and a custodian (the “Trustee”).
PRELIMINARY
STATEMENT:
Through
this Agreement, the Depositor intends to cause the issuance and sale of the
RBSGC Mortgage Loan Trust Mortgage Loan Pass-Through Certificates, Series
2007-B
(the “Certificates”)
representing in the aggregate the entire beneficial ownership of the Trust
Fund,
the primary assets of which are the Mortgage Loans (as defined
below).
The
Depositor intends to sell the Certificates to be issued hereunder in multiple
classes, which in the aggregate will evidence the entire beneficial ownership
interest in the Trust Fund created hereunder. The Certificates will consist
of
27 classes of certificates, designated as (i) the Class 1A1 Certificates,
(ii)
the Class 1A2 Certificates, (iii) the Class 1A3 Certificates, (iv) the Class
1A4
Certificates, (v) the Class 1A5 Certificates, (vi) the Class 1A6 Certificates,
(vii) the Class 2A1 Certificates, (viii) the Class 3A1 Certificates, (ix)
the
Class 3A2 Certificates, (x) the Class 1X Certificates, (xi) the Class 1PO
Certificates, (xii) the Class 1B1 Certificates, (xiii) the Class 1B2
Certificates, (xiv) the Class 1B3 Certificates, (xv) the Class 1B4 Certificates,
(xvi) the Class 1B5 Certificates, (xvii) the Class 1B6 Certificates, (xviii)
the
Class 1B7 Certificates, (xix) the Class 3B1 Certificates, (xx) the Class
3B2
Certificates, (xxi) the Class 3B3 Certificates, (xxii) the Class 3B4
Certificates, (xxiii) the Class 3B5 Certificates, (xxiv) the Class 3B6
Certificates, (xxv) the Class P Certificates, (xxvi) the Class LT-R Certificates
and (xxvii) the Class R Certificates.
For
federal income tax purposes, the Trust Fund (exclusive of the assets held
in the
Prefunding Account and the Capitalized Interest Account (the “Excluded
Trust Property”))
comprises three REMICs in a tiered REMIC structure: the “Lower-Tier
REMIC,”
the
“Middle-Tier
REMIC,”
and
the “Upper-Tier
REMIC.”
Each
Certificate, other than the Class R and Class LT-R Certificates, shall represent
ownership of a regular interest in the Upper-Tier REMIC, as described herein.
The Class R Certificate represents the sole class of residual interest in
the
Upper-Tier REMIC and the Middle-Tier REMIC. The Class LT-R Certificate
represents ownership of the sole class of residual interest in the Lower-Tier
REMIC.
The
Lower-Tier REMIC will hold as its assets all of the assets constituting the
Trust Fund (exclusive of the Excluded Trust Property) and will issue 21
uncertificated interests, which shall be the “Lower-Tier
Regular Interests”
and
one
certificated residual interest represented by the Class LT-R Certificate,
which
will represent the sole residual interest in the Lower-Tier REMIC.
The
Middle-Tier REMIC will hold as its assets all of the Lower-Tier Regular
Interests and shall issue 24 uncertificated interests, 23 of which shall
be the
“Middle-Tier
Regular Interests,”
and
one
of which, the MT-R Interest, shall be the sole residual interest in the
Middle-Tier REMIC.
1
The
Upper-Tier REMIC shall hold as assets the Middle-Tier Regular Interests and
shall issue the Certificates, other than the Class LT-R
Certificate.
For
purposes of the REMIC Provisions, the startup day for each REMIC created
hereby
is the Closing Date. All REMIC regular and residual interests created hereby
will be retired on or before the Latest Possible Maturity Date.
Lower-Tier
REMIC
The
following table sets forth (or describes) the designation, interest rate,
and
initial principal balance of each Lower-Tier Regular Interest and the Class
LT-R
Certificate:
|
Designation
|
Interest
Rate
|
Initial
Principal Balance
|
Related
Mortgage Pool
or
Loan Subgroup
|
|
LT1-SG1
|
6.00%
|
$ 162,174,546.91
|
Pool
1 Subgroup 1
|
|
LT1-SUB1
|
6.00%
|
$ 94,470.17
|
Pool
1 Subgroup1
|
|
LT1-PO1
|
0.00%
|
$ 593,600.00
|
Pool
1 Subgroup 1
|
|
LT1-SG2
|
6.50%
|
$ 234,961,488.39
|
Pool
1 Subgroup 2
|
|
LT1-SUB2
|
6.50%
|
$ 136,357.46
|
Pool
1 Subgroup 2
|
|
LT1-SG3
|
7.00%
|
$ 61,251,567.55
|
Pool
1 Subgroup 3
|
|
LT1-SUB3
|
7.00%
|
$ 35,541.09
|
Pool
1 Subgroup 3
|
|
LT1-SG4
|
7.50%
|
$ 46,293,521.17
|
Pool
1 Subgroup 4
|
|
LT1-SUB4
|
7.50%
|
$ 26,863.85
|
Pool
1 Subgroup 4
|
|
LT-1X4
|
(1)
|
(1)
|
Pool
1 Subgroup 4
|
|
LT2-SG
|
(2)
|
$ 26,042,736.86
|
Pool
2
|
|
LT2-SUB
|
(2)
|
$ 15,118.55
|
Pool
2
|
|
LT3-A1
|
(3)
|
$ 93,575,000.00
|
Pool
3
|
|
LT3-A2
|
(3)
|
$ 2,620,000.00
|
Pool
3
|
|
LT3-B1
|
(3)
|
$ 1,236,000.00
|
Pool
3
|
|
LT3-B2
|
(3)
|
$ 593,000.00
|
Pool
3
|
|
LT3-B3
|
(3)
|
$ 296,000.00
|
Pool
3
|
|
LT3-B4
|
(3)
|
$ 198,000.00
|
Pool
3
|
|
LT3-B5
|
(3)
|
$ 148,000.00
|
Pool
3
|
|
LT3-B6
|
(3)
|
$ 148,568.97
|
Xxxx
0
|
|
XX-X
|
(4)
|
$ 100.00
|
N/A
|
|
LT-R
|
(5)
|
(5)
|
N/A
|
|
(1)
|
The
interest rate with respect to any Distribution Date (and the related
Accrual Period) for the LT-X4 Interest shall equal to the weighted
average
of the Stripped Interest Rates for the Premium Mortgage Loans in
Pool 1
Subgroup 4. The LT-X4 Interest is an interest only interest that
does not
have a principal balance. For any Distribution Date it shall have
a
notional balance equal to the aggregate of the Stated Principal
Balances
of the Premium Loans in Pool 1 Subgroup 4 as of the first day of
the
related Due Period.
|
2
|
(2)
|
For
any Distribution Date (and the related Accrual Period) each of
these
Lower-Tier Regular Interests shall accrue interest at a per annum
rate
equal to the Pool 2 Net WAC.
|
|
(3)
|
For
any Distribution Date (and the related Accrual Period) each of
these
Lower-Tier Regular Interests shall accrue interest at a per annum
rate
equal to the Pool 3 Net WAC.
|
|
(4)
|
The
LT-P Interest shall not accrue interest but shall be entitled on
each
Distribution Date to all Prepayment Penalty
Amounts.
|
|
(5)
|
The
LT-R Certificate is the sole class of residual interests in the
Lower-Tier
REMIC. It does not have an interest rate or a principal balance.
|
On
each
Distribution Date, Available Funds for Pool 1 and Pool 2 shall be allocated
among the Lower-Tier Regular Interests related to Pool 1 and Pool 2 in the
following order of priority:
|
(i)
|
First,
to the LT1-SUB1, LT1-SUB2, LT1-SUB3, LT1-SUB4, and LT2-SUB Interests
as
follows:
|
|
(a)
|
to
the LT-SUB1 Interest until its principal balance equals one percent
of the
Subordinate Component for Pool 1 Subgroup 1 for the immediately
succeeding
Distribution Date;
|
|
(b)
|
to
the LT-SUB2 Interest until its principal balance equals one percent
of the
Subordinate Component for Pool 1 Subgroup 2 for the immediately
succeeding
Distribution Date;
|
|
(c)
|
to
the LT-SUB3 Interest until its principal balance equals one-percent
of the
Subordinate Component for Pool 1 Subgroup 3 for the immediately
succeeding
Distribution Date;
|
|
(d)
|
to
the LT-SUB4 Interest until its principal balance equals one-percent
of the
Subordinate Component for Pool 1 Subgroup 4 for the immediately
succeeding
Distribution Date;
|
|
(e)
|
to
the LT2-SUB Interest until its principal balance equals one-percent
of the
Subordinate Component for Pool 2 for the immediately succeeding
Distribution Date;
|
|
(f)
|
to
the LT1-SUB1, LT1-SUB2, LT1-SUB3, LT1-SUB4, or LT2-SUB Interests
the
amount necessary to cause the ratio of the principal balance of
each such
Lower-Tier Regular Interest to the principal balance of the other
such
Lower-Tier Regular Interests to equal the ratio of the Subordinate
Component for the related Loan Subgroup or Mortgage Pool in the
case of
the LT2-SUB Interest, to the Subordinate Component related to the
other
Loan Subgroups, or Mortgage Pool, in the case of the LT2-SUB Interest,
for
the immediately succeeding Distribution
Date;
|
3
|
(ii)
|
Second,
concurrently to the XX0-XX0, XX0-XX0, XX0-XX0, XX0-XX0, and LT2-SG
Interests until -
|
|
(a)
|
the
principal balance of the LT1-SG1 Interest equals the excess of
(I) the
Non-PO Loan Subgroup Balance for Pool 1 Subgroup 1 for the immediately
succeeding Distribution Date, over (II) the principal balance of
the LT1-
SUB1 Interest for such Distribution Date, after taking into account
distributions pursuant to priority (i) above for such Distribution
Date;
|
|
(b)
|
the
principal balance of the LT1-SG2 Interest equals the excess of
(I) the
Loan Subgroup Balance for Pool 1 Subgroup 2 for the immediately
succeeding
Distribution Date, over (II) the principal balance of the LT1-SUB2
Interest for such Distribution Date, after taking into account
distributions pursuant to priority (i) above for such Distribution
Date;
|
|
(c)
|
the
principal balance of the LT1-SG3 Interest equals the excess of
(I) the
Loan Subgroup Balance for Pool 1 Subgroup 3 for the immediately
succeeding
Distribution Date, over (II) the principal balance of the LT1-SUB3
Interest for such Distribution Date, after taking into account
distributions pursuant to priority (i) above for such Distribution
Date;
|
|
(d)
|
the
principal balance of the LT1-SG4 Interest equals the excess of
(I) the
Loan Subgroup Balance for Pool 1 Subgroup 4 for the immediately
succeeding
Distribution Date, over (II) the principal balance of the LT1-SUB4
Interest for such Distribution Date, after taking into account
distributions pursuant to priority (i) above for such Distribution
Date;
|
|
(e)
|
the
principal balance of the LT2-SG Interest equals the excess of (I)
the Pool
Balance for Pool 2 for the immediately succeeding Distribution
Date, over
(II) the principal balance of the LT2-SUB Interest for such Distribution
Date, after taking into account distributions pursuant to priority
(i)
above for such Distribution Date;
|
|
(iii)
|
Third,
to the LT-POI Interest, an amount equal to the Class 1PO Principal
Distribution Amount for such Distribution
Date;
|
|
(iv)
|
Fourth,
to make interest distributions on the Lower-Tier Regular Interests
related
to Pool 1 or Pool 2 at the interest rates shown or described above.
|
|
(v)
|
Fifth,
to the LT-P Interest, an amount equal to the Class P Distributable
Amount
for such Distribution Date (excluding Prepayment Penalty
Amounts);
|
|
(vi)
|
Finally,
any remaining amounts to the Class LT-R
Certificate.
|
4
On
each
Distribution Date, Available Funds for Pool 3 shall be allocated among the
Lower-Tier Regular Interests related to Pool 3 in the following order of
priority:
(i)
First, as interest at the interest rate described above;
(ii)
Second, as principal, pro rata among the Lower-Tier Regular Interests related
to
Pool 3;
(iii)
Finally, any remaining amounts, to the Class LT-R Certificate.
On
each
Distribution Date, the LT-P Interest shall be entitled to all Prepayment
Penalty
Amounts available for distribution on such Distribution Date.
Notwithstanding
the foregoing, on each Distribution Date, Net Interest Shortfalls, if any,
for
any Mortgage Pool, or, in the case of Pool 1, any Loan Subgroup, will reduce
the
amount of interest distributable on the related Lower-Tier Regular Interests,
and Net Interest Shortfalls for any Mortgage Pool or Loan Subgroup shall
be
allocated among the Lower-Tier Regular Interests related to such Mortgage
Pool
or Loan Subgroup in proportion to the amounts of interest to which those
Lower-Tier Regular Interests otherwise would have been entitled.
Realized
Losses for any Mortgage Pool, or, in the case of Pool 1, any Loan Subgroup,
shall be applied to reduce the balance of the related Lower-Tier Regular
Interest in the same manner in which principal is allocated amount such
Lower-Tier Regular Interests pursuant to priorities (i) through (iii) above.
Middle-Tier
REMIC
The
following table sets forth (or describes) the designation, interest rate,
and
initial principal balance of each Middle-Tier Regular Interest and the MT-R
Interest:
|
Designation
|
Interest
Rate
|
Initial
Principal Balance
|
Corresponding
Class of
Certificates
or
Component
|
|
MT-1A1-1
|
7.00%
|
$ 57,733,000.00
|
0X0-0
|
|
XX-0X0-0
|
7.50%
|
$ 43,634,000.00
|
0X0-0
|
|
XX-0X0
|
6.50%
|
$ 221,462,100.00
|
Class
1A4
|
|
MT-1A5
|
6.00%
|
$ 152,822,000.00
|
Class
1A5
|
|
MT-2A1
|
(1)
|
$ 24,546,000.00
|
Class
2A1
|
|
MT-3A1
|
(2)
|
$ 93,575,000.00
|
Class
3A1
|
|
MT-3A2
|
(2)
|
$ 2,620,000.00
|
Class
3A2
|
|
MT-1X
|
(3)
|
(3)
|
Class
1X
|
|
MT-1PO
|
0.00%
|
$ 593,600.00
|
Class
1PO
|
|
MT-1B1
|
(4)
|
$ 10,633,000.00
|
Class
1B1
|
|
MT-1B2
|
(4)
|
$ 6,114,000.00
|
Class
1B2
|
|
MT-1B3
|
(4)
|
$ 4,784,000.00
|
Class
1B3
|
|
MT-1B4
|
(4)
|
$ 3,456,000.00
|
Class
1B4
|
|
MT-1B5
|
(4)
|
$ 2,392,000.00
|
Class
1B5
|
5
|
MT-1B6
|
(4)
|
$ 1,861,000.00
|
Class
1B6
|
|
MT-1B7
|
(4)
|
$ 1,595,111.98
|
Class
1B7
|
|
MT-3B1
|
(2)
|
$ 1,236,000.00
|
Class
3B1
|
|
MT-3B2
|
(2)
|
$ 593,000.00
|
Class
3B2
|
|
MT-3B3
|
(2)
|
$ 296,000.00
|
Class
3B3
|
|
MT-3B4
|
(2)
|
$ 198,000.00
|
Class
3B4
|
|
MT-3B5
|
(2)
|
$ 148,000.00
|
Class
3B5
|
|
MT-3B6
|
(2)
|
$ 148,568.97
|
Class
3B6
|
|
MT-P
|
(5)
|
$ 100.00
|
Class
P
|
|
MT-R
|
(6)
|
(6)
|
N/A
|
|
(1)
|
For
any Distribution Date (and the related Accrual Period) each of
these
Lower-Tier Regular Interests shall accrue interest at a per annum
rate
equal to the Pool 2 Net WAC.
|
|
(2)
|
For
any Distribution Date (and the related Accrual Period) each of
these
Lower-Tier Regular Interests shall accrue interest at a per annum
rate
equal to the Pool 3 Net WAC.
|
|
(3)
|
For
any Distribution Date, the MT-X4 Interest shall be entitled to
all amounts
distributable with respect tot the LT-X4 Interest..
|
|
(4)
|
For
any Distribution Date (and the related Accrual Period), each of
these
Middle-Tier Regular Interests shall accrue interest at a per annum
rate
equal to the weighted average of the interest rates on the LT1-SUB1,
LT1-SUB2, LT1-SUB3, LT1-SUB4, and LT2-SUB Interests, weighted on
the basis
of their relative principal balances as of the first day of the
related
Accrual Period.
|
|
(5)
|
The
LT-P Interest shall not accrue interest but shall be entitled on
each
Distribution Date to all Prepayment Penalty
Amounts.
|
|
(6)
|
The
MT-R Certificate is the sole class of residual interests in the
Middle-Tier REMIC. It does not have an interest rate or a principal
balance.
|
On
each
Distribution Date, amounts distributed with respect to the Lower-Tier REMIC
shall be distributed with respect to the Middle-Tier Regular Interests in
the
following order of priority:
(i)
First, as principal on the Middle-Tier Regular Interests until the principal
balance of each such Middle-Tier Regular Interest equals the Class Principal
Balance for the Corresponding Class of Certificates (or Component Principal
Balance of the Corresponding Component) immediately after such Distribution
Date.
(ii)
Second, as interest on the Middle-Tier Regular Interests, at the interest
rates
described above.
On
each
Distribution Date, the MT-P Interest shall be entitled to all Prepayment
Penalty
Amounts passed through on the LT-P Interest and the Class P Distributable
Amount
(other than Prepayment Penalty Amounts).
6
The
Certificates
The
following table sets forth (or describes) the Class designation, Pass-Through
Rate, and Original Class Principal Balance (or Original Class Notional Balance)
for each Class of Certificates comprising interests in the Trust Fund created
hereunder. Each Class of Certificates, other than the Class R and Class LT-R
Certificates, is hereby designated as representing ownership of regular
interests in the Upper-Tier REMIC.
|
Original
Class Principal Balance or
Class
Notional Balance
|
Pass-Through
Rate
|
|
|
Class
1A1
|
$ 101,367,000.00
|
(1)
|
|
Class
1A2
|
Notional Amount(2)
|
(3)
|
|
Class
1A3
|
Notional Amount(4)
|
(5)
|
|
Class
1A4
|
$ 221,462,000.00
|
(6)
|
|
Class
1A5
|
$ 152,822,000.00
|
6.000000%
|
|
Class
1A6
|
Notional Amount(7)
|
(8)
|
|
Class
2A1
|
$ 24,546,000.00
|
(9)
|
|
Class
3A1
|
$ 93,575,000.00
|
(10)
|
|
Class
3A2
|
$ 2,620,000.00
|
(10)
|
|
Class
1X
|
Notional Amount(11)
|
6.000000%
|
|
Class
1PO
|
$ 593,600.00
|
(12)
|
|
Class
R
|
$ 100.00
|
6.500000%
|
|
Class
1B1
|
$ 10,633,000.00
|
(13)
|
|
Class
1B2
|
$ 6,114,000.00
|
(13)
|
|
Class
1B3
|
$ 4,784,000.00
|
(13)
|
|
Class
1B4
|
$ 3,456,000.00
|
(13)
|
|
Class
1B5
|
$ 2,392,000.00
|
(13)
|
|
Class
1B6
|
$ 1,861,000.00
|
(13)
|
|
Class
1B7
|
$ 1,595,111.00
|
(13)
|
|
Class
3B1
|
$ 1,236,000.00
|
(10)
|
|
Class
3B2
|
$ 593,000.00
|
(10)
|
|
Class
3B3
|
$ 296,000.00
|
(10)
|
|
Class
3B4
|
$ 198,000.00
|
(10)
|
|
Class
3B5
|
$ 148,000.00
|
(10)
|
|
Class
3B6
|
$ 148,568.00
|
(10)
|
|
Class
P
|
$ 100.00
|
(14)
|
|
Class
LT-R
|
(15)
|
(15)
|
____________
|
(1)
|
On
each Distribution Date, the Pass-Through Rate on the Class 1A1
Certificates shall be equal to LIBOR plus 0.30% per annum, subject
to a
minimum Pass-Through Rate of 0.30% per annum and a maximum Pass-Through
Rate of 7.000% per annum. Solely for purposes of determining payments
of
principal and the allocation of Realized Losses, the Class 1A1
Certificates will comprise two Components: the 1A1-1 Component
and the
1A1-2 Component. The 1A1-1 Component and the 1A1-2 Component will
each
have a component principal balance (initially, each equal to $57,733,000
and $43,634,000, respectively) that will be reduced by all amounts
actually distributed as principal of such component and all Realized
Losses applied in reduction of principal of such component on all
prior
distribution dates.
|
7
|
(2)
|
The
Class 1A2 Certificates will not receive any distributions of principal.
Interest will accrue on the Class 1A2 Notional Balance, initially
equal to
$43,634,000.
|
|
(3)
|
On
each Distribution Date, the Pass-Through Rate on the Class 1A2
Certificates will equal the excess of (a) 7.20% per annum over
(b) LIBOR,
subject to a minimum Pass-Through Rate of 0.50% per annum.
|
|
(4)
|
The
Class 1A3 Certificates will not receive any distributions of principal.
Interest will accrue on the Class 1A3 Notional Balance, initially
equal to
$57,733,000.00.
|
|
(5)
|
On
each Distribution Date, the Pass-Through Rate on the Class 1A3
Certificates will equal the excess of (a) 6.70% per annum over
(b) LIBOR,
subject to a minimum Pass-Through Rate of 0.00% per annum.
|
|
(6)
|
On
each Distribution Date, the Pass-Through Rate on the Class 1A4
Certificates will equal the sum of LIBOR plus 0.45%, subject to
a minimum
Pass-Through Rate of 0.45% per annum and a maximum Pass-Through
Rate of
6.50% per annum.
|
|
(7)
|
The
Class 1A6 Certificates will not receive any distributions of principal.
Interest will accrue on the Class 1A6 Notional Balance, initially
equal to
$221,462,000.00.
|
|
(8)
|
On
each Distribution Date, the Pass-Through Rate on the Class 1A6
Certificates will be equal to the excess of (a) 6.05% per annum
over (b)
LIBOR, subject to a minimum Pass-Through Rate of 0.00% per annum.
|
|
(9)
|
On
each Distribution Date, the Pass-Through Rate on the Class 2A1
Certificates shall equal the Pool 2 Net WAC. The
Pass-Through Rate for the Class 2A1 Certificates for the initial
Accrual
Period shall be equal to an annual rate of
6.092604%.
|
|
(10)
|
On
each Distribution Date, the Pass-Through Rates for the Class 3A1,
Class
3A2, Class
3B1, Class 3B2, Class 3B3, Class 3B4, Class 3B5 and Class 3B6 Certificates
shall equal the Pool 3 Net WAC. The Pass-Through Rate for the Pool
3
Senior Certificates and the Pool 3 Subordinate Certificates for
the
initial Accrual Period shall be equal to an annual rate of
5.460696%.
|
|
(11)
|
The
Class 1X Certificates will not receive any distributions of principal.
Interest will accrue on the Class 1X Notional Balance, initially
equal to
$813,668.00. For purposes of the REMIC Provisions, the Class 1X
Certificates shall be entitled on any Distribution Date to all
amounts
distributable in respect of the MT-X4 interest in the Lower-Tier
REMIC.
|
|
(12)
|
The
Class 1PO Certificates are principal-only certificates and will
not be
entitled to distributions of interest.
|
|
(13)
|
The
Class 1B1, Class 1B2, Class 1B3, Class 1B4, Class 1B5, Class 1B6
and Class
1B7 Certificates shall have a Pass-Through Rate equal to the weighted
average of (1) a per annum rate calculated as the quotient expressed
as a
percentage of (a) the sum of (i) the product of (x) 6.00% and (y)
the
related Subordinate Component for Pool 1 Subgroup 1 for such Distribution
Date, (ii) the product of (x) 6.50% and (y) the related Subordinate
Component for Pool 1 Subgroup 2 for such Distribution Date, (iii)
the
product of (x) 7.00% and (y) the related Subordinate Component
for Pool 1
Subgroup 3 for such Distribution Date and (iv) the product of (x)
7.50%
and (y) the related Subordinate Component for Pool 1 Subgroup 4
for such
Distribution Date, divided
by
(b) the aggregate of the subgroup subordinate amounts relating
to each
Loan Subgroup for that Distribution Date and (2) the weighted average
of
the Net Loan Rates of the Pool 2 Mortgage Loans, in each case weighted
on
the basis of the related Subordinate Component. The Pass-Through
Rate for
the Pool 1-2 Subordinate Certificates for the initial Accrual Period
shall
be equal to an annual rate of 6.471591%.
|
|
(14)
|
The
Class P Certificates are principal-only certificates and (a) will
not be
entitled to distributions of interest and (b) are entitled to receive
the
“Class P Distributable Amount.”
|
8
|
(15)
|
For
purposes of the REMIC provisions, the Class LT-R Certificate represents
ownership of the sole residual interest in the Lower-Tier REMIC
and does
not have a principal balance or a pass-through
rate.
|
ARTICLE
I
DEFINITIONS;
DECLARATION OF TRUST
SECTION
1.01. Defined
Terms.
Whenever
used in this Agreement or in the Preliminary Statement, the following words
and
phrases, unless the context otherwise requires, shall have the meanings
specified in this Article. All calculations of interest described herein
shall
be made on the basis of an assumed 360-day year consisting of twelve 30-day
months unless otherwise indicated in this Agreement.
“Accepted
Master Servicing Practices”:
With
respect to any Mortgage Loan, as applicable, either (x) those customary mortgage
servicing practices of prudent mortgage servicing institutions that master
service mortgage loans of the same type and quality as such Mortgage Loan
in the
jurisdiction where the related Mortgaged Property is located, to the extent
applicable to the Trustee (as successor Master Servicer) or the Master Servicer
(except in its capacity as successor to any Servicer), or (y) as provided
in the
Servicing Agreements, to the extent applicable to the Servicers, but in no
event
below the standard set forth in clause (x).
“Account”:
The
Distribution Account, the Servicing Account or the Prefunding Account, as
the
context requires.
“Accrual
Period”:
With
respect to each Distribution Date and the Class 1A5, Class 2A1, Class 3A1,
Class 3A2, Class 1X and Class R Certificates, the Subordinate Certificates
and
each Lower-Tier Regular Interest, the calendar month immediately preceding
the
month in which that Distribution Date occurs. With respect to each Distribution
Date and the LIBOR Certificates, the period beginning with the prior
Distribution Date (or the 25th day of the preceding calendar month, in the
case
of the first Distribution Date) and ending on the day immediately preceding
such
Distribution Date. Interest on the Certificates and each Lower-Tier Regular
Interest shall be calculated based on an assumption that each month has 30
days
and each year has 360 days.
“Additional
Disclosure Notification”:
As
defined in Section 3.20(a)(ii).
“Additional
Form 10-D Disclosure”:
As
defined in Section 3.20(a)(1).
“Additional
Form 10-K Disclosure”:
As
defined in Section 3.20(b)(i).
“Advance”:
With
respect to any Distribution Date and any Mortgage Loan or REO Property, any
advance made by the Master Servicer (including, without limitation, the Trustee
in its capacity as successor Master Servicer) in respect of such Distribution
Date pursuant to Section 5.05 or by any Servicer in accordance with the related
Servicing Agreement for such Distribution Date.
9
“Adverse
REMIC Event”:
Either
(i) the loss of status as a REMIC, within the meaning of Section 860D of
the
Code, for any group of assets identified as a REMIC in the Preliminary Statement
to this Agreement, or (ii) the imposition of any tax, including the tax imposed
under Section 860F(a)(1) on prohibited transactions and the tax imposed under
Section 860G(d) on certain contributions to a REMIC, on any REMIC created
hereunder to the extent such tax would be payable from assets held as part
of
the Trust Fund.
“Affiliate”:
With
respect to any Person, any other Person controlling, controlled by or under
common control with such Person. For purposes of this definition, “control”
means the power to direct the management and policies of a Person, directly
or
indirectly, whether through ownership of voting securities, by contract or
otherwise and “controlling” and “controlled” shall have meanings correlative to
the foregoing.
“Aggregate
Collateral Balance”:
With
respect to any date of determination (other than the Closing Date), an amount
equal to the aggregate Stated Principal Balance of the Mortgage Loans
plus
the
amount, if any, then on deposit in the Prefunding Account. With respect to
the
Closing Date, an amount equal to the aggregate Stated Principal Balance of
the
Mortgage Loans as of the Initial Cut-off Date plus
the
amount on deposit in the Prefunding Account on the Initial Closing
Date.
“Aggregate
Subsequent Transfer Amount”:
With
respect to any Subsequent Transfer Date, the aggregate Stated Principal Balance
as of the applicable Subsequent Cut-off Date of the Subsequent Mortgage Loans
conveyed on such Subsequent Transfer Date, as listed on the revised Mortgage
Loan Schedule delivered pursuant to Section 2.01(b); provided,
however,
that
such amount shall not exceed the amount on deposit in the Prefunding Account
as
of such Subsequent Transfer Date.
“Agreement”:
This
Pooling and Servicing Agreement dated as of March 1, 2007, as amended,
supplemented and otherwise modified from time to time.
“Applicable
Credit Support Percentage”:
As
defined in Section 5.01(d).
“Apportioned
Principal Balance”:
With
respect to any Distribution Date, Pool 1 or Pool 2 or any Loan Subgroup in
Pool
1, as applicable, and for any Class of Pool 1-2 Subordinate Certificates,
an
amount equal to the Class Principal Balance of such Class immediately prior
to
such Distribution Date multiplied by a fraction, the numerator of which is
the
related Subordinate Component for such date and the denominator of which
is the
sum of the related Subordinate Components (in the aggregate) for such
date.
“Asset
Balance”:
With
respect to any Distribution Date, the aggregate of the Stated Principal
Balances, as of the first day of the related Due Period, of the Mortgage
Loans
that were Outstanding Mortgage Loans on that day, plus
the
amount on deposit, if any, in the Prefunding Account.
“Assignment”:
With
respect to any Mortgage, an assignment of mortgage, notice of transfer or
equivalent instrument, in recordable form, which is sufficient, under the
laws
of the jurisdiction in which the related Mortgaged Property is located, to
reflect or record the sale of such Mortgage.
10
“Available
Funds”:
With
respect to any Distribution Date and any Mortgage Pool or Loan Subgroup,
an
amount equal to (i) the sum, without duplication, of (a) the aggregate
of the Monthly Payments received on or prior to the related Determination
Date
(but not including Monthly Payments due in future Due Periods but received
by
the related Determination Date) in respect of the Mortgage Loans in that
Mortgage Pool or Loan Subgroup, (b) Net Liquidation Proceeds, Insurance
Proceeds (including from primary mortgage insurance policies), Principal
Prepayments (excluding
Prepayment Penalty
Amounts),
Recoveries and other unscheduled recoveries of principal and interest in
respect
of the Mortgage Loans in that Mortgage Pool or Loan Subgroup received during
the
related Prepayment Period, (c) the aggregate of any amounts received in respect
of REO Properties for such Distribution Date in respect of the Mortgage Loans
in
that Mortgage Pool or Loan Subgroup, (d) the aggregate of any amounts of
Interest Shortfalls (excluding for such purpose all shortfalls as a result
of
Relief Act Reductions) paid by the Servicer pursuant to the Servicing Agreement
and Compensating Interest Payments deposited in the Distribution Account
for
that Distribution Date in respect of the Mortgage Loans in that Mortgage
Pool or
Loan Subgroup, (e) the aggregate of the Purchase Prices, Substitution
Adjustments Repurchase Prices and other amounts collected for purchases pursuant
to Section 2.03 or substitutions pursuant to Section 2.03 deposited in the
Distribution Account during the related Prepayment Period in respect of the
Mortgage Loans in that Mortgage Pool or Loan Subgroup, (f) the aggregate of
any Advances made by any Servicer and Advances made by the Master Servicer
for
that Distribution Date in respect of the Mortgage Loans in that Mortgage
Pool or
Loan Subgroup, (g) the aggregate of any Advances made by the Trustee (as
successor Master Servicer) for that Distribution Date pursuant to Section
7.02
hereof in respect of the Mortgage Loans in that Mortgage Pool or Loan Subgroup,
(h) the Termination Price allocated to such Mortgage Pool or Loan Subgroup
on the Distribution Date on which the Trust Fund is terminated pursuant to
Section 10.01 and (i) with respect to the Distribution Date in the month
immediately following the end of the Prefunding Period, any amounts remaining
in
the Prefunding Account (other than investment earnings thereon); minus
(ii) the
sum of (u) the Expense Fees for such Distribution Date in respect of the
Mortgage Loans in that Mortgage Pool or Loan Subgroup, (v) amounts in
reimbursement for Advances previously made in respect of the Mortgage Loans
in
that Mortgage Pool or Loan Subgroup and other amounts as to which the Servicers,
the Trustee, the Securities Administrator, the Custodians and the Master
Servicer n are entitled to be reimbursed pursuant to Section 4.03, (w) the
amount payable to the Trustee, the Master Servicer, the Custodians or the
Securities Administrator pursuant to Section 8.05, Section 3.30(b) and Section
3.31(c) in respect of Mortgage Loans in such Mortgage Pool or Loan Subgroup
or
if not related to a Mortgage Loan, allocated to each Mortgage Pool or Loan
Subgroup on a pro
rata
basis
and (x) amounts deposited in the Distribution Account in error in respect
of the
Mortgage Loans in that Mortgage Pool or Loan Subgroup.
“Bankruptcy
Code”:
The
Bankruptcy Reform Act of 1978 (Title 11 of the United States Code), as
amended.
“Book-Entry
Certificates”:
Any of
the Certificates that shall be registered in the name of the Depository or
its
nominee, the ownership of which is reflected on the books of the Depository
or
on the books of a Person maintaining an account with the Depository (directly,
as a “Depository Participant”, or indirectly, as an indirect participant in
accordance with the rules of the Depository and as described in Section 6.02
hereof). On the Closing Date, all Classes of the Certificates other than
the
Physical Certificates shall be Book-Entry Certificates.
11
“Business
Day”:
Any
day other than a Saturday, a Sunday or (a) a day on which banking or savings
institutions in the State of California, the State of Maryland, the State
of
Minnesota, the State of New York or in the city in which the Corporate Trust
Office of the Trustee or the Securities Administrator is located or (b) with
respect to any Servicer Remittance Date or any Servicer reporting date, the
States specified in the definition of “Business Day” in the related Servicing
Agreement, are authorized or obligated by law or executive order to be
closed.
“Call
Option”:
The
right to terminate this Agreement and the Trust Fund pursuant to the second
paragraph of Section 10.01(a) hereof.
“Call
Option Date”:
As
defined in Section 10.01(a) hereof.
“Capitalized
Interest Account”:
The account established and maintained by the Securities Administrator pursuant
to Section 4.07. Such account shall not be an asset of any REMIC.
“Capitalized
Interest Requirement”:
With respect to the first Distribution Date, an amount equal to the interest
payments on the Subsequent Mortgage Loans that would have been remitted by
the
Master Servicer or the Securities Administrator to the Distribution Account
pursuant to Section 4.02(a), had such Subsequent Mortgage Loans been assets
of
the Trust Fund as of the Closing Date and had such interest payments been
remitted to the Master Servicer by the related Servicer.
“Certificate”:
Any
Regular Certificate, Residual Certificate or Class P Certificate.
“Certificate
Notional Balance”:
With
respect to each Certificate of a particular Class of Interest-Only Certificates
and any date of determination, the product of (i) the Class Notional Balance
of
such Class and (ii) the applicable Percentage Interest of such Certificate.
“Certificate
Owner”:
With
respect to each Book-Entry Certificate, any beneficial owner thereof and
with
respect to each Physical Certificate, the Certificateholder
thereof.
“Certificate
Principal Balance”:
With
respect to each Certificate of a particular Class (other than any Interest-Only
Certificate and the Class LT-R Certificates) and any date of determination,
the
product of (i) the Class Principal Balance of such Class and (ii) the applicable
Percentage Interest of such Certificate.
“Certificate
Register”
and
“Certificate
Registrar”:
The
register maintained and registrar appointed pursuant to Section 6.02 hereof,
which initially shall be the Securities Administrator.
“Certificateholder”
or
“Holder”:
The
Person in whose name a Certificate is registered in the Certificate Register,
except that a Disqualified Organization or non-U.S. Person shall not be a
Holder
of a Residual Certificate for any purpose hereof; provided
that
solely for the purposes of taking any action or giving any consent pursuant
to
this Agreement, any Certificate registered in the name of the Depositor,
the
Trustee, the Master Servicer, the Securities Administrator, a Servicer or
any
Affiliate of any such entity shall be deemed not to be outstanding in
determining whether the requisite percentage necessary to effect any such
consent has been obtained, except that, in determining whether the Trustee
shall
be protected in relying upon any such consent, only Certificates which a
Responsible Officer of the Trustee knows to be so owned shall be
disregarded.
12
“Certification
Parties”:
As
defined in Section 3.19.
“Certifying
Person”:
As
defined in Section 3.19.
“Class”:
Collectively, Certificates that have the same priority of payment and bear
the
same class designation and the form of which is identical except for variation
in the Percentage Interest evidenced thereby.
“Class
1A1 Component”
or
“Component”:
Each
of the 1A1-1 Component and 1A1-2 Component, as the context may
require.
“Class
1A2 Notional Balance”:
With
respect to any Distribution Date, the Component Principal Balance of the
1A1-1
Component, before giving effect to distributions on such Distribution
Date.
“Class
1A3 Notional Balance”:
With
respect to any Distribution Date, the Component Principal Balance of the
1A1-2
Component, before giving effect to distributions on such Distribution
Date.
“Class
1A6 Notional Balance”:
With
respect to any Distribution Date, an amount equal to the Class Principal
Balance
of the Class 1A4 Certificates, before giving effect to distributions on such
Distribution Date.
“Class
1X Notional Balance”:
With
respect to any Distribution Date, an amount equal to the product of (x) the
aggregate Stated Principal Balance, as of the Due Date in the month immediately
preceding the month of such Distribution Date (or for the initial Distribution
Date, as of the Initial Cut-off Date), of the Pool 1 Mortgage Loans with
a Net
Loan Rate greater than 7.50% in Pool 1 Subgroup 4; and (y) the quotient of
(i)
the excess, if any, of (a) the weighted average of the Net Loan Rates on
the
Mortgage Loans in Pool 1 Subgroup 4 (including the portion of any Subsequent
Mortgage Loans included in Pool 1 Subgroup 4) over (b) 7.50%, and (ii) 6.00%.
“Class
LT-R Interest”:
As
described in the Preliminary Statement.
“Class
Notional Balance”:
With
respect to any Class of Interest-Only Certificates and any Distribution Date,
the Class 1A2 Notional Balance, the Class 1A3 Notional Balance, the Class
1A6
Notional Balance or the Class 1X Notional Balance, as applicable.
“Class
P Distributable Amount”:
With
respect to each Distribution Date, all Prepayment Penalty Amounts in respect
of
the Mortgage Loans received by the Servicer for the related Prepayment Period
plus, on the first Distribution Date after which no Mortgage Loan is subject
to
payment of a Prepayment Penalty Amount, $100.
13
“Class
Principal Balance”:
With
respect to any Distribution Date and any Class of Regular Certificates, the
Original Class Principal Balance thereof as reduced by the sum of (x) all
amounts actually distributed in respect of principal of that Class on all
prior
Distribution Dates, (y) all Realized Losses, if any, actually allocated to
that
Class on all prior Distribution Dates and (z) (i) in the case of any Class
of
Pool 1-2 Subordinate Certificates, any amounts allocated to such Class in
reduction of its Class Principal Balance for payment of PO Deferred Amounts
and
(ii) in the case of any Class of Subordinate Certificates, any applicable
Writedown Amount; provided,
however,
that
pursuant to Section 5.07, the Class Principal Balance of a Class of Certificates
may be increased up to the amount of Realized Losses previously allocated
to
such Class, in the event that there is a Recovery on a related Mortgage Loan,
and the Certificate Principal Balance of any individual Certificate of such
Class will be increased by its pro
rata
share of
the increase to such Class.
“Class
Subordination Percentage”:
With
respect to (a) each Class of Pool 1-2 Subordinate Certificates and any
Distribution Date, the percentage equivalent of a fraction, the numerator
of
which is the Class Principal Balance of such Class immediately before such
Distribution Date and the denominator of which is the aggregate of the Class
Principal Balances of all Classes of Pool 1-2 Senior Certificates and Pool
1-2
Subordinate Certificates immediately before such Distribution Date; and (b)
each
class of Pool 3 Subordinate Certificates and any Distribution Date, the
percentage equivalent of a fraction, the numerator of which is the Class
Principal Balance of such Class immediately before such Distribution Date
and
the denominator of which is the aggregate of the Class Principal Balances
of all
Classes of Certificates relating to pool 3 immediately before such Distribution
Date.
“Close
of Business”:
As
used herein, with respect to any Business Day and location, 5:00 p.m. at
such
location.
“Closing
Date”:
March
29, 2007.
“CMC”:
Central Mortgage Company, in its capacity as a servicer of certain of the
Mortgage Loans as set forth in the Mortgage Loan Schedule hereto, and its
successors in interest and assigns.
“Code”:
The
Internal Revenue Code of 1986, as amended.
“Commission”:
U.S.
Securities and Exchange Commission.
“Compensating
Interest Payment”:
With
respect to any Distribution Date, an amount equal to the amount, if any,
by
which (x) the aggregate amount of any Interest Shortfalls (excluding for
such
purpose all shortfalls as a result of Relief Act Reductions) required to
be paid
by the Servicer pursuant to the Servicing Agreement with respect to such
Distribution Date, exceeds (y) the aggregate amount actually paid by the
Servicer in respect of such shortfalls.
14
“Component”
or
“Class
1A1 Component”:
Each
of the 1A1-1 Component and 1A1-2 Component, as the context may
require.
“Component
Principal Balance”:
With
respect to any Distribution Date and any Class 1A1 Component, the Original
Component Principal Balance thereof as reduced by the sum of (x) all amounts
actually distributed in respect of principal of that Component on all prior
Distribution Dates and (y) all Realized Losses, if any, actually allocated
to
that Component on all prior Distribution Dates; provided,
however,
that
pursuant to Section 5.07, the Component Principal Balance of a Class 1A1
Component may be increased up to the amount of Realized Losses previously
allocated to such Component, in the event that there is a Recovery on a related
Mortgage Loan, and the Component Certificate Principal Balance of any individual
Certificate related to such Component will be increased by its pro
rata
share of
the increase to such Component.
“Controlling
Person”:
With
respect to any Person, any other Person who “controls” such Person within the
meaning of the Securities Act.
“Cooperative
Corporation”:
The
entity that holds title (fee or an acceptable leasehold estate) to the real
property and improvements constituting the Cooperative Property and which
governs the Cooperative Property, which Cooperative Corporation must qualify
as
a Cooperative Housing Corporation under Section 216 of the Code.
“Cooperative
Loan”:
Any
Mortgage Loan secured by Cooperative Shares and a Proprietary
Lease.
“Cooperative
Loan Documents”:
With
respect to any Cooperative Loan, (i) the Cooperative Shares, together with
a
stock power in blank; (ii) the original or a copy of the executed Security
Agreement and the assignment of the Security Agreement in blank; (iii) the
original or a copy of the executed Proprietary Lease and the original assignment
of the Proprietary Lease endorsed in blank; (iv) the original, if available,
or
a copy of the executed Recognition Agreement and, if available, the original
assignment of the Recognition Agreement (or a blanket assignment of all
Recognition Agreements) endorsed in blank; (v) the executed UCC-1 financing
statement with evidence of recording thereon, which has been filed in all
places
required to perfect the security interest in the Cooperative Shares and the
Proprietary Lease; and (vi) executed UCC amendments (or copies thereof) or
other
appropriate UCC financing statements required by state law, evidencing a
complete and unbroken line from the mortgagee to the Trustee with evidence
of
recording thereon (or in a form suitable for recordation).
“Cooperative
Property”:
The
real property and improvements owned by the Cooperative Corporation, that
includes the allocation of individual dwelling units to the holders of the
Cooperative Shares of the Cooperative Corporation.
“Cooperative
Shares”:
Shares
issued by a Cooperative Corporation.
“Cooperative
Unit”:
A
single family dwelling located in a Cooperative Property.
15
“Corporate
Trust Office”:
With
respect to the Trustee, the principal corporate trust office of the Trustee
at
which at any particular time its corporate trust business in connection with
this Agreement shall be administered, which office at the date of the execution
of this instrument is located at 0000 Xxxx Xx. Xxxxxx Xxxxx, Xxxxx Xxx,
Xxxxxxxxxx 00000-0000, Attention: GC070B, RBSGC Mortgage Loan Trust 2007-B,
or
at such other address as the Trustee may designate from time to time by notice
to the Certificateholders, the Depositor, the Master Servicer, the Securities
Administrator and the Seller. With respect to the Securities Administrator
and
the Certificate Registrar and (i) presentment of Certificates for registration
of transfer, exchange or final payment, Xxxxx Fargo Bank, N.A., Xxxxx Xxxxxx
xxx
Xxxxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000, Attention: Corporate Trust,
RBSGC Mortgage Loan Trust 2007-B, and (ii) for all other purposes, X.X. Xxx
00,
Xxxxxxxx, Xxxxxxxx 00000 (or for overnight deliveries, 0000 Xxx Xxxxxxxxx
Xxxx,
Xxxxxxxx, Xxxxxxxx 00000), Attention: Corporate Trust, RBSGC Mortgage Loan
Trust
2007-B.
“Corresponding
Class”:
With
respect to each class of Lower-Tier Interests, the Class or Classes of
Certificates so designated in the Preliminary Statement.
“Custodian”:
Each
of Deutsche Bank National Trust Company and Xxxxx Fargo Bank, N.A., and their
respective successors in interest and assigns acting as a custodian of the
Mortgage Files.
“Cut-off
Date”:
The
Initial Cut-off Date or the Subsequent Cut-off Date, as applicable.
“Cut-off
Date Aggregate Principal Balance”:
The
aggregate of the Cut-off Date Principal Balances of all of the Mortgage
Loans.
“Cut-off
Date Collateral Balance”:
With
respect to any Distribution Date, the sum of (i) the aggregate Stated Principal
Balance of all Initial Mortgage Loans as of the Initial Cut-off Date and
(ii)
the Prefunded Amount.
“Cut-off
Date Principal Balance”:
With
respect to any Mortgage Loan, the principal balance thereof remaining to
be
paid, after application of all scheduled principal payments due on or before
the
applicable Cut-off Date whether or not received as of the applicable Cut-off
Date (or as of the applicable date of substitution with respect to a Qualified
Substitute Mortgage Loan).
“Debt
Service Reduction”:
With
respect to any Mortgage Loan, a reduction in the scheduled Monthly Payment
for
that Mortgage Loan by a court of competent jurisdiction in a proceeding under
the Bankruptcy Code, unless the reduction results from a Deficient
Valuation.
“Deficient
Valuation”:
With
respect to any Mortgage Loan, a valuation of the related Mortgaged Property
by a
court of competent jurisdiction in an amount less than the then outstanding
principal balance of the Mortgage Loan, which valuation results from a
proceeding initiated under the Bankruptcy Code.
“Definitive
Certificates”:
Any
Certificate evidenced by a Physical Certificate and any Certificate issued
in
lieu of a Book-Entry Certificate pursuant to Section 6.02(c) or (d)
hereof.
16
“Deleted
Mortgage Loan”:
A
Mortgage Loan replaced or to be replaced by one or more Qualified Substitute
Mortgage Loans.
“Delinquent”:
Any
Mortgage Loan with respect to which the Monthly Payment due on a Due Date
is not
made.
“Depositor”:
Greenwich Capital Acceptance, Inc., a Delaware corporation, or any successor
in
interest or assign.
“Depository”:
The
initial Depository shall be The Depository Trust Company, whose nominee is
Cede
& Co., or any other organization registered as a “clearing agency” pursuant
to Section 17A of the Exchange Act. The Depository shall initially be the
registered Holder of the Book-Entry Certificates. The Depository shall at
all
times be a “clearing corporation” as defined in Section 8-102(3) of the Uniform
Commercial Code of the State of New York.
“Depository
Participant”:
A
broker, dealer, bank or other financial institution or other person for whom
from time to time a Depository effects book-entry transfers and pledges of
securities deposited with the Depository.
“Designated
Rate”:
With
respect to Pool 1 Subgroup 1, 6.00% per annum. With respect to Pool 1 Subgroup
2, 6.50% per annum. With respect to Pool 1 Subgroup 3, 7.00% per annum. With
respect to Pool 1 Subgroup 4, 7.50% per annum.
“Determination
Date”:
With
respect to any Distribution Date and each Mortgage Loan, the date each month,
as
set forth in the applicable Servicing Agreement, on which the related Servicer
determines the amount of all funds required to be remitted to the Master
Servicer on the Servicer Remittance Date with respect to such Mortgage Loan.
“Discount
Mortgage Loan”:
With
respect to Pool 1 Subgroup 1, each Mortgage Loan having a Net Loan Rate less
than the Designated Rate for that Loan Subgroup.
“Disqualified
Organization”:
A
“disqualified organization” defined in Section 860E(e)(5) of the Code, or any
other Person so designated by the Securities Administrator based upon an
Opinion
of Counsel provided to the Securities Administrator by nationally recognized
counsel acceptable to the Securities Administrator that the holding of an
ownership interest in a Residual Certificate by such Person may cause the
Trust
Fund or any Person having an ownership interest in any Class of Certificates
(other than such Person) to incur liability for any federal tax imposed under
the Code that would not otherwise be imposed but for the transfer of an
ownership interest in the Residual Certificate to such Person.
“Distribution
Account”:
The
trust account or accounts created and maintained by the Securities Administrator
pursuant to Section 4.02 hereof for the benefit of the Certificateholders
and
designated “Distribution Account, Xxxxx Fargo Bank, N.A., as Securities
Administrator, on behalf of Deutsche Bank National Trust Company, as Trustee,
in
trust for the registered Holders of RBSGC Mortgage Loan Trust Mortgage Loan
Pass-Through Certificates, Series 2007-B” and which must be an Eligible
Account.
“Distribution
Account Income”:
With
respect to any Distribution Date, any interest or other investment income
earned
on funds deposited in the Distribution Account during the month of such
Distribution Date.
17
“Distribution
Date”:
The
25th
day of
each month, or, if such day is not a Business Day, the next Business Day,
commencing in April 2007.
“Distribution
Date Statement”:
As
defined in Section 5.04(a) hereof.
“Due
Date”:
With
respect to each Mortgage Loan and any Distribution Date, the first day of
the
calendar month in which such Distribution Date occurs on which the Monthly
Payment for such Mortgage Loan was due, exclusive of any days of
grace.
“Due
Period”:
With
respect to any Distribution Date, the period commencing on the second day
of the
month preceding the month in which such Distribution Date occurs and ending
on
the first day of the month in which such Distribution Date occurs.
“Eligible
Account”:
Any
of:
(i) an
account or accounts maintained with a federal or state chartered depository
institution or trust company the short-term unsecured debt obligations of
which
(or, in the case of a depository institution or trust company that is the
principal subsidiary of a holding company, the short-term unsecured debt
obligations of such holding company) are rated in the highest short term
rating
category of each Rating Agency at the time any amounts are held on deposit
therein;
(ii) an
account or accounts the deposits in which are fully insured by the FDIC (to
the
limits established by it), the uninsured deposits in which account are otherwise
secured such that, as evidenced by an Opinion of Counsel delivered to the
Securities Administrator and the Trustee and to each Rating Agency, the Trustee
on behalf of the Certificateholders will have a claim with respect to the
funds
in the account or a perfected first priority security interest against the
collateral (which shall be limited to Permitted Investments) securing those
funds that is superior to claims of any other depositors or creditors of
the
depository institution with which such account is maintained;
(iii) a
trust
account or accounts maintained with the trust department of a federal or
state
chartered depository institution, national banking association or trust company
acting in its fiduciary capacity; or
(i) an
account otherwise acceptable to each Rating Agency without reduction or
withdrawal of its then current ratings of the Certificates as evidenced by
a
letter from such Rating Agency to the Securities Administrator and the Trustee.
Eligible Accounts may bear interest.
“ERISA”:
The
Employee Retirement Income Security Act of 1974, as amended.
“ERISA-Restricted
Certificates”:
(i)
the Privately-Offered B Certificates, the Class P Certificates and the Residual
Certificates and (ii) any
other Certificate that is not rated at least “BBB-” (or its equivalent) by at
least one Rating Agency upon acquisition or (iii) in general, any Certificate
that does not satisfy the applicable rating requirement under the Underwriter’s
Exemption.
18
“ERISA-Qualifying
Underwriting”:
A best
efforts or firm commitment underwriting or private placement that meets the
requirements of an Underwriter’s Exemption.
“Event
of Default”:
In
respect of a Servicer, as defined in the Servicing Agreement. In respect
of the
Master Servicer, one or more of the events (howsoever described) set forth
in
Section 7.01 hereof as an event or events upon the occurrence and continuation
of which the Master Servicer may be terminated.
“Exchange
Act”:
The
Securities Exchange Act of 1934, as amended, and the rules and regulations
thereunder.
“Expense
Fee”:
With
respect to any Mortgage Loan, the Servicing Fee.
“Expense
Fee Rate”:
With respect to any Mortgage Loan, the per annum rate at which the Expense
Fee
accrues for such Mortgage Loan.
“Xxxxxx
Xxx”:
The
Federal National Mortgage Association or any successor thereto.
“FDIC”:
The
Federal Deposit Insurance Corporation or any successor thereto.
“Final
Distribution Date”:
The
Distribution Date occurring in April 2037.
“Final
Recovery Determination”:
With
respect to any defaulted Mortgage Loan or any REO Property (other than a
Mortgage Loan or REO Property purchased by the Seller pursuant to or
contemplated by Section 2.03, 3.25 and 10.01), a determination made by the
related Servicer, and reported to the Trustee, that all Insurance Proceeds,
Liquidation Proceeds and other payments or recoveries which the related Servicer
expects to be finally recoverable in respect thereof have been so
recovered.
“Fitch”:
Fitch
Ratings, Inc., or any successor thereto.
“Form
8-K Disclosure Information”:
As
defined in Section 3.19(c).
“Xxxxxxx
Mac”:
The
Federal Home Loan Mortgage Corporation or any successor thereto.
“GCFP”:
Greenwich Capital Financial Products, Inc., and its successors in interest
and
assigns.
“GMACM”:
GMAC
Mortgage, LLC, in its capacity as a servicer of certain of the Mortgage Loans
as
set forth in the Mortgage Loan Schedule hereto, and its successors in interest
and assigns.
“Holder”
or
“Certificateholder”:
The
Person in whose name a Certificate is registered in the Certificate Register,
except that a Disqualified Organization or non-U.S. Person shall not be a
Holder
of a Residual Certificate for any purpose hereof; provided
that
solely for the purposes of taking any action or giving any consent pursuant
to
this Agreement, any Certificate registered in the name of the Depositor,
the
Trustee, the Master Servicer, the Securities Administrator, a Servicer or
any
Affiliate of any such entity shall be deemed not to be outstanding in
determining whether the requisite percentage necessary to effect any such
consent has been obtained, except that, in determining whether the Trustee
shall
be protected in relying upon any such consent, only Certificates which a
Responsible Officer of the Trustee knows to be so owned shall be
disregarded.
19
“Indemnified
Persons”:
The Trustee (individually in its corporate capacity and in all capacities
hereunder), the Master Servicer, the Depositor, the Custodians, the Securities
Administrator (in all capacities hereunder) and their respective officers,
directors, agents and employees and, with respect to the Trustee, any separate
co-trustee and its officers, directors, agents and employees.
“Independent”:
When
used with respect to any accountants, a Person who is “independent” within the
meaning of Rule 2-01(B) of the Securities and Exchange Commission’s Regulation
S-X. Independent means, when used with respect to any other Person, a Person
who
(A) is in fact independent of another specified Person and any affiliate
of such
other Person, (B) does not have any material direct or indirect financial
interest in such other Person or any affiliate of such other Person, (C)
is not
connected with such other Person or any affiliate of such other Person as
an
officer, employee, promoter, underwriter, trustee, partner, director or Person
performing similar functions and (D) is not a member of the immediate family
of
a Person defined in clause (B) or (C) above.
“Independent
Contractor”:
Either
(i) any Person that would be an “independent contractor” with respect to any
REMIC formed hereby within the meaning of Section 856(d)(3) of the Code if
such
REMIC were a real estate investment trust (except that the ownership tests
set
forth in that section shall be considered to be met by any Person that owns,
directly or indirectly, 35% or more of any Class of Certificates), so long
as no
REMIC formed hereby receives or derives any income from such Person and provided
that the relationship between such Person and the applicable REMIC is at
arm’s
length, all within the meaning of Treasury Regulation Section 1.856-4(b)(5),
or
(ii) any other Person if the Trustee has received an Opinion of Counsel to
the
effect that the taking of any action in respect of any REO Property by such
Person, subject to any conditions therein specified, that is otherwise herein
contemplated to be taken by an Independent Contractor will not cause such
REO
Property to cease to qualify as “foreclosure property” within the meaning of
Section 860G(a)(8) of the Code (determined without regard to the exception
applicable for purposes of Section 860D(a) of the Code), or cause any income
realized in respect of such REO Property to fail to qualify as Rents from
Real
Property.
“Initial
Cut-off Date”:
With
respect to any Initial Mortgage Loan, the Close of Business in New York City
on
March 1, 2007.
“Initial
LIBOR Rate”:
5.32%.
20
“Initial
Mortgage Loan”:
Any of
the Initial Pool 1 Mortgage Loans, Initial Pool 2 Mortgage Loans or Initial
Pool
3 Mortgage Loans conveyed to the Trust Fund on the Closing Date pursuant
to
Section 2.01 hereof, which Mortgage Loans shall be listed on the Mortgage
Loan Schedule delivered pursuant to this Agreement.
“Initial
Pool 1 Mortgage Loans”:
Any of
the Pool 1 Mortgage Loans with a Cut-off Date of the Initial Cut-off Date
and
which are included in the Trust Fund as of the Closing Date. The aggregate
Stated Principal Balance of the Initial Pool 1 Mortgage Loans is equal to
$505,567,956.59.
“Initial
Pool 1 Subgroup 1 Mortgage Loans”:
Any of
the Pool 1 Subgroup 1 Mortgage Loans with a Cut-off Date of the Initial Cut-off
Date and which are included in the Trust Fund as of the Closing Date. The
aggregate Stated Principal Balance of the Initial Pool 1 Subgroup 1 Mortgage
Loans is equal to $162,862,617.08.
“Initial
Pool 1 Subgroup 2 Mortgage Loans”:
Any of
the Pool 1 Subgroup 2 Mortgage Loans with a Cut-off Date of the Initial Cut-off
Date and which are included in the Trust Fund as of the Closing Date. The
aggregate Stated Principal Balance of the Initial Pool 1 Subgroup 2 Mortgage
Loans is equal to $235,097,845.85.
“Initial
Pool 1 Subgroup 3 Mortgage Loans”:
Any of
the Pool 1 Subgroup 3 Mortgage Loans with a Cut-off Date of the Initial Cut-off
Date and which are included in the Trust Fund as of the Closing Date. The
aggregate Stated Principal Balance of the Initial Pool 1 Subgroup 3 Mortgage
Loans is equal to $61,287,108.64.
“Initial
Pool 1 Subgroup 4 Mortgage Loans”:
Any of
the Pool 1 Subgroup 4 Mortgage Loans with a Cut-off Date of the Initial Cut-off
Date and which are included in the Trust Fund as of the Closing Date. The
aggregate Stated Principal Balance of the Initial Pool 1 Subgroup 4 Mortgage
Loans is equal to $46,320,385.02.
“Initial
Pool 2 Mortgage Loans”:
Any of
the Pool 2 Mortgage Loans with a Cut-off Date of the Initial Cut-off Date
and
which are included in the Trust Fund as of the Closing Date. The aggregate
Stated Principal Balance of the Initial Pool 2 Mortgage Loans is equal to
$26,057,855.41.
“Initial
Pool 3 Mortgage Loans”:
Any of
the Pool 3 Mortgage Loans with a Cut-off Date of the Initial Cut-off Date
and
which are included in the Trust Fund as of the Closing Date. The aggregate
Stated Principal Balance of the Initial Pool 3 Mortgage Loans is equal to
$98,814,568.97.
“Insurance
Proceeds”:
With
respect to any Mortgage Loan, proceeds of any title policy, hazard policy
or
other insurance policy covering a Mortgage Loan, to the extent such proceeds
are
not to be applied to the restoration of the related Mortgaged Property or
released to the related Mortgagor in accordance with the related Servicing
Agreement.
“Interest
Distributable Amount”:
With
respect to any Distribution Date and each Class of Certificates (other than
the
Class 1PO Certificates and Class LT-R Certificates) and each Component, the
sum
of (i) the Monthly Interest Distributable Amount for that Class or
Component and (ii) the Unpaid Interest Shortfall Amount for that Class or
Component.
21
“Interest-Only
Certificate”:
Any
Class 1A2, Class 1A3, Class 1A6 or Class 1X Certificate.
“Interest
Shortfall”:
With
respect to any Distribution Date and each Mortgage Loan that during the related
Prepayment Period was the subject of a Principal Prepayment or a reduction
of
its Monthly Payment under the Relief Act, an amount determined as
follows:
(a) Principal
Prepayments in part received during the relevant Prepayment
Period:
the
difference between (i) one month’s interest at the applicable Net Loan Rate for
such Mortgage Loan on the amount of such prepayment and (ii) the amount of
interest for the calendar month of such prepayment (adjusted to the applicable
Net Loan Rate) received at the time of such prepayment; and
(b) Principal
Prepayments in full received during the relevant Prepayment
Period:
the
difference between (i) one month’s interest at the applicable Net Loan Rate on
the Stated Principal Balance of such Mortgage Loan immediately prior to such
prepayment and (ii) the amount of interest for the calendar month of such
prepayment (adjusted to the applicable Net Loan Rate) received at the time
of
such prepayment; and
(c) any
Relief Act Reductions for such Distribution Date.
“Latest
Possible Maturity Date”:
As
determined as of the Cut-off Date, the Distribution Date following the fifth
anniversary of the scheduled maturity date of the Mortgage Loan having the
latest scheduled maturity date as of the Cut-off Date.
“LIBOR”:
With
respect to the first Accrual Period, the Initial LIBOR Rate. With respect
to
each subsequent Accrual Period, a per annum rate determined on the LIBOR
Determination Date in the following manner by the Securities Administrator
on
the basis of the “Interest Settlement Rate” set by the BBA for one-month United
States dollar deposits, as such rates appear on the Telerate Page 3750, as
of
11:00 a.m. (London time) on such LIBOR Determination Date.
(a) If
on
such a LIBOR Determination Date, the BBA’s Interest Settlement Rate does not
appear on the Telerate Page 3750 as of 11:00 a.m. (London time), or if the
Telerate Page 3750 is not available on such date, the Securities Administrator
will obtain such rate from Reuters’ “page LIBOR 01” or Bloomberg’s page “BBAM.”
If such rate is not published for such LIBOR Determination Date, LIBOR for
such
date will be the most recently published Interest Settlement Rate. In the
event
that the BBA no longer sets an Interest Settlement Rate, the rate for such
date
will be determined on the basis of the rates at which one-month U.S. dollar
deposits are offered by the Reference Banks at approximately 11:00 am (London
time) on such date to prime banks in the London interbank market. In such
event,
the Securities Administrator will request the principal London office of
each of
the Reference Banks to provide a quotation of its rate. If at least two such
quotations are provided, the rate for that date will be the arithmetic mean
of
the quotations (rounded upwards if necessary to the nearest whole multiple
of
1/16%). If fewer than two quotations are provided as requested, the rate
for
that date will be the arithmetic mean of the rates quoted by major banks
in New
York City, selected by the Securities Administrator (after consultation with
the
Depositor), at approximately 11:00 a.m. (New York City time) on such date
for
one-month U.S. dollar loan to leading European banks.
22
(b) The
establishment of LIBOR by the Securities Administrator and the Securities
Administrator’s subsequent calculation of the Pass-Through Rate applicable to
the LIBOR Certificates for the relevant Accrual Period, in the absence of
manifest error, will be final and binding.
“LIBOR
Business Day”:
Any
day on which banks in London, England and The City of New York are open and
conducting transactions in foreign currency and exchange.
“LIBOR
Certificates”:
The
Class 1A1, Class 1A2, Class 1A3, Class 1A4 and Class 1A6
Certificates.
“LIBOR
Determination Date”:
The
second LIBOR Business Day immediately preceding the commencement of each
Accrual
Period for the LIBOR Certificates.
“Liquidated
Mortgage Loan”:
With
respect to any Distribution Date, any Mortgage Loan in respect of which the
Servicer has determined, as of the end of the related Prepayment Period,
that
all Liquidation Proceeds that it expects to recover with respect to the
liquidation of such Mortgage Loan or disposition of the related REO Property
have been recovered.
“Liquidation
Event”:
With
respect to any Mortgage Loan, any of the following events: (i) such Mortgage
Loan is paid in full; (ii) a Final Recovery Determination is made as to such
Mortgage Loan; or (iii) such Mortgage Loan is removed from the Trust Fund
by
reason of its being purchased, sold or replaced pursuant to or as contemplated
hereunder. With respect to any REO Property, either of the following events:
(i)
a Final Recovery Determination is made as to such REO Property; or (ii) such
REO
Property is removed from the Trust Fund by reason of its being sold or purchased
pursuant to Section 10.01 hereof or the applicable provisions of the related
Servicing Agreement.
“Liquidation
Expenses”:
With
respect to a Mortgage Loan in liquidation, unreimbursed expenses paid or
incurred by or for the account of the Master Servicer or the related Servicer,
such expenses including (a) property protection expenses, (b) property sales
expenses, (c) foreclosure and sale costs, including court costs and reasonable
attorneys’ fees, and (d) similar expenses reasonably paid or incurred in
connection with liquidation.
“Liquidation
Proceeds”:
With
respect to any Mortgage Loan, the amount (other than amounts received in
respect
of the rental of any REO Property prior to REO Disposition) received by the
Servicer as proceeds from the liquidation of such Mortgage Loan, as determined
in accordance with the applicable provisions of the related Servicing Agreement,
other than Recoveries; provided
that
with respect to any Mortgage Loan or REO Property repurchased, substituted
or
sold pursuant to or as contemplated hereunder, or pursuant to the applicable
provisions of the applicable Servicing Agreement, “Liquidation Proceeds” shall
also include amounts realized in connection with such repurchase, substitution
or sale.
23
“Loan
Rate”:
With
respect to each Mortgage Loan, the annual rate at which interest accrues
on such
Mortgage Loan from time to time in accordance with the provisions of the
related
Mortgage Note.
“Loan
Subgroup”:
Any of
Pool 1 Subgroup 1, Pool 1 Subgroup 2, Pool 1 Subgroup 3 or Pool 1 Subgroup
4, as
the context requires.
“Loan
Subgroup Balance”:
With
respect to Pool 1 and each Loan Subgroup, the aggregate of the Stated Principal
Balances of the Mortgage Loans in such Loan Subgroup that were Outstanding
Mortgage Loans at the time of determination.
“Loan-to-Value
Ratio”:
With
respect to each Mortgage Loan and any date of determination, a fraction,
expressed as a percentage, the numerator of which is the Principal Balance
of
the Mortgage Loan at such date of determination and the denominator of which
is
the Value of the related Mortgaged Property.
“Lost
Note Affidavit”:
With
respect to any Mortgage Loan as to which the original Mortgage Note has been
lost or destroyed and has not been replaced, an affidavit from the Seller
certifying that the original Mortgage Note has been lost, misplaced or destroyed
(together with a copy of the related Mortgage Note and indemnifying the Trust
Fund against any loss, cost or liability resulting from the failure to deliver
the original Mortgage Note) in the form of Exhibit H hereto.
“Lower-Tier
Regular Interest”:
Any
one of the interests in the Lower-Tier REMIC, as described in the Preliminary
Statement.
“Lower-Tier
REMIC”:
As
described in the Preliminary Statement.
“Majority
Certificateholders”:
The
Holders of Certificates evidencing at least 51% of the Voting
Rights.
“Master
Servicer”:
Xxxxx
Fargo Bank, N.A., or any successor Master Servicer appointed as herein
provided.
“Master
Servicing Fee”:
Not
applicable.
“Master
Servicing Fee Rate”:
Not
applicable.
“MERS”:
Mortgage Electronic Registration Systems, Inc., a corporation organized and
existing under the laws of the State of Delaware, or any successor
thereto.
“MERS
Mortgage Loan”:
Any
Mortgage Loan registered with MERS on the MERS System.
“MERS® System”:
The
system of recording transfers of mortgages electronically maintained by
MERS.
“MIN”:
The
Mortgage Identification Number for any MERS Mortgage Loan.
24
“MOM
Loan”:
Any
Mortgage Loan as to which MERS is acting as mortgagee, solely as nominee
for the
originator of such Mortgage Loan and its successors in interest and
assigns.
“Monthly
Interest Distributable Amount”:
With
respect to each Class of Certificates (other than the Class P, Class 1PO
and
Class LT-R Certificates) and any Distribution Date, the amount of interest
accrued during the related Accrual Period on the Class Principal Balance
or
Class Notional Balance, as applicable, immediately prior to that Distribution
Date; provided,
however,
that
the amount so accrued shall be reduced by the Net Interest Shortfalls, if
any,
allocated to such Class of Certificates. Net Interest Shortfalls for any
Mortgage Pool and, with respect to Pool 1, any Loan Subgroup, shall be
apportioned among each Class of Senior Certificates related to such Mortgage
Pool or Loan Subgroup and the related Subordinate Certificates based on,
in the
case of each Class of related Senior Certificates, the amount of interest
accrued in the related Accrual Period at the applicable Pass-Through Rate,
and
in the case of each Class of related Subordinate Certificates, the interest
accrued in the related Accrual Period at the applicable Pass-Through Rate
determined solely with reference to its Apportioned Principal Balance for
the
Mortgage Pool or Loans Subgroup to which the Net Interest Shortfall relates.
In
addition, for purposes of compliance with the REMIC Provisions, (A) the Monthly
Interest Distributable Amount for each Class of Subordinate Certificates
shall
be calculated by reducing the related Pass-Through Rate by a per annum rate
equal to (i) 12 times the Subordinate Class Expense Share for such Class
divided
by
(ii) the
Class Principal Balance of such Class as of the beginning of the related
Accrual
Period and (B) such Class shall be deemed to bear interest at such Pass-Through
Rate as so reduced for federal income tax purposes.
“Monthly
Payment”:
With
respect to any Mortgage Loan, the scheduled monthly payment of principal
and/or
interest on such Mortgage Loan that is payable by the related Mortgagor from
time to time under the related Mortgage Note, determined, for the purposes
of
this Agreement: (a) after giving effect to any reduction in the amount of
interest collectible from the related Mortgagor pursuant to the Relief Act;
(b)
without giving effect to any extension granted or agreed to by the Servicers
pursuant to the applicable provisions of the Servicing Agreements; and (c)
on
the assumption that all other amounts, if any, due under such Mortgage Loan
are
paid when due.
“Moody’s”:
Xxxxx’x Investors Service, Inc., or any successor in interest.
“Mortgage”:
The
mortgage, deed of trust or other instrument creating a first lien on, or
first
priority security interest in, a Mortgaged Property securing a Mortgage
Note.
“Mortgage
File”:
The
mortgage documents listed in Section 2.01 hereof pertaining to a particular
Mortgage Loan and any additional documents required to be added to the Mortgage
File pursuant to this Agreement.
“Mortgage
Loan”:
Each
mortgage loan (including Cooperative Loans) transferred and assigned to the
Trustee pursuant to Section 2.01 or Section 2.03 hereof as from time to time
held as a part of the Trust Fund, the Mortgage Loans so held being identified
in
the Mortgage Loan Schedule.
25
“Mortgage
Loan Purchase Agreement”:
The
Mortgage Loan Purchase Agreement between the Seller and the Depositor, dated
as
of March 1, 2007, regarding the transfer of the Mortgage Loans by the Seller
(including the Seller’s rights and interests in the Servicing Agreements) to or
at the direction of the Depositor.
“Mortgage
Loan Schedule”:
As of
any date, the list of Mortgage Loans included in the Trust Fund on such date,
attached hereto as Schedule I. The Mortgage Loan Schedule shall be prepared
by
the Seller and shall set forth the following information with respect to
each
Mortgage Loan:
|
(i)
|
the
Mortgage Loan identifying number;
|
|
(ii)
|
the
state and five-digit ZIP code of the Mortgaged
Property;
|
|
(iii)
|
a
code indicating whether the Mortgaged Property was represented
by the
borrower, at the time of origination, as being
owner-occupied;
|
|
(iv)
|
a
code indicating whether the Residential Dwelling constituting the
Mortgaged Property is (a) a detached single family dwelling, (b)
a
dwelling in a planned unit development, (c) a condominium unit,
(d) a two-
to four-unit residential property, (e) a townhouse (f) a cooperative
or
(g) other type of Residential
Dwelling;
|
|
(v)
|
if
the related Mortgage Note permits the borrower to make Monthly
Payments of
interest only for a specified period of time, (a) the original
number of
such specified Monthly Payments and (b) the remaining number of
such
Monthly Payments as of the Cut-off
Date;
|
|
(vi)
|
the
original months to maturity;
|
|
(vii)
|
the
stated remaining months to maturity from the Cut-off Date based
on the
original amortization schedule;
|
|
(viii)
|
the
Loan-to-Value Ratio at origination;
|
|
(ix)
|
the
Loan Rate in effect immediately following the Cut-off
Date;
|
|
(x)
|
the
date on which the first Monthly Payment is or was due on the Mortgage
Loan;
|
|
(xi)
|
the
stated maturity date;
|
|
(xii)
|
the
Servicing Fee Rate;
|
|
(xiii)
|
the
last Due Date on which a Monthly Payment was actually applied to
the
unpaid Stated Principal Balance;
|
|
(xiv)
|
the
original principal balance of the Mortgage
Loan;
|
26
|
(xv)
|
the
Stated Principal Balance of the Mortgage Loan on the Cut-off Date,
and a
code indicating the purpose of the Mortgage Loan (i.e.,
purchase financing, rate/term refinancing, cash-out
refinancing);
|
|
(xvi)
|
the
Value of the Mortgaged Property;
|
|
(xvii)
|
the
sale price of the Mortgaged Property, if
applicable;
|
|
(xviii)
|
the
product code;
|
|
(xix)
|
the
Servicer that is servicing each Mortgage Loan;
|
|
(xx)
|
the
Custodian’s name, if there is more than one
Custodian;
|
|
(xxi)
|
the
Expense Fee Rate therefor; and
|
|
(xxii)
|
the
respective Mortgage Pool.
|
Information
set forth in clauses (ii) and (iii) above regarding each Mortgagor and the
related Mortgaged Property shall be confidential and the Trustee, the Securities
Administrator and the Master Servicer shall not disclose such information
except
to the extent disclosure may be required by any law or regulatory or
administrative authority; provided,
however,
that
the Trustee, the Securities Administrator and the Master Servicer may disclose
on a confidential basis any such information to its agents, attorneys and
any
auditors in connection with the performance of its responsibilities
hereunder.
The
Mortgage Loan Schedule, as in effect from time to time, shall also set forth
the
following information with respect to the Mortgage Loans in the aggregate
and by
Mortgage Pool (and, in the case of Pool 1, by Loan Subgroup) as of the Cut-off
Date: (1) the number of Mortgage Loans; (2) the current Principal
Balance of the Mortgage Loans; (3) the weighted average Loan Rate of the
Mortgage Loans; and (4) the weighted average remaining months to maturity
of the Mortgage Loans. The Mortgage Loan Schedule shall be amended from time
to
time by the Seller in accordance with the provisions of this
Agreement.
“Mortgage
Note”:
The
original executed note or other evidence of indebtedness evidencing the
indebtedness of a Mortgagor under a Mortgage Loan.
“Mortgage
Pool”:
Any of
Pool 1, Pool 2 or Pool 3, as the context requires.
“Mortgaged
Property”:
Either
of (x) the fee simple or leasehold interest in real property, together with
improvements thereto including any exterior improvements to be completed
within
120 days of disbursement of the related Mortgage Loan proceeds, or (y) in
the
case of a Cooperative Loan, the related Cooperative Shares and Proprietary
Lease, securing the indebtedness of the Mortgagor under the related Mortgage
Loan.
“Mortgagor”:
The
obligor on a Mortgage Note.
27
“Net
Interest Shortfall”:
With
respect to any Distribution Date, the excess of the Interest Shortfalls,
if any,
for such Distribution Date over the sum of (i) Interest Shortfalls paid by
the
Servicers under the Servicing Agreements with respect to such Distribution
Date
and (ii) Compensating Interest Payments made with respect to such Distribution
Date.
“Net
Liquidation Proceeds”:
With
respect to any Liquidated Mortgage Loan or any other disposition of related
Mortgaged Property (including REO Property) the related Liquidation Proceeds
net
of Advances, related Servicing Advances, the related Expense Fee, and any
other
accrued and unpaid fees received and retained in connection with the liquidation
of such Mortgage Loan or Mortgaged Property.
“Net
Loan Rate”:
With
respect to any Mortgage Loan (or the related REO Property), as of any date
of
determination, a per annum rate of interest equal to the then applicable
Loan
Rate for such Mortgage Loan minus
the
Expense Fee Rate. For purposes of determining whether any Qualified Substitute
Mortgage Loan in Pool 1 Subgroup 1 is a Discount Mortgage Loan or a Non-Discount
Mortgage Loan and for purposes of calculating the applicable PO Percentage
and
applicable Non-PO Percentage, each Qualified Substitute Mortgage Loan shall
be
deemed to have a Net Loan Rate equal to the Net Loan Rate of the Deleted
Mortgage Loan for which it is substituted.
“Net
Realized Losses”:
With
respect to any Class of Certificates and any Distribution Date, the excess
of
(i) the amount of Realized Losses previously allocated to that Class over
(ii)
the amount of any increases to the Class Principal Balance of that Class
pursuant to Section 5.07 due to Recoveries.
“Net
WAC”:
With
respect to the first Distribution Date only, the product of (i) the weighted
average of the Net Loan Rates of the Initial Mortgage Loans as of the Initial
Cut-off Date, weighted on the basis of their Stated Principal Balances on
such
date, multiplied by (ii) the quotient of (a) the aggregate of Stated Principal
Balances of the Initial Mortgage Loans on the Initial Cut-off Date divided
by
(b) the sum or the aggregate of the Stated Principal Balances of the Initial
Mortgage Loans as of the Initial Cut-off Date and the amount on deposit in
the
Prefunding Account on such date. With respect to each succeeding Distribution
Date, the weighted average of the Net Loan Rates of the Mortgage Loans as
of the
first day of the related Due Period, weighted on the basis of their Stated
Principal Balances at the beginning of the related Due Period.
“Nonrecoverable”:
A
determination by the Master Servicer or a Servicer in respect of a delinquent
Mortgage Loan that if it were to make an Advance or an advance of a delinquent
Monthly Payment, respectively, in respect thereof, such amount would not
be
recoverable from any collections or other recoveries (including Liquidation
Proceeds) on such Mortgage Loan.
“Non-Discount
Mortgage Loan”:
With
respect to any Mortgage Loan in Pool 1 Subgroup 1, each Mortgage Loan in
such
Loan Subgroup having a Net Loan Rate equal to or in excess of the Designated
Rate for such Loan Subgroup. With respect to any Mortgage Loan in Pool 1
Subgroup 2, Pool 1 Subgroup 2, Pool 1 Subgroup 3 or Pool 1 Subgroup 4, each
Mortgage Loan in the applicable Loan Subgroup.
28
“Non-PO
Loan Subgroup Balance”:
With
respect to Pool 1 Subgroup 1 and any Distribution Date, the sum of (i) the
aggregate of the Stated Principal Balances of the Non-Discount Mortgage Loans
in
Pool 1 Subgroup 1 as of the first day of the related Due Period and (ii)
the
aggregate of the Non-PO Portions of each Discount Mortgage Loan in Pool 1
Subgroup 1 as of the first day of the related Due Period.
“Non-PO
Percentage”:
With
respect to (1) any Discount Mortgage Loan in Pool 1 Subgroup 1, the fraction,
expressed as a percentage, equal to the Net Loan Rate of such Mortgage Loan
divided by the Designated Rate for Pool 1 Subgroup 1 and (2) any Mortgage
Loan
other than a Discount Mortgage loan in Pool 1 Subgroup 1 or any Mortgage
Loan in
Pool 1 Subgroup 2, Pool 1 Subroup 3 or Pool 1 Subgroup 4, 100%.
“Non-PO
Portion”:
With
respect to any Discount Mortgage Loan, the product of the Stated Principal
Balance of such Discount Mortgage Loan and the Non-PO Percentage for such
Discount Mortgage Loan.
“Non-PO
Recoveries”:
For
each Distribution Date and each Loan Subgroup, the excess of (i) the amount
of
Recoveries for such Loan Subgroup for such Distribution Date over (ii) the
amount of PO Recoveries for such Loan Subgroup for such Distribution
Date.
“Notional
Certificate”:
Any
Class 1A2, Class 1A3, Class 1A6 or Class 1X Certificate.
“Offered
Certificates”:
The
Class 1A1, Class 1A2, Class 1A3, Class 1A4, Class 1A5, Class 1A6, Class 2A1,
Class 3A1, Class 3A2, Class 1B1, Class 1B2, Class 1B3, Class 1B4, Class 3B1,
Class 3B2, Class 3B3, Class 1PO, Class 1X and Class R Certificates.
“Officers’
Certificate”:
A
certificate signed by the Chairman of the Board, the Vice Chairman of the
Board,
the President or a vice president (however denominated), or by the Treasurer,
the Secretary, or one of the assistant treasurers or assistant secretaries
of
the Seller, the Master Servicer or the Depositor, as applicable.
“Opinion
of Counsel”:
A
written opinion of counsel, who may, without limitation, be a salaried counsel
for the Depositor, the Seller or any Servicer, acceptable to the Trustee
or the
Securities Administrator, as applicable, except that any opinion of counsel
relating to (a) the qualification of any REMIC created hereunder as a REMIC
or
(b) compliance with the REMIC Provisions must be an opinion of Independent
counsel.
29
“Original
Applicable Credit Support Percentage”:
With
respect to (i) each Class of Pool 1-2 Subordinate Certificates, the
corresponding percentage set forth below opposite its Class
designation:
|
Class
1B1
|
5.80%
|
|
Class
1B2
|
3.80%
|
|
Class
1B3
|
2.65%
|
|
Class
1B4
|
1.75%
|
|
Class
1B5
|
1.10%
|
|
Class
1B6
|
0.65%
|
|
Class
1B7
|
0.30%
|
and
(ii)
each Class of Pool 3 Subordinate Certificates, the corresponding percentage
set
forth below opposite its Class designation:
|
Class
3B1
|
2.65%
|
|
Class
3B2
|
1.40%
|
|
Class
3B3
|
0.80%
|
|
Class
3B4
|
0.50%
|
|
Class
3B5
|
0.30%
|
|
Class
3B6
|
0.15%
|
“Original
Capitalized Interest Amount”:
$2,000.00.
“Original
Class Notional Balance”:
With
respect to the Interest-Only Certificates, the corresponding aggregate Class
Notional Balance set forth for each such Class in the Preliminary Statement.
“Original
Class Principal Balance”:
With
respect to each Class of Certificates, other than the Interest-Only Certificates
and the Class LT-R Certificates, the corresponding aggregate amount set forth
opposite the Class designation of such Class in the Preliminary
Statement.
“Original
Component Principal Balance”:
With
respect to each Class 1A1 Component, the corresponding aggregate amount set
forth opposite the Class designation of the Class 1A1 Certificates in the
Preliminary Statement.
“Originator”:
Each
party listed as an “Originator” on Exhibit V hereto or any other originator
contemplated by Item 1110 (§229.1110) of Regulation AB.
“OTS”:
The
Office of Thrift Supervision.
“Outstanding
Mortgage Loan”:
As of
any Due Date, a Mortgage Loan with a Stated Principal Balance greater than
zero
that was not the subject of a prepayment in full prior to such Due Date and
that
did not become a Liquidated Mortgage Loan prior to such Due Date.
“Overcollateralization
Amount”:
With
respect to each Distribution Date and any Loan Subgroup, the excess of (i)
the
aggregate Non-PO Loan Subgroup Balance of that Loan Subgroup over (ii) the
aggregate Class Principal Balance of the Pool 1-2 Senior Certificates (other
than the Class 1PO Certificates) related to that Loan Subgroup.
30
“Ownership
Interest”:
With
respect to any Certificate, any ownership or security interest in such
Certificate, including any interest in such Certificate as the Holder thereof
and any other interest therein, whether direct or indirect, legal or beneficial,
as owner or as pledgee.
“Pass-Through
Rate”:
With
respect to each Class of Certificates entitled to distributions of interest
and
any Distribution Date, the rate set forth or described in the Preliminary
Statement.
“Paying
Agent”:
Any
paying agent appointed pursuant to Section 6.05 hereof, initially, the
Securities Administrator.
“PCAOB”:
The
Public Company Accounting Oversight Board.
“Percentage
Interest”:
With
respect to any Certificate other than a Class R or Class LT-R Certificate,
a
fraction, expressed as a percentage, the numerator of which is the Original
Class Principal Balance or Original Class Notional Balance, as applicable,
represented by such Certificate and the denominator of which is the Original
Class Principal Balance or Original Class Notional Balance, as applicable,
of
the related Class. With respect to the Class R and Class LT-R Certificates,
100%.
“Permitted
Investments”:
Any
one or more of the following obligations or securities acquired at a purchase
price of not greater than par, regardless of whether issued or managed by
the
Depositor, the Master Servicer, the Trustee or any of their respective
Affiliates or for which an Affiliate of the Trustee serves as an
advisor:
(i) direct
obligations of, or obligations fully guaranteed as to timely payment of
principal and interest by, the United States or any agency or instrumentality
thereof, provided such obligations are backed by the full faith and credit
of
the United States;
(ii) (A)
demand and time deposits in, certificates of deposit of, bankers’ acceptances
issued by or federal funds sold by any depository institution or trust company
(including the Trustee, the Securities Administrator or the Master Servicer
or
their agents acting in their respective commercial capacities) incorporated
under the laws of the United States of America or any state thereof and subject
to supervision and examination by federal and/or state authorities, so long
as,
at the time of such investment or contractual commitment providing for such
investment, such depository institution or trust company or its ultimate
parent
has a short-term uninsured debt rating in one of the two highest available
rating categories of each Rating Agency and (B) any other demand or time
deposit
or deposit which is fully insured by the FDIC;
(iii) repurchase
obligations with respect to any security described in clause (i) above and
entered into with a depository institution or trust company (acting as
principal) rated A or higher by each Rating Agency;
(iv) securities
bearing interest or sold at a discount that are issued by any corporation
incorporated under the laws of the United States of America, the District
of
Columbia or any State thereof and that are rated by each Rating Agency in
its
highest long-term unsecured rating categories at the time of such investment
or
contractual commitment providing for such investment;
31
(v) commercial
paper (including both non-interest-bearing discount obligations and
interest-bearing obligations) that is rated by each Rating Agency in its
highest
short-term unsecured debt rating available at the time of such
investment;
(vi) any
mutual fund, money market fund, common trust fund or other pooled investment
vehicle, including any such fund that is managed by the Securities Administrator
or any affiliate of the Securities Administrator or for which the Securities
Administrator or any of its affiliates acts as an adviser, as long as such
fund
is rated in at least the second highest rating category by each Rating Agency
rating such fund or vehicle; and the Securities Administrator may trade with
itself or an affiliate when purchasing or selling Permitted Investments;
and
(vii) if
previously confirmed in writing to the Securities Administrator, any other
demand, money market or time deposit, or any other obligation, security or
investment, as may be acceptable to each Rating Agency in writing as a permitted
investment of funds backing securities having ratings equivalent to its highest
initial ratings of the Senior Certificates;
provided,
however,
that no
instrument described hereunder shall evidence either the right to receive
(a)
only interest with respect to the obligations underlying such instrument
or (b)
both principal and interest payments derived from obligations underlying
such
instrument and the interest and principal payments with respect to such
instrument provide a yield to maturity at par greater than 120% of the yield
to
maturity at par of the underlying obligations.
“Permitted
Transferee”:
Any
Transferee of a Residual Certificate other than a Disqualified Organization
or a
non-U.S. Person.
“Person”:
Any
individual, corporation, partnership, limited liability company, joint venture,
association, joint stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
“PHH”:
PHH
Mortgage Corporation, in its capacity as a servicer of certain of the Mortgage
Loans as set forth in the Mortgage Loan Schedule hereto, and its successors
in
interest and assigns.
“Physical
Certificates”:
The
Class P, Class R and Class LT-R Certificates.
“PO
Deferred Amount”:
With
respect to Pool 1 and Pool 2 and any Distribution Date prior to the Senior
Credit Support Depletion Date, the sum of (1) the applicable PO Percentage
of
the principal portion of Realized Losses on each Discount Mortgage Loan in
Pool
1 Subgroup 1 allocated to the Class 1PO Certificates on that date and (2)
all
amounts previously allocated to the Class 1PO Certificates in respect of
those
losses and not distributed to the Class 1PO Certificates on prior Distribution
Dates. On or after the Senior Credit Support Depletion Date, the PO Deferred
Amount shall be zero.
32
“PO
Percentage”:
With
respect to any Discount Loan, 100% minus the Non-PO Percentage for that Discount
Mortgage Loan, and with respect to any Non-Discount Loan, 0%.
“PO
Principal Distribution Amount”:
With
respect to Pool 1 Subgroup 1 and any Distribution Date, the sum of (a) the
applicable PO Percentage of each portion of scheduled payment of principal
collected or advanced on the related Mortgage Loans by the related Servicer
in
respect of the related Due Period, (b) the applicable PO Percentage of that
portion of the Purchase Price, representing principal of any repurchased
Mortgage Loan in that Loan Subgroup, deposited to the Distribution Account
during the related Prepayment Period, (c) the applicable PO Percentage of
the principal portion of any related Substitution Adjustments deposited in
the
Distribution Account during the related Prepayment Period, (d) the
applicable PO Percentage of the principal portion of all Insurance Proceeds
received during the related Prepayment Period with respect to Mortgage Loans
in
such Loan Subgroup that are not yet Liquidated Mortgage Loans, (e) the
applicable PO Percentage of the principal portion of all Net Liquidation
Proceeds received during the related Prepayment Period with respect to
Liquidated Mortgage Loans in such Loan Subgroup, (f) the applicable PO
Percentage of all Principal Prepayments in part or in full on Mortgage Loans
in
such Loan Subgroup applied by the Servicer during the related Prepayment
Period,
(g) the applicable PO Percentage of all Recoveries related to such Loan Subgroup
received during the calendar month preceding the month of that Distribution
Date
and (h) on the Distribution Date on which the Trust Fund is to be
terminated pursuant to Section 10.01 hereof, the applicable PO Percentage
of
that portion of the Termination Price in respect of principal for such Loan
Subgroup.
“PO
Recovery”:
With
respect to Recoveries on Discount Mortgage Loans, any Distribution Date and
the
Class 1PO Certificates, an amount equal to the lesser of (a) the PO Percentage
of each Recovery on each Discount Mortgage Loan in Pool 1 Subgroup 1 and
(b) the
PO Deferred Amount for that Distribution Date.
“Pool
Balance”:
With
respect to each Mortgage Pool and any Distribution Date, the aggregate of
the
Stated Principal Balances, as of the Close of Business on the first day of
the
month preceding the month in which such Distribution Date occurs, of the
Mortgage Loans in such Mortgage Pool that were Outstanding Mortgage Loans
on
that day, plus,
with
respect to Pool 1 and Pool 2, the amount on deposit, if any, in the Prefunding
Account allocable to such Mortgage Pool.
“Pool
Collateral Balance”:
With
respect to each Mortgage Pool and any date of determination, the applicable
Pool
Balance plus, in the case of Pool 1 and Pool 2, the amount, if any, then
on
deposit in the Prefunding Account, with respect to such Mortgage Pool;
provided
that
with respect to Pool 1 and Pool 2, the Pool Collateral Balance as of the
Initial
Cut-off Date will include the Pool 1 Prefunded Amount or Pool 2 Prefunded
Amount, as applicable.
“Pool
1”:
The
aggregate of the Mortgage Loans identified on the Mortgage Loan Schedule
as
being included in Pool 1.
33
“Pool
1 Certificates”
or “Pool
1 Senior Certificates”:
The Class 1A1, Class 1A2, Class 1A3, Class 1A4, Class 1A5, Class 1A6, Class
1PO,
Class 1X and Class R Certificates.
“Pool
1 Mortgage Loan”:
A
Mortgage Loan that is identified as such on the Mortgage Loan Schedule and
that
has an original term to maturity equal to or less than 360 months but greater
than 180 months.
“Pool
1 Prefunded Amount”:
The
amount deposited in the Prefunding Account on the Initial Closing Date to
purchase Subsequent Pool 1 Mortgage Loans, which amount shall equal
$247,111.37.
“Pool
1 Senior Certificates”
or “Pool
1 Certificates”:
The Class 1A1, Class 1A2, Class 1A3, Class 1A4, Class 1A5, Class 1A6, Class
1PO,
Class 1X and Class R Certificates.
“Pool
1 Subgroup 1”:
As of
the Cut-off Date, consists of (a) 100% of the principal balance of each Pool
1
Mortgage Loan with a Net Loan Rate equal to or less than 6.00% per annum,
and
(b)
a
portion of each Pool 1 Mortgage Loan with a Net Loan Rate greater than 6.00%
per
annum and equal to or less than 6.50% per annum, equal to:
|
The
Stated Principal Balance of such Pool 1
Mortgage
Loan
|
x
|
(
|
6.50%
- Net Loan Rate
|
)
|
|
0.50%
|
“Pool
1 Subgroup 1 Certificates”:
The
Class 1A5 and Class 1PO Certificates.
“Pool
1 Subgroup 2”:
As of
the Cut-off Date, consists of (a) a portion of each Pool 1 Mortgage Loan
with a
Net Loan Rate greater than 6.00% per annum and equal to or less than 6.50%
per
annum, equal to:
|
The
Stated Principal Balance of such Pool 1
Mortgage
Loan
|
x
|
1-
|
(
|
6.50%
- Net Loan Rate
|
)
|
|
0.50%
|
and
(b)
a
portion of each Pool 1 Mortgage Loan with a Net Loan Rate greater than 6.50%
per
annum and equal to or less than 7.00% per annum, equal to:
|
The
Stated Principal Balance of such Pool 1
Mortgage
Loan
|
x
|
(
|
7.00%
- Net Loan Rate
|
)
|
|
0.50%
|
“Pool
1 Subgroup 2 Certificates”:
The
Class 1A4, Class 1A6 and Class R Certificates.
“Pool
1 Subgroup 3”:
As of
the Cut-off Date, consists of (a) a portion of each Pool 1 Mortgage Loan
with a
Net Loan Rate greater than 6.50% per annum and equal to or less than 7.00%
per
annum, equal to:
34
|
The
Stated Principal Balance of such Pool 1
Mortgage
Loan
|
x
|
1-
|
(
|
7.000%
- Net Loan Rate
|
)
|
|
0.50%
|
and
(b)
a
portion of each Pool 1 Mortgage Loan with a Net Loan Rate greater than 7.00%
per
annum and equal to or less than 7.50% per annum, equal to:
|
The
Stated Principal Balance of such Pool 1
Mortgage
Loan
|
x
|
(
|
7.50%
- Net Loan Rate
|
)
|
|
0.50%
|
“Pool
1 Subgroup 3 Certificates”:
The
Class 1A3 Certificates.
“Pool
1 Subgroup 3 Component”:
The
1A1-1 Component.
“Pool
1 Subgroup 4”:
As of
the Cut-off Date, consists of (a) a portion of each Mortgage Loan with a
Net
Loan Rate greater than 7.00% per annum and equal to or less than 7.50% per
annum, equal to:
|
The
Stated Principal Balance of such Pool 1
Mortgage
Loan
|
x
|
1-
|
(
|
7.50%
- Net Loan Rate
|
)
|
|
0.75%
|
and
(b)
100%
of the principal balance of each Pool 1 Mortgage Loan with a Net Loan Rate
greater than 7.50% per annum.
“Pool
1 Subgroup 4 Certificates”:
The
Class 1A2 and Class 1X Certificates.
“Pool
1 Subgroup 4 Component”:
The
1A1-2 Component.
“Pool
1-2 Aggregate Collateral Balance”:
With
respect to any Distribution Date, the aggregate of the Stated Principal Balances
of the Pool 1 Mortgage Loans and the Pool 2 Mortgage Loans as of the Due
Date in
the month preceding the month of that Distribution Date and any amounts on
deposit in the Prefunding Account.
“Pool
1-2 Senior Certificates”:
The
Class 1A1, Class 1A2, Class 1A3, Class 1A4, Class 1A5, Class 1A6, Class 2A1,
Class 1PO, Class 1X and Class R Certificates.
“Pool
1-2 Subordinate Certificates”:
The
Class 1A1, Class 1B2, Class 1B3, Class 1B4, Class 1B5, Class 1B6 and Class
1B7
Certificates.
“Pool
2”:
The
aggregate of the Mortgage Loans identified on the Mortgage Loan Schedule
as
being included in Pool 2.
“Pool
2 Certificates”
or “Pool
2 Senior Certificates”:
The Class 2A1 Certificates.
35
“Pool
2 Mortgage Loan”:
A
Mortgage Loan that is identified as such on the Mortgage Loan Schedule and
that
has an original term to maturity equal to 180 months.
“Pool
2 Net WAC”:
With
respect to any Distribution Date, the weighted average of the Net Loan Rates
of
the Pool 2 Mortgage Loans as of the first day of the related Due Period,
weighted on the basis of their Stated Principal Balances as of the first
day of
the related Due Period.
“Pool
2 Prefunded Amount”:
The
amount deposited in the Prefunding Account on the Initial Closing Date to
purchase Subsequent Pool 2 Mortgage Loans, which amount shall equal
$45,990.46.
“Pool
2 Senior Certificates”
or “Pool
2 Certificates”:
The Class 2A1 Certificates.
“Pool
3”:
The
aggregate of the Mortgage Loans identified on the Mortgage Loan Schedule
as
being included in Pool 3.
“Pool
3 Certificates”
or “Pool
3 Senior Certificates”:
The Class 3A1 and Class 3A2 Certificates.
“Pool
3 Mortgage Loan”:
A
Mortgage Loan that is identified as such on the Mortgage Loan Schedule and
that
was originated by U.S. Central.
“Pool
3 Net WAC”:
With
respect to any Distribution Date, the weighted average of the Net Loan Rates
of
the Pool 3 Mortgage Loans as of the first day of the related Due Period,
weighted on the basis of their Stated Principal Balances as of the first
day of
the related Due Period.
“Pool
3 Pool Balance”:
With
respect to any Distribution Date, the aggregate of the Stated Principal Balances
of the Pool 3 Mortgage Loans as of the Due Date in the month preceding the
month
of such Distribution Date.
“Pool
3 Senior Certificates”
or “Pool
3 Certificates”:
The Class 3A1 and Class 3A2 Certificates.
“Pool
3 Subordinate Certificates”:
The
Class 3B1, Class 3B2, Class 3B3, Class 3B4, Class 3B5 and Class 3B6
Certificates.
“Pool
Principal Deficiency Amount”:
With
respect to any Distribution Date and any Undercollateralized Pool, the excess,
if any, of the aggregate Class Principal Balance of the Pool 1-2 Senior
Certificates (other than the Class 1PO Certificates and the Interest-Only
Certificates) related to such Undercollateralized Pool immediately prior
to such
Distribution Date over the aggregate Principal Balance of the Pool 1 Mortgage
Loans and the Pool 2 Mortgage Loans (less, in the case of Pool 1 Subgroup
1, the
applicable PO Percentage of each Discount Mortgage Loan).
“Prefunded
Amount”:
The
amount deposited in the Prefunding Account on the Closing Date, which shall
equal $293,101.83.
36
“Prefunding
Account”:
The
separate Eligible Account created and maintained by the Securities Administrator
pursuant to Section 4.06 in the name of the Trustee for the benefit of the
Certificateholders of the Pool 1 Certificates, the Pool 2 Certificates and
the
Pool 1-2 Subordinate Certificates and designated “Prefunding Account, Xxxxx
Fargo Bank, N.A., as Securities Administrator, on behalf of Deutsche Bank
National Trust Company, as Trustee, in trust for the registered Holders of
RBSGC
Mortgage Loan Trust Mortgage Loan Pass-Through Certificates, Series 2007-B.”
Funds in the Prefunding Account shall be held in trust for the
Certificateholders of the Pool 1 Certificates, the Pool 2 Certificates and
the
Pool 1-2 Subordinate Certificates for the uses and purposes set forth in
this
Agreement and shall not be a part of any REMIC created hereunder; provided,
however,
that
any investment income earned from Permitted Investments made with funds in
the
Prefunding Account shall be for the account of the Depositor.
“Prefunding
Period”:
The
period from the Closing Date until the earliest of (i) the date on which
the
amount on deposit in the Prefunding Account is reduced to less than $100,000,
(ii) an Event of Default occurs or (iii) April 30, 2007.
“Premium
Mortgage Loan”:
Any
Pool 1 Mortgage Loan having a Net Loan Rate greater than 7.50%.
“Premium
Proceeds”:
The
amount by which the Termination Price paid in connection with the termination
pursuant to Section 10.01 hereof exceeds the sum of (i) accrued and unpaid
interest and unpaid principal on the Certificates, (ii) any unreimbursed
Servicing Advances and Advances and any unpaid Servicing Fees and Master
Servicing Fees and any additional compensation due and owing to the Master
Servicer pursuant to Section 3.14 and (iii) all other amounts, if any, then
due
and owing to the Trustee, the Master Servicer and the Securities Administrator
under this Agreement.
“Prepayment
Penalty Amount”:
With
respect to any Mortgage Loan and each Distribution Date, all premiums or
charges, if any, paid by Mortgagors under the related Mortgage Notes as a
result
of full or partial Principal Prepayments collected and deposited into the
Distribution Account during the immediately preceding Prepayment Period under
the terms of the related Servicing Agreement for distribution to the Holders
of
the Class P Certificates.
“Prepayment
Period”:
With
respect to any Distribution Date, the calendar month preceding the month
in
which such Distribution Date occurs.
“Principal
Balance”:
With
respect to any Mortgage Loan, other than a Liquidated Mortgage Loan, and
any
day, the related Cut-off Date Principal Balance, minus
all
collections credited against the Principal Balance of such Mortgage Loan
after
the applicable Cut-off Date. For purposes of this definition, a Liquidated
Mortgage Loan shall be deemed to have a Principal Balance equal to the Principal
Balance of the related Mortgage Loan as of the final recovery of related
Liquidation Proceeds and a Principal Balance of zero thereafter. With respect
to
any REO Property and any day, the Principal Balance of the related Mortgage
Loan
immediately prior to such Mortgage Loan becoming REO Property.
“Principal
Deficiency Amount”:
Each
of a Subgroup Principal Deficiency Amount and a Pool Principal Deficiency
Amount, as the context may require.
37
“Principal
Distribution Amount”:
With
respect to any Distribution Date and (i) Pool 2 and each Loan Subgroup in
Pool
1, the sum of (a) the applicable Non-PO Percentage of each portion of
scheduled payment of principal collected or advanced on the related Mortgage
Loans by the related Servicer in respect of the related Due Period, (b) the
applicable Non-PO Percentage of portion of the Purchase Price, representing
principal of any repurchased Mortgage Loan in Pool 2 or such Loan Subgroup
in
Pool 1, as applicable, deposited to the Distribution Account during the related
Prepayment Period, (c) the applicable Non-PO Percentage of the principal
portion of any related Substitution Adjustments with respect to Pool 2 or
such
Loan Subgroup in Pool 1, as applicable, deposited in the Distribution Account
during the related Prepayment Period, (d) the applicable Non-PO Percentage
of the principal portion of all Insurance Proceeds received during the related
Prepayment Period with respect to Mortgage Loans in Pool 2 or such Loan Subgroup
in Pool 1, as applicable, that are not yet Liquidated Mortgage Loans,
(e) the applicable Non-PO Percentage of the principal portion of all Net
Liquidation Proceeds received during the related Prepayment Period with respect
to Liquidated Mortgage Loans in Pool 2 or such Loan Subgroup in Pool 1, as
applicable,, (f) the applicable Non-PO Percentage of Principal Prepayments
in part or in full on Mortgage Loans in Pool 2 or such Loan Subgroup in Pool
1,
as applicable, applied by the related Servicer during the related Prepayment
Period, (g) the applicable Non-PO Percentage of all Recoveries related to
Pool 2
or such Loan Subgroup in Pool 1, as applicable, received during the Prepayment
Period and (h) on the Distribution Date on which the Trust Fund is to be
terminated pursuant to Section 10.01 hereof, the applicable Non-PO Percentage
of
the portion of the Termination Price in respect of principal for Pool 2 or
such
Loan Subgroup in Pool 1, as applicable; and (ii) Pool 3, the sum of (a) each
portion of scheduled payment of principal collected or advanced (before taking
into account any Deficient Valuations or Debt Service Reductions) on such
Pool 3
Mortgage Loan by the related Servicer in the related Due Period, (b) if the
Pool
3 Mortgage Loan is repurchased, the principal portion of the related Purchase
Price, deposited in the Distribution Account during the related Prepayment
Period, (c) the principal portion of any related Substitution Adjustment
amount
for such Pool 3 Mortgage Loan deposited in the Distribution Account during
the
related Prepayment Period, (d) if the Pool 3 Mortgage loan is not yet a
liquidated mortgage loan, the principal portion of all insurance proceeds
for
the mortgage loan received during the related Prepayment Period, (e) if the
Pool
3 Mortgage Loan is a Liquidated Mortgage Loan, the principal portion of all
Net
Liquidation Proceeds for such Pool 3 Mortgage Loan received during the related
Prepayment Period, other than Recoveries and (f) the principal portion of
all
partial and full Principal Prepayments of such Pool 3 Mortgage Loan received
during the related Prepayment Period and all Recoveries, if any, for such
Distribution Date.
“Principal
Prepayment”:
Any
payment of principal made by the Mortgagor on a Mortgage Loan that is received
in advance of its scheduled Due Date and that is not accompanied by an amount
of
interest representing the full amount of scheduled interest due on any Due
Date
in any month or months subsequent to the month of prepayment.
“Private
Certificates”:
The
Class 1B5, Class 1B6, Class 1B7, Class 3B4, Class 3B5, Class 3B6, Class P
and
Class LT-R Certificates.
“Private
Placement Memorandum”:
The
Private Placement Memorandum dated March 28, 2007, relating to the initial
sale
of the Class 1B5, Class 1B6, Class 1B7, Class 3B4, Class 3B5 and Class 3B6
Certificates.
38
“Privately-Offered
B Certificates”:
The
Class 1B5, Class 1B6, Class 1B7, Class 3B4, Class 3B5 and Class 3B6
Certificates.
“Pro
Rata Share”:
With
respect to any Distribution Date and any Class of Subordinate Certificates,
the
portion of the Subordinate Principal Distribution Amount allocable to such
Class, equal to the product of the (a) Subordinate Principal Distribution
Amount
on such date and (b) a fraction, the numerator of which is the related Class
Principal Balance of that Class and the denominator of which is the aggregate
of
the Class Principal Balances of all the Classes of Subordinate
Certificates.
“Proprietary
Lease”:
With
respect to any Cooperative Unit, a lease or occupancy agreement between a
Cooperative Corporation and a holder of related Cooperative Shares.
“Prospectus”:
The
Prospectus Supplement, together with the accompanying prospectus, dated March
26, 2007, relating to the Offered Certificates.
“Prospectus
Supplement”:
That
certain prospectus supplement dated March 28, 2007, relating to the initial
offering of the Offered Certificates.
“Purchase
Agreement”:
Each
mortgage loan purchase agreement and/or assignment agreement relating to
the
acquisition by the Seller of the Mortgage Loans and between the related
Originator and the Seller, listed on Exhibit V hereto.
“Purchase
Price”:
With
respect to any Mortgage Loan or REO Property to be purchased pursuant to
or as
contemplated by Section 2.03 hereof, and as confirmed by an Officers’
Certificate from the Seller to the Trustee and the Securities Administrator,
an
amount equal to the sum of (i) 100% of the Principal Balance thereof as of
the date of purchase (or such other price as is provided in Section 10.01),
plus
(ii) in the case of (x) a Mortgage Loan, accrued interest on such
Principal Balance at the applicable Loan Rate (or if the related Servicer
is
repurchasing such Mortgage Loan, the Loan Rate minus the applicable Servicing
Fee Rate) from the Due Date as to which interest was last covered by a payment
by the Mortgagor through the end of the calendar month in which the purchase
is
to be effected, and (y) an REO Property, the sum of (1) accrued
interest on such Principal Balance at the applicable Loan Rate (or if the
related Servicer is repurchasing such Mortgage Loan, the Loan Rate minus
the
applicable Servicing Fee Rate) from the Due Date as to which interest was
last
covered by a payment by the Mortgagor plus (2) REO Imputed Interest for such
REO
Property for each calendar month commencing with the calendar month in which
such REO Property was acquired and ending with the calendar month in which
such
purchase is to be effected, net of the total of all net rental income, Insurance
Proceeds and Liquidation Proceeds that as of the date of purchase had been
distributed as or to cover REO Imputed Interest, plus (iii) any
unreimbursed Servicing Advances and any unpaid Expense Fees allocable to
such
Mortgage Loan or REO Property, plus (iv) in the case of a Mortgage Loan
required to be purchased pursuant to Section 2.03 hereof, expenses reasonably
incurred or to be incurred by the Trustee in respect of the breach or defect
giving rise to the purchase obligation and plus (v) any costs and damages
incurred by the Trust Fund in connection with any violation by such Mortgage
Loan of any predatory- or abusive-lending laws.
“Qualified
Institutional Buyer”:
As
defined in Rule 144A of the Securities Act.
39
“Qualified
Substitute Mortgage Loan”:
A
mortgage loan substituted for a Deleted Mortgage Loan pursuant to the terms
of
this Agreement which must, on the date of such substitution, (i) have an
outstanding principal balance, after application of all scheduled payments
of
principal and interest due during or prior to the month of substitution,
not in
excess of, and not more than 5% less than, the Principal Balance of the Deleted
Mortgage Loan as of the Due Date in the calendar month during which the
substitution occurs, (ii) have a remaining term to maturity not greater than
(and not more than one year less than) that of the Deleted Mortgage Loan,
(iii)
be current as of the date of substitution, (iv) have a Loan-to-Value Ratio
as of
the date of substitution equal to or lower than the Loan-to-Value Ratio of
the
Deleted Mortgage Loan as of such date, (v) have been underwritten or
re-underwritten in accordance with the same or substantially similar
underwriting criteria and guidelines as the Deleted Mortgage Loan, (vi) is
of
the same or better credit quality as the Deleted Mortgage Loan, (vii) conform
to
each representation and warranty set forth in Section 2.04 hereof applicable
to
the Deleted Mortgage Loan and (viii) have a Loan Rate not less than the Loan
Rate of the Deleted Mortgage Loan. In the event that one or more mortgage
loans
are substituted for one or more Deleted Mortgage Loans, the amounts described
in
clause (i) hereof shall be determined on the basis of aggregate principal
balances, the terms described in clause (ii) hereof shall be determined on
the
basis of weighted average remaining term to maturity and the Loan-to-Value
Ratio
described in clause (iv) hereof shall be satisfied as to each such mortgage
loan
and, except to the extent otherwise provided in this sentence, the
representations and warranties described in clause (vii) hereof must be
satisfied as to each Qualified Substitute Mortgage Loan or in the aggregate,
as
the case may be. Any Mortgage Loan substituted for a Discount Mortgage Loan
shall for all purposes of this Agreement be treated as having the same interest
rate as the Mortgage Loan it replaced, except that any excess interest shall
be
paid to the Class 1X Certificates.
“Rating
Agency”:
Each
of Fitch, S&P and Xxxxx’x and any respective successors thereto. If any
rating agency or its successor shall no longer be in existence, “Rating Agency”
shall include such nationally recognized statistical rating agency or agencies,
or other comparable Person or Persons, as shall have been designated by the
Depositor, notice of which designation shall be given to the Trustee and
the
Master Servicer.
“Realized
Loss”:
With
respect to any Liquidated Mortgage Loan, the amount of loss realized equal
to
the portion of the Principal Balance remaining unpaid after application of
all
Net Liquidation Proceeds in respect of such Liquidated Mortgage
Loan.
“Recognition
Agreement”:
With
respect to any Cooperative Loan, an agreement between the related Cooperative
Corporation and the originator of such Mortgage Loan to establish the rights
of
such originator in the related Cooperative Property.
“Reconstitution
Agreement”:
Each
of the reconstitution agreements dated as of March 1, 2007, among the Seller,
the Depositor and the related Servicer and acknowledged by the Master Servicer
and the Trustee, reconstituting the Servicing Agreements.
“Record
Date”:
With
respect to each Distribution Date and the LIBOR Certificates, the Business
Day
preceding such Distribution Date. With respect to each Distribution Date
and any
Certificates that are not LIBOR Certificates, the last Business Day of the
calendar month immediately preceding the month in which such Distribution
Date
occurs.
40
“Recovery”:
With
respect to any Distribution Date and a Mortgage Loan that became a Liquidated
Mortgage Loan in the month preceding the month prior to that Distribution
Date
and with respect to which the related Realized Loss was allocated to one
or more
Classes of Certificates, an amount received in respect of such Liquidated
Mortgage Loan during the prior calendar month, net of any reimbursable
expenses.
“Reference
Bank”:
A
leading bank engaged in transactions in Eurodollar deposits in the international
Eurocurrency market, which shall not control, be controlled by, or be under
common control with, the Securities Administrator and shall have an established
place of business in London. Until all of the LIBOR Certificates are paid
in
full, the Securities Administrator will at all times retain at least four
Reference Banks for the purpose of determining LIBOR with respect to each
LIBOR
Determination Date. The Securities Administrator initially shall designate
the
Reference Banks (after consultation with the Depositor). If any such Reference
Bank should be unwilling or unable to act as such or if the Securities
Administrator should terminate its appointment as Reference Bank, the Securities
Administrator shall promptly appoint or cause to be appointed another Reference
Bank (after consultation with the Depositor). The Securities Administrator
shall
have no liability or responsibility to any Person for (i) the selection of
any
Reference Bank for purposes of determining LIBOR or (ii) any inability to
retain
at least four Reference Banks which is caused by circumstances beyond its
reasonable control.
“Refinancing
Mortgage Loan”:
Any
Mortgage Loan originated in connection with the refinancing of an existing
mortgage loan.
“Regular
Certificate”:
Any
Certificate other than the Class R and Class LT-R Certificates.
“Regulation
AB”:
Subpart 229.1100 - Asset Backed Securities (Regulation AB), 17 C.F.R.
§§229.1100-229.1123, as such may be amended from time to time, and subject
to
such clarifications and interpretations as have been provided by the Commission
in the adopting release (Asset-Backed Securities, Securities Act Release
No.
33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005)) or by the staff of the
Commission, or as may be provided by the Commission or its staff from time
to
time.
“Regulation S”:
Regulation S promulgated under the Securities Act or any successor
provision thereto, in each case as the same may be amended from time to time;
and all references to any rule, section or subsection of, or definition or
term
contained in, Regulation S means such rule, section, subsection, definition
or term, as the case may be, or any successor thereto, in each case as the
same
may be amended from time to time.
“Regulation
S Global Security”:
The
meaning specified in Section 6.01.
“Relevant
Servicing Criteria”:
The
Servicing Criteria applicable to each party, as set forth on Exhibit R attached
hereto. Multiple parties can have responsibility for the same Relevant Servicing
Criteria. With respect to a Servicing Function Participant engaged by the
Master
Servicer, the Securities Administrator, the Trustee, the Custodians or the
Servicers, the term “Relevant Servicing Criteria” may refer to a portion of the
Relevant Servicing Criteria applicable to such parties.
41
“Relief
Act”:
The
Servicemembers Civil Relief Act, as amended, or any similar state or local
law.
“Relief
Act Reductions”:
With
respect to any Distribution Date and any Mortgage Loan as to which there
has
been a reduction in the amount of interest collectible thereon for the most
recently ended Due Period as a result of the application of the Relief Act,
the
amount, if any, by which (i) interest collectible on that Mortgage Loan during
such Due Period is less than (ii) one month’s interest on the Stated Principal
Balance of such Mortgage Loan at the Loan Rate for such Mortgage Loan before
giving effect to the application of the Relief Act.
“REMIC”:
A
“real estate mortgage investment conduit” within the meaning of Section 860D of
the Code.
“REMIC
Opinion”:
An
Independent Opinion of Counsel, to the effect that the proposed action described
therein would not cause an Adverse REMIC Event.
“REMIC
Provisions”:
Provisions of the federal income tax law relating to real estate mortgage
investment conduits which appear at Section 860A through 860G of Subchapter
M of
Chapter 1 of the Code, and related provisions, and regulations and rulings
promulgated thereunder, as the foregoing may be in effect from time to
time.
“Remittance
Report”:
The
Master Servicer’s Remittance Report to the Securities Administrator providing
information with respect to each Mortgage Loan which is provided no later
than
the second Business Day following each Determination Date and which shall
contain such information as may be agreed upon by the Master Servicer and
the
Securities Administrator and which shall be sufficient to enable the Securities
Administrator to prepare the related Distribution Date Statement.
“Rents
from Real Property”:
With
respect to any REO Property, gross income of the character described in Section
856(d) of the Code.
“REO
Account”:
The
account or accounts maintained by the Servicers in respect of an REO Property
pursuant to the Servicing Agreements.
“REO
Disposition”:
The
sale or other disposition of an REO Property on behalf of the Trust
Fund.
“REO
Imputed Interest”:
With
respect to any REO Property, for any calendar month during which such REO
Property was at any time part of the Trust Fund, one month’s interest at the
applicable Net Loan Rate for such REO Property on the Principal Balance of
such
REO Property (or, in the case of the first such calendar month, of the related
Mortgage Loan if appropriate) as of the Close of Business on the Due Date
in
such calendar month.
“REO
Principal Amortization”:
With
respect to any REO Property, for any calendar month, the excess, if any,
of (a)
the aggregate of all amounts received in respect of such REO Property during
such calendar month, whether in the form of rental income, sale proceeds
(including, without limitation, that portion of the Termination Price paid
in
connection with a purchase of all of the Mortgage Loans and REO Properties
pursuant to Section 10.01 hereof that is allocable to such REO Property)
or
otherwise, net of any portion of such amounts (i) payable pursuant to the
applicable provisions of the relevant Servicing Agreement in respect of the
proper operation, management and maintenance of such REO Property or (ii)
payable or reimbursable to the applicable Servicer pursuant to the applicable
provisions of the related Servicing Agreement for unpaid Master Servicing
Fees
and Servicing Fees in respect of the related Mortgage Loan and unreimbursed
Servicing Advances and Advances in respect of such REO Property or the related
Mortgage Loan, over (b) the REO Imputed Interest in respect of such REO
Property for such calendar month.
42
“REO
Property”:
A
Mortgaged Property acquired by a Servicer on behalf of the Trust Fund through
foreclosure or deed-in-lieu of foreclosure in accordance with the applicable
provisions of the Servicing Agreements.
“Reportable
Event”:
As
defined in Section 3.19(c).
“Repurchase
Price”:
As
defined in the related Purchase Agreement.
“Request
for Release”:
A
release signed by a Servicing Officer, in the form of Exhibit F attached
hereto.
“Residential
Dwelling”:
Any
one of the following: (i) a detached one-family dwelling, (ii) a
detached two- to four-family dwelling, (iii) a one-family dwelling unit in
a condominium project, (iv) a manufactured home, (v) a cooperative unit or
(vi)
a detached one-family dwelling in a planned unit development, none of which
is a
mobile home.
“Residual
Certificate”:
Each
of the Class R and Class LT-R Certificates.
“Responsible
Officer”:
When
used with respect to the Trustee, any director, any vice president, any
assistant vice president, any associate assigned to the Corporate Trust Office
(or similar group) or any other officer of the Trustee customarily performing
functions similar to those performed by any of the above designated officers
and, with respect to a particular matter, to whom such matter is referred
because of such officer’s knowledge of and familiarity with the particular
subject.
“Restricted
Classes”:
As
defined in Section 5.01(d).
“Restricted
Global Security”:
As
defined in Section 6.01.
“S&P”:
Standard & Poor’s Ratings Services, a division of The XxXxxx-Xxxx Companies,
Inc., and any successor thereto.
“Sarbanes
Oxley Act”:
The Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations of the Commission
promulgated thereunder (including any interpretations thereof by the
Commission’s staff).
43
“Xxxxxxxx-Xxxxx
Certification”:
A
written certification signed by an officer of the Master Servicer that complies
with (i) the Xxxxxxxx-Xxxxx Act of 2002, as amended from time to time, and
(ii)
Exchange Act Rules 13a-14(d) and 15d-14(d), as in effect from time to time;
provided
that if,
after the Closing Date (a) the Xxxxxxxx-Xxxxx Act of 2002 is amended, (b)
the
Rules referred to in clause (ii) are modified or superseded by any subsequent
statement, rule or regulation of the Commission or any statement of a division
thereof, or (c) any future releases, rules and regulations are published
by the
Securities and Exchange Commission from time to time pursuant to the
Xxxxxxxx-Xxxxx Act of 2002, which in any such case affects the form or substance
of the required certification and results in the required certification being,
in the reasonable judgment of the Master Servicer, materially more onerous
than
the form of the required certification as of the Closing Date, the
Xxxxxxxx-Xxxxx Certification shall be as agreed to by the Master Servicer,
the
Depositor and the Seller following a negotiation in good faith to determine
how
to comply with any such new requirements.
“Securities
Act”:
The Securities Act of 1933, as amended, and the rules and regulations
thereunder.
“Securities
Administrator”:
Xxxxx
Fargo Bank, N.A. and its successors in interest and assigns, or any successor
securities administrator appointed as herein provided.
“Security
Agreement”:
With
respect to any Cooperative Loan, the agreement between the owner of the related
Cooperative Shares and the originator of the related Mortgage Note that defines
the terms of the security interest in such Cooperative Shares and the related
Proprietary Lease.
“Seller”:
GCFP,
in its capacity as seller under this Agreement.
“Senior
Certificate”:
Any of
the Class 1A1, Class 1A2, Class 1A3, Class 1A4, Class 1A5, Class 1A6, Class
2A1,
Class 3A1, Class 3A2, Class 1PO, Class 1X and Class R Certificates.
“Senior
Certificate Group”:
Any of
(a) the Class 1A1, Class 1A2, Class 1A3, Class 1A4, Class 1A5, Class 1A6,
Class
1PO, Class 1X and Class R Certificates with respect to Pool 1; (b) the Class
2A1
Certificates with respect to Pool 2, and (c) the Class 3-A-1 and Class 3-A-2
Certificates with respect to Pool 3.
“Senior
Certificateholder”:
Any
Holder of a Senior Certificate.
“Senior
Credit Support Depletion Date”:
The
date on which the Class Principal Balance of each Class of related Subordinate
Certificates has been reduced to zero.
“Senior
Percentage”:
With
respect to each Distribution Date and (i) Pool 1 and Pool 2 and, with respect
to
Pool 1, each Loan Subgroup, the percentage equivalent of a fraction (which
shall
not be greater than 100%), the numerator of which is the aggregate of the
Class
Principal Balances and Component Principal Balances of the Class or Classes
of
Senior Certificates (other than the Class 1PO Certificates and any Interest-Only
Certificates) and Components relating to that Mortgage Pool or Loan Subgroup,
as
applicable, immediately prior to such Distribution Date and the denominator
of
which is the Stated Principal Balance of all Mortgage Loans in the related
Mortgage Pool or Loan Subgroup, as applicable (other than, in the case of
Pool 1
Subgroup 1, the PO Percentage of any Discount Mortgage Loans), as of the
Due
Date in the month immediately preceding the month of such Distribution Date;
provided,
however,
that on
any Distribution Date after a Senior Termination Date has occurred with respect
to the Senior Certificates related to such Mortgage Pool or Loan Subgroup,
the
Senior Percentage for the related Mortgage Pool or Loan Subgroup will be
equal
to 0% and; provided,
further, that
on
any Distribution Date after a Senior Termination Date has occurred with respect
to the Senior Certificates related to three Loan Subgroups, or has occurred
with
respect to Pool 1 or Pool 2, the Senior Percentage of the Mortgage Pool or
Loan
Subgroup related to the remaining Senior Certificates (other than the Class
1PO
Certificates and any Interest-Only Certificates) and Components is the
percentage equivalent of a fraction, the numerator of which is the aggregate
of
the Class Principal Balances and Component Principal Balances of the remaining
Class or Classes of Senior Certificates (other than the Class 1PO Certificates
and any Interest-Only Certificates) and Components immediately prior to such
date and the denominator of which is the aggregate of the Class Principal
Balances and Component Principal Balances of all Classes of Certificates
(other
than the Class 1PO Certificates and any Interest-Only Certificates) immediately
prior to such date and (ii) Pool 3, the percentage equivalent of a fraction,
the
numerator of which is the aggregate of the Class Principal Balances of the
Class
or Classes of Pool 3 Senior Certificates immediately prior to such date and
the
denominator of which is the Stated Principal Balance of all Pool 3 Mortgage
Loans as of the Due Date in the month immediately preceding the month of
such
Distribution Date.
44
“Senior
Prepayment Percentage”:
With
respect to each Loan Subgroup and any Distribution Date before the Distribution
Date in April 2012, 100%. Except as provided herein, the Senior Prepayment
Percentage for each Mortgage Pool and, with respect to Pool 1, each Loan
Subgroup for any Distribution Date occurring on or after the tenth anniversary
of the first Distribution Date will be as follows: (i) from April 2012
through March 2013, the related Senior Percentage plus 70% of the related
Subordinate Percentage for that Distribution Date; (ii) from April
2013 through
March 2014, the related Senior Percentage plus 60% of the related Subordinate
Percentage for that Distribution Date; (iii) from April 2014 through
March 2015, the related Senior Percentage plus 40% of the related Subordinate
Percentage for that Distribution Date; (iv) from April 2015 through
March 2016, the related Senior Percentage plus 20% of the related Subordinate
Percentage for that Distribution Date; and (v) from and after April 2016,
the related Senior Percentage for that Distribution Date; provided,
however, that
there shall be no reduction in the Senior Prepayment Percentage for any Mortgage
Pool and, with respect to Pool 1, any Loan Subgroup unless the Step Down
Conditions are satisfied on that Distribution Date; and provided,
further,
that if
on any Distribution Date occurring on or after the Distribution Date in April
2012, the Senior Percentage for any Mortgage Pool and, with respect to Pool
1,
any Loan Subgroup exceeds the initial Senior Percentage for such Mortgage
Pool
or Loan Subgroup, as applicable, the related Senior Prepayment Percentage
for
that Distribution Date will again equal 100%.
“Senior
Principal Distribution Amount”:
With
respect to any Distribution Date and (i) each of Pool 1 and Pool 2 and, with
respect to Pool 1, each Loan Subgroup, the sum of:
45
(1) the
related Senior Percentage of all amounts described in clauses (i) (a) through
(d) and clause (h) of the definition of “Principal Distribution Amount” with
respect to such Mortgage Pool or Loan Subgroup for such Distribution Date;
(2) with
respect to each Mortgage Loan in such Mortgage Pool or Loan Subgroup which
became a Liquidated Mortgage Loan during the related Prepayment Period, the
lesser of
|
(x)
|
the
Non-PO Percentage of the related Senior Percentage (or in the case
of any
Loan Subgroup, the portion of) the Stated Principal Balance of
that
Mortgage Loan; and
|
|
(y)
|
the
Non-PO Percentage of the related Senior Prepayment Percentage of
the
amount of (or in the case of any Loan Subgroup, the portion of)
the Net
Liquidation Proceeds allocable to principal received with respect
to that
Mortgage Loan; and
|
(3) the
related Senior Prepayment Percentage of the amounts described in clauses
(i) (f)
and (g) of the definition of “Principal Distribution Amount” with respect to
such Mortgage Pool or Loan Subgroup and for such Distribution Date.
and
(ii)
Pool 3, the sum of:
(1) the
Senior Percentage of all amounts described in clauses (ii) (a) through (d)
and
clause (h) of the definition of “Principal Distribution Amount” with respect to
such Mortgage Pool for such Distribution Date;
(2) with
respect to each Mortgage Loan in such Mortgage Pool which became a Liquidated
Mortgage Loan during the related Prepayment Period, the lesser of
|
(x)
|
the
related Senior Percentage of the Stated Principal Balance of such
Mortgage
Loan; and
|
|
(y)
|
the
related Senior Prepayment Percentage of the amount of the Net Liquidation
Proceeds allocable to principal received on such Mortgage Loan;
and
|
(3) the
related Senior Prepayment Percentage of the amounts described in clauses
(ii)
(f) and (g) of the definition of “Principal Distribution Amount” with respect to
such Mortgage Pool and for such Distribution Date.
“Senior
Termination Date”:
For
each Senior Certificate Group, the Distribution Date on which the aggregate
of
the Class Principal Balances of the related Senior Certificates and Component
Principal Balances is reduced to zero.
“Servicer”:
Each
of CMC, GMACM, PHH, U.S. Central and Xxxxx Fargo Bank, N.A.
46
“Servicer
Remittance Date”:
With
respect to each Mortgage Loan, the 18th
day of
each month, or if such 18th
day is
not a Business Day, either the immediately preceding or the immediately
succeeding Business Day, in each case as provided in the related Servicing
Agreement.
“Servicing
Account”:
Any
account established and maintained for the benefit of the Trust Fund by a
Servicer with respect to the related Mortgage Loans and any REO Property,
pursuant to the terms of the respective Servicing Agreement.
“Servicing
Advances”:
With
respect to any Servicer and the Master Servicer (including the Trustee in
its
capacity as successor Master Servicer), all customary, reasonable and necessary
“out of pocket” costs and expenses (including reasonable attorneys’ fees and
expenses) incurred by such Servicers in the performance of its servicing
obligations under the related Servicing Agreement or by the Master Servicer
(including the Trustee in its capacity as successor Master Servicer) in the
performance of its obligations hereunder, including, but not limited to,
the
cost of (i) the preservation, restoration, inspection and protection of the
Mortgaged Property, (ii) any enforcement or judicial proceedings, including
foreclosures, (iii) the management and liquidation of the REO Property and
(iv)
any other expenses permitted to be reimbursed as Servicing Advances under
the
related Servicing Agreement, as applicable.
“Servicing
Agreement”:
Each
reconstituted servicing agreement or assignment, assumption and recognition
agreement set forth on Exhibit M hereto and relating to a Servicer and the
servicing of the related Mortgage Loans by or on behalf of such Servicer,
as the
same may be amended from time to time.
“Servicing
Criteria”:
The
criteria set forth in paragraph (d) of Item 1122 of Regulation AB, as such
may
be amended from time to time.
“Servicing
Fee”:
With
respect to each Servicer and each Mortgage Loan serviced by or on behalf
of such
Servicer and for any calendar month, the fee payable to such Servicer determined
pursuant to the applicable Servicing Agreement.
“Servicing
Fee Rate”:
With
respect to each Mortgage Loan, the per annum rate of 0.250%.
“Servicing
Function Participant”:
Any
Subservicer or Subcontractor of a Servicer, the Master Servicer, a Custodian
and
the Securities Administrator, respectively.
“Servicing
Officer”:
Any
officer of the Master Servicer or a Servicer involved in, or responsible
for,
the administration and servicing (or master servicing) of Mortgage Loans,
whose
name and specimen signature appear on a list of servicing officers furnished
by
the Master Servicer, each Servicer or Subservicer, as applicable, to the
Trustee, the Custodians and the Depositor on the Closing Date, as such list
may
from time to time be amended.
“Sponsor”:
Greenwich Capital Financial Products, Inc., in its capacity as sponsor under
this Agreement.
“Startup
Day”:
As
defined in Section 9.01(b) hereof.
47
“Stated
Principal Balance”:
With
respect to any Mortgage Loan: (a) as of the Distribution Date in April 2007,
the
Cut-off Date Principal Balance of such Mortgage Loan, (b) thereafter as of
any date of determination up to and including the Distribution Date on which
the
proceeds, if any, of a Liquidation Event with respect to such Mortgage Loan
would be distributed, the Cut-off Date Principal Balance of such Mortgage
Loan
minus,
in the
case of each Mortgage Loan, the sum of (i) the principal portion of each
Monthly Payment due on a Due Date subsequent to the Cut-off Date, whether
or not
received, (ii) all Principal Prepayments received after the Cut-off Date,
to the extent distributed pursuant to Section 5.01 before such date of
determination and (iii) all Liquidation Proceeds and Insurance Proceeds
applied by the Servicer as recoveries of principal in accordance with the
applicable provisions of the Servicing Agreement, to the extent distributed
pursuant to Section 5.01 before such date of determination; and (c) as of
any date of determination subsequent to the Distribution Date on which the
proceeds, if any, of a Liquidation Event with respect to such Mortgage Loan
would be distributed, zero; provided
that
such
Stated Principal Balance shall be increased by the amount of any Deferred
Interest added to the outstanding Principal Balance of such Mortgage Loan
pursuant to the terms of the related Mortgage Note. With respect to any REO
Property: (x) as of any date of determination up to and including the
Distribution Date on which the proceeds, if any, of a Liquidation Event with
respect to such REO Property would be distributed, an amount (not less than
zero) equal to the Stated Principal Balance of the related Mortgage Loan
as of
the date on which such REO Property was acquired on behalf of the Trust Fund,
minus the aggregate amount of REO Principal Amortization in respect of such
REO
Property for all previously ended calendar months, to the extent distributed
pursuant to Section 5.01 before such date of determination; and (y) as
of any date of determination subsequent to the Distribution Date on which
the
proceeds, if any, of a Liquidation Event with respect to such REO Property
would
be distributed, zero.
“Step
Down Conditions”:
With
respect to any Distribution Date on which any decrease in any Senior Prepayment
Percentage may apply and (a) Pool 1 and Pool 2, (i) the outstanding Principal
Balance of all Pool 1 and Pool 2 Mortgage Loans 60 days or more Delinquent
(including related Mortgage Loans in REO and foreclosure) (averaged over
the
preceding six month period), as a percentage of the aggregate of the Class
Principal Balances of the Classes of Pool 1-2 Subordinate Certificates on
such
Distribution Date, does not equal or exceed 50% and (ii) cumulative
Realized Losses with respect to all of the Pool 1 and Pool 2 Mortgage Loans
do
not exceed:
|
·
|
for
any Distribution Date on or after the fifth anniversary until the
sixth
anniversary of the first Distribution Date, 30% of the aggregate
Class
Principal Balance of the related Pool 1-2 Subordinate Certificates
as of
the Closing Date,
|
|
·
|
for
any Distribution Date on or after the sixth anniversary until the
seventh
anniversary of the first Distribution Date, 35% of the aggregate
Class
Principal Balance of the related Pool 1-2 Subordinate Certificates
as of
the Closing Date,
|
|
·
|
for
any Distribution Date on or after the seventh anniversary until
the eighth
anniversary of the first Distribution Date, 40% of the aggregate
Class
Principal Balance of the related Pool 1-2 Subordinate Certificates
as of
the Closing Date,
|
48
|
·
|
for
any Distribution Date on or after the eighth anniversary until
the ninth
anniversary of the first Distribution Date, 45% of the aggregate
Class
Principal Balance of the related Pool 1-2 Subordinate Certificates
as of
the Closing Date, and
|
|
·
|
for
any Distribution Date on or after the ninth anniversary of the
first
Distribution Date, 50% of the aggregate Class Principal Balance
of the
related Pool 1-2 Subordinate Certificates as of the Closing
Date.
|
and
(b)
Pool 3, (i) the outstanding Principal Balance of all Pool 3 Mortgage Loans
60
days or more Delinquent (including related Mortgage Loans in REO and
foreclosure) (averaged over the preceding six month period), as a percentage
of
the aggregate of the Class Principal Balances of the Classes of Pool 3
Subordinate Certificates on such Distribution Date, does not equal or exceed
50%
and (ii) cumulative Realized Losses with respect to all of the Pool 3
Mortgage Loans do not exceed:
|
·
|
for
any Distribution Date on or after the fifth anniversary until the
sixth
anniversary of the first Distribution Date, 30% of the aggregate
Class
Principal Balance of the related Pool 3 Subordinate Certificates
as of the
Closing Date,
|
|
·
|
for
any Distribution Date on or after the sixth anniversary until the
seventh
anniversary of the first Distribution Date, 35% of the aggregate
Class
Principal Balance of the related Pool 3 Subordinate Certificates
as of the
Closing Date,
|
|
·
|
for
any Distribution Date on or after the seventh anniversary until
the eighth
anniversary of the first Distribution Date, 40% of the aggregate
Class
Principal Balance of the related Pool 3 Subordinate Certificates
as of the
Closing Date,
|
|
·
|
for
any Distribution Date on or after the eighth anniversary until
the ninth
anniversary of the first Distribution Date, 45% of the aggregate
Class
Principal Balance of the related Pool 3 Subordinate Certificates
as of the
Closing Date, and
|
|
·
|
for
any Distribution Date on or after the ninth anniversary of the
first
Distribution Date, 50% of the aggregate Class Principal Balance
of the
related Pool 3 Subordinate Certificates as of the Closing
Date.
|
“Stripped
Interest Rate”:
For
any Pool 1 Subgroup 4 Mortgage Loan, the excess, if any, of the net loan
rate of
such Mortgage Loan over the Designated Rate for such Loan Subgroup.
“Subcontractor”:
Any
vendor, subcontractor or other Person that is not responsible for the overall
servicing of Mortgage Loans but performs one or more discrete functions
identified in Item 1122(d) of Regulation AB with respect to Mortgage Loans
under
the direction or authority of any Servicer (or a Subservicer of any Servicer),
the Master Servicer, the Trustee, any Custodian or the Securities
Administrator.
49
“Subgroup
Principal Deficiency Amount”:
With
respect to any Distribution Date and any Undercollateralized Subgroup, the
excess, if any, of the aggregate Class Principal Balance of the Pool 1 Senior
Certificates (other than the Class 1PO Certificates and the Interest-Only
Certificates) and the Component Principal Balance of any Class 1A1 Component
related to such Undercollateralized Subgroup immediately prior to such
Distribution Date over the aggregate Principal Balance of the Pool 1 Mortgage
Loans in that Loan Subgroup (less, in the case of Pool 1 Subgroup 1, the
applicable PO Percentage of each Discount Mortgage Loan).
“Subordinate
Certificate”:
Any of
the Class 1B1, Class 1B2, Class 1B3, Class 1B4, Class 1B5, Class 1B6, Class
1B7,
Class 3B1, Class 3B2, Class 3B3, Class 3B4, Class 3B5 or Class 3B6
Certificates.
“Subordinate
Class Expense Share”:
For
each Class of Subordinate Certificates and each Accrual Period, the Subordinate
Class Expense Share shall be allocated in reverse order of their respective
numerical Class designations (beginning with the Class of Subordinate
Certificates with the highest numerical Class designation) and will be an
amount
equal to (i) the sum of, without duplication, (a) the amounts paid to the
Trustee from the Trust Fund during such Accrual Period pursuant to Section
8.05
hereof to the extent such amounts were paid for ordinary or routine expenses
and
were not taken into account in computing the Net Loan Rate of any Mortgage
Loan
and (b) amounts described in clause (y) of the definition of Available Funds
herein to the extent such amounts were paid for ordinary or routine expenses
and
were not taken into account in computing the Net Loan Rate of any Mortgage
Loan
minus
(ii)
amounts taken into account under clause (i) of this definition in determining
the Subordinate Class Expense Share of any Class of Subordinate Certificates
having a higher numeric designation. In no event, however, shall the Subordinate
Class Expense Share for any Class of Subordinate Certificates and any Accrual
Period exceed the product of (i) (a) the lesser of the Pass-Through Rate
for
such Class or the applicable Adjusted Cap Rate, divided
by
(b) 12
and (ii) the Class Principal Balance of such Class of Subordinate Certificates
as of the beginning of the related Accrual Period.
“Subordinate
Component”:
With
respect to any Distribution Date and Pool 1 and Pool 2 and, with respect
to Pool
1, each Loan Subgroup, the excess of the aggregate Stated Principal Balances
of
the Mortgage Loans in the related Mortgage Pool or Loan Subgroup (less,
in the
case of Pool 1 Subgroup 1, the PO Percentage of any Discount Mortgage Loan),
as
of the first day of the month preceding the month in which such Distribution
Date occurs, over the aggregate of the Class Principal Balances of the related
Senior Certificates (other than the Class 1PO Certificates and any Interest-Only
Certificates) and Components immediately prior to such Distribution Date.
In the
case of Pool 1, the designation “1,” “2,” “3” and “4” appearing after the
corresponding Loan Subgroup designation is used to indicate a Subordinate
Component allocable to Pool 1 Subgroup 1, Pool 1 Subgroup 2, Pool 1 Subgroup
3
and Pool 1 Subgroup 4, respectively.
“Subordinate
Percentage”:
With
respect to any Distribution Date and (i) Pool 1 and Pool 2, and, in the case
of
Pool 1, any Loan Subgroup, the difference between 100% and the related Senior
Percentage for such Mortgage Pool (or if a Senior Termination Date with respect
to Pool 2 has occurred, for such Loan Subgroup in Pool 1) on such Distribution
Date; provided,
however,
that on
any Distribution Date after the Senior Termination Date has occurred with
respect to either Pool 1 or Pool 2 (or if a Senior Termination Date has occurred
with respect to Pool 2, on any Distribution Date after the Senior Termination
Date has occurred with respect to three Loan Subgroups in Pool 1), the related
Subordinate Percentage will represent the entire interest of the Pool 1-2
Subordinate Certificates in the Pool 1 and Pool 2 Mortgage Loans (other than
the
PO Percentage of each Discount Mortgage Loan) and will be equal to the
difference between 100% and the related Senior Percentage for such distribution
date; and (ii) Pool 3, the difference between 100% and the related Senior
Percentage for such Mortgage Pool for such Distribution Date.
50
“Subordinate
Prepayment Percentage”:
With
respect to any Distribution Date and Pool 1 and Pool 2 and, in the case of
Pool
1, any Loan Subgroup in Pool 1, the difference between 100% and the related
Senior Prepayment Percentage for that date. For any Distribution Date and
pool
3, the difference between 100% and the related Senior Prepayment Percentage
for
pool 3 for that Date.
“Subordinate
Principal Distribution Amount”:
With
respect to any Distribution Date and (A) Pool 1 and Pool 2 and, in the case
of
Pool 1, any Loan Subgroup in Pool 1, an amount equal to the sum of:
(1) the
related Subordinate Percentage of all amounts described in clauses (i) (a)
through (d) and (h) of the definition of “Principal Distribution Amount” for
such Mortgage Pool or Loan Subgroup and Distribution Date;
(2) with
respect to each Mortgage Loan in such Mortgage Pool or Loan Subgroup that
became
a Liquidated Mortgage Loan during the related Prepayment Period, the applicable
Non-PO Percentage of the amount of the Net Liquidation Proceeds allocable
to
principal received with respect thereto remaining after application thereof
pursuant to clause (i) (2) of the definition of “Senior Principal Distribution
Amount” for such Mortgage Pool or Loan Subgroup and Distribution Date, up to the
applicable Non-PO Percentage of the related Subordinate Percentage of the
Stated
Principal Balance of such Mortgage Loan; and
(3) the
related Subordinated Prepayment Percentage of all amounts described in clause
(i) (f) and (g) of the definition of “Principal Distribution Amount” for such
Mortgage Pool or Loan Subgroup and Distribution Date;
provided,
however,
that on
any Distribution Date after the Senior Termination Date has occurred with
respect to Pool 1 or Pool 2 (or if a Senior Termination Date has occurred
with
respect to Pool 2, on any Distribution Date after the Senior Termination
Date
has occurred with respect to three Loan Subgroups in Pool 1), the related
Subordinate Principal Distribution Amount shall not be calculated by Mortgage
Pool or Loan Subgroup, as applicable, but will equal the amount calculated
pursuant to the formula set forth above based on the Subordinate Percentage
or
Subordinate Prepayment Percentage, as applicable, for the Pool 1-2 Subordinate
Certificates for such Distribution Date with respect to all of the Mortgage
Loans that are not Discount Mortgage Loans (as opposed to the mortgage loans
in
the related Mortgage Pool or Loan Subgroup, as applicable); and
(B)
Pool
3, an amount equal to the sum of:
51
(1) the
related Subordinate Percentage of all amounts described in clauses (ii) (a)
through (d) and (h) of the definition of “Principal Distribution Amount” for
such Mortgage Pool and Distribution Date;
(2) with
respect to each Mortgage Loan in such Mortgage Pool that became a Liquidated
Mortgage Loan during the related Prepayment Period, the applicable Non-PO
Percentage of the amount of the Net Liquidation Proceeds allocable to principal
received with respect thereto remaining after application thereof pursuant
to
clause (ii) (2) of the definition of “Senior Principal Distribution Amount” for
such Mortgage Pool and Distribution Date, up to the related Subordinate
Percentage of the Stated Principal Balance of such Mortgage Loan;
and
(3) the
related Subordinated Prepayment Percentage of all amounts described in clause
(ii) (f) and (g) of the definition of “Principal Distribution Amount” for such
Mortgage Pool and Distribution Date.
“Subsequent
Cut-off Date”:
With
respect to each Subsequent Mortgage Loan, the date specified in the related
Subsequent Transfer Agreement for such Subsequent Mortgage Loan.
“Subsequent
Mortgage Loan”:
Any
Mortgage Loan, other than an Initial Mortgage Loan, conveyed to the Trust
Fund
pursuant to Section 2.01 hereof and a Subsequent Transfer Agreement, which
Mortgage Loan shall be listed on the revised Mortgage Loan Schedule delivered
pursuant to this Agreement and on Schedule A to such Subsequent Transfer
Agreement. When used with respect to a single Subsequent Transfer Date,
Subsequent Mortgage Loan shall mean a Subsequent Mortgage Loan conveyed to
the
Trust Fund on that Subsequent Transfer Date.
“Subsequent
Pool 1 Mortgage Loan”:
A
Subsequent Mortgage Loan that will be identified as a Pool 1 Mortgage Loan
on
the revised Mortgage Loan Schedule and that has an original term to maturity
equal to or less than 360 months but greater than 180 months.
“Subsequent
Pool 2 Mortgage Loan”:
A
Subsequent Mortgage Loan that will be identified as a Pool 2 Mortgage Loan
on
the revised Mortgage Loan Schedule and that has an original term to maturity
equal to 180 months.
“Subsequent
Transfer Agreement”:
A
Subsequent Transfer Agreement substantially in the form of Exhibit P hereto,
executed and delivered by and among the Depositor, the Seller and the Trustee
and acknowledged by the Servicer, as provided in Section 2.01(b)
hereof.
“Subsequent
Transfer Date”:
With
respect to any Subsequent Transfer Agreement, the date the related Subsequent
Mortgage Loans are transferred to the Trust Fund pursuant to the related
Subsequent Transfer Agreement.
“Subservicer”:
Any
Person that services Mortgage Loans on behalf of a Servicer, the Master
Servicer, the Securities Administrator or a Custodian, and is responsible
for
the performance (whether directly or through subservicers or Subcontractors)
of
servicing functions required to be performed under this Agreement, any related
Servicing Agreement or any subservicing agreement that are identified in
Item
1122(d) of Regulation AB.
52
“Substitution
Adjustment”:
As
defined in Section 2.03(g) hereof.
“Tax
Returns”:
The
federal income tax return on Internal Revenue Service Form 1066 (U.S. Real
Estate Mortgage Investment Conduit Income Tax Return), including Schedule
Q
thereto (Quarterly Notice to Residual Interest Holders of the REMIC Taxable
Income or Net Loss Allocation), or any successor forms, to be filed on behalf
of
each of the REMICs created hereunder under the REMIC Provisions, together
with
any and all other information reports or returns that may be required to
be
furnished to the Certificateholders or filed with the Internal Revenue Service
or any other governmental taxing authority under any applicable provisions
of
federal, state or local tax laws.
“Telerate
Page 3750”:
The
display currently so designated as “Page 3750” on the Bridge Telerate Service
(or such other page selected by the Securities Administrator as may replace
Page
3750 on that service for the purpose of displaying daily comparable rates
on
prices).
“Termination
Price”:
As
defined in Section 10.01(a) hereof.
“Terminator”:
As
defined in Section 10.01(a) hereof.
“Transfer”:
Any
direct or indirect transfer or sale of any Ownership Interest in a Residual
Certificate.
“Transfer
Affidavit”:
As
defined in Section 6.02(e)(ii) hereof.
“Transferee”:
Any
Person who is acquiring by Transfer any Ownership Interest in a
Certificate.
“Trust
Fund”:
The
segregated pool of assets subject hereto, constituting the primary trust
created
hereby and to be administered hereunder, with respect to which a REMIC election
is to be made, such Trust Fund consisting of: (i) such Mortgage Loans as
from time to time are subject to this Agreement, together with the Mortgage
Files relating thereto, and together with all collections thereon and proceeds
thereof, (ii) any REO Property, together with all collections thereon and
proceeds thereof, (iii) the Trustee’s rights with respect to the Mortgage
Loans under all insurance policies required to be maintained pursuant to
this
Agreement and any proceeds thereof, (iv) the Depositor’s rights under the
Mortgage Loan Purchase Agreement (including any security interest created
thereby); (v) the Distribution Account (subject to the last sentence of
this definition), any REO Account and such assets that are deposited therein
from time to time and any investments thereof, together with any and all
income,
proceeds and payments with respect thereto; (vi) all right, title and
interest of the Seller in and to each Servicing Agreement, (vii) the
Prefunding Account and the Capitalized Interest Account and (viii) all
proceeds of the foregoing. Notwithstanding the foregoing, however, the Trust
Fund specifically excludes (1) all payments and other collections of
interest and principal due on the Mortgage Loans on or before the applicable
Cut-off Date and principal received before the applicable Cut-off Date (except
any principal collected as part of a payment due after the applicable Cut-off
Date) and (2) all income and gain realized from Permitted Investments of
funds on deposit in the Distribution Account.
53
“Trustee”:
Deutsche Bank National Trust Company, not in its individual capacity but
solely
as trustee, a national banking association, its successors in interest and
assigns, or any successor trustee appointed as herein provided.
“Trustee
Fee”:
The
annual on-going fee as agreed to by the Trustee and the Master Servicer and
payable by the Master Servicer on behalf of the Trust Fund to the Trustee
from
the Master Servicer’s own funds pursuant to the terms of the separate fee letter
agreement between the Trustee and the Master Servicer.
“Trustee
Fee Rate”:
Not
applicable.
“Undercollateralized
Pool”:
With
respect to any Distribution Date and Pool 1 and Pool 2, as applicable, as
to
which the aggregate Class Principal Balance of the related classes of Pool
1-2
Senior Certificates (other than the Class 1PO Certificates and any Interest-Only
Certificates), after giving effect to distributions pursuant to Section 5.01(a)
on such date, is greater than the aggregate Principal Balance of the Pool
1
Mortgage Loans and the Pool 2 Mortgage Loans (and with respect to Pool 1,
net of
the PO Percentage of the Discount Mortgage Loans) for such Distribution
Date.
“Undercollateralized
Subgroup”:
With
respect to any Distribution Date and any Loan Subgroup or Loan Subgroups,
as
applicable, as to which the aggregate Class Principal Balance of the related
classes of Pool 1 Senior Certificates (other than the Class 1PO Certificates
and
any Interest-Only Certificates) and the Component Principal Balance of any
related Component, after giving effect to distributions pursuant to Section
5.01(a) on such date, is greater than the aggregate Principal Balance of
the
Pool 1 Mortgage Loans in such Loan Subgroup or Loan Subgroups (and with respect
to Pool 1 Subgroup 1, net of the PO Percentage of the Discount Mortgage Loans)
for such Distribution Date.
“Underwriter”:
Greenwich Capital Markets, Inc.
“Underwriter’s
Exemption”:
Prohibited Transaction Exemption 90-59 (Exemption Application No. D-8374),
as
amended by Prohibited Transaction Exemption 97-34 (Exemption Application
Nos.
D-10245 and D-10246), as amended by Prohibited Transaction Exemption 2000-58
(Exemption Application No. D-10829) and as amended by Prohibited Transaction
Exemption 2007-5 (Exemption Application No. D-11370) (or any successor thereto),
or any substantially similar administrative exemption granted by the U.S.
Department of Labor.
“Uninsured
Cause”:
Any
cause of damage to a Mortgaged Property such that the complete restoration
of
such property is not fully reimbursable by the hazard insurance policies
required to be maintained on such Mortgaged Property.
“United
States Person”
or
“U.S.
Person”:
The
term shall have the meaning set forth in Section 7701(a)(30) of the Code or
successor provisions.
“Unpaid
Interest Shortfall Amount”:
With
respect to each Class of Certificates (other than the Class 1PO and Class
P
Certificates) and each Component and (i) the first Distribution Date, zero,
and (ii) any Distribution Date after the first Distribution Date, the amount,
if
any, by which (1)(a) the Monthly Interest Distributable Amount for that Class
or
Component for the immediately preceding Distribution Date exceeds (b) the
aggregate amount distributed on that Class or Component in respect of such
Monthly Interest Distributable Amount on the preceding Distribution Date
plus
(2) any such shortfalls remaining unpaid from prior Distribution
Dates.
54
“U.S.
Central”:
U.S.
Central Federal Credit Union, in its capacity as a servicer of certain of
the
Mortgage Loans as set forth in the Mortgage Loan Schedule hereto, and its
successors in interest and assigns.
“Upper
Tier REMIC”:
As
described in the Preliminary Statement.
“Value”:
With
respect to any Mortgage Loan and the related Mortgaged Property, the lesser
of:
(i) the
value
of such Mortgaged Property as determined by an appraisal made for the originator
of the Mortgage Loan at the time of origination of the Mortgage Loan by an
appraiser who met the minimum requirements of Xxxxxx Xxx and Xxxxxxx Mac;
and
(ii) the
purchase price paid for the related Mortgaged Property by the Mortgagor with
the
proceeds of the Mortgage Loan;
provided,
however,
that in
the case of a Refinancing Mortgage Loan, such value of the Mortgaged Property
is
based solely upon the value determined by an appraisal made for the originator
of such Refinancing Mortgage Loan at the time of origination by an appraiser
who
met the minimum requirements of Xxxxxx Mae and Xxxxxxx Mac.
“Voting
Rights”:
The
portion of the voting rights of all of the Certificates which is allocated
to
any Certificate. 95% of the voting rights shall be allocated among the Classes
of Regular Certificates (other than the Interest-Only Certificates and the
Class
R Certificate), pro
rata,
based
on a fraction, expressed as a percentage, the numerator of which is the Class
Principal Balance of such Class and the denominator of which is the aggregate
of
the Class Principal Balances then outstanding, 1% of the voting rights shall
be
allocated to the Holder of the Class 1X Certificates, 1% of the voting rights
shall be allocated to the Holder of the Class 1A2 Certificates, 1% of the
voting
rights shall be allocated to the Holder of the Class 1A3 Certificates, 1%
of the
voting rights shall be allocated to the Holder of the Class 1A6 Certificates,
and 1% of the voting rights shall be allocated to the Holder of the Class
R
Certificate; provided,
however,
that
when none of the Regular Certificates is outstanding, 100% of the voting
rights
shall be allocated to the Holder of the Class R Certificate. The voting rights
allocated to a Class of Certificates shall be allocated among all Holders
of
such Class, pro
rata,
based
on a fraction the numerator of which is the Certificate Principal Balance
or
Certificate Notional Balance, as applicable, of each Certificate of such
Class
and the denominator of which is the Class Principal Balance or Class Notional
Balance, as applicable, of such Class; provided,
however,
that
any Certificate registered in the name of the Master Servicer, the Securities
Administrator or the Trustee or any of its affiliates shall not be included
in
the calculation of Voting Rights. No voting rights shall be allocated to
the
Class P or the Class LT-R Certificates.
55
“Xxxxx
Fargo”:
Xxxxx
Fargo Bank, N.A., in its capacity as a servicer of certain of the Mortgage
Loans
as set forth in the Mortgage Loan Schedule hereto, and its successors in
interest and assigns.
“Writedown
Amount”:
The
reduction described in Section 5.03(c).
SECTION
1.02. Accounting.
Unless
otherwise specified herein, for the purpose of any definition or calculation,
whenever amounts are required to be netted, subtracted or added or any
distributions are taken into account such definition or calculation and any
related definitions or calculations shall be determined without duplication
of
such functions.
ARTICLE
II
CONVEYANCE
OF MORTGAGE LOANS;
ORIGINAL
ISSUANCE OF CERTIFICATES
SECTION
2.01. Conveyance
of Mortgage Loans.
(a) The
Depositor, concurrently with the execution and delivery hereof, does hereby
transfer, assign, set over and otherwise convey to the Trustee without recourse
for the benefit of the Certificateholders all the right, title and interest
of
the Depositor, including any security interest therein for the benefit of
the
Depositor, in and to (i) each Initial Mortgage Loan identified on the Mortgage
Loan Schedule, including the related Cut-off Date Principal Balance, all
interest due thereon after the Initial Cut-off Date and all collections in
respect of interest and principal due after the Initial Cut-off Date; (ii)
all
the Depositor’s right, title and interest in and to the Distribution Account and
all amounts from time to time credited to and to the proceeds of the
Distribution Account; (iii) any real property that secured each such Initial
Mortgage Loan and that has been acquired by foreclosure or deed in lieu of
foreclosure; (iv) the Depositor’s interest in any insurance policies in respect
of the Mortgage Loans; (v) all proceeds of any of the foregoing; (vi) any
such
amounts as may be deposited into and held by the Securities Administrator
in the
Prefunding Account and the Capitalized Interest Account and (vii) all other
assets included or to be included in the Trust Fund. Such assignment includes
all interest and principal due to the Depositor or the Master Servicer after
the
Initial Cut-off Date with respect to the Initial Mortgage Loans. In exchange
for
such transfer and assignment, the Depositor shall receive the
Certificates.
It
is
agreed and understood by the Depositor, the Seller and the Trustee that it
is
not intended that any Mortgage Loan be included in the Trust Fund that is
a
“High-Cost Home Loan” as defined in the New Jersey Home Ownership Act, effective
as of November 27, 2003, or The Home Loan Protection Act of New Mexico,
effective as of January 1, 2004, or that is a “High Cost Home Mortgage Loan” as
defined in the Massachusetts Predatory Home Loan Practices Act, effective
as of
November 7, 2004, or that is an “Indiana High Cost Home Mortgage Loan” as
defined in the Indiana High Cost Home Loan Act, effective as of January 1,
2005.
56
Concurrently
with the execution and delivery of this Agreement, the Depositor does hereby
assign to the Trustee all of its rights and interest under the Mortgage Loan
Purchase Agreement, including all rights of the Seller under the Servicing
Agreements to the extent assigned in the Mortgage Loan Purchase Agreement.
The
Trustee hereby accepts such assignment, and shall be entitled to exercise
all
rights of the Depositor under the Mortgage Loan Purchase Agreement and all
rights of the Seller under each Servicing Agreement as if, for such purpose,
it
were the Depositor or the Seller, as applicable, including the Seller’s right to
enforce remedies for breaches of representations and warranties and delivery
of
the Mortgage Loan documents. The foregoing sale, transfer, assignment, set-over,
deposit and conveyance does not and is not intended to result in creation
or
assumption by the Trustee of any obligation of the Depositor, the Seller
or any
other Person in connection with the Mortgage Loans or any other agreement
or
instrument relating thereto except as specifically set forth
herein.
In
connection with such transfer and assignment, the Seller, on behalf of the
Depositor, does hereby deliver on the Closing Date, unless otherwise specified
in this Section 2.01, to, and deposit with the Trustee, or the related Custodian
as its designated agent, the following documents or instruments with respect
to
each Mortgage Loan (a “Mortgage File”) so transferred and assigned:
(i) the
original Mortgage Note, endorsed either on its face or by allonge attached
thereto in blank or in the following form: “Pay to the order of Deutsche Bank
National Trust Company, as Trustee for RBSGC Mortgage Loan Trust Mortgage
Loan
Pass-Through Certificates, Series 2007-B, without recourse”, or with respect to
any lost Mortgage Note, an original Lost Note Affidavit stating that the
original Mortgage Note was lost, misplaced or destroyed, together with a
copy of
the related Mortgage Note;
(ii) except
as
provided below, for each Mortgage Loan that is not a MERS Mortgage Loan,
the
original Mortgage, and in the case of each MERS Mortgage Loan, the original
Mortgage, noting the presence of the MIN for that Mortgage Loan and either
language indicating that the Mortgage Loan is a MOM Loan if the Mortgage
Loan is
a MOM Loan, or if such Mortgage Loan was not a MOM Loan at origination, the
original Mortgage and the assignment to MERS, in each case with evidence
of
recording thereon, and the original recorded power of attorney, if the Mortgage
was executed pursuant to a power of attorney, with evidence of recording
thereon
or, if such Mortgage or power of attorney has been submitted for recording
but
has not been returned from the applicable public recording office, has been
lost
or is not otherwise available, a certified copy of such Mortgage or power
of
attorney, as the case may be, together with an Officer’s Certificate of the
Seller certifying that the copy of such Mortgage delivered to the Trustee
(or
the related Custodian on its behalf) is a true copy and that the original
of
such Mortgage has been forwarded to the public recording office, or, in the
case
of a Mortgage that has been lost, a copy thereof (certified as provided for
under the laws of the appropriate jurisdiction) and a written Opinion of
Counsel
(delivered at the Seller’s expense) acceptable to the Trustee and the Depositor
that an original recorded Mortgage is not required to enforce the Trustee’s
interest in the Mortgage Loan;
(iii) the
original or copy of each assumption, modification or substitution agreement,
if
any, relating to the Mortgage Loans, or, as to any assumption, modification
or
substitution agreement which cannot be delivered on or prior to the Closing
Date
because of a delay caused by the public recording office where such assumption,
modification or substitution agreement has been delivered for recordation,
a
photocopy of such assumption, modification or substitution agreement, pending
delivery of the original thereof, together with an Officer’s Certificate of the
Seller certifying that the copy of such assumption, modification or substitution
agreement delivered to the Trustee (or its custodian) on behalf of the Trust
Fund is a true copy and that the original of such agreement has been forwarded
to the public recording office;
57
(iv) in
the
case of each Mortgage Loan that is not a MERS Mortgage Loan, an original
Assignment, in form and substance acceptable for recording. The Mortgage
shall
be assigned to “Deutsche Bank National Trust Company, as Trustee for RBSGC
Mortgage Loan Trust Mortgage Loan Pass-Through Certificates, Series 2007-B,
without recourse;”
(v) in
the
case of each Mortgage Loan that is not a MERS Mortgage Loan, an original
copy of
any intervening Assignment showing a complete chain of assignments, or, in
the
case of an intervening Assignment that has been lost, a written Opinion of
Counsel (delivered at the Seller’s expense) acceptable to the Trustee that such
original intervening Assignment is not required to enforce the Trustee’s
interest in the Mortgage Loans;
(vi) the
original or a certified copy of lender’s title insurance policy;
and
(vii) with
respect to any Cooperative Loan, the Cooperative Loan Documents.
In
connection with the assignment of any MERS Mortgage Loan, the Seller agrees
that
it will take (or shall cause the applicable Servicer to take), at the expense
of
the Seller (with the cooperation of the Depositor, the Trustee and the Master
Servicer), such actions as are necessary to cause the MERS® System to indicate
that such Mortgage Loans have been assigned by the Seller to the Trustee
in
accordance with this Agreement (or any Subsequent Transfer Agreement) for
the
benefit of the Certificateholders by including (or deleting, in the case
of
Mortgage Loans that are repurchased in accordance with this Agreement) in
such
computer files the information required by the MERS® System to identify the
series of the Certificates issued in connection with the transfer of such
Mortgage Loans to the RBSGC Mortgage Loan Trust 2007-B. Notwithstanding anything
herein to the contrary, the Master Servicer and Securities Administrator
are not
responsible for monitoring any MERS Mortgage Loans.
With
respect to each Cooperative Loan, the Seller, on behalf of the Depositor,
does
hereby deliver to the Trustee (or the related Custodian) the related Cooperative
Loan Documents and the Seller shall take (or cause the applicable Servicer
to
take), at the expense of the Seller (with the cooperation of the Depositor,
the
Trustee and the Master Servicer) such actions as are necessary under applicable
law (including but not limited to the relevant UCC) in order to perfect the
interest of the Trustee in the related Mortgaged Property.
58
Assignments
of each Mortgage with respect to each Mortgage Loan that is not a MERS Mortgage
Loan (other than a Cooperative Loan) shall be recorded; provided, however,
that
such assignments need not be recorded if, in the Opinion of Counsel (which
must
be from Independent Counsel and not at the expense of the Trust Fund or the
Trustee) acceptable to the Trustee, each Rating Agency, recording in such
states
is not required to protect the Trust Fund’s interest in the related Mortgage
Loans; provided, further, notwithstanding the delivery of any Opinion of
Counsel, each assignment of Mortgage shall be submitted for recording by
the
Seller (or the Seller will cause the applicable Servicer to submit each such
assignment for recording), at the cost and expense of the Seller, in the
manner
described above, at no expense to the Trust Fund or Trustee, upon the earliest
to occur of (1) reasonable direction by the Majority Certificateholders,
(2) the
occurrence of a bankruptcy or insolvency relating to the Seller or the
Depositor, or (3) with respect to any one Assignment of Mortgage, the occurrence
of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under
the
related Mortgage. Subject to the preceding sentence, as soon as practicable
after the Closing Date (but in no event more than three months thereafter
except
to the extent delays are caused by the applicable recording office), the
Seller
shall properly record (or the Seller will cause the applicable Servicer to
properly record), at the expense of the Seller (with the cooperation of the
Depositor, the Trustee and the Master Servicer), in each public recording
office
where the related Mortgages are recorded, each assignment referred to in
Section
2.01(v) above with respect to a Mortgage Loan that is not a MERS Mortgage
Loan.
The
Trustee agrees to execute and deliver (or cause the related Custodian to
execute
and deliver) to the Depositor (and to the Trustee if delivered by the Custodian)
on or prior to the Closing Date an acknowledgment of receipt of the original
Mortgage Note (with any exceptions noted), substantially in the form attached
as
Exhibit G-1 hereto.
If
the
original lender’s title insurance policy, or a certified copy thereof, was not
delivered pursuant to Section 2.01(vi) above, the Seller shall deliver or
cause
to be delivered to the Trustee the original or a copy of a written commitment
or
interim binder or preliminary report of title issued by the title insurance
or
escrow company, with the original or a certified copy thereof to be delivered
to
the Trustee, promptly upon receipt thereof, but in any case within 175 days
of
the Closing Date. The Seller shall deliver or cause to be delivered to the
Trustee, promptly upon receipt thereof, any other documents constituting
a part
of a Mortgage File received with respect to any Mortgage Loan sold to the
Depositor by the Seller, including, but not limited to, any original documents
evidencing an assumption or modification of any Mortgage Loan.
For
(a)
Initial Mortgage Loans (if any) that have been prepaid in full after the
Initial
Cut-off Date and prior to the Closing Date or (b) Subsequent Mortgage Loans
(if
any) that have been prepaid in full after the applicable Subsequent Cut-off
Date
and prior to the applicable Transfer Date, in lieu of the Seller delivering
the
above documents, the Seller shall cause the applicable Servicer to deliver
to
the Trustee, or to the related Custodian on behalf of the Trustee, prior
to the
first Distribution Date, an Officer’s Certificate which shall include a
statement to the effect that all amounts received in connection with such
prepayment that are required to be deposited in the Distribution Account
have
been so deposited. All original documents that are not delivered to the Trustee
(or to the related Custodian on behalf of the Trustee) on behalf of the Trust
Fund shall be held by the Master Servicer or the applicable Servicer in trust
for the Trustee, for the benefit of the Trust Fund and the
Certificateholders.
59
The
Depositor herewith delivers to the Trustee an executed copy of the Mortgage
Loan
Purchase Agreement.
(b) The
Depositor, concurrently with the execution and delivery hereof, does hereby
transfer, assign, set over and otherwise convey to the Trustee without recourse
for the benefit of the Certificateholders all the right, title and interest
of
the Depositor, including any security interest therein for the benefit of
the
Depositor, in and to each Subsequent Mortgage Loan included on the Mortgage
Loan
Schedule, including the related Cut-off Date Principal Balance, all interest
due
thereon after the Subsequent Cut-off Date and all collections in respect
of
interest and principal due after the Subsequent Cut-off Date; (ii) all the
Depositor’s right, title and interest in and to the Distribution Account and all
amounts from time to time credited to and the proceeds of the Distribution
Account; (iii) any real property that secured each such Subsequent Mortgage
Loan
and that has been acquired by foreclosure or deed in lieu of foreclosure;
(iv)
the Depositor’s interest in any insurance policies in respect of the Subsequent
Mortgage Loans; (v) all proceeds of any of the foregoing; and (vi) all other
assets included or to be included in the Trust Fund. Such assignment includes
all interest and principal due to the Depositor after the Subsequent Cut-off
Date with respect to the Subsequent Mortgage Loans.
Upon
three Business Days’ prior written notice to the Trustee, the Master Servicer,
the Securities Administrator, the related Servicer and the Rating Agencies,
on
any Business Day designated by the Depositor during the Prefunding Period,
the
Depositor, the Seller and the Trustee shall complete, execute and deliver
(and
the Depositor shall cause the related Servicer to complete, execute and deliver)
a Subsequent Transfer Agreement so long as no Rating Agency has provided
notice
that the execution and delivery of such Subsequent Transfer Agreement will
result in a reduction or withdrawal of the ratings assigned to the Certificates
on the Closing Date.
The
transfer of Subsequent Mortgage Loans and the other property and rights relating
to them on a Subsequent Transfer Date is subject to the satisfaction of each
of
the following conditions:
(i) each
Subsequent Mortgage Loan conveyed on such Subsequent Transfer Date satisfies
the
representations and warranties applicable to it under this Agreement and
under
the applicable Reconstitution Agreement as of the applicable Subsequent Transfer
Date; provided,
however,
that
with respect to a breach of a representation and warranty with respect to
a
Subsequent Mortgage Loan, the obligation under Section 2.03 of this Agreement
of
the Seller or Originator, as applicable, to cure, repurchase or replace such
Subsequent Mortgage Loan shall constitute the sole remedy against the Seller
or
Originator, as applicable, respecting such breach available to
Certificateholders, the Depositor or the Trustee;
(ii) the
Trustee and the Rating Agencies are provided with an Opinion of Counsel or
Opinions of Counsel, at the expense of the Depositor, with respect to the
qualification of each REMIC created pursuant to this Agreement as a REMIC,
to be
delivered as provided pursuant to this Section 2.01(b);
(iii) the
Rating Agencies and the Trustee are provided with an Opinion of Counsel or
Opinions of Counsel, at the expense of the Depositor, with respect to the
characterization of the transfer of the Subsequent Mortgage Loans conveyed
on
such Subsequent Transfer Date as a sale, to be delivered as provided pursuant
to
this Section 2.01(b);
60
(iv) the
execution and delivery of such Subsequent Transfer Agreement or conveyance
of
the related Subsequent Mortgage Loans does not result in a reduction or
withdrawal of any ratings assigned to the Certificates on the Closing Date
by
the Rating Agencies;
(v) each
Subsequent Mortgage Loan may not be 30 or more days contractually delinquent
as
of its Subsequent Transfer Date;
(vi) each
Subsequent Mortgage Loan may not have a final maturity date later than December
2036;
(vii) the
remaining term to stated maturity of each Subsequent Mortgage Loan will not
exceed 30 years;
(viii) each
Subsequent Mortgage Loan will have an LTV ratio not greater than
100.0%;
(ix) each
Subsequent Mortgage Loan will have a Stated Principal Balance not greater
than
$1,000,000;
(x) each
Subsequent Mortgage Loan will have a first payment date no later than March
1,
2007;
(xi) each
Subsequent Mortgage Loan will be a fixed rate mortgage loan;
(xii) each
Subsequent Mortgage Loan will have a Loan Rate of at least 6.375%;
(xiii) no
Subsequent Mortgage Loan will be subject to the Home Ownership and Equity
Protection Act of 1994 or any comparable state or local law;
(xiv) each
Subsequent Mortgage Loan will be a valid, existing and enforceable first
lien on
the Mortgaged Property;
(xv) the
aggregate pool of Subsequent Mortgage Loans is acceptable to the Rating Agencies
by a prior written communication;
(xvi) each
Subsequent Mortgage Loan will have been originated generally in accordance
with
underwriting criteria substantially similar to the underwriting guidelines
used
by each Originator in the origination of the Initial Mortgage
Loans;
(xvii) following
the conveyance of such Subsequent Mortgage Loans to the Trust Fund, the Mortgage
Loans, including the Subsequent Mortgage Loans, will have the following
characteristics as of their respective Subsequent Cut-off Dates:
61
with
respect to Pool 1:
(1) a
weighted average loan rate of not less than 6.743% per annum;
(2) a
weighted average remaining term to stated maturity of no more than 356
months;
(3) a
weighted average original LTV ratio of not more than 72.36%;
(4) a
weighted average credit score of not less than 729; and
(5) no
more
than 22.42% of the Pool 1 Mortgage Loans, by Cut-off Date Collateral Balance,
will relate to non-owner occupied properties.
with
respect to Pool 2:
(1) a
weighted average loan rate of not less than 6.342% per annum;
(2) a
weighted average remaining term to stated maturity of no more than 177
months;
(3) a
weighted average original LTV ratio of not more than 63.65%;
(4) a
weighted average credit score of not less than 743; and
(5) no
more
than 28.15% of the Pool 2 Mortgage Loans, by Cut-off Date Collateral Balance,
will relate to non-owner occupied properties.
(xviii) neither
the Seller nor the Depositor shall be insolvent or shall be rendered insolvent
as a result of such transfer;
(xix) no
Event
of Default has occurred hereunder;
(xx) the
Depositor shall have delivered to the Trustee an Officer’s Certificate
confirming the satisfaction of each of these conditions precedent;
and
(xxi) each
Mortgage Loan constitutes a “qualified mortgage” within the meaning of Section
860G(a)(3) of the Code.
Notwithstanding
the foregoing, the aggregate characteristics of the Subsequent Mortgage Loans
at
the end of the Prefunding Period shall be substantially the same as the
aggregate characteristics of the Initial Mortgage Loans as of the Initial
Cut-off Date.
Upon
(1)
delivery to the Trustee by the Depositor of the Opinions of Counsel referred
to
in this Section 2.01(b), (2) delivery to the Trustee by the Depositor of
a
revised Mortgage Loan Schedule reflecting the Subsequent Mortgage Loans conveyed
on such Subsequent Transfer Date and the related Subsequent Mortgage Loans
and
(3) delivery to the Trustee by the Depositor of an Officer’s Certificate
confirming the satisfaction of each of the conditions precedent set forth
above
in this Section 2.01(b), the Securities Administrator shall remit to the
Depositor the Aggregate Subsequent Transfer Amount related to the Subsequent
Mortgage Loans transferred by the Depositor on such Subsequent Transfer Date
from funds in the Prefunding Account.
62
The
Securities Administrator shall not be required to investigate or otherwise
verify compliance with the conditions set forth in the preceding paragraph,
except for its own receipt of documents specified above, and shall be entitled
to rely on the required Officer’s Certificate.
(c) The
Depositor shall have the right to receive any and all loan-level information
regarding the characteristics and performance of the Mortgage Loans upon
request, and to publish, disseminate or otherwise utilize such information
in
its discretion, subject to applicable laws and regulations.
SECTION
2.02. Acceptance
by Trustee.
The
Trustee hereby accepts its appointment as a Custodian hereunder and acknowledges
the receipt, subject to the provisions of Section 2.01 and subject to the
review
described below and any exceptions noted on the exception report described
in
the next paragraph below, of the documents referred to in Section 2.01 above
and
all other assets included in the definition of “Trust Fund” and declares that,
in its capacity as a Custodian, it holds and will hold such documents and
the
other documents delivered to it constituting a Mortgage File, and that it
holds
or will hold all such assets and such other assets included in the definition
of
“Trust Fund” in trust for the exclusive use and benefit of all present and
future Certificateholders.
The
Trustee further agrees, for the benefit of the Certificateholders, to review
(or
cause each Custodian to review) each Mortgage File delivered to it (or each
such
Custodian) and to certify and deliver to the Depositor, the Seller and each
Rating Agency an interim certification in substantially the form attached
hereto
as Exhibit G-2, within 90 days after the Closing Date (or, with respect to
any
document delivered after the Startup Day, within 45 days of receipt and with
respect to any Qualified Substitute Mortgage, within five Business Days after
the assignment thereof) that, as to each Mortgage Loan listed in the Mortgage
Loan Schedule (other than any Mortgage Loan paid in full or any Mortgage
Loan
specifically identified in the exception report annexed thereto as not being
covered by such certification), (i) all documents required to be delivered
to it pursuant to Section 2.01 of this Agreement are in its possession,
(ii) such documents have been reviewed by it and have not been mutilated,
damaged or torn and relate to such Mortgage Loan and (iii) based on its
examination and only as to the foregoing, the information set forth in the
Mortgage Loan Schedule that corresponds to items (i), (ii) and (xiii) of
the
Mortgage Loan Schedule accurately reflects information set forth in the Mortgage
File. It is herein acknowledged that, in conducting such review, neither
the
Trustee nor a Custodian on its behalf shall be under any duty or obligation
to
inspect, review or examine any such documents, instruments, certificates
or
other papers to determine that they are genuine, enforceable, or appropriate
for
the represented purpose or that they have actually been recorded or that
they
are other than what they purport to be on their face.
No
later
than 180 days after the Closing Date, the Trustee shall deliver (or cause
each
Custodian to deliver) to the Depositor and the Seller a final certification
in
the form annexed hereto as Exhibit G-3 evidencing the completeness of the
Mortgage Files, with any applicable exceptions noted thereon.
63
If,
in
the process of reviewing the Mortgage Files and making or preparing, as the
case
may be, the certifications referred to above, the Trustee finds any document
or
documents constituting a part of a Mortgage File to be missing or not conforming
to the requirements set forth herein, at the conclusion of its review the
Trustee (or each Custodian as its designated agent) shall promptly notify
the
Seller and the Depositor. In addition, upon the discovery by the Seller or
the
Depositor (or upon receipt by the Trustee of written notification of such
breach) of a breach of any of the representations and warranties made by
the
Seller in the Mortgage Loan Purchase Agreement in respect of any Mortgage
Loan
that materially adversely affects such Mortgage Loan or the interests of
the
related Certificateholders in such Mortgage Loan, the party discovering such
breach shall give prompt written notice to the other parties to this
Agreement.
The
Depositor and the Trustee intend that the assignment and transfer herein
contemplated constitute a sale of the Mortgage Loans, the related Mortgage
Notes
and the related documents, conveying good title thereto free and clear of
any
liens and encumbrances, from the Depositor to the Trustee and that such property
not be part of the Depositor’s estate or property of the Depositor in the event
of any insolvency by the Depositor. In the event that such conveyance is
deemed
to be, or to be made as security for, a loan, the parties intend that the
Depositor shall be deemed to have granted and does hereby grant to the Trustee
a
first priority perfected security interest in all of the Depositor’s right,
title and interest in and to the Mortgage Loans, the related Mortgage Notes
and
the related documents, and that this Agreement shall constitute a security
agreement under applicable law.
The
Trustee (or each Custodian on its behalf) shall execute and deliver to the
Depositor on or prior to each Subsequent Transfer Date an acknowledgment
of
receipt of the original Mortgage Note (with any exceptions noted), substantially
in the form attached as Exhibit G-1 hereto.
The
Trustee (or each Custodian on its behalf) shall, for the benefit of the
Certificateholders, review each Mortgage File delivered to it for the Subsequent
Mortgage Loans and certify and deliver to the Depositor, the Seller and each
Rating Agency an interim certification in substantially the form attached
hereto
as Exhibit G-2, within 45 days after each Subsequent Transfer Date that,
as to
each Subsequent Mortgage Loan listed in the Mortgage Loan Schedule (other
than
any Subsequent Mortgage Loan paid in full or any Subsequent Mortgage Loan
specifically identified in the exception report annexed thereto as not being
covered by such certification), (i) all documents required to be delivered
to it pursuant to Section 2.01 of this Agreement are in its possession,
(ii) such documents have been reviewed by it and have not been mutilated,
damaged or torn and relate to such Subsequent Mortgage Loan and (iii) based
on its examination and only as to the foregoing, the information set forth
in
the Mortgage Loan Schedule that corresponds to items (i), (ii) and (iii)
of the
Mortgage Loan Schedule accurately reflects information set forth in the Mortgage
File. It is herein acknowledged that, in conducting such review, the Trustee
and
each Custodian on its behalf are under no duty or obligation to inspect,
review
or examine any such documents, instruments, certificates or other papers
to
determine that they are genuine, enforceable, or appropriate for the represented
purpose or that they have actually been recorded or that they are other than
what they purport to be on their face.
64
No
later
than 90 days after each Subsequent Transfer Date, the Trustee or each Custodian
on behalf of the Trustee shall deliver to the Depositor and the Seller a
final
certification in the form annexed hereto as Exhibit G-3 (or a substantially
similar form) evidencing the completeness of the Mortgage Files, with any
applicable exceptions noted thereon.
If,
in
the course of such review of the Mortgage Files relating to the Subsequent
Mortgage Loans, the related Custodian finds any document constituting a part
of
a Mortgage File which does not meet the requirements of Section 2.01(b),
the Trustee shall cause the related Custodian to list such as an exception
in
the Final Certification; provided,
however,
that
the Trustee shall not make any determination as to whether (i) any
endorsement is sufficient to transfer all right, title and interest of the
party
so endorsing, as noteholder or assignee thereof, in and to that Mortgage
Note or
(ii) any assignment is in recordable form or is sufficient to effect the
assignment of and transfer to the assignee thereof under the mortgage to
which
the assignment relates. The Seller or Originator, as applicable, shall cure
any
such defect or repurchase or substitute for any such Mortgage Loan in accordance
with this Section 2.02.
SECTION
2.03. Repurchase
or Substitution of Mortgage Loans by the Originators and the
Seller.
(a) Upon
its
discovery or receipt of written notice of any materially defective document
in,
or that a document is missing from, a Mortgage File or of the breach by the
related Originator of any representation, warranty or covenant under the
related
Purchase Agreement in respect of any Mortgage Loan which materially adversely
affects the value of that Mortgage Loan or the interest therein of the
Certificateholders, the Trustee shall promptly notify such Originator of
such
defect, missing document or breach and request that such Originator deliver
such
missing document or cure such defect or breach within 90 days from the date
that
the related Originator was notified of such missing document, defect or breach,
and if such Originator does not deliver such missing document or cure such
defect or breach in all material respects during such period, the Trustee
shall
enforce such Originator’s obligation under the related Purchase Agreement and
cause such Originator to repurchase that Mortgage Loan from the Trust Fund
at
the Repurchase Price (as defined in the related Purchase Agreement) on or
prior
to the Determination Date following the expiration of such 90 day period.
It is
understood and agreed that the obligation of the related Originator to cure
or
to repurchase or to substitute for (or, with respect to any costs and damages
incurred by the Trust Fund in connection with any violation of any
anti-predatory or anti-abusive lending laws, indemnify for) any Mortgage
Loan as
to which a document is missing, a material defect in a constituent document
exists or as to which such a breach has occurred and is continuing shall
constitute the sole remedy against such Originator respecting such omission,
defect or breach available to the Trustee on behalf of the
Certificateholders.
(b) Upon
actual discovery or receipt of written notice that a document does not comply
with the requirements of Section 2.01 hereof, or that a document is missing
from, a Mortgage File or of the breach by the Seller of any representation,
warranty or covenant under the Mortgage Loan Purchase Agreement or in
Section 2.04 or Section 2.08 hereof in respect of any Mortgage Loan which
materially adversely affects the value of that Mortgage Loan or the interest
therein of the Certificateholders, the Trustee (or each Custodian on behalf
of
the Trustee) shall promptly notify the Seller of such noncompliance, missing
document or breach and request that the Seller deliver such missing document
or
cure such noncompliance or breach within 90 days from the date that the Seller
was notified of such missing document, noncompliance or breach, and if the
Seller does not deliver such missing document or cure such noncompliance
or
breach in all material respects during such period, the Trustee shall enforce
the Seller’s obligation under the Mortgage Loan Purchase Agreement and cause the
Seller to repurchase that Mortgage Loan from the Trust Fund at the Purchase
Price on or prior to the Determination Date following the expiration of such
90
day period (subject to Section 2.03(e) below); provided,
however,
that, in
connection with any such breach that could not reasonably have been cured
within
such 90 day period, if the Seller shall have commenced to cure such breach
within such 90 day period, the Seller shall be permitted to proceed thereafter
diligently and expeditiously to cure the same within the additional period
provided under the Mortgage Loan Purchase Agreement; and, provided
further,
that,
in the case of the breach of any representation, warranty or covenant made
by
the Seller in Section 2.04 hereof, the Seller shall be obligated to cure
such
breach or purchase the affected Mortgage Loans for the Purchase Price or,
if the
Mortgage Loan or the related Mortgaged Property acquired with respect thereto
has been sold, then the Seller shall pay, in lieu of the Purchase Price,
any
excess of the Purchase Price over the Net Liquidation Proceeds received upon
such sale.
65
(c) The
Purchase Price or Repurchase Price (as defined in the related Purchase
Agreement) for a Mortgage Loan purchased or repurchased under this Section
2.03
or such other amount due shall be deposited in the Distribution Account on
or
prior to the next Determination Date after the Seller’s or the related
Originator’s obligation to repurchase such Mortgage Loan arises. The Trustee,
upon receipt of written certification from the Seller or the related Originator
of the related deposit in the Distribution Account, shall cause the related
Custodian to release to the Seller or the related Originator, as applicable,
the
related Mortgage File and shall execute and deliver such instruments of transfer
or assignment, in each case without recourse, as the Seller or the related
Originator, as applicable, shall furnish to it and as shall be necessary
to vest
in the Seller or the related Originator, as applicable, any Mortgage Loan
released pursuant hereto and the Trustee and the related Custodian shall
have no
further responsibility with regard to such Mortgage File (it being understood
that the Trustee and the related Custodian shall have no responsibility for
determining the sufficiency of such assignment for its intended purpose).
In
lieu of repurchasing any such Mortgage Loan as provided above, the Seller
may
cause such Mortgage Loan to be removed from the Trust Fund (in which case
it
shall become a Deleted Mortgage Loan) and substitute one or more Qualified
Substitute Mortgage Loans in the manner and subject to the limitations set
forth
in Section 2.03(d) below. It is understood and agreed that the obligation
of the
Seller to cure or to repurchase or to substitute for (or, with respect to
any
costs and damages incurred by the Trust Fund in connection with any violation
of
any anti-predatory or anti-abusive lending laws, indemnify for) any Mortgage
Loan as to which a document is missing, a material defect in a constituent
document exists or as to which such a breach has occurred and is continuing
shall constitute the sole remedy against the Seller respecting such omission,
defect or breach available to the Trustee on behalf of the
Certificateholders.
(d) Notwithstanding
anything to the contrary set forth above, with respect to any breach by the
Seller of a representation or warranty made by the Seller herein or in the
Mortgage Loan Purchase Agreement that materially and adversely affects the
value
of a Mortgage Loan or the Mortgage Loans or the interest therein of the
Certificateholders, if the Seller would not be in breach of such representation
or warranty but for a breach by the Originator of a representation and warranty
made by such Originator in the related Servicing Agreement, then the Originator
thereunder, in the manner and to the extent set forth therein, and not the
Seller, shall be required to remedy such breach. In
addition to such repurchase or substitution obligation, the Seller shall
indemnify the Trust Fund and hold it harmless against any losses, damages,
penalties, fines, forfeitures, reasonable and necessary legal fees and related
costs, judgments, and other costs and expenses resulting from any claim,
demand,
defense or assertion based on or grounded upon, or resulting from, a breach
of
the Seller’s representations and warranties contained in Section
2.04.
66
The
Trustee shall enforce the obligations of the Seller under the Mortgage Loan
Purchase Agreement including, without limitation, any obligation of the Seller
to purchase a Mortgage Loan on account of missing or defective documentation
or
on account of a breach of a representation, warranty or covenant as described
in
this Section 2.03(d)
(e) If
pursuant to the provisions of Section 2.03(b), the Seller repurchases or
otherwise removes from the Trust Fund a Mortgage Loan that is a MERS Mortgage
Loan, the Seller shall take (or shall cause the applicable Servicer to take),
at
the expense of the Seller (with the cooperation of the Depositor, the Trustee
and the Master Servicer), such actions as are necessary either (i) cause
MERS to
execute and deliver an Assignment of Mortgage in recordable form to transfer
the
Mortgage from MERS to the Seller and shall cause such Mortgage to be removed
from registration on the MERS® System in accordance with MERS’ rules and
regulations or (ii) cause MERS to designate on the MERS® System the Seller or
its designee as the beneficial holder of such Mortgage Loan.
(f) [Reserved]
(g) Any
substitution of Qualified Substitute Mortgage Loans for Deleted Mortgage
Loans
made pursuant to Section 2.03(a) above must be effected prior to the last
Business Day that is within two years after the Closing Date. With respect
to
any Deleted Mortgage Loan for which the Seller substitutes a Qualified
Substitute Mortgage Loan or Loans, such substitution shall be effected by
the
Seller delivering to the related Custodian on behalf of the Trustee, for
such
Qualified Substitute Mortgage Loan or Loans, the Mortgage Note, the Mortgage,
the Assignment to the Trustee, and such other documents and agreements, with
all
necessary endorsements thereon, as are required by Section 2.01 hereof, together
with an Officers’ Certificate stating that each such Qualified Substitute
Mortgage Loan satisfies the definition thereof and specifying the Substitution
Adjustment (as described below), if any, in connection with such substitution;
provided,
however,
that, in
the case of any Qualified Substitute Mortgage Loan that is a MERS Mortgage
Loan,
the Seller shall provide such documents and take such other action with respect
to such Qualified Substitute Mortgage Loans as are required pursuant to Section
2.01 hereof. The Custodians on behalf of the Trustee shall acknowledge receipt
for such Qualified Substitute Mortgage Loan or Loans and, within five Business
Days thereafter, shall review such documents as specified in Section 2.02
hereof
and deliver to the related Servicer, with respect to such Qualified Substitute
Mortgage Loan or Loans, a certification substantially in the form attached
hereto as Exhibit G-2, with any exceptions noted thereon. Within 180 days
of the
date of substitution, the Custodians on behalf of the Trustee shall deliver
to
the Seller and the Master Servicer a certification substantially in the form
of
Exhibit G-3 hereto with respect to such Qualified Substitute Mortgage Loan
or
Loans, with any exceptions noted thereon. Monthly Payments due with respect
to
Qualified Substitute Mortgage Loans in the month of substitution are not
part of
the Trust Fund and will be retained by the Seller. For the month of
substitution, distributions to Certificateholders will reflect the collections
and recoveries in respect of such Deleted Mortgage Loan in the Due Period
preceding the month of substitution and the Depositor or the Seller, as the
case
may be, shall thereafter be entitled to retain all amounts subsequently received
in respect of such Deleted Mortgage Loan. The Seller shall give or cause
to be
given written notice to the Certificateholders that such substitution has
taken
place, shall amend the Mortgage Loan Schedule to reflect the removal of such
Deleted Mortgage Loan from the terms of this Agreement and the substitution
of
the Qualified Substitute Mortgage Loan or Loans and shall deliver a copy
of such
amended Mortgage Loan Schedule to the Trustee, the Master Servicer and the
Securities Administrator. Upon such substitution, such Qualified Substitute
Mortgage Loan or Loans shall constitute part of the Trust Fund and shall
be
subject in all respects to the terms of this Agreement and, in the case of
a
substitution effected by the Seller, the Mortgage Loan Purchase Agreement,
including, in the case of a substitution effected by the Seller all
representations and warranties thereof included in the Mortgage Loan Purchase
Agreement and all representations and warranties thereof set forth in Section
2.04 hereof, in each case as of the date of substitution.
67
For
any
month in which the Seller substitutes one or more Qualified Substitute Mortgage
Loans for one or more Deleted Mortgage Loans, the Seller shall determine,
and
provide written certification to the Trustee and the Seller as to the amount
(each, a “Substitution
Adjustment”),
if
any, by which the aggregate Purchase Price of all such Deleted Mortgage Loans
exceeds the aggregate, as to each such Qualified Substitute Mortgage Loan,
of
the principal balance thereof as of the date of substitution, together with
one
month’s interest on such principal balance at the applicable Net Loan Rate. On
or prior to the next Determination Date after the Seller’s obligation to
repurchase the related Deleted Mortgage Loan arises, the Seller will deliver
or
cause to be delivered to the Securities Administrator for deposit in the
Distribution Account an amount equal to the related Substitution Adjustment,
if
any, and each Custodian, on behalf of the Trustee, upon receipt of the related
Qualified Substitute Mortgage Loan or Loans and a written certification from
the
Seller of its remittance of the deposit to the Distribution Account, shall
release to the Seller the related Mortgage File or Files and shall execute
and
deliver such instruments of transfer or assignment, in each case without
recourse, as the Seller shall deliver to it and as shall be necessary to
vest
therein any Deleted Mortgage Loan released pursuant hereto.
In
addition, the Seller shall obtain at its own expense and deliver to the Trustee
an Opinion of Counsel to the effect that such substitution (either specifically
or as a class of transactions) will not cause an Adverse REMIC Event. If
such
Opinion of Counsel cannot be delivered, then such substitution may only be
effected at such time as the required Opinion of Counsel can be
given.
(h) Upon
discovery by the Seller, the Master Servicer, the Depositor or the Trustee
that
any Mortgage Loan does not constitute a “qualified mortgage” within the meaning
of Section 860G(a)(3) of the Code, the party discovering such fact shall
within
two Business Days give written notice thereof to the other parties. In
connection therewith, the Seller shall repurchase or, subject to the limitations
set forth in Section 2.03(e), substitute one or more Qualified Substitute
Mortgage Loans for the affected Mortgage Loan within 90 days of the earlier
of
discovery or receipt of such notice with respect to such affected Mortgage
Loan.
Any such repurchase or substitution shall be made in the same manner as set
forth in Section 2.03(b) above, if made by the Seller. The Trustee shall
reconvey to the Seller the Mortgage Loan to be released pursuant hereto in
the
same manner, and on the same terms and conditions, as it would a Mortgage
Loan
repurchased for breach of a representation or warranty.
68
(i) Notwithstanding
the foregoing, to the extent that any fact, condition or event with respect
to a
Mortgage Loan constitutes a breach of both (i) a representation or warranty
of
the applicable Originator under the applicable Purchase Agreement and (ii)
a
representation or warranty of the Seller under this Agreement, in each case,
which materially adversely affects the value of such Mortgage Loan or the
interest therein of the Certificateholders, the Trustee shall first request
that
the Originator cure such breach or repurchase such Mortgage Loan and if the
Originator fails to cure such breach or repurchase such Mortgage Loan within
60
days of receipt of such request from the Trustee, the Trustee shall then
request
that the Seller cure such breach or repurchase such Mortgage Loans.
SECTION
2.04. Representations
and Warranties of the Seller with Respect to the Mortgage Loans.
The
Seller hereby makes the following representations and warranties to the Trustee
on behalf of the Certificateholders as of the Closing Date with respect to
the
Initial Mortgage Loans and as of the applicable Subsequent Transfer Date
with
respect to any Subsequent Mortgage Loan:
(i) Any
and
all requirements of any federal, state or local law including, without
limitation, usury, truth in lending, real estate settlement procedures,
predatory and abusive lending, consumer credit protection, equal credit
opportunity, fair housing or disclosure laws applicable to the origination
and
servicing of mortgage loans of a type similar to the Mortgage Loans at
origination have been complied with;
(ii) No
Mortgage Loan is (a)(1) subject to the provisions of the Home Ownership and
Equity Protection Act of 1994 as amended (“HOEPA”) or (2) has an annual
percentage rate (“APR”) or total points and fees that are equal to or exceeds
the HOEPA thresholds (as defined in 12 C.F.R. 226.32 (a)(1)(i) and (ii)),
(b) a
“high cost” mortgage loan, “covered” mortgage loan, “high risk home” mortgage
loan, or “predatory” mortgage loan or any other comparable term, no matter how
defined under any federal, state or local law, (c) subject to any comparable
federal, state or local statutes or regulations, or any other statute or
regulation providing for assignee liability to holders of such mortgage loans,
or (d) a High Cost Loan or Covered Loan, as applicable (as such terms are
defined in the then current Standard & Poor’s LEVELS® Glossary Revised,
Appendix E). In addition, no Mortgage Loan originated on or after October
1,
2002, through March 6, 2003, is governed by the Georgia Fair Lending
Act;
(iii) With
respect to each representation and warranty with respect to any Mortgage
Loan
made by the Originator in the Purchase Agreement that is made as of the related
Closing Date (as defined in the Purchase Agreement), to the best of the Seller’s
knowledge, no event has occurred since the related Closing Date (as defined
in
the Purchase Agreement) that would render such representations and warranties
to
be untrue in any material respect as of the Closing Date.
69
With
respect to the representations and warranties in this Section 2.04 that are
made
to the best of the Seller’s knowledge or as to which the Seller has no
knowledge, if it is discovered by the Depositor, the Seller, the Master Servicer
or the Trustee that the substance of such representation and warranty is
inaccurate and such inaccuracy materially and adversely affects the value
of the
related Mortgage Loan or the interest therein of the Certificateholders then,
notwithstanding the Seller’s lack of knowledge with respect to the substance of
such representation and warranty being inaccurate at the time the representation
or warranty was made, such inaccuracy shall be deemed a breach of the applicable
representation or warranty.
It
is
understood and agreed that the representations and warranties in this Section
2.04 shall survive delivery of the Mortgage Files to the Trustee and shall
inure
to the benefit of the Certificateholders notwithstanding any restrictive
or
qualified endorsement or assignment. Upon discovery by any of the Depositor,
the
Seller, the Master Servicer or the Trustee of a breach of any of the foregoing
representations and warranties which materially and adversely affects the
value
of any Mortgage Loan or the interests therein of the Certificateholders,
the
party discovering such breach shall give prompt written notice to the other
parties, and in no event later than two Business Days from the date of such
discovery. It is understood and agreed that the obligations of the Seller
set
forth in Section 2.03(b) hereof to cure, substitute for or repurchase (or,
with
respect to any costs and damages incurred by the trust fund in connection
with
any violation of any anti-predatory or anti-abusive lending laws, indemnify
for)
a related Mortgage Loan pursuant to the Mortgage Loan Purchase Agreement
constitute the sole remedies available to the Certificateholders or to the
Trustee on their behalf respecting a breach of the representations and
warranties incorporated in this Section 2.04.
SECTION
2.05. [Reserved]
SECTION
2.06. Representations
and Warranties of the Depositor.
The
Depositor represents and warrants to the Trust Fund and the Trustee on behalf
of
the Certificateholders as follows:
(i) this
agreement constitutes a legal, valid and binding obligation of the Depositor,
enforceable against the Depositor in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
affecting the enforcement of creditors’ rights in general an except as such
enforceability may be limited by general principles of equity (whether
considered in a proceeding at law or in equity);
(ii) immediately
prior to the sale and assignment by the Depositor to the Trustee on behalf
of
the Trust Fund of each Mortgage Loan, the Depositor had good and marketable
title to each Mortgage Loan (insofar as such title was conveyed to it by
the
Seller) subject to no prior lien, claim, participation interest, mortgage,
security interest, pledge, charge or other encumbrance or other interest
of any
nature;
70
(iii) as
of the
Closing Date, the Depositor has transferred all right, title and interest
in the
Mortgage Loans to the Trustee on behalf of the Trust Fund;
(iv) the
Depositor has not transferred the Mortgage Loans to the Trustee on behalf
of the
Trust Fund with any intent to hinder, delay or defraud any of its creditors;
(v) the
Depositor has been duly incorporated and is validly existing as a corporation
in
good standing under the laws of Delaware, with full corporate power and
authority to own its assets and conduct its business as presently being
conducted;
(vi) the
Depositor is not in violation of its certificate of incorporation or by-laws
or
in default in the performance or observance of any material obligation,
agreement, covenant or condition contained in any contract, indenture, mortgage,
loan agreement, note, lease or other instrument to which the Depositor is
a
party or by which it or its properties may be bound, which default might
result
in any material adverse changes in the financial condition, earnings, affairs
or
business of the Depositor or which might materially and adversely affect
the
properties or assets, taken as a whole, of the Depositor;
(vii) the
execution, delivery and performance of this Agreement by the Depositor, and
the
consummation of the transactions contemplated hereby, do not and will not
result
in a material breach or violation of any of the terms or provisions of, or,
to
the knowledge of the Depositor, constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument
to
which the Depositor is a party or by which the Depositor is bound or to which
any of the property or assets of the Depositor is subject, nor will such
actions
result in any violation of the provisions of the certificate of incorporation
or
by-laws of the Depositor or, to the best of the Depositor’s knowledge without
independent investigation, any statute or any order, rule or regulation of
any
court or governmental agency or body having jurisdiction over the Depositor
or
any of its properties or assets (except for such conflicts, breaches, violations
and defaults as would not have a material adverse effect on the ability of
the
Depositor to perform its obligations under this Agreement);
(viii) to
the
best of the Depositor’s knowledge without any independent investigation, no
consent, approval, authorization, order, registration or qualification of
or
with any court or governmental agency or body of the United States or any
other
jurisdiction is required for the issuance of the Certificates, or the
consummation by the Depositor of the other transactions contemplated by this
Agreement, except such consents, approvals, authorizations, registrations
or
qualifications as (a) may be required under State securities or “blue sky” laws,
(b) have been previously obtained or (c) the failure of which to obtain would
not have a material adverse effect on the performance by the Depositor of
its
obligations under, or the validity or enforceability of, this Agreement;
and
(ix) there
are
no actions, proceedings or investigations pending before or, to the Depositor’s
knowledge, threatened by any court, administrative agency or other tribunal
to
which the Depositor is a party or of which any of its properties is the subject:
(a) which if determined adversely to the Depositor would have a material
adverse
effect on the business, results of operations or financial condition of the
Depositor; (b) asserting the invalidity of this Agreement or the Certificates;
(c) seeking to prevent the issuance of the Certificates or the consummation
by
the Depositor of any of the transactions contemplated by this Agreement,
as the
case may be; or (d) which might materially and adversely affect the performance
by the Depositor of its obligations under, or the validity or enforceability
of,
this Agreement.
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SECTION
2.07. Issuance
of Certificates.
The
Trustee acknowledges the assignment to it of the Mortgage Loans and the delivery
to it or to the related Custodian of the Mortgage Files, subject to the
provisions of Sections 2.01 and 2.02 hereof, together with the assignment
to it of all other assets included in the Trust Fund, receipt of which is
hereby
acknowledged. Concurrently with such assignment and delivery and in exchange
therefor, the Securities Administrator, pursuant to the written request of
the
Depositor executed by an officer of the Depositor, has caused to be executed,
authenticated and delivered to or upon the order of the Depositor, the
Certificates in authorized denominations. The interests evidenced by the
Certificates constitute the entire beneficial ownership interest in the Trust
Fund.
SECTION
2.08. Representations
and Warranties of the Seller.
The
Seller hereby represents and warrants to the Trustee on behalf of the
Certificateholders that, as of the Closing Date or as of such date specifically
provided herein:
(i) The
Seller is duly organized, validly existing and in good standing and has the
power and authority to own its assets and to transact the business in which
it
is currently engaged. The Seller is duly qualified to do business and is
in good
standing in each jurisdiction in which the character of the business transacted
by it or properties owned or leased by it requires such qualification and
in
which the failure to so qualify would have a material adverse effect on (a)
its
business, properties, assets or condition (financial or other), (b) the
performance of its obligations under this Agreement, or (c) the value or
marketability of the Mortgage Loans.
(ii) The
Seller has the power and authority to make, execute, deliver and perform
this
Agreement and to consummate all of the transactions contemplated hereunder
and
has taken all necessary action to authorize the execution, delivery and
performance of this Agreement which is part of its official records. When
executed and delivered, this Agreement will constitute the Seller’s legal, valid
and binding obligations enforceable in accordance with its terms, except
as
enforcement of such terms may be limited by (1) bankruptcy, insolvency,
reorganization, receivership, moratorium or similar laws affecting the
enforcement of creditors’ rights generally and the rights of creditors of
federally insured financial institutions and by the availability of equitable
remedies, (2) general equity principles (regardless of whether such enforcement
is considered in a proceeding in equity or at law) or (3) public policy
considerations underlying the securities laws, to the extent that such policy
considerations limit the enforceability of the provisions of this Agreement
which purport to provide indemnification from securities laws
liabilities.
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(iii) The
Seller holds all necessary licenses, certificates and permits from all
governmental authorities necessary for conducting its business as it is
currently conducted. It is not required to obtain the consent of any other
party
or any consent, license, approval or authorization from, or registration
or
declaration with, any governmental authority, bureau or agency in connection
with the execution, delivery, performance, validity or enforceability of
this
Agreement, except for such consents, licenses, approvals or authorizations,
or
registrations or declarations as shall have been obtained or filed, as the
case
may be, prior to the Closing Date.
(iv) The
execution, delivery and performance of this Agreement by the Seller will
not
conflict with or result in a breach of, or constitute a default under, any
provision of any existing law or regulation or any order or decree of any
court
applicable to the Seller or any of its properties or any provision of its
articles of incorporation, charter or by-laws, or constitute a material breach
of, or result in the creation or imposition of any lien, charge or encumbrance
upon any of its properties pursuant to any mortgage, indenture, contract
or
other agreement to which it is a party or by which it may be bound.
(v) No
certificate of an officer, written statement or written report delivered
pursuant to the terms hereof of the Seller contains any untrue statement
of a
material fact or omits to state any material fact necessary to make the
certificate, statement or report not misleading.
(vi) The
transactions contemplated by this Agreement are in the ordinary course of
the
Seller’s business.
(vii) The
Seller is not insolvent, nor will the Seller be made insolvent by the transfer
of the Mortgage Loans to the Depositor, nor is the Seller aware of any pending
insolvency of the Seller.
(viii) The
Seller is not in violation of, and the execution and delivery of this Agreement
by the Seller and its performance and compliance with the terms of this
Agreement will not constitute a violation with respect to, any order or decree
of any court, or any order or regulation of any federal, state, municipal
or
governmental agency having jurisdiction, which violation would materially
and
adversely affect the Seller’s financial condition (financial or otherwise) or
operations, or materially and adversely affect the performance of any of
its
duties hereunder.
(ix) There
are
no actions or proceedings against the Seller, or pending or, to its knowledge,
threatened, before any court, administrative agency or other tribunal; nor,
to
the Seller’s knowledge, are there any investigations (i) that, if determined
adversely, would prohibit the Seller from entering into this Agreement, (ii)
seeking to prevent the consummation of any of the transactions contemplated
by
this Agreement or (iii) that, if determined adversely, would prohibit or
materially and adversely affect the Seller’s ability to perform any of its
respective obligations under, or the validity or enforceability of, this
Agreement.
73
(x) The
Seller did not transfer the Mortgage Loans to the Depositor with any intent
to
hinder, delay or defraud any of its creditors.
(xi) The
Seller acquired title to the Mortgage Loans in good faith, without notice
of any
adverse claims.
(xii) The
transfer, assignment and conveyance of the Mortgage Notes and the Mortgages
by
the Seller to the Depositor are not subject to the bulk transfer laws or
any
similar statutory provisions in effect in any applicable
jurisdiction.
SECTION
2.09. Covenants
of the Seller.
The
Seller hereby covenants that, except for the transfer hereunder, the Seller
will
not sell, pledge, assign or transfer to any other Person, or grant, create,
incur, assume or suffer to exist any lien on any Mortgage Loan, or any interest
therein; the Seller will notify the Trustee, as assignee of the Depositor,
and
the Master Servicer of the existence of any lien on any Mortgage Loan
immediately upon discovery thereof, and the Seller will defend the right,
title
and interest of the Trustee, as assignee of the Depositor, in, to and under
the
Mortgage Loans, against all claims of third parties claiming through or under
the Seller; provided,
however,
that
nothing in this Section 2.09 shall prevent or be deemed to prohibit the Seller
from suffering to exist upon any of the Mortgage Loans any liens for municipal
or other local taxes and other governmental charges if such taxes or
governmental charges shall not at the time be due and payable or if the Seller
shall currently be contesting the validity thereof in good faith by appropriate
proceedings and shall have set aside on its books adequate reserves with
respect
thereto. The Seller shall, within 30 days after the Closing Date, provide
the
Master Servicer, the Securities Administrator, Trustee, the Servicers and
the
Depositor a complete list of each party to the RBSGC Mortgage Loan Trust
2007-B
transaction.
ARTICLE
III
ADMINISTRATION
AND MASTER SERVICING OF THE MORTGAGE LOANS
SECTION
3.01. Master
Servicer to Service and Administer the Mortgage Loans.
The
Master Servicer shall supervise, monitor and oversee the obligation of the
Servicers to service and administer their respective Mortgage Loans in
accordance with the terms of the applicable Servicing Agreement and shall
have
full power and authority to do any and all things which it may deem necessary
or
desirable in connection with such master servicing and administration. In
performing its obligations hereunder, the Master Servicer shall act in a
manner
consistent with Accepted Master Servicing Practices. Furthermore, the Master
Servicer shall oversee and consult with each Servicer as necessary from
time-to-time to carry out the Master Servicer’s obligations hereunder, shall
receive, review and evaluate all reports, information and other data provided
to
the Master Servicer by each Servicer and shall cause each Servicer to perform
and observe the covenants, obligations and conditions to be performed or
observed by such Servicer under the applicable Servicing Agreement. The Master
Servicer shall independently and separately monitor each Servicer’s servicing
activities with respect to each related Mortgage Loan, reconcile the results
of
such monitoring with such information provided in the previous sentence on
a
monthly basis and coordinate corrective adjustments to the Servicers’ and Master
Servicer’s records, and provide such reconciled and corrected information to the
Securities Administrator to enable it to prepare the statements specified
in
Section 5.04 and any other information and statements required of the Securities
Administrator hereunder.
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The
Trustee shall furnish the Servicers and the Master Servicer with any limited
powers of attorney and other documents in form acceptable to the Trustee,
necessary or appropriate to enable the Servicers and the Master Servicer
to
service and administer the related Mortgage Loans and REO Property, which
limited powers of attorney shall provide that the Trustee will not be liable
for
the actions or omissions of the Servicers or Master Servicer in exercising
such
powers.
The
Master Servicer shall not without the Trustee’s written consent (i) initiate any
action, suit or proceeding solely under the Trustee’s name without indicating
the Master Servicer’s representative capacity or (ii) take any action with the
intent to cause, and which actually does cause, the Trustee to be registered
to
do business in any state. The Master Servicer shall indemnify the Trustee
for
any and all costs, liabilities and expenses incurred by the Trustee in
connection with the negligent or willful misuse of such powers of attorney
by
the Master Servicer.
The
Trustee shall provide access to the records and documentation in possession
of
the Trustee (including in its capacity as a Custodian hereunder) regarding
the
related Mortgage Loans and REO Property and the servicing thereof to the
Certificateholders, the FDIC, and the supervisory agents and examiners of
the
FDIC, such access being afforded only upon reasonable prior written request
and
during normal business hours at the office of the Trustee; provided,
however,
that,
unless otherwise required by law, the Trustee shall not be required to provide
access to such records and documentation if the provision thereof would violate
the legal right to privacy of any Mortgagor. The Trustee shall allow
representatives of the above entities to photocopy any of the records and
documentation and shall provide equipment for that purpose at a charge that
covers the Trustee’s actual costs.
The
Trustee, upon written request of the related Servicer or the Master Servicer,
as
applicable, shall execute and deliver to the related Servicer and the Master
Servicer any court pleadings, requests for trustee’s sale or other documents
necessary or desirable to (i) the foreclosure or trustee’s sale with respect to
a Mortgaged Property; (ii) any legal action brought to obtain judgment against
any Mortgagor on the Mortgage Note or Mortgage; (iii) obtain a deficiency
judgment against the Mortgagor; or (iv) enforce any other rights or remedies
provided by the Mortgage Note or Mortgage or otherwise available at law or
equity.
SECTION
3.02. REMIC-Related
Covenants.
For
as
long as each REMIC created hereunder shall exist, the Trustee and the Securities
Administrator shall act in accordance herewith to treat each such REMIC as
a
REMIC, and the Trustee and the Securities Administrator shall comply with
any
directions of the Depositor, the related Servicer or the Master Servicer
to
assure such continuing treatment. In particular, the Trustee, the Securities
Administrator and the Master Servicer shall not (a) sell or knowingly permit
the
sale of all or any portion of the Mortgage Loans or of any investment of
deposits in an Account unless such sale is as a result of a repurchase of
the
Mortgage Loans or is otherwise permitted pursuant to this Agreement or any
Servicing Agreement or the Trustee has received a REMIC Opinion prepared
at the
expense of the Trust Fund; and (b) other than with respect to a substitution
pursuant to the Mortgage Loan Purchase Agreement or Section 2.03 or 2.04
of this
Agreement or as otherwise provided in this Agreement or any Servicing Agreement,
as applicable, accept any contribution to any REMIC after the Startup Day
without receipt of a REMIC Opinion.
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SECTION
3.03. Monitoring
of Servicers.
(a) The
Master Servicer shall be responsible for reporting to the Trustee (on behalf
of
the Trust Fund) and the Depositor the compliance by each Servicer with its
duties under the related Servicing Agreement. In the review of each Servicer’s
activities, the Master Servicer may rely upon an officer’s certificate of the
Servicer with regard to such Servicer’s compliance with the terms of its
Servicing Agreement. In the event that the Master Servicer, in its judgment,
determines that a Servicer should be terminated in accordance with its Servicing
Agreement, or that a notice should be sent pursuant to such Servicing Agreement
with respect to the occurrence of an event that, unless cured, would constitute
grounds for such termination, the Master Servicer shall notify the Depositor
and
the Trustee thereof, and the Master Servicer shall issue such notice or take
such other action as it deems appropriate with Section 3.03(b)
below.
(b) The
Master Servicer, for the benefit of the Trust Fund and the Certificateholders,
shall (acting as agent of the Trust Fund when enforcing the Trust Fund’s rights
under each Servicing Agreement) (i) enforce the obligations of each Servicer
under the related Servicing Agreement, and (ii) in the event that a Servicer
fails to perform its obligations in accordance with the related Servicing
Agreement, subject to the preceding paragraph, terminate the rights and
obligations of such Servicer thereunder and act as servicer of the related
Mortgage Loans or enter into a new Servicing Agreement with a successor Servicer
selected by the Master Servicer which the Master Servicer shall cause the
Trustee to acknowledge; provided,
however,
it is
understood and acknowledged by the parties hereto that there will be a period
of
transition (not to exceed 90 days) before the actual servicing functions
can be
fully transferred to such successor Servicer. Such enforcement, including,
without limitation, the legal prosecution of claims, termination of Servicing
Agreements and the pursuit of other appropriate remedies, shall be in such
form
and carried out to such an extent and at such time as the Master Servicer,
in
its good faith business judgment, would require were it the owner of the
related
Mortgage Loans. The Master Servicer shall pay the costs of such enforcement
at
its own expense except as provided below, provided
that the
Master Servicer shall not be required to prosecute or defend any legal action
except to the extent that the Master Servicer shall have received reasonable
indemnity for its costs and expenses in pursuing such action from the Trust
Fund.
(c) To
the
extent that the costs and expenses of the Master Servicer related to any
termination of a Servicer, appointment of a successor Servicer or the transfer
and assumption of servicing by the Master Servicer or a successor Servicer
with
respect to any Servicing Agreement (including, without limitation, (i) all
reasonable legal costs and expenses and all due diligence costs and expenses
associated with an evaluation of the potential termination of the Servicer
as a
result of an event of default by such Servicer and (ii) all reasonable costs
and
expenses associated with the complete transfer of servicing, including all
servicing files and all servicing data and the completion, correction or
manipulation of such servicing data as may be required by the successor servicer
to correct any errors or insufficiencies in the servicing data or otherwise
to
enable the successor servicer to service the Mortgage Loans in accordance
with
the related Servicing Agreement) are not fully and timely reimbursed by the
terminated Servicer, the Master Servicer shall be entitled to reimbursement
of
such reasonable costs and expenses from the Distribution Account.
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(d) The
Master Servicer shall require each Servicer to comply with the remittance
requirements and other obligations set forth in the related Servicing
Agreement.
(e) If
the
Master Servicer acts as Servicer, it will not assume liability for the
representations and warranties of the predecessor Servicer, if any, that
it
replaces or for any errors, acts or omissions of such predecessor Servicer
occurring prior to the termination of such Servicer; provided,
however,
the
Master Servicer shall not be relieved of its liability, if any, as Master
Servicer under this Section 3.03(e).
SECTION
3.04. Fidelity
Bond.
(a) The
Master Servicer, at its expense, shall maintain in effect a blanket fidelity
bond and an errors and omissions insurance policy, affording coverage with
respect to all directors, officers, employees and other Persons acting on
such
Master Servicer’s behalf, and covering errors and omissions in the performance
of the Master Servicer’s obligations hereunder. The errors and omissions
insurance policy and the fidelity bond shall be in such form and amount
generally acceptable for entities serving as master servicers or trustees.
The
Master Servicer shall provide the Trustee a copy of such policy and fidelity
bond upon request.
(b) The
Master Servicer shall promptly report to the Trustee any material changes
that
may occur in the Master Servicer fidelity bond or the Master Servicer errors
and
omissions insurance policy and shall furnish to the Trustee, on request,
certificates evidencing that such bond and insurance policy are in full force
and effect. The Master Servicer shall promptly report to the Trustee all
cases
of embezzlement or fraud, if such events involve funds relating to the Mortgage
Loans. The total losses relating to the Mortgage Loans, regardless of whether
claims are filed with the applicable insurer or surety, shall be disclosed
in
such reports together with the amount of such losses covered by insurance.
If a
bond or insurance claim report relating to the Mortgage Loans is filed with
any
of such bonding companies or insurers, the Master Servicer shall promptly
furnish a copy of such report to the Trustee. Any amounts relating to the
Mortgage Loans collected by the Master Servicer under any such bond or policy
shall be promptly remitted by the Master Servicer to the Securities
Administrator for deposit into the Distribution Account. Any amounts relating
to
the Mortgage Loans collected by the applicable Servicer under any such bond
or
policy shall be remitted to the Master Servicer to the extent provided in
the
applicable Servicing Agreement.
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SECTION
3.05. Power
to Act; Procedures.
The
Master Servicer shall master service the Mortgage Loans and shall have full
power and authority, subject to the REMIC Provisions and the provisions of
Article X hereof, to do any and all things that it may deem necessary or
desirable in connection with the master servicing and administration of the
Mortgage Loans, including but not limited to the power and authority (i)
to
execute and deliver, on behalf of the Certificateholders, the Trust Fund
and the
Trustee, customary consents or waivers and other instruments and documents,
(ii)
to consent to transfers of any Mortgaged Property and assumptions of the
Mortgage Notes and related Mortgages, (iii) to collect any Insurance Proceeds,
Liquidation Proceeds and Recoveries and (iv) to effectuate, in its own name,
on
behalf the Trust Fund, or in the name of the Trust Fund, foreclosure or other
conversion of the ownership of the Mortgaged Property securing any Mortgage
Loan, in each case, in accordance with the provisions of this Agreement and
the
Servicing Agreements, as applicable; provided,
however,
that
the Master Servicer shall not (and, consistent with its responsibilities
under
Section 3.03, shall not permit any Servicer to) knowingly or intentionally
take
any action, or fail to take (or fail to cause to be taken) any action reasonably
within its control and the scope of duties more specifically set forth herein,
that, under the REMIC Provisions, if taken or not taken, as the case may
be,
would result in an Adverse REMIC Event unless the Master Servicer has received
an Opinion of Counsel (but not at the expense of the Master Servicer) to
the
effect that the contemplated action will not result in an Adverse REMIC Event.
The Trustee shall furnish the Master Servicer, upon written request from
a
Servicing Officer, with any limited powers of attorney empowering the Master
Servicer or any Servicer to execute and deliver instruments of satisfaction
or
cancellation, or of partial or full release or discharge, and to foreclose
upon
or otherwise liquidate Mortgaged Property, and to appeal, prosecute or defend
in
any court action relating to the Mortgage Loans or the Mortgaged Property,
in
accordance with the Servicing Agreements and this Agreement, and the Trustee
shall execute and deliver such other documents, as the Master Servicer may
request, to enable the Master Servicer to master service and administer the
Mortgage Loans and carry out its duties hereunder, in each case in accordance
with Accepted Master Servicing Practices (and the Trustee shall have no
liability for misuse of any such powers of attorney by the Master Servicer
or
any Servicer). In instituting foreclosures or similar proceedings, the Master
Servicer shall institute such proceedings either in its own name on behalf
of
the Trust Fund or in the name of the Trust Fund (or cause a Servicer, pursuant
to the related Servicing Agreement, to institute such proceedings either
in the
name of the Servicer on behalf of the Trust, or in the name of the Trust
Fund),
unless otherwise required by law or otherwise appropriate. If the Master
Servicer or the Trustee has been advised that it is likely that the laws
of the
state in which action is to be taken prohibit such action if taken in the
name
of the Trust Fund or the Trustee on its behalf or that the Trust Fund or
the
Trustee, as applicable, would be adversely affected under the “doing business”
or tax laws of such state if such action is taken in its name, the Master
Servicer shall join with the Trustee, on behalf of the Trust Fund, in the
appointment of a co-trustee pursuant to Section 8.10 hereof. In the performance
of its duties hereunder, the Master Servicer shall be an independent contractor
and shall not, except in those instances where it is taking action in the
name
of the Trustee, be deemed to be the agent of the Trustee on behalf of the
Trust
Fund.
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SECTION
3.06. Due-on-Sale
Clauses; Assumption Agreements.
To
the
extent provided in the applicable Servicing Agreement and to the extent Mortgage
Loans contain enforceable due-on-sale clauses, the Master Servicer shall
cause
the Servicers to enforce such clauses in accordance with the applicable
Servicing Agreement. If applicable law prohibits the enforcement of a
due-on-sale clause or such clause is otherwise not enforced in accordance
with
the applicable Servicing Agreement, and, as a consequence, a Mortgage Loan
is
assumed, the original Mortgagor may be released from liability in accordance
with the applicable Servicing Agreement.
SECTION
3.07. Release
of Mortgage Files.
(a) Upon
becoming aware of the payment in full of any Mortgage Loan, or the receipt
by
any Servicer of a notification that payment in full has been escrowed in
a
manner customary for such purposes for payment to Certificateholders on the
next
Distribution Date, the applicable Servicer will, if required under the related
Servicing Agreement, promptly furnish to the applicable Custodian, on behalf
of
the Trustee, two copies of a certification substantially in the form of Exhibit
F hereto signed by a Servicing Officer or in a mutually agreeable electronic
format which will, in lieu of a signature on its face, originate from a
Servicing Officer (which certification shall include a statement to the effect
that all amounts received in connection with such payment that are required
to
be deposited in the related Servicing Account maintained by the applicable
Servicer pursuant to Section 4.01 or by the applicable Servicer pursuant
to its
Servicing Agreement have been or will be so deposited) and shall request
that
the Trustee (or the related Custodian, on behalf of the Trustee) deliver
to the
applicable Servicer the related Mortgage File. Upon receipt of such
certification and request, the Trustee (or the applicable Custodian, on behalf
of the Trustee), shall promptly release the related Mortgage File to the
applicable Servicer and the Trustee (and the Custodians) shall have no further
responsibility with regard to such Mortgage File. Upon any such payment in
full,
each Servicer is authorized, to give, as agent for the Trustee, as the mortgagee
under the Mortgage that secured the Mortgage Loan, an instrument of satisfaction
(or assignment of mortgage without recourse) regarding the Mortgaged Property
subject to the Mortgage, which instrument of satisfaction or assignment,
as the
case may be, shall be delivered to the Person or Persons entitled thereto
against receipt therefor of such payment, it being understood and agreed
that no
expenses incurred in connection with such instrument of satisfaction or
assignment, as the case may be, shall be chargeable to the related Servicing
Account.
(b) From
time
to time and as appropriate for the servicing or foreclosure of any Mortgage
Loan
and in accordance with the applicable Servicing Agreement, the Trustee shall
execute such documents as shall be prepared and furnished to the Trustee
by a
Servicer or the Master Servicer (in form reasonably acceptable to the Trustee)
and as are necessary to the prosecution of any such proceedings. The Trustee
(or
the related Custodian, on behalf of the Trustee), shall, upon the request
of a
Servicer or the Master Servicer, and upon delivery to the Trustee (or the
related Custodian, on behalf of the Trustee) of two copies of a request for
release signed by a Servicing Officer substantially in the form of Exhibit
F (or
in a mutually agreeable electronic format which will, in lieu of a signature
on
its face, originate from a Servicing Officer), release the related Mortgage
File
held in its possession or control to the Servicer or the Master Servicer,
as
applicable. Such trust receipt shall obligate the Servicer or the Master
Servicer to return the Mortgage File to the Trustee (or the related Custodian
on
behalf of the Trustee) when the need therefor by the Servicer or the Master
Servicer no longer exists unless the Mortgage Loan shall be liquidated, in
which
case, upon receipt of a certificate of a Servicing Officer similar to that
hereinabove specified, the Mortgage File shall be released by the Trustee
(or
the related Custodian, on behalf of the Trustee), to the Servicer or the
Master
Servicer.
79
SECTION
3.08. Documents,
Records and Funds in Possession of Master Servicer to be Held for Trust
Fund.
(a) The
Master Servicer shall transmit and each Servicer (to the extent required
by the
related Servicing Agreement) shall transmit to the Trustee (or applicable
Custodian) such documents and instruments coming into the possession of the
Master Servicer or such Servicer from time to time as are required by the
terms
hereof or, in the case of the Servicers, by the applicable Servicing Agreement,
to be delivered to the Trustee (or applicable Custodian). Any funds received
by
the Master Servicer or by a Servicer in respect of any Mortgage Loan or which
otherwise are collected by the Master Servicer or by a Servicer as Liquidation
Proceeds, Insurance Proceeds or Recoveries in respect of any Mortgage Loan
shall
be held for the benefit of the Trust Fund and the Certificateholders, subject
to
the Master Servicer’s right to retain or withdraw from the Distribution Account
the Master Servicing Fee, any additional compensation due and owing to the
Master Servicer pursuant to Section 3.14 and any other amounts provided in
this
Agreement, and to the right of each Servicer to retain its Servicing Fee
and any
other amounts as provided in the applicable Servicing Agreement. The Master
Servicer shall, and (to the extent provided in the applicable Servicing
Agreement) shall cause each Servicer to, provide access to information and
documentation regarding the Mortgage Loans to the Trustee, its agents and
accountants at any time upon reasonable request and during normal business
hours, and to Certificateholders that are savings and loan associations,
banks
or insurance companies, the Office of Thrift Supervision, the FDIC and the
supervisory agents and examiners of such Office and Corporation or examiners
of
any other federal or state banking or insurance regulatory authority if so
required by applicable regulations of the Office of Thrift Supervision or
other
regulatory authority, such access to be afforded without charge but only
upon
reasonable request in writing and during normal business hours at the offices
of
the Master Servicer designated by it. In fulfilling such a request the Master
Servicer shall not be responsible for determining the sufficiency of such
information.
(b) All
Mortgage Files and funds collected or held by, or under the control of, the
Master Servicer, in respect of any Mortgage Loans, whether from the collection
of principal and interest payments or from Liquidation Proceeds, Insurance
Proceeds or Recoveries, shall be held by the Master Servicer for and on behalf
of the Trust Fund and the Certificateholders and shall be and remain the
sole
and exclusive property of the Trust Fund; provided,
however,
that
the Master Servicer and each Servicer shall be entitled to setoff against,
and
deduct from, any such funds any amounts that are properly due and payable
to the
Master Servicer or such Servicer under this Agreement or the applicable
Servicing Agreement.
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SECTION
3.09. Standard
Hazard Insurance and Flood Insurance Policies.
(a) For
each
Mortgage Loan (other than a Cooperative Loan), the Master Servicer shall
enforce
any obligation of the Servicers under the related Servicing Agreements to
maintain or cause to be maintained standard fire and casualty insurance and,
where applicable, flood insurance, all in accordance with the provisions
of the
related Servicing Agreements. It is understood and agreed that such insurance
shall be with insurers meeting the eligibility requirements set forth in
the
applicable Servicing Agreement and that no earthquake or other additional
insurance is to be required of any Mortgagor or to be maintained on property
acquired in respect of a defaulted loan, other than pursuant to such applicable
laws and regulations as shall at any time be in force and as shall require
such
additional insurance.
(b) Pursuant
to Sections 4.01 and 4.02, any amounts collected by any Servicer or the Master
Servicer under any insurance policies (other than amounts to be applied to
the
restoration or repair of the property subject to the related Mortgage or
released to the Mortgagor in accordance with the applicable Servicing Agreement)
shall be deposited into the Distribution Account, subject to withdrawal pursuant
to Sections 4.02 and 4.03. Any cost incurred by the Master Servicer or any
Servicer in maintaining any such insurance if the Mortgagor defaults in its
obligation to do so shall be added to the amount owing under the Mortgage
Loan
where the terms of the Mortgage Loan so permit; provided,
however,
that
the addition of any such cost shall not be taken into account for purposes
of
calculating the distributions to be made to Certificateholders and shall
be
recoverable by the Master Servicer or such Servicer pursuant to Sections
4.02
and 4.03.
SECTION
3.10. Presentment
of Claims and Collection of Proceeds.
The
Master Servicer shall (to the extent provided in the applicable Servicing
Agreement) cause the related Servicer to prepare and present on behalf of
the
Trustee, the Trust Fund and the Certificateholders all claims under the
Insurance Policies and take such actions (including the negotiation, settlement,
compromise or enforcement of the insured’s claim) as shall be necessary to
realize recovery under such policies. Any proceeds disbursed to the Master
Servicer (or disbursed to a Servicer and remitted to the Master Servicer)
in
respect of such policies, bonds or contracts shall be promptly deposited
in the
Distribution Account upon receipt, except that any amounts realized that
are to
be applied to the repair or restoration of the related Mortgaged Property
as a
condition precedent to the presentation of claims on the related Mortgage
Loan
to the insurer under any applicable Insurance Policy need not be so deposited
(or remitted).
SECTION
3.11. [Reserved]
SECTION
3.12. Trustee
to Retain Possession of Certain Insurance Policies and
Documents.
The
Trustee (or the applicable Custodian, as directed by the Trustee), shall
retain
possession and custody of the originals (to the extent available) of any
certificate of insurance if applicable and available, and any certificates
of
renewal as to the foregoing as may be issued from time to time as contemplated
by this Agreement and which come into its possession. Until all amounts
distributable in respect of the Certificates have been distributed in full
and
the Master Servicer otherwise has fulfilled its obligations under this
Agreement, the Trustee (or its Custodian, if any, as directed by the Trustee)
shall also retain possession and custody of each Mortgage File in accordance
with and subject to the terms and conditions of this Agreement. The Master
Servicer shall promptly deliver or cause to be delivered to the Trustee (or
the
applicable Custodian, as directed by the Trustee), upon the execution or
receipt
thereof the originals of any certificates of insurance, any certificates
of
renewal, and such other documents or instruments that constitute portions
of the
Mortgage File that come into the possession of the Master Servicer from time
to
time.
81
SECTION
3.13. Realization
Upon Defaulted Mortgage Loans.
The
Master Servicer shall cause each Servicer (to the extent required under the
related Servicing Agreement) to foreclose upon, repossess or otherwise
comparably convert the ownership of Mortgaged Properties securing such of
the
Mortgage Loans as come into and continue in default and as to which no
satisfactory arrangements can be made for collection of delinquent payments,
all
in accordance with the applicable Servicing Agreement.
SECTION
3.14. Additional
Compensation to the Master Servicer.
The
Master Servicer shall be entitled to receive the Master Servicing Fee and,
pursuant to Section 4.02(c), certain income and gain realized from any
investment of funds in the Distribution Account shall be for the benefit
of the
Master Servicer as additional compensation. Servicing compensation in the
form
of assumption fees, if any, late payment charges, as collected, if any, or
otherwise (but, unless otherwise specifically permitted in the applicable
Servicing Agreement, not including any Prepayment Penalty Amounts) shall
be
retained by the applicable Servicer, or the Master Servicer, and shall not
be
deposited in the related Servicing Account or the Distribution
Account. The
Master Servicer shall be required to pay all expenses incurred by it in
connection with its activities hereunder and shall not be entitled to
reimbursement therefor except as provided in this Agreement. The amount of
the
aggregate compensation payable as set forth in this Section 3.14 plus the
Master
Servicing Fee due to the Master Servicer in respect of any Distribution Date
shall be reduced in accordance with Section 5.06.
SECTION
3.15. REO
Property.
(a) In
the
event the Trust Fund (or the Trustee, on behalf of the Trust), acquires
ownership of any REO Property in respect of any related Mortgage Loan, the
deed
or certificate of sale shall be issued to the Trust Fund, or if required
under
applicable law, to the Trustee, or to its nominee, on behalf of the Trust
Fund.
The Master Servicer shall, to the extent provided in the applicable Servicing
Agreement, cause the applicable Servicer to sell any REO Property as
expeditiously as possible (and in no event later than three years after
acquisition) and in accordance with the provisions of this Agreement and
the
related Servicing Agreement, as applicable. Pursuant to its efforts to sell
such
REO Property, the Master Servicer shall cause the applicable Servicer to
protect
and conserve such REO Property in the manner and to the extent required by
the
applicable Servicing Agreement, in accordance with the REMIC Provisions and
in a
manner that does not result in a tax on “net income from foreclosure property”
or cause such REO Property to fail to qualify as “foreclosure property” within
the meaning of Section 860G(a)(8) of the Code.
82
(b) The
Master Servicer shall, to the extent required by the related Servicing
Agreement, cause the applicable Servicer to deposit all funds collected and
received in connection with the operation of any REO Property in the related
Servicing Account.
(c) The
Master Servicer and the applicable Servicer, upon the final disposition of
any
REO Property, shall be entitled to reimbursement for any related unreimbursed
Advances and other unreimbursed advances as well as any unpaid Servicing
Fees
from Liquidation Proceeds received in connection with the final disposition
of
such REO Property; provided
that any
such unreimbursed Advances as well as any unpaid Servicing Fees may be
reimbursed or paid, as the case may be, prior to final disposition, out of
any
net rental income or other net amounts derived from such REO
Property.
(d) To
the
extent provided in the related Servicing Agreement, the Liquidation Proceeds
from the final disposition of the REO Property, net of any payment to the
Master
Servicer and the applicable Servicer as provided above shall be deposited
in the
related Servicing Account on or prior to the applicable Determination Date
in
the month following receipt thereof and be remitted by wire transfer in
immediately available funds to the Master Servicer for deposit into the
Distribution Account on the next succeeding Servicer Remittance
Date.
SECTION
3.16. Assessments
of Compliance and Attestation Reports.
(a) Assessments
of Compliance.
(i) By
March
10 (with a 5 calendar day cure period) of each year, commencing in March
2008,
the Master Servicer, the Securities Administrator and the Trustee, in its
capacity as a Custodian, each at its own expense, shall furnish, and each
such
party shall cause any Servicing Function Participant engaged by it to furnish
or
otherwise make available, each at its own expense, to the Securities
Administrator and the Depositor (provided
that the
Master Servicer shall furnish copies of each such report received by it from
the
Servicers to the Depositor), a report on an assessment of compliance with
the
Relevant Servicing Criteria that contains (A) a statement by such party of
its
responsibility for assessing compliance with the Relevant Servicing Criteria,
(B) a statement that such party used the Servicing Criteria to assess compliance
with the Relevant Servicing Criteria, (C) such party’s assessment of compliance
with the Relevant Servicing Criteria as of and for the fiscal year covered
by
the Form 10-K required to be filed pursuant to Section 3.19(b) and for each
fiscal year thereafter, whether or not a Form 10-K is required to be filed,
including, if there has been any material instance of noncompliance with
the
Relevant Servicing Criteria, a discussion of each such failure and the nature
and status thereof, and (D) a statement that a registered public accounting
firm
has issued an attestation report on such party’s assessment of compliance with
the Relevant Servicing Criteria as of and for such period.
83
(ii) No
later
than the end of each fiscal year for the Trust Fund for which a Form 10-K
is
required to be filed, the Master Servicer and the Trustee, in its capacity
as a
Custodian, shall each forward to the Securities Administrator and the Depositor
the name of each Servicing Function Participant engaged by it and what Relevant
Servicing Criteria will be addressed in the report on assessment of compliance
prepared by such Servicing Function Participant (provided,
however,
that
the Master Servicer need not provide such information to the Securities
Administrator so long as the Master Servicer and Securities Administrator
are
the same Person). When the Master Servicer, the Trustee, in its capacity
as a
Custodian, and the Securities Administrator (or any Servicing Function
Participant engaged by them) submit their assessments to the Securities
Administrator, such parties will also at such time include the assessment
(and
attestation pursuant to subsection (b) of this Section 3.16) of each Servicing
Function Participant engaged by it.
(iii) Promptly
after receipt of each such report on assessment of compliance, (i) the Depositor
shall review each such report and, if applicable, consult with the Master
Servicer, the Securities Administrator, the Trustee, in its capacity as a
Custodian, and any Servicing Function Participant engaged by such parties
as to
the nature of any material instance of noncompliance with the Relevant Servicing
Criteria by each such party, and (ii) the Securities Administrator shall
confirm
that the assessments, taken as a whole, address all of the Servicing Criteria
and taken individually address the Relevant Servicing Criteria for each party
as
set forth on Exhibit R and on any similar exhibit set forth in each Servicing
Agreement in respect of the Servicer and notify the Depositor of any
exceptions.
(iv) The
Master Servicer shall include all annual reports on assessment of compliance
received by it from each Servicer (or the Subservicer on its behalf) with
its
own assessment of compliance to be submitted to the Securities Administrator
pursuant to this Section.
(v) In
the
event the Master Servicer, the Securities Administrator, the Trustee, in
its
capacity as a Custodian, or any Servicing Function Participant engaged by
such
party is terminated, assigns its rights and obligations under or resigns
pursuant to the terms of this Agreement, or any other applicable agreement,
as
the case may be, such party shall provide a report on assessment of compliance
pursuant to this Section 3.16(a) or to such other applicable agreement with
respect to the period of time it was subject to this Agreement or any applicable
subservicing agreement, notwithstanding any such termination, assignment
or
resignation.
(b) Attestation
Reports.
(i) By
March
10 (with a 5 calendar day cure period) of each year, commencing in March
2008,
the Master Servicer, the Securities Administrator and the Trustee, in its
capacity as a Custodian, each at its own expense, shall cause, and each such
party shall cause any Servicing Function Participant engaged by it to cause,
each at its own expense, a registered public accounting firm (which may also
render other services to the Master Servicer and the Trustee, in its capacity
as
a Custodian, the Securities Administrator, or such other Servicing Function
Participants, as the case may be) and that is a member of the American Institute
of Certified Public Accountants to furnish a report to the Securities
Administrator and the Depositor, to the effect that (i) it has obtained a
report
on assessment of compliance with the Relevant Servicing Criteria from the
management of such party, which includes an assertion that such party has
complied with the Relevant Servicing Criteria, and (ii) on the basis of an
examination conducted by such firm in accordance with standards for attestation
engagements issued or adopted by the PCAOB, it is expressing an opinion as
to
whether such party’s compliance with the Relevant Servicing Criteria was fairly
stated in all material respects, or it cannot express an overall opinion
regarding such party’s assessment of compliance with the Relevant Servicing
Criteria. In the event that an overall opinion cannot be expressed, such
registered public accounting firm shall state in such report why it was unable
to express such an opinion. Such report must be available for general use
and
not contain restricted use language.
84
(ii) Promptly
after receipt of each such assessment of compliance and attestation report
the
Securities Administrator shall confirm that each assessment submitted pursuant
to subsection (a) of this Section 3.16 is coupled with an attestation meeting
the requirements of this Section and notify the Depositor of any
exceptions.
(iii) The
Master Servicer shall include each such attestation furnished to it by the
Servicer with its own attestation to be submitted to the Securities
Administrator pursuant to this Section.
(iv) In
the
event the Master Servicer, the Securities Administrator, the Trustee, in
its
capacity as a Custodian, a Servicer or any Servicing Function Participant
engaged by such party is terminated, assigns its rights and duties under
or
resigns pursuant to the terms of this Agreement, or any applicable custodial
agreement, servicing agreement or subservicing agreement, as the case may
be,
such party shall cause a registered public accounting firm to provide an
attestation pursuant to this Section 3.16(b) with respect to the period of
time
it was subject to this Agreement or any applicable subservicing agreement,
notwithstanding any such termination, assignment or resignation.
(v) The
Trustee’s obligation in its capacity as a Custodian to provide assessments of
compliance and attestations under this Section 3.16 shall terminate upon
the
filing of a Form 15 suspension notice on behalf of the Trust Fund.
Notwithstanding the foregoing, after the occurrence of such event, and
provided
that the
Depositor is not otherwise provided with such reports or copies of such reports,
the Master Servicer and the Securities Administrator shall be obligated to
provide a copy of such reports, by March 31 of each year, to the
Depositor.
SECTION
3.17. Annual
Compliance Statement.
The
Master Servicer and the Securities Administrator shall deliver (and the Master
Servicer and Securities Administrator shall cause any Servicing Function
Participant engaged by it to deliver) to the Depositor and the Securities
Administrator on or before March 10 (with a 5 calendar day cure period) of
each
year, commencing in March 2008, an Officer’s Certificate stating, as to the
signer thereof, that (A) a review of such party’s activities during the
preceding calendar year or portion thereof and of such party’s performance under
this Agreement, or such other applicable agreement in the case of a Servicing
Function Participant, has been made under such officer’s supervision and (B) to
the best of such officer’s knowledge, based on such review, such party has
fulfilled all its obligations under this Agreement, or such other applicable
agreement in the case of a Servicing Function Participant, in all material
respects throughout such year or portion thereof, or, if there has been a
failure to fulfill any such obligation in any material respect, specifying
each
such failure known to such officer and the nature and status
thereof.
85
The
Master Servicer shall include all annual statements of compliance received
by it
from the Servicers with its own annual statement of compliance to be submitted
to the Securities Administrator pursuant to this Section.
In
the
event the Master Servicer, the Securities Administrator or any Servicing
Function Participant engaged by parties is terminated or resigns pursuant
to the
terms of this Agreement, or any applicable agreement in the case of a Servicing
Function Participant, as the case may be, such party shall provide an Officer’s
Certificate pursuant to this Section 3.17 with respect to the period of time
it
was subject to this Agreement or any other applicable agreement, as the case
may
be.
SECTION
3.18. Enforcement
of Regulation AB Deliverables.
If
a
Servicer or any Servicing Function Participant engaged by it fails to deliver
any certifications, assessments, attestations or statements of compliance
to the
Securities Administrator within the time specified in the related Servicing
Agreement, the Securities Administrator shall notify such Servicer or any
such
Servicing Function Participant in writing of such failure, with a copy of
such
notice to be delivered to the Seller and the Depositor. If at the end of
the
applicable cure period the applicable Servicer or any Servicing Function
Participant has failed to deliver any of the required certifications,
assessments, attestations or statements of compliance, the Securities
Administrator shall notify the Seller and the Depositor of such failure to
deliver the required certifications, assessments, attestations or statements
of
compliance pursuant to the related Servicing Agreement.
SECTION
3.19. Xxxxxxxx-Xxxxx
Certification.
Each
Form
10-K shall include a Xxxxxxxx-Xxxxx Certification, required to be included
therewith pursuant to the Xxxxxxxx-Xxxxx Act. The Securities Administrator
and
the Master Servicer shall provide, and each such party shall cause any Servicing
Function Participant engaged by it to provide, to the Person who signs the
Xxxxxxxx-Xxxxx Certification (the “Certifying
Person”),
by
March 10 (with a 5 calendar day cure period) of each year in which the Trust
Fund is subject to the reporting requirements of the Exchange Act and otherwise
within a reasonable period of time upon request, a certification (each, a
“Back-Up
Certification”)
in the
form of Exhibit O hereto upon which the Certifying Person, the entity for
which
the Certifying Person acts as an officer, and such entity’s officers, directors
and Affiliates (collectively with the Certifying Person, “Certification
Parties”)
can
reasonably rely. A senior officer of the Master Servicer in charge of the
master
servicing function shall serve as the Certifying Person on behalf of the
Trust
Fund. Such officer of the Certifying Person can be contacted by e-mail at
xxx.xxx.xxxxxxxxxxxxx@xxxxxxxxxx.xxx or by facsimile at 000-000-0000. In
the
event any such party or any Servicing Function Participant engaged by such
party
is terminated or resigns pursuant to the terms of this Agreement, or any
applicable subservicing agreement, as the case may be, such party shall provide
a Back-Up Certification to the Certifying Person pursuant to this Section
3.19
with respect to the period of time it was subject to this Agreement or any
applicable subservicing agreement, as the case may be. Notwithstanding the
foregoing, (i) the Master Servicer and the Securities Administrator shall
not be
required to deliver a Back-Up Certification to each other if both are the
same
Person and the Master Servicer is the Certifying Person and (ii) the Master
Servicer shall not be obligated to sign the Xxxxxxxx-Xxxxx Certification
in the
event that it does not receive any Back-Up Certification required to be
furnished to it pursuant to this section or any Servicing
Agreement.
86
SECTION
3.20. Reports
Filed with Securities and Exchange Commission.
The
Securities Administrator shall reasonably cooperate with the Depositor in
connection with the Trust Fund’s satisfying the reporting requirements under the
Exchange Act.
(a) Reports
Filed on Form 10-D.
(i) Within
15
days after each Distribution Date (subject to permitted extensions under
the
Exchange Act), the Securities Administrator shall prepare and file on behalf
of
the Trust Fund any Form 10-D required by the Exchange Act, in form and substance
as required by the Exchange Act. The Securities Administrator shall file
each
Form 10-D with a copy of the related Distribution Date Statement attached
thereto. Any disclosure in addition to the Distribution Date Statement that
is
required to be included on Form 10-D (“Additional
Form 10-D Disclosure”)
shall
be reported by the responsible parties set forth on Exhibit T to the Securities
Administrator and Depositor and directed and approved by the Depositor pursuant
to the following paragraph and the Securities Administrator will have no
duty or
liability for any failure hereunder to determine or prepare any Additional
Form
10-D Disclosure, except as set forth in the next paragraph.
(ii) As
set
forth on Exhibit R hereto, within 5 calendar days after the related Distribution
Date, (i) the parties to the RBSGC Mortgage Loan Trust 2007-B transaction
shall
be required to provide to the Securities Administrator, the Depositor and
XxXxx
Xxxxxx LLP, to the extent known by a responsible officer thereof, in
XXXXX-compatible form (which may be Word or Excel documents easily convertible
to XXXXX format), or in such other form as otherwise agreed upon by the
Securities Administrator and such party, the form and substance of any
Additional Form 10-D Disclosure, if applicable, together with an Additional
Disclosure Notification in the form of Exhibit T hereto (an “Additional
Disclosure Notification”)
and
(ii) the Depositor will approve, as to form and substance, or disapprove,
as the
case may be, the inclusion of the Additional Form 10-D Disclosure on Form
10-D.
The Seller will be responsible for any reasonable fees and expenses assessed
or
incurred by the Securities Administrator in connection with including any
Additional Form 10-D Disclosure in Form 10-D pursuant to this
paragraph.
87
(iii) After
preparing the Form 10-D, the Securities Administrator shall, no later than
10
calendar days after the Distribution Date, forward electronically a copy
of the
Form 10-D to the Depositor and its counsel. Within two Business Days after
receipt of such copy, but no later than the 12th
calendar
day after the Distribution Date (or the next succeeding Business Day), the
Depositor shall notify the Securities Administrator in writing of any changes
to
or approval of such Form 10-D. In the absence of receipt of any written changes
or approval, the Securities Administrator shall be entitled to assume that
such
Form 10-D is in final form and the Securities Administrator may proceed with
the
execution and filing of Form 10-D. A duly authorized representative of the
Master Servicer shall sign each Form 10-D. If a Form 10-D cannot be filed
on
time or if a previously filed Form 10-D needs to be amended, the Securities
Administrator will follow the procedures set forth in subsection (d)(ii)
of this
Section 3.19. Promptly (but no later than 1 Business Day) after filing with
the
Commission, the Securities Administrator will make available on its internet
website a final executed copy of each Form 10-D filed by the Securities
Administrator. Each party to this Agreement acknowledges that the performance
by
the Master Servicer and the Securities Administrator of their respective
duties
under this Section 3.19(a) related to the timely preparation, execution and
filing of Form 10-D is contingent upon such parties strictly observing all
applicable deadlines in the performance of their duties under this Section
3.19(a). Neither the Master Servicer nor the Securities Administrator shall
have
any liability for any loss, expense, damage, claim arising out of or with
respect to any failure to properly prepare, execute and/or timely file such
Form
10-D, where such failure results from the Securities Administrator’s inability
or failure to receive, on a timely basis, any information from any other
party
hereto needed to prepare, arrange for execution or file such Form 10-D, and
for
any erroneous, inaccurate or incomplete information or certification provided
to
the Securities Administrator, not resulting from its own negligence, bad
faith
or willful misconduct.
(iv) Form
10-D
requires the registrant to indicate (by checking “yes” or “no”) that it “(1) has
filed all reports required to be filed by Section 13 or 15(d) of the Exchange
Act during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to
such
filing requirements for the past 90 days.” At the date of the filing of each
report on Form 10-D with respect to the Trust Fund, the Depositor shall be
deemed to represent to the Securities Administrator that, as of such date,
the
Depositor has filed all such required reports during the preceding 12 months
and
that it has been subject to such filing requirement for the past 90 days.
The
Depositor shall notify the Securities Administrator in writing, no later
than
the fifth calendar day after the related Distribution Date with respect to
the
filing of a report on Form 10-D if the answer to the questions should be
“no.”
The Securities Administrator shall be entitled to rely on such representations
in preparing, executing and/or filing any such report.
(b) Reports
Filed on Form 10-K.
(i) On
or
prior to the 90th day after the end of each fiscal year of the Trust Fund
in
which a Form 10-K is required to be filed or such earlier date as may be
required by the Exchange Act (the “10-K
Filing Deadline”)
(it
being understood that the fiscal year for the Trust Fund ends on December
31st
of each
year), commencing in March 2008, the Securities Administrator shall prepare
and
file on behalf of the Trust Fund a Form 10-K, in form and substance as required
by the Exchange Act. Each such Form 10-K shall include the following items,
in
each case to the extent they have been delivered to the Securities Administrator
within the applicable time frames set forth in this Agreement and the Servicing
Agreements, (i) an annual compliance statement for each Servicer, the Master
Servicer, the Securities Administrator and any Servicing Function Participant
engaged by such parties (each, with the Custodians, a “Reporting
Servicer”)
as
described under Section 3.17 and in such other agreement, (ii)(A) the annual
reports on assessment of compliance with servicing criteria for each Reporting
Servicer, as described under Section 3.16(a), and (B) if any Reporting
Servicer’s report on assessment of compliance with servicing criteria described
under Section 3.16(a) identifies any material instance of noncompliance,
disclosure identifying such instance of noncompliance, or if any Reporting
Servicer’s report on assessment of compliance with servicing criteria described
under Section 3.16(a) is not included as an exhibit to such Form 10-K,
disclosure that such report is not included and an explanation why such report
is not included, (iii)(A) the registered public accounting firm attestation
report for each Reporting Servicer, as described under Section 3.16(b), and
(B)
if any registered public accounting firm attestation report described under
Section 3.16(b) identifies any material instance of noncompliance, disclosure
identifying such instance of noncompliance, or if any such registered public
accounting firm attestation report is not included as an exhibit to such
Form
10-K, disclosure that such report is not included and an explanation why
such
report is not included, and (iv) a Xxxxxxxx-Xxxxx Certification as described
in
Section 3.19; provided,
however,
that
the Securities Administrator, at its discretion, may omit from the Form 10-K
any
annual compliance statement, assessment of compliance or attestation report
that
is not required to be filed with such Form 10-K pursuant to Regulation AB.
Any
disclosure or information in addition to (i) through (iv) above that is required
to be included on Form 10-K (“Additional
Form 10-K Disclosure”)
shall
be reported by the responsible parties set forth on Exhibit T to the Depositor
and Securities Administrator and directed and approved by the Depositor pursuant
to the following paragraph and the Securities Administrator will have no
duty or
liability for any failure hereunder to determine or prepare any Additional
Form
10-K Disclosure, except as set forth in the next paragraph.
88
(ii) As
set
forth on Exhibit U hereto, no later than March 10 (with a 5 calendar day
cure
period) of each year that the Trust Fund is subject to the Exchange Act
reporting requirements, commencing in 2008, (i) the parties to the RBSGC
Mortgage Loan Trust 2007-B transaction shall be required to provide to the
Securities Administrator and the Depositor, to the extent known by a responsible
officer thereof, in XXXXX-compatible form (which may be Word or Excel documents
easily convertible to XXXXX format), or in such other form as otherwise agreed
upon by the Securities Administrator and such party, the form and substance
of
any Additional Form 10-K Disclosure, if applicable, together with an Additional
Disclosure Notification and (ii) the Depositor will approve, as to form and
substance, or disapprove, as the case may be, the inclusion of the Additional
Form 10-K Disclosure on Form 10-K. The Seller will be responsible for any
reasonable fees and expenses assessed or incurred by the Securities
Administrator in connection with including any Additional Form 10-K Disclosure
in Form 10-K pursuant to this paragraph.
89
(iii) After
preparing the Form 10-K, the Securities Administrator shall forward
electronically a copy of the Form 10-K to the Depositor and XxXxx Xxxxxx
LLP.
Within three Business Days after receipt of such copy, but no later than
March
25th,
the
Depositor shall notify the Securities Administrator in writing of any changes
to
or approval of such Form 10-K. In the absence of receipt of any written changes
or approval, the Securities Administrator shall be entitled to assume that
such
Form 10-K is in final form and the Securities Administrator may proceed with
the
execution and filing of the Form 10-K. A senior officer of the Master Servicer
in charge of the master servicing function shall sign each Form 10-K. If
a Form
10-K cannot be filed on time or if a previously filed Form 10-K needs to
be
amended, the Securities Administrator will follow the procedures set forth
in
subsection (d)(ii) of this Section 3.19. Promptly (but no later than 1 Business
Day) after filing with the Commission, the Securities Administrator will
make
available on its internet website a final executed copy of each Form 10-K
filed
by the Securities Administrator. The parties to this Agreement acknowledge
that
the performance by the Master Servicer and the Securities Administrator of
its
duties under this Section 3.20(b) related to the timely preparation, execution
and filing of Form 10-K is contingent upon such parties (and any Servicing
Function Participant) strictly observing all applicable deadlines in the
performance of their duties under this Section 3.20(b), Section 3.19, Section
3.17, Section 3.16(a) and Section 3.16(b). Neither the Master Servicer nor
the
Securities Administrator shall have any liability for any loss, expense,
damage
or claim arising out of or with respect to any failure to properly prepare,
execute and/or timely file such Form 10-K, where such failure results from
the
Securities Administrator’s inability or failure to receive, on a timely basis,
any information from any other party hereto needed to prepare, arrange for
execution or file such Form 10-K, and for any erroneous, inaccurate or
incomplete information or certification provided to the Securities Administrator
not resulting from its own negligence, bad faith or willful
misconduct.
(iv) Form
10-K
requires the registrant to indicate (by checking “yes” or “no”) that it “(1) has
filed all reports required to be filed by Section 13 or 15(d) of the Exchange
Act during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to
such
filing requirements for the past 90 days.” At the date of the filing of each
report on Form 10-K with respect to the Trust Fund, the Depositor shall be
deemed to represent to the Securities Administrator that, as of such date,
the
Depositor has filed all such required reports during the preceding 12 months
and
that it has been subject to such filing requirement for the past 90 days.
The
Depositor shall notify the Securities Administrator in writing, no later
than
March 15th with respect to the filing of a report on Form 10-K, if the answer
to
the questions should be “no.” The Securities Administrator shall be entitled to
rely on such representations in preparing, executing and/or filing any such
report.
(c) Reports
Filed on Form 8-K.
90
(i) Within
four (4) Business Days after the occurrence of an event requiring disclosure
on
Form 8-K (each such event, a “Reportable
Event”),
and
if requested by the Depositor, the Securities Administrator shall prepare
and
file on behalf of the Trust Fund a Form 8-K, as required by the Exchange
Act,
provided
that the
Depositor shall file the initial Form 8-K in connection with the issuance
of the
Certificates. Any disclosure or information related to a Reportable Event
or
that is otherwise required to be included in Form 8-K (“Form
8-K Disclosure Information”)
shall
be reported by the responsible parties set forth on Exhibit T to the Depositor
and Securities Administrator and directed and approved by the Depositor pursuant
to the following paragraph and the Securities Administrator will have no
duty or
liability for any failure hereunder to determine or prepare any Form 8-K
Disclosure Information or any Form 8-K, except as set forth in the next
paragraph.
(ii) As
set
forth on Exhibit R hereto, for so long as the Trust Fund is subject to the
Exchange Act reporting requirements, no later than noon New York City time
on
the 2nd Business Day after the occurrence of a Reportable Event (i) the parties
to the RBSGC Mortgage Loan Trust 2007-B transaction shall be required to
provide
to the Securities Administrator and the Depositor, to the extent known by
a
responsible officer thereof, in XXXXX-compatible form (which may be Word
or
Excel documents easily convertible to XXXXX format), or in such other form
as
otherwise agreed upon by the Securities Administrator and such party, the
form
and substance of any Form 8-K Disclosure Information in the form of Exhibit
T
hereto, if applicable, together with an Additional Disclosure Notification
and
(ii) the Depositor will approve, as to form and substance, or disapprove,
as the
case may be, the inclusion of the Form 8-K Disclosure Information. The Seller
will be responsible for any reasonable fees and expenses assessed or incurred
by
the Securities Administrator in connection with including any Form 8-K
Disclosure Information in Form 8-K pursuant to this paragraph.
(iii) After
preparing the Form 8-K, the Securities Administrator shall forward
electronically a copy of the Form 8-K to the Depositor by noon New York City
time on the 3rd
Business
Day after the occurrence of a Reportable Event. Promptly, but no later than
the
close of business on the third Business Day after the Reportable Event, the
Depositor shall notify the Securities Administrator in writing of any change
to
or approval of such Form 8-K. In the absence of receipt of any written changes
or approval, the Securities Administrator shall be entitled to assume that
such
Form 8-K is in final form and
the
Securities Administrator
may
proceed with the execution and filing of the Form 8-K. A duly authorized
representative of the Master Servicer shall sign each Form 8-K. If a Form
8-K
cannot be filed on time or if a previously filed Form 8-K needs to be amended,
the Securities Administrator will follow the procedures set forth in subsection
(d)(ii) of this Section 3.19. Promptly (but no later than 1 Business Day)
after
filing with the Commission, the Securities Administrator will, make available
on
its internet website a final executed copy of each Form 8-K filed by the
Securities Administrator. The parties to this Agreement acknowledge that
the
performance by the Master Servicer and the Securities Administrator of their
respective duties under this Section 3.19(c) related to the timely preparation,
execution and filing of Form 8-K is contingent upon such parties strictly
observing all applicable deadlines in the performance of their duties under
this
Section 3.19(c). Neither the Securities Administrator nor the Master Servicer
shall have any liability for any loss, expense, damage, claim arising out
of or
with respect to any failure to properly prepare, execute and/or timely file
such
Form 8-K, where such failure results from the Securities Administrator’s
inability or failure to receive, on a timely basis, any information from
any
other party hereto needed to prepare, arrange for execution or file such
Form
8-K, not resulting from its own negligence, bad faith or willful
misconduct.
91
(d) Suspension
of Reporting; Amendments; Late Filings.
(i) On
or
prior to January 30 of the first year in which the Trust Fund is able to
do so
under applicable law, the Securities Administrator shall prepare and file
a Form
15 Suspension Notification relating to the automatic suspension of reporting
in
respect of the Trust Fund under the Exchange Act.
(ii) In
the
event that the Securities Administrator is unable to timely file with the
Commission all or any required portion of any Form 8-K, 10-D or 10-K required
to
be filed by this Agreement because required disclosure information was either
not delivered to it or delivered to it after the delivery deadlines set forth
in
this Agreement or for any other reason, the Securities Administrator will
promptly notify the Depositor and XxXxx Xxxxxx LLP either via mail, e-mail
or
telephone. In the case of Form 10-D and 10-K, the parties to this Agreement
will
cooperate to prepare and file a Form 12b-25 and a 10-D/A and 10-K/A, as
applicable, pursuant to Rule 12b-25 of the Exchange Act. In the case of Form
8-K, the Securities Administrator shall, upon receipt of all required Form
8-K
Disclosure Information and upon the approval and direction of the Depositor,
include such disclosure information on the next Form 10-D. In the event that
the
Securities Administrator has actual knowledge or has received notice that
any
previously filed Form 8-K, 10-D or 10-K needs to be amended in connection
with
any Additional Form 10-D Disclosure, any Additional Form 10-K Disclosure
or any
Additional Form 8-K Disclosure Information or any amendment to such disclosure
(other than for the purpose of restating any Distribution Date Statement),
the
Securities Administrator will electronically notify the Depositor and XxXxx
Xxxxxx LLP and such other parties to the transaction as are affected by such
amendment and such parties will cooperate to prepare any necessary 8-K/A,
10-D/A
or 10-K/A. Any Form 15, Form 12b-25 or any amendment to Form 8-K, 10-D or
10-K
shall be signed by a duly authorized representative of the Master Servicer.
Any
Form 10-K amendment shall be signed by a senior officer of the Master Servicer
in charge of the master servicing function. The parties to this Agreement
acknowledge that the performance by the Master Servicer and the Securities
Administrator of their respective duties under this Section 3.20(d) related
to
the timely preparation, execution and filing of Form 15, a Form 12b-25 or
any
amendment to Form 8-K, 10-D or 10-K is contingent upon each such party
performing its duties under this Section. Neither the Master Servicer nor
the
Securities Administrator shall have any liability for any loss, expense,
damage,
claim arising out of or with respect to any failure to properly prepare,
execute
and/or timely file any such Form 15, Form 12b-25 or any amendments to Forms
8-K,
10-D or 10-K, where such failure results from the Securities Administrator’s
inability or failure to obtain or receive, on a timely basis, any information
from any other party hereto needed to prepare, arrange for execution or file
such Form 15, Form 12b-25 or any amendments to Forms 8-K, 10-D or 10-K, and
for
any erroneous, inaccurate or incomplete information or certification provided
to
the Securities Administrator not resulting from its own negligence, bad faith
or
willful misconduct.
92
(e) Not
later
than March 15 of each year (beginning in 2008) (or, if such day is not a
Business Day, the immediately preceding Business Day), the Securities
Administrator shall sign the Securities Administrator Certification (in the
form
attached hereto as Exhibit Q) for the benefit of the Depositor and its officers,
directors and affiliates.
Any
notice or notification required to be delivered by the Securities Administrator
to the Depositor pursuant to this Section 3.20 may be delivered via facsimile
to
(000) 000-0000 or telephonically by calling (000) 000-0000, and any notice
or notification required to be delivered by the Securities Administrator
to
XxXxx Xxxxxx LLP pursuant to this Section 3.19, may be delivered via e-mail
to
XXXXX@xxxxxxxxxxx.xxx.
SECTION
3.21. Additional
Information.
Each
of
the parties agrees to provide to the Securities Administrator such additional
information related to such party as the Securities Administrator may reasonably
request, including evidence of the authorization of the person signing any
certification or statement, financial information and reports, and such other
information related to such party or its performance hereunder.
SECTION
3.22. Intention
of the Parties and Interpretation.
Each
of
the parties acknowledges and agrees that the purpose of Section 3.16 through
Section 3.23 of this Agreement is to facilitate compliance by the Securities
Administrator and the Depositor with the provisions of Regulation AB promulgated
by the Commission under the Exchange Act (17 C.F.R. §§ 229.1100 -
229.1123), as such may be amended from time to time and subject to such
clarification and interpretive advice as may be issued by the staff of the
Commission from time to time. Therefore, each of the parties agrees that
(a) the
obligations of the parties hereunder shall be interpreted in such a manner
as to
accomplish that purpose, (b) the parties’ obligations hereunder will be
supplemented and modified as necessary to be consistent with any such
amendments, interpretive advice or guidance, convention or consensus among
active participants in the asset-backed securities markets, advice of counsel,
or otherwise in respect of the requirements of Regulation AB, (c) the parties
shall comply with the reasonable requests made by the Securities Administrator
or the Depositor for delivery of such additional or different information
as the
Securities Administrator or the Depositor may determine in good faith is
necessary to comply with the provisions of Regulation AB, and (d) no amendment
of this Agreement shall be required to effect any such changes in the parties’
obligations as are necessary to accommodate evolving interpretations of the
provisions of Regulation AB.
SECTION
3.23. Indemnification.
Each
party required to deliver an assessment of compliance and attestation report
pursuant to Section 3.16 or any additional disclosure pursuant to Section
3.20
and including the Depositor, the Master Servicer, the Securities Administrator,
the Trustee in its capacity as a Custodian and any Servicing Function
Participant engaged by such party, respectively (each, an “Item
1122 Responsible Party”),
shall
indemnify and hold harmless the Securities Administrator, the Master Servicer
and the Depositor, respectively, and each of their directors, officers,
employees, agents, and affiliates from and against any and all claims, losses,
damages, penalties, fines, forfeitures, reasonable legal fees and related
costs,
judgments and other costs and expenses arising out of or based upon (a) any
breach by such Item 1122 Responsible Party of any of its obligations hereunder
relating to its obligations as an Item 1122 Responsible Party, including
particularly its obligations to provide any assessment of compliance,
attestation report or compliance statement required under Section 3.16(a),
3.16(b) or 3.17, respectively, or any information, data or materials required
to
be included in any Exchange Act report, (b) any material misstatement or
omission in (x) any compliance certificate delivered by it, or by any Servicing
Function Participant engaged by it, pursuant to this Agreement, (y) any
assessment or (except in the case of the Trustee, in its capacity as a
Custodian) attestation delivered by or on behalf of it, or by any Servicing
Function Participant engaged by it, pursuant to this Agreement, or (z) any
Additional Form 10-D Disclosure, Additional Form 10-K Disclosure or Form
8-K
Disclosure Information concerning such party and provided by it, or (c) the
negligence, bad faith or willful misconduct of such Item 1122 Responsible
Party
in connection with its performance hereunder relating to its obligations
as an
Item 1122 Responsible Party. If the indemnification provided for herein is
unavailable or insufficient to hold harmless the Master Servicer, the Securities
Administrator, the Depositor or the Seller, as the case may be, then each
Item
1122 Responsible Party agrees that it shall contribute to the amount paid
or
payable by the Securities Administrator, the Master Servicer and the Depositor,
as applicable, as a result of any claims, losses, damages or liabilities
incurred by the Securities Administrator, the Master Servicer or the Depositor
in such proportion as is appropriate to reflect the relative fault of the
Securities Administrator, the Master Servicer or the Depositor on the one
hand
and such Item 1122 Responsible Party on the other. This indemnification shall
survive the termination of this Agreement or the termination of any party
to
this Agreement.
93
SECTION
3.24. [Reserved]
SECTION
3.25. [Reserved]
SECTION
3.26. [Reserved]
SECTION
3.27. [Reserved]
SECTION
3.28. Closing
Opinion of Counsel.
On
or
before the Closing Date, the Master Servicer shall cause to be delivered
to the
Depositor, the Seller, the Trustee and Greenwich Capital Markets, Inc. an
Opinion of Counsel, dated the Closing Date, in form and substance reasonably
satisfactory to the Depositor, Greenwich Capital Markets, Inc., and the Seller
as to the due authorization, execution and delivery of this Agreement by
the
Master Servicer and the enforceability thereof.
94
SECTION
3.29. [Reserved]
SECTION
3.30. Merger
or Consolidation of the Master Servicer.
(a) The
Master Servicer will keep in full force and effect its existence, rights
and
franchises as a national banking association under the laws of the jurisdiction
of its incorporation, and will obtain and preserve its qualification to do
business as a foreign corporation in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, the Certificates or any of the Mortgage
Loans
and to perform its duties under this Agreement.
(b) Any
Person into which the Master Servicer may be merged or consolidated, or any
corporation resulting from any merger or consolidation to which the Master
Servicer shall be a party, or any Person succeeding to the business of the
Master Servicer, shall be the successor of the Master Servicer hereunder,
without the execution or filing of any paper or further act on the part of
any
of the parties hereto, anything herein to the contrary
notwithstanding.
SECTION
3.31. Indemnification
of the Trustee, the Master Servicer and the Securities
Administrator.
(a) In
addition to any indemnity required pursuant to Section 3.23 hereof, the Master
Servicer agrees to indemnify the Indemnified Persons for, and to hold them
harmless against, any loss, liability or expense (except as otherwise provided
herein with respect to expenses) (including reasonable legal fees and
disbursements of counsel) incurred on their part that may be sustained in
connection with, arising out of, or relating to this Agreement or the
Certificates (i) related to the Master Servicer’s failure to perform its duties
in compliance with this Agreement (except as any such loss, liability or
expense
shall be otherwise reimbursable pursuant to this Agreement) or (ii) incurred
by
reason of the Master Servicer’s willful misfeasance, bad faith or gross
negligence in the performance of duties hereunder or by reason of reckless
disregard of obligations and duties hereunder, provided,
in each
case, that with respect to any such claim or legal action (or pending or
threatened claim or legal action), an Indemnified Person shall have given
the
Master Servicer and the Depositor written notice thereof promptly after such
Indemnified Person shall have with respect to such claim or legal action
knowledge thereof. The Indemnified Person’s failure to give such notice shall
not affect the Indemnified Person’s right to indemnification hereunder. This
indemnity shall survive the resignation or removal of the Trustee, the Master
Servicer or the Securities Administrator and the termination of this
Agreement.
(b) The
Trust
Fund will indemnify any Indemnified Person for any loss, liability or expense
of
any Indemnified Person not otherwise indemnified by the Master Servicer as
referred to in Subsection (a) above or Subsection (c) below.
(c) In
addition to any indemnity required pursuant to Section 3.23 hereof, the
Securities Administrator agrees to indemnify the Indemnified Persons (other
than
the Securities Administrator) for, and to hold them harmless against, any
loss,
liability or expense (except as otherwise provided herein with respect to
expenses) (including reasonable legal fees and disbursements of counsel)
incurred on their part (i) in connection with, arising out of, or relating
to
the Securities Administrator’s failure to file any Exchange Act report which the
Securities Administrator is responsible for filing in accordance with Section
3.20, (ii) by reason of the Securities Administrator’s negligence or willful
misconduct in the performance of such obligations pursuant to Section 3.20
or
(iii) by reason of the Securities Administrator’s reckless disregard of such
obligations pursuant to Section 3.20, provided,
in each
case, that with respect to any such claim or legal action (or pending or
threatened claim or legal action), an Indemnified Person shall have given
the
Securities Administrator written notice thereof promptly after such Indemnified
Person shall have with respect to such claim or legal action knowledge thereof.
The Indemnified Person’s failure to give such notice shall not affect the
Indemnified Person’s right to indemnification hereunder. This indemnity shall
survive the resignation or removal of the Trustee, the Master Servicer or
the
Securities Administrator and the termination of this Agreement.
95
SECTION
3.32. Limitations
on Liability of the Master Servicer and Others; Indemnification of Trustee
and
Others.
Subject
to the obligation of the Master Servicer to indemnify the Indemnified Persons
pursuant to Section 3.31:
(a) The
Master Servicer has undertaken to perform only such duties as are specifically
set forth in this Agreement. Neither the Master Servicer nor any of the
directors, officers, employees or agents of the Master Servicer shall be
under
any liability to the Indemnified Persons, the Depositor, the Trust Fund or
the
Certificateholders for taking any action or for refraining from taking any
action in good faith pursuant to this Agreement, or for errors in judgment;
provided,
however,
that
this provision shall not protect the Master Servicer or any such Person against
any breach of warranties or representations made herein or any liability
which
would otherwise be imposed by reason of such Person’s willful misfeasance, bad
faith or gross negligence in the performance of duties or by reason of reckless
disregard of obligations and duties hereunder.
(b) The
Master Servicer and any director, officer, employee or agent of the Master
Servicer may rely in good faith on any document of any kind prima facie properly
executed and submitted by any Person respecting any matters arising
hereunder.
(c) The
Master Servicer, the Trustee (in its individual corporate capacity and as
Trustee), the Custodians (including for such purpose, the Trustee acting
in its
capacity as a Custodian) and any director, officer, employee or agent of
the
Master Servicer, the Trustee or the Custodians shall be indemnified by the
Trust
Fund and held harmless thereby against any loss, liability or expense (except
as
otherwise provided herein with respect to expenses) (including reasonable
legal
fees and disbursements of counsel) incurred on their part that may be sustained
in connection with, arising out of, or relating to, this Agreement, the
Certificates or the Servicing Agreements or the transactions contemplated
hereby
or thereby (except, with respect to the Master Servicer, to the extent that
the
Master Servicer is indemnified by the related Servicer thereunder), other
than
(i) with respect to the Master Servicer only, any such loss, liability or
expense related to the Master Servicer’s failure to perform its duties in
compliance with this Agreement or (ii) with respect to the Master Servicer
or
Custodians only, any such loss, liability or expense incurred by reason of
the
Master Servicer’s or the applicable Custodian’s willful misfeasance, bad faith
or gross negligence in the performance of its own duties hereunder or by
reason
of reckless disregard of its own obligations and duties hereunder or under
a
custodial agreement.
96
(d) The
Master Servicer shall not be under any obligation to appear in, prosecute
or
defend any legal action that is not incidental to its duties under this
Agreement and that in its opinion may involve it in any expense or liability;
provided,
however,
the
Master Servicer may in its discretion, undertake any such action which it
may
deem necessary or desirable with respect to this Agreement and the rights
and
duties of the parties hereto and the interests of the Trust Fund and the
Certificateholders hereunder. In such event, the legal expenses and costs
of
such action and any liability resulting therefrom shall be expenses, costs
and
liabilities of the Trust Fund, and the Master Servicer shall be entitled
to be
reimbursed therefor out of the Distribution Account as provided by Section
4.03.
Nothing in this Subsection 3.32(d) shall affect the Master Servicer’s obligation
to supervise, or to take such actions as are necessary to enforce, the servicing
and administration of the Mortgage Loans pursuant to Sections 3.01 and
3.03.
(e) In
taking
or recommending any course of action pursuant to this Agreement, unless
specifically required to do so pursuant to this Agreement, the Master Servicer
shall not be required to investigate or make recommendations concerning
potential liabilities which the Trust Fund might incur as a result of such
course of action by reason of the condition of the Mortgaged Properties but
shall give notice to the Trustee if it has notice of such potential
liabilities.
(f) The
Master Servicer shall not be liable for any acts or omissions of the Servicers,
except as otherwise expressly provided herein.
SECTION
3.33. Master
Servicer Not to Resign.
Except
as
provided in Section 3.35, the Master Servicer shall not resign from the
obligations and duties hereby imposed on it except upon a determination that
any
such duties hereunder are no longer permissible under applicable law and
such
impermissibility cannot be cured. Any such determination permitting the
resignation of the Master Servicer shall be evidenced by an Independent Opinion
of Counsel (delivered at the expense of the Master Servicer) to such effect
delivered to the Trustee. No such resignation by the Master Servicer shall
become effective until the Trustee or a successor to the Master Servicer
reasonably satisfactory to the Trustee shall have assumed the responsibilities
and obligations of the Master Servicer in accordance with Section 7.02 hereof.
The Trustee shall notify each Rating Agency of the resignation of the Master
Servicer.
If,
at
any time, Xxxxx Fargo Bank, N.A., as Master Servicer resigns under this Section
3.33, or sells or assigns its rights and obligations under Section 3.31,
or is
removed as Master Servicer pursuant to Section 7.01, then at such time Xxxxx
Fargo Bank, N.A. also shall resign (and shall be entitled to resign) as
Securities Administrator, Administrator, Paying Agent and Certificate Registrar
under this Agreement. No such resignation by Xxxxx Fargo Bank, N.A. as
Securities Administrator, Administrator, Paying Agent or Certificate Registrar
under this Agreement shall become effective until a successor Securities
Administrator, successor Administrator, successor Paying Agent and successor
Certificate Registrar reasonably satisfactory to the Depositor shall have
assumed the responsibilities and obligations of the Securities Administrator,
Administrator, Paying Agent and Certificate Registrar in accordance with
this
Agreement. The Securities Administrator shall notify each Rating Agency of
the
resignation of Xxxxx Fargo Bank, N.A. as the Securities Administrator,
Administrator, Paying Agent and Certificate Registrar.
97
SECTION
3.34. Successor
Master Servicer.
In
connection with the appointment of any successor master servicer or the
assumption of the duties of the Master Servicer, the Trustee may make such
arrangements for the compensation of such successor master servicer out of
payments on the Mortgage Loans as the Trustee and such successor master servicer
shall agree which in no case shall exceed the Master Servicing Fee and any
additional compensation due and owing to the Master Servicer pursuant to
Section
3.14. If the successor master servicer does not agree that the proposed
compensation is fair, such successor master servicer shall obtain two quotations
of market compensation from third parties actively engaged in the servicing
of
single-family mortgage loans; provided,
however,
that
each Rating Agency shall confirm in writing that any appointment of a successor
Master Servicer (other than the Trustee) will not result in a downgrade in
the
then current rating of any Class of Certificates.
SECTION
3.35. Sale
and Assignment of Master Servicing.
The
Master Servicer may sell and assign its rights and delegate its duties and
obligations in their entirety as Master Servicer under this Agreement, with
the
written consent of the Depositor, which consent shall not be unreasonably
withheld or delayed, and provided, further,
that:
(i) the purchaser or transferee accepting such assignment and delegation
(a)
shall be a Person which shall be qualified to service mortgage loans for
Xxxxxx
Xxx or Xxxxxxx Mac; (b) shall have a net worth of not less than $10,000,000
(unless otherwise approved by each Rating Agency pursuant to clause (ii)
below);
(c) shall be reasonably satisfactory to the Depositor (as evidenced in writing
signed by the Depositor); and (d) shall execute and deliver to the Trustee
an
agreement, in form and substance reasonably satisfactory to the Trustee,
which
contains an assumption by such Person of the due and punctual performance
and
observance of each covenant and condition to be performed or observed by
it as
master servicer under this Agreement, any custodial agreement from and after
the
effective date of such agreement; (ii) each Rating Agency shall be given
prior
written notice of the identity of the proposed successor to the Master Servicer
and each Rating Agency’s ratings of the Certificates in effect immediately prior
to such assignment, sale and delegation will not be downgraded, qualified
or
withdrawn as a result of such assignment, sale and delegation, as evidenced
by a
letter to such effect delivered to the Master Servicer and the Trustee; and
(iii) the Master Servicer assigning and selling the master servicing shall
deliver to the Trustee and the Depositor an Officer’s Certificate and an
Independent Opinion of Counsel, (delivered at the Master Servicer’s expense)
each stating that all conditions precedent to such action under this Agreement
have been completed and such action is permitted by and complies with the
terms
of this Agreement. No such assignment or delegation shall affect any liability
of the Master Servicer arising prior to the effective date thereof.
98
SECTION
3.36. Reporting
Requirements of the Commission.
To
the
extent that, following the Closing Date, the content of Forms 8-K, 10-D,
10-K,
15 or other Forms required by the Exchange Act and the Rules and Regulations
of
the Commission and the time by which such Forms are required to be filed,
differs from the provisions of this Agreement, the Master Servicer and the
Securities Administrator hereby agree that each shall reasonably cooperate
to
amend the provisions of this Agreement (in accordance with Section 12.01)
in
order to comply with such amended reporting requirements and such amendment
of
this Agreement. Notwithstanding the foregoing, neither the Master Servicer
nor
the Securities Administrator shall be obligated to enter into any amendment
pursuant to this Section that adversely affects its obligations or immunities
under this Agreement.
ARTICLE
IV
ACCOUNTS
SECTION
4.01. Servicing
Accounts
(a) The
Master Servicer shall enforce the obligation of each Servicer to establish
and
maintain one or more custodial accounts (the “Servicing
Accounts”)
in
accordance with the applicable Servicing Agreement, with records to be kept
with
respect thereto on a Mortgage Loan by Mortgage Loan basis, into which accounts
shall be deposited within 48 hours (or as of such other time specified in
the
related Servicing Agreement) of receipt all collections of principal and
interest on any Mortgage Loan and with respect to any REO Property received
by a
Servicer, including Principal Prepayments, Prepayment Penalty Amounts, Insurance
Proceeds, Liquidation Proceeds, Recoveries and advances made from the Servicer’s
own funds (less, in the case of each Servicer, the applicable servicing
compensation, in whatever form and amounts as permitted by the applicable
Servicing Agreement) and all other amounts to be deposited in each such
Servicing Account. The Servicer is hereby authorized to make withdrawals
from
and deposits to the related Servicing Account for purposes required or permitted
by this Agreement and the applicable Servicing Agreement. For the purposes
of
this Agreement, Servicing Accounts shall also include such other accounts
as the
Servicer maintains for the escrow of certain payments, such as taxes and
insurance, with respect to certain Mortgaged Properties. Each Servicing
Agreement sets forth the criteria for the segregation, maintenance and
investment of each related Servicing Account, the contents of which are
acceptable to the parties hereto as of the date hereof and changes to which
shall not be made unless such changes are made in accordance with the provisions
of Section 12.01 hereof.
(b) [Reserved];
(c) To
the
extent provided in the related Servicing Agreement and subject to this Article
IV, on or before each Servicer Remittance Date, each Servicer shall withdraw
or
shall cause to be withdrawn from the related Servicing Account and shall
immediately remit or cause to be remitted to the Securities Administrator
for
deposit into the Distribution Account amounts representing the following
collections and payments (other than with respect to principal of or interest
on
the Mortgage Loans due on or before the Initial Cut-off Date, or, in the
case of
Subsequent Mortgage Loans, on or before the applicable Subsequent Cut-off
Date)
with respect to each of the Mortgage Loans it is servicing:
99
(i) Monthly
Payments on the Mortgage Loans received or any related portion thereof advanced
by the Servicers pursuant to the Servicing Agreements which were due on or
before the related Due Date, net of the amount thereof comprising the Servicing
Fees and Lender Paid Mortgage Insurance Fees, if any;
(ii) Principal
Prepayments in full and any Liquidation Proceeds received by the Servicers
with
respect to such Mortgage Loans in the related Prepayment Period, with interest
to the date of prepayment or liquidation, net of the amount thereof comprising
the Servicing Fees and any Recoveries received in the related Prepayment
Period;
(iii) Principal
Prepayments in part received by the Servicers for such Mortgage Loans in
the
related Prepayment Period;
(iv) Prepayment
Penalty Amounts, if any; and
(v) any
amount to be used as a delinquency advance or to pay any Interest Shortfalls,
in
each case, as required to be paid under the Servicing Agreement.
(d) Withdrawals
may be made from a Servicing Account only to make remittances as provided
in
Section 4.01(c), 4.02 and 4.03; to reimburse the Master Servicer or the Servicer
for Advances which have been recovered by subsequent collection from the
related
Mortgagor; to remove amounts deposited in error; to remove fees, charges
or
other such amounts deposited on a temporary basis; or to clear and terminate
the
account at the termination of this Agreement in accordance with Section 10.01,
or as otherwise provided in the Servicing Agreement. As provided in Sections
4.01(c) and 4.02(b), certain amounts otherwise due to the Servicer may be
retained by them and need not be remitted to the Securities
Administrator.
SECTION
4.02. Distribution
Account.
(a) The
Securities Administrator shall establish and maintain in the name of the
Trustee, for the benefit of the Trust Fund, the Certificateholders, the
Distribution Account as a segregated, non-interest bearing trust account
or
accounts, each of which shall be an Eligible Account (the “Distribution
Account”).
The
Distribution Account shall constitute a trust account of the Trust Fund
segregated on the books of the Securities Administrator and held by the
Securities Administrator in trust in its Corporate Trust Office, and the
Distribution Account and the funds deposited therein shall not be subject
to,
and shall be protected from, all claims, liens, and encumbrances of any
creditors or depositors of the Securities Administrator or the Master Servicer
(whether made directly, or indirectly through a liquidator or receiver of
the
Trustee, the Securities Administrator or the Master Servicer). All Permitted
Investments shall mature or be subject to redemption or withdrawal on or
before,
and shall be held until, the immediately succeeding Distribution Date. The
Securities Administrator, Trustee or their affiliates are permitted to receive
additional compensation that could be deemed to be in their economic
self-interest for (i) serving as investment adviser, administrator, servicing
agent, custodian or sub-custodian with respect to certain of the Permitted
Investments, (ii) using affiliates to effect transactions in certain Permitted
Investments and (iii) effecting transactions in certain Permitted Investments.
The Master Servicer and the Securities Administrator shall, promptly upon
receipt from any Servicer on the related Servicer Remittance Date deposit
in the
Distribution Account as identified by the Master Servicer or the Securities
Administrator and as received by the Master Servicer or the Securities
Administrator, the following amounts:
100
(i) any
amounts withdrawn from a Servicing Account pursuant to Section 4.01(c) and
the
Servicing Agreements and remitted to the Securities Administrator;
(ii) any
amounts required to be deposited in the Distribution Account by the Master
Servicer with respect to the Mortgage Loans pursuant to this Agreement,
including (a) Advances and any Compensating Interest Payments required to
be
made by the Master Servicer to the extent required but not made by the Servicer
and (b) the amount of any Insurance Proceeds or Liquidation Proceeds received
by
or on behalf of the Master Servicer which were not deposited in a Servicing
Account;
(iii) any
Insurance Proceeds, Liquidation Proceeds or Recoveries received by or on
behalf
of the Master Servicer which were not deposited in a Servicing Account;
(iv) the
Purchase Price with respect to any Mortgage Loans purchased by the Seller
or an
Originator under this Agreement or the related Purchase Agreement, as
applicable, any Substitution Adjustments pursuant to Section 2.03 of this
Agreement and all proceeds of any Mortgage Loans or property acquired with
respect thereto purchased by the Terminator pursuant to Section
10.01;
(v) any
amounts required to be deposited with respect to losses on investments of
deposits in the Distribution Account; and
(vi) any
other
amounts received by or on behalf of the Master Servicer or the Securities
Administrator and required to be deposited in the Distribution Account pursuant
to this Agreement.
(b) All
amounts deposited to the Distribution Account shall be held by the Securities
Administrator in the name of the Trustee in trust for the benefit of the
Trust
Fund and the Certificateholders in accordance with the terms and provisions
of
this Agreement. The requirements for crediting the Distribution Account shall
be
exclusive, it being understood and agreed that, without limiting the generality
of the foregoing, payments in the nature of (i) late payment charges or
assumption fees, tax service fees, statement account charges or payoff-charges,
substitution, satisfaction, release and other like fees and charges and (ii)
the
items enumerated in Subsections 4.03(a)(i) through (viii) with respect to
the
Securities Administrator, need not be remitted by the Servicers to the Master
Servicer to the Distribution Account. In the event that the Master Servicer
shall deposit or cause to be deposited to the Distribution Account any amount
not required to be credited thereto, the Securities Administrator, upon receipt
of a written request therefor signed by a Servicing Officer of the Master
Servicer, shall promptly transfer such amount to the Master Servicer, any
provision herein to the contrary notwithstanding.
101
(c) The
amount at any time credited to the Distribution Account shall, if invested,
be
invested at the direction of the Master Servicer, in the name of the Trustee,
or
its nominee, for the benefit of the Certificateholders, in Permitted Investments
as follows. All Permitted Investments shall mature or be subject to redemption
or withdrawal on or before, and shall be held until, the Business Day prior
to
the next succeeding Distribution Date (except that if such Permitted Investment
is an obligation of the Master Servicer, then such Permitted Investment shall
mature not later than such applicable Distribution Date). Any and all investment
earnings from such Permitted Investments shall be paid to the Master Servicer,
and the risk of loss of moneys resulting from such investments shall be borne
by
and be the risk of the Master Servicer. The Master Servicer shall deposit
the
amount of any such loss in the Distribution Account within two Business Days
of
receipt of notification of such loss but not later than the next succeeding
Distribution Date.
SECTION
4.03. Permitted
Withdrawals and Transfers from the Distribution Account.
(a) The
Securities Administrator shall, from time to time, withdraw or transfer funds
from the Distribution Account to a Servicer, to the Master Servicer, to the
Trustee or to itself for the following purposes:
(i) to
reimburse the Master Servicer or any Servicer for any Advance of its own
funds
or of such Servicer’s own funds, the right of the Master Servicer or a Servicer
to reimbursement pursuant to this subclause (i) being limited to amounts
received on a particular Mortgage Loan (including, for this purpose, the
Purchase Price therefor, Insurance Proceeds and Liquidation Proceeds and
the
Termination Price) which represent late payments or recoveries of the principal
of or interest on such Mortgage Loan respecting which such Advance was
made;
(ii) to
reimburse the Master Servicer or any Servicer from Insurance Proceeds or
Liquidation Proceeds relating to a particular Mortgage Loan for amounts expended
by the Master Servicer or such Servicer in good faith in connection with
the
restoration of the related Mortgaged Property which was damaged by an Uninsured
Cause or in connection with the liquidation of such Mortgage Loan;
(iii) to
reimburse the Master Servicer or any Servicer from Insurance Proceeds relating
to a particular Mortgage Loan for insured expenses incurred with respect
to such
Mortgage Loan and to reimburse the Master Servicer or such Servicer from
Liquidation Proceeds from a particular Mortgage Loan for Liquidation Expenses
incurred with respect to such Mortgage Loan;
(iv) to
pay
the Master Servicer or any Servicer, as appropriate, from Liquidation Proceeds
or Insurance Proceeds received in connection with the liquidation of any
Mortgage Loan, the amount which it or such Servicer would have been entitled
to
receive under subclause (viii) of this Subsection 4.03(a) as servicing
compensation on account of each defaulted scheduled payment on such Mortgage
Loan if paid in a timely manner by the related Mortgagor;
102
(v) to
pay
the Master Servicer or any Servicer from the Purchase Price for any Mortgage
Loan, the amount which it or such Servicer would have been entitled to receive
under subclause (viii) of this Subsection (a) as servicing
compensation;
(vi) to
reimburse the Master Servicer or any Servicer for servicing related advances
of
funds, the right to reimbursement pursuant to this subclause being limited
to
amounts received on the related Mortgage Loan (including, for this purpose,
the
Purchase Price therefor, Insurance Proceeds and Liquidation Proceeds) which
represent late recoveries of the payments for which such servicing advances
were
made;
(vii) to
reimburse the Master Servicer or any Servicer for any Advance or advance,
after
a Realized Loss has been allocated with respect to the related Mortgage Loan
if
the Advance or advance has not been reimbursed pursuant to clauses (i) and
(vi);
(viii) to
pay
the Master Servicer its monthly Master Servicing Fee and any investment income
and gain and other additional servicing compensation payable pursuant to
Section
3.14;
(ix) to
reimburse the Master Servicer or the Securities Administrator for any expenses
recoverable by the Master Servicer or the Securities Administrator pursuant
to
Sections 3.03 and 3.32;
(x) to
reimburse or pay any Servicer any such amounts as are due thereto under the
related Servicing Agreement and have not been retained by or paid to such
Servicer, to the extent provided in the related Servicing
Agreement;
(xi) to
reimburse the Trustee and the Securities Administrator for expenses, costs
and
liabilities incurred by or reimbursable to it from funds of the Trust Fund
pursuant to Sections 3.31, 3.32 or 8.05, and to reimburse the Trustee for
any
fees, costs and expenses incurred by or reimbursable to it pursuant to Section
2.03(a), 7.01(b), 8.02, 8.05 or 8.07, to the extent not otherwise reimbursed
to
it;
(xii) to
pay to
the Master Servicer all investment earnings on amounts on deposit in the
Distribution Account to what it is entitled under Section 4.02(c);
(xiii) [Reserved];
(xiv) [Reserved];
(xv) [Reserved];
(xvi) [Reserved];
(xvii) to
remove
amounts deposited in error; and
(xviii) to
clear
and terminate the Distribution Account pursuant to Section 10.01.
103
(b) In
addition, on or before the Business Day immediately preceding each Distribution
Date, the Master Servicer shall deposit in the Distribution Account (or remit
to
the Securities Administrator for deposit therein) any Advances or Compensating
Interest Payments, to the extent required to be made but not made by a Servicer
and required to be made by the Master Servicer hereunder with respect to
the
Mortgage Loans.
(c) The
Securities Administrator or the Master Servicer shall keep and maintain separate
accounting, on a Mortgage Loan by Mortgage Loan basis, for the purpose of
accounting for any payments or reimbursements from the Distribution Account
pursuant to subclauses (i) through (viii), inclusive and (xi) or with respect
to
any such amounts which would have been covered by such subclauses had the
amounts not been retained by the Master Servicer without being deposited
in the
Distribution Account under Section 4.02(b).
(d) In
order
to comply with its duties under the USA PATRIOT Act of 2001, the Securities
Administrator shall obtain and verify certain information and documentation
from
the other parties hereto, including, but not limited to, each such party's
name,
address and other identifying information.
(e) On
each
Distribution Date, the Securities Administrator, as Paying Agent, shall withdraw
funds on deposit in the Distribution Account to the extent of the aggregate
Available Funds and distribute such amounts to the Holders of the Certificates
and any other parties entitled thereto in accordance with Section
5.01.
SECTION
4.04. [Reserved]
SECTION
4.05. [Reserved]
SECTION
4.06. Prefunding
Account.
On
or
prior to the Closing Date, the Securities Administrator shall establish and
maintain, on behalf of the Certificateholders, the Prefunding Account. On
the
Closing Date the Depositor shall remit the Prefunded Amount to the Securities
Administrator for deposit in the Prefunding Account. From the Prefunded Amount,
the Pool 1 Prefunded Amount and
the Pool 2 Prefunded Amount shall
be
applied to the purchase of Subsequent Mortgage Loans for Pool 1 and Pool
2,
respectively. On each Subsequent Transfer Date, upon satisfaction of the
conditions for such Subsequent Transfer Date set forth in Section 2.01(b),
with respect to the related Subsequent Transfer Agreement, the Securities
Administrator shall remit to the Depositor the applicable Aggregate Subsequent
Transfer Amount as payment of the purchase price for the related Subsequent
Mortgage Loans.
If
any
funds remain in the Prefunding Account at the end of the Prefunding Period,
to
the extent that they represent earnings on the amounts originally deposited
into
the Prefunding Account, the Securities Administrator shall distribute them
to
the order of the Depositor. The remaining funds shall be transferred to the
Distribution Account to be included as part of principal distributions to
the
Certificates on the Distribution Date in the month following the end of the
Prefunding Period.
104
Each
institution at which the Prefunding Account is maintained shall either hold
such
funds on deposit uninvested or shall invest the funds therein in Permitted
Investments as directed in writing by the Depositor, which shall mature not
later than the Business Day immediately preceding a Subsequent Transfer Date
and
shall not be sold or disposed of prior to its maturity. In the absence of
direction, such funds shall be invested in the Xxxxx Fargo Advantage Prime
Investment Money Market Fund or comparable investment vehicle, or remain
uninvested. All such Permitted Investments shall be made in the name of the
Trustee, for the benefit of the Certificateholders. All income and gain net
of
any losses realized from any such balances or investment of funds on deposit
in
the Prefunding Account shall be for the benefit of the Depositor and shall
be
remitted to it monthly. The amount of any net investment losses in the
Prefunding Account shall promptly be deposited by the Depositor in the
Prefunding Account. The Securities Administrator in its fiduciary capacity
shall
not be liable for the amount of any loss incurred in respect of any investment
or lack of investment of funds held in the Prefunding Account (other than
as
provided in this Section 4.06) and made in accordance with this
Section 4.06.
SECTION
4.07. Capitalized
Interest Account.
On
or
prior to the Closing Date, the Securities Administrator shall establish and
maintain, on behalf of the Certificateholders, the Capitalized Interest Account.
The Capitalized Interest Account shall be an Eligible Account. On the Closing
Date, the Seller shall deposit in the Capitalized Interest Account the Original
Capitalized Interest Amount. On the Business Day preceding any Distribution
Date
occurring during the Prefunding Period, the Securities Administrator shall
withdraw from the Capitalized Interest Account an amount equal to the
Capitalized Interest Requirement (based on a monthly report provided to the
Securities Administrator by the Master Servicer no later than such Business
Day)
for deposit into the Certificate Account for distribution to Certificateholders
in accordance with Article V on such Distribution Date. Amounts on deposit
in
the Capitalized Interest Account shall be invested in a money market or common
trust fund as described in paragraph (vii) of the definition of “Permitted
Investments” set forth in Article I. All investment income and other gain on
such investments shall be for the benefit of the Seller and shall be subject
to
withdrawal on order of the Seller from time to time. The amount of any losses
incurred in respect of any such investments shall be paid by the Seller by
a
deposit into the Capitalized Interest Account of its own funds, immediately
as
realized. Amounts may be released from the Capitalized Interest Account and
paid
to the depositor at any time, if permitted by S&P as evidenced in a written
confirmation from such Rating Agency. At the end of the Prefunding Period,
all
amounts, if any, on deposit in the Capitalized Interest Account shall be
withdrawn by the Securities Administrator and distributed to the Seller and
the
Capitalized Interest Account shall be terminated.
105
ARTICLE
V
FLOW
OF FUNDS
SECTION
5.01. Distributions.
(a) On
each
Distribution Date and after making any withdrawals from the Distribution
Account
pursuant to Section 4.03(a), the Securities Administrator, as Paying Agent,
shall withdraw funds on deposit in the Distribution Account to the extent
of
Available Funds for each Mortgage Pool (and, in the case of Pool 1, for each
Loan Subgroup) for such Distribution Date and, based on the Distribution
Date
Statement, make the following disbursements and transfers as set forth
below:
(i) the
Available Funds for Pool 1 and Pool 2 shall be distributed on each Distribution
Date (other than on the Distribution Date following the optional purchase
of the
Mortgage Loans by the Terminator) in the following order of
priority:
|
(A)
|
concurrently,
as follows:
|
|
(a)
|
from
the Available Funds allocable to Pool 1 Subgroup 1, to the Class
1A5
Certificates, the related Interest Distributable
Amount;
|
|
(b)
|
from
the Available Funds allocable to Pool 1 Subgroup 2, to the Class
1A4,
Class 1A6 and Class R Certificates, pro
rata (based
on the Interest Distributable Amounts to which each such Class
is
entitled), the related Interest Distributable
Amount;
|
|
(c)
|
from
the Available Funds allocable to Pool 1 Subgroup 3, to the Class
1A3
Certificates and the 1A1-1 Component, pro
rata (based
on the Interest Distributable Amounts to which each such Class
or
Component is entitled), the related Interest Distributable
Amount;
|
|
(d)
|
from
the Available Funds allocable to Pool 1 Subgroup 4, to the Class
1A2 and
Class 1X Certificates and the 1A1-2 Component, pro
rata (based
on the Interest Distributable Amounts to which each such Class
or
Component is entitled), the related Interest Distributable Amount;
and
|
|
(e)
|
from
the Available Funds allocable to Pool 2, to the Class 2A1 Certificates,
the related Interest Distributable
Amount;
|
106
|
(B)
|
concurrently,
as follows:
|
|
(a)
|
from
the Available Funds allocable to Pool 1 Subgroup 1, to the Class
1PO
Certificates, the PO Principal Distribution Amount;
|
|
(b)
|
an
amount equal to the Senior Principal Distribution Amount for Pool
1
Subgroup 1, to the Class 1A5 Certificates, until the Class Principal
Balance thereof has been reduced to
zero;
|
|
(c)
|
an
amount equal to the Senior Principal Distribution Amount for Pool
1
Subgroup 2, to the Class R and Class 1A4 Certificates, in that
order,
until their respective Class Principal Balances have been reduced
to
zero;
|
|
(d)
|
an
amount equal to the Senior Principal Distribution Amount for Pool
1
Subgroup 3, to the 1A1-1 Component, until the Component Principal
Balance
thereof has been reduced to zero;
|
|
(e)
|
an
amount equal to the Senior Principal Distribution Amount for Pool
1
Subgroup 4, to the 1A1-2 Component, until the Component Principal
Balance
thereof has been reduced to zero;
and
|
|
(f)
|
an
amount equal to the Senior Principal Distribution Amount for Pool
2, to
the Class 2A1 Certificates, until the Class Principal Balance thereof
has
been reduced to zero;
|
(ii) if
such
Distribution Date is prior to the Senior Credit Support Depletion Date for
Pool
1, to the Class 1PO Certificates, to the extent of amounts otherwise available
to pay the Subordinate Principal Distribution Amount for the Pool 1-2
Subordinate Certificates, the related PO Deferred Amount; provided,
however,
that
any amounts distributed pursuant to this subclause (ii) shall not cause a
further reduction on the Class Principal Balance of the Class 1PO Certificates;
(iii) the
Available Funds for Pool 1 and Pool 2 remaining after giving effect to the
distributions specified in subsections (i) and (ii) above shall be distributed
to the Certificateholders on any Distribution Date on or prior to the Senior
Credit Support Depletion Date in the following order of priority:
|
(A)
|
to
the Class 1B1 Certificates, the related Interest Distributable
Amount for
that date;
|
107
|
(B)
|
to
the Class 1B1 Certificates, an amount allocable to principal equal
to
their Pro Rata Share for such Distribution Date, until the Class
Principal
Balance of such Class has been reduced to
zero;
|
|
(C)
|
to
the Class 1B2 Certificates, the related Interest Distributable
Amount for
that date;
|
|
(D)
|
to
the Class 1B2 Certificates, an amount allocable to principal equal
to
their Pro Rata Share for such Distribution Date, until the Class
Principal
Balance of such Class has been reduced to
zero;
|
|
(E)
|
to
the Class 1B3 Certificates, the related Interest Distributable
Amount for
that date;
|
|
(F)
|
to
the Class 1B3 Certificates, an amount allocable to principal equal
to
their Pro Rata Share for such Distribution Date, until the Class
Principal
Balance of such Class has been reduced to
zero;
|
|
(G)
|
to
the Class 1B4 Certificates, the related Interest Distributable
Amount for
that date;
|
|
(H)
|
to
the Class 1B4 Certificates, an amount allocable to principal equal
to
their Pro Rata Share for such Distribution Date, until the Class
Principal
Balance of such Class has been reduced to
zero;
|
|
(I)
|
to
the Class 1B5 Certificates, the related Interest Distributable
Amount for
that date;
|
|
(J)
|
to
the Class 1B5 Certificates, an amount allocable to principal equal
to
their Pro Rata Share for such Distribution Date, until the Class
Principal
Balance of such Class has been reduced to
zero;
|
|
(K)
|
to
the Class 1B6 Certificates, the related Interest Distributable
Amount for
that date;
|
|
(L)
|
to
the Class 1B6 Certificates, an amount allocable to principal equal
to
their Pro Rata Share for such Distribution Date, until the Class
Principal
Balance of such Class has been reduced to zero;
|
|
(M)
|
to
the Class 1B7 Certificates, the related Interest Distributable
Amount for
that date; and
|
|
(N)
|
to
the Class 1B7 Certificates, an amount allocable to principal equal
to
their Pro Rata Share for such Distribution Date, until the Class
Principal
Balance of such Class has been reduced to zero;
and
|
108
(iv) the
Available Funds for Pool 1 and Pool 2 remaining after giving effect to the
distributions specified in subsections (i) through (iii) above shall be
distributed to the Certificateholders in the following order of
priority:
|
(A)
|
to
the Class R Certificate, any remaining Available Funds allocable
to Pool 1
and Pool 2, other than any portion thereof in respect of Premium
Proceeds
allocable to Pool 1 and Pool 2, then remaining;
and
|
|
(B)
|
on
the final Distribution Date, to the Class LT-R Certificate, the
Premium
Proceeds allocable to Pool 1 and Pool
2.
|
(v) the
Available Funds for Pool 3 shall be distributed on each Distribution Date
(other
than on the Distribution Date following the optional purchase of the Mortgage
Loans by the Terminator) in the following order of priority:
|
(A)
|
to
the Class 3A1 and Class 3A2 Certificates, pro
rata (based
on the Interest Distributable Amounts to which each such Class
is
entitled), the related Interest Distributable
Amount;
|
|
(B)
|
an
amount equal to the Senior Principal Distribution Amount for Pool
3, to
the Class 3A1 and Class 3A2 Certificates, pro
rata
(based on their respective Class Principal Balances), until their
respective Class Principal Balances have been reduced to
zero;
|
|
(C)
|
to
the Class R Certificate, any remaining Available Funds allocable
to Pool
3, other than any portion thereof in respect of Premium Proceeds
allocable
to Pool 3, then remaining; and
|
|
(D)
|
on
the final Distribution Date, to the Class LT-R Certificate, the
Premium
Proceeds allocable to Pool 3.
|
On
the
Distribution Date following the optional purchase of the Mortgage Loans by
the
Terminator pursuant to Section 10.01, Available Funds for each Mortgage Pool
and, in the case of Pool 1, each Loan Subgroup, shall be applied in the amounts
and in the order specified above.
(b) Amounts
to be paid to the Holders of a Class of Certificates shall be payable with
respect to all Certificates of that Class, pro
rata,
based
on the Certificate Principal Balance or Certificate Notional Balance, as
applicable, of each Certificate of that Class.
(c) Notwithstanding
the priority and allocation set forth in Section 5.01(a)(iii) above, if (i)
with
respect to any Class of Pool 1-2 Subordinate Certificates on any Distribution
Date the sum of the related Class Subordination Percentages of such Class
and of
all other Classes of Pool 1-2 Subordinate Certificates which have a higher
numerical Class designation than such Class or (ii) with respect to any Class
of
Pool 3 Subordinate Certificates on any Distribution Date the sum of the related
Class Subordination Percentages of such Class and of all other Classes of
Pool 3
Subordinate Certificates which have a higher numerical Class designation
than
such Class (each, an “Applicable
Credit Support Percentage”)
is
less than the Original Applicable Credit Support Percentage for such Class,
no
distribution of Principal Prepayments will be made to any such Classes (the
“Restricted
Classes”)
and
the amount of such Principal Prepayment otherwise distributable to the
Restricted Classes shall be distributed to any related Classes of Subordinate
Certificates having lower numerical Class designations than such Class,
pro
rata,
based
on the Class Principal Balances of the respective Classes immediately prior
to
such Distribution Date and shall be distributed in the sequential order provided
in Section 5.01(a)(iii) above.
109
(d) On
each
Distribution Date, the Securities Administrator shall distribute to the Holder
of the Class P Certificate, the Class P Distributable Amount.
(e) (i)
Notwithstanding the priority and allocation set forth in Section 5.01(a)(iii),
with respect to any Loan Subgroup, on each Distribution Date prior to the
related Senior Credit Support Depletion Date but after the date on which
the
aggregate Class Principal Balance of each Class of the Pool 1 Senior
Certificates (other than the Class 1PO Certificates and any Interest-Only
Certificates) and any Class 1A1 Component related to a Loan Subgroup have
been
reduced to zero, 100% of the Principal Prepayments on the Pool 1 Mortgage
Loans
(other than the PO Percentage of such Principal Prepayments on any Discount
Mortgage Loans) in that Loan Subgroup otherwise distributable on each Class
of
Pool 1-2 Subordinate Certificates pursuant to Section 5.01(a)(iii), in reverse
order of priority, shall be distributed as principal to the Pool 1 Senior
Certificates (other than the Class 1PO Certificates and any Interest-Only
Certificates) and any Class 1A1 Components related to the other Loan Subgroups
remaining outstanding in the amounts provided in the next succeeding sentence.
Such amounts shall be allocated to the other Loan Subgroups pro
rata,
based on
aggregate Class Principal Balance of the related Pool 1 Senior Certificates
and
aggregate Component Principal Balance of any related Class 1A1 Components,
and
paid to the Pool 1 Senior Certificates in such Loan Subgroup or Subgroups
in the
same priority as such Certificates would receive other distributions of
principal pursuant to Section 5.01(a).
(ii) Notwithstanding
the priority and allocation set forth in Section 5.01(a)(iii), with respect
to
Pool 1 and Pool 2, on each Distribution Date prior to the related Senior
Credit
Support Depletion Date but after the date on which the aggregate Class Principal
Balance of each Class of the Pool 1-2 Senior Certificates (other than the
Class
1PO Certificates and any Interest-Only Certificates) related to a Mortgage
Pool
have been reduced to zero, 100% of the Principal Prepayments on the Pool
1
Mortgage Loans and the pool 2 Mortgage Loans (other than the PO Percentage
of
such Principal Prepayments on any Discount Mortgage Loans) in that Mortgage
Pool
otherwise distributable on each Class of Pool 1-2 Subordinate Certificates
pursuant to Section 5.01(a)(iii), in reverse order of priority, shall be
distributed as principal to the Pool 1-2 Senior Certificates (other than
the
Class 1PO Certificates and any Interest-Only Certificates) related to the
other
Mortgage Pool remaining outstanding in the amounts provided in the next
succeeding sentence. Such amounts shall be allocated to the other Mortgage
Pool
pro
rata,
based on
aggregate Class Principal Balance of the related Pool 1-2 Senior Certificates,
and paid to the Pool 1-2 Senior Certificates in such Mortgage Pool in the
same
priority as such Certificates would receive other distributions of principal
pursuant to Section 5.01(a).
110
(iii) On
any
Distribution Date on which the Pool 1 Senior Certificates (other than the
Class
1PO Certificates and any Interest-Only Certificates) and the Class 1A1
Components related to a Loan Subgroup or Loan Subgroups constitute an
Undercollateralized Subgroup, all amounts otherwise distributable as Available
Funds on the Pool 1-2 Subordinate Certificates, in reverse order of priority
(or, following the related Senior Credit Support Depletion Date, such other
amounts described in the immediately following sentence), shall be distributed
as principal to the Pool 1 Senior Certificates (other than the Class 1PO
Certificates and any Interest-Only Certificates) and the Class 1A1 Components
of
such Undercollateralized Subgroup pursuant to Section 5.01(a), first,
up to
the sum of the Accrued Interest Amount and the related Principal Deficiency
Amount for the related Undercollateralized Subgroup (such distribution, a
“Subgroup
Undercollateralization Distribution”)
and
second,
to pay
to the Pool 1-2 Subordinate Certificates in the same order and priority as
provided in Section 5.01(a)(iii). In the event that the Pool 1 Senior
Certificates (other than the Class 1PO Certificates and any Interest-Only
Certificates) and the Class 1A1 Components related to a Loan Subgroup constitute
an Undercollateralized Subgroup on any Distribution Date following the related
Senior Credit Support Depletion Date, Subgroup Undercollateralization
Distributions will be made from any Available Funds for a Loan Subgroup not
related to an Undercollateralized Subgroup remaining after all required amounts
have been distributed to the related Class of Pool 1 Senior Certificates
(other
than the Class 1PO Certificates and any Interest-Only Certificates) and Class
1A1 Components. Subgroup Undercollateralization Distributions shall be applied
first
to pay
accrued but unpaid interest, if any, and second
to pay
principal in the same priority and allocation provided in Section
5.01(a).
(iv) On
any
Distribution Date on which the Pool 1-2 Senior Certificates (other than the
Class 1PO Certificates and any Interest-Only Certificates) constitute an
Undercollateralized Pool, all amounts otherwise distributable as Available
Funds
on the Pool 1-2 Subordinate Certificates, in reverse order of priority (or,
following the related Senior Credit Support Depletion Date, such other amounts
described in the immediately following sentence), shall be distributed as
principal to the Pool 1-2 Senior Certificates (other than the Class 1PO
Certificates and any Interest-Only Certificates) of such Undercollateralized
Pool pursuant to Section 5.01(a), first,
up to
the sum of the Accrued Interest Amount and the related Principal Deficiency
Amount for the related Undercollateralized Pool (such distribution, a
“Pool
Undercollateralization Distribution”)
and
second,
to pay
to the Pool 1-2 Subordinate Certificates in the same order and priority as
provided in Section 5.01(a)(iii). In the event that the Pool 1-2 Senior
Certificates (other than the Class 1PO Certificates and any Interest-Only
Certificates) related to a Mortgage Pool constitute an Undercollateralized
Pool
on any Distribution Date following the related Senior Credit Support Depletion
Date, Pool Undercollateralization Distributions will be made from any Available
Funds for a Mortgage Pool not related to an Undercollateralized Pool remaining
after all required amounts have been distributed to the related Class of
Pool
1-2 Senior Certificates (other than the Class 1PO Certificates and any
Interest-Only Certificates). Pool Undercollateralization Distributions shall
be
applied first
to pay
accrued but unpaid interest, if any, and second
to pay
principal in the same priority and allocation provided in Section
5.01(a).
111
(f) Distributions
on Physical Certificates.
The
Securities Administrator shall make distributions in respect of a Distribution
Date to each Certificateholder of record on the related Record Date (other
than
as provided in Section 10.01 hereof respecting the final distribution), in
the
case of Certificateholders of the Physical Certificates, by check or money
order
mailed to such Certificateholder at the address appearing in the Certificate
Register, or by wire transfer. Distributions among Certificateholders of
a Class
shall be made in proportion to the Percentage Interests evidenced by the
Certificates of that Class held by such Certificateholders.
(g) Distributions
on Book-Entry Certificates.
Each
distribution with respect to a Book-Entry Certificate shall be paid to the
Depository, which shall credit the amount of such distribution to the accounts
of its Depository Participants in accordance with its normal procedures.
Each
Depository Participant shall be responsible for disbursing such distribution
to
the Certificate Owners that it represents and to each indirect participating
brokerage firm (a “brokerage firm” or “indirect participating firm”) for which
it acts as agent. Each brokerage firm shall be responsible for disbursing
funds
to the Certificate Owners that it represents. All such credits and disbursements
with respect to a Book-Entry Certificate are to be made by the Depository
and
the Depository Participants in accordance with the provisions of the
Certificates. None of the Securities Administrator, the Depositor or the
Seller
shall have any responsibility therefor.
SECTION
5.02. [Reserved].
SECTION
5.03. Allocation
of Realized Losses.
(a) On
or
prior to each Distribution Date, the Securities Administrator shall aggregate
the loan-level information provided by the Master Servicer with respect to
the
total amount of Realized Losses, if any, with respect to the Mortgage Loans
in
each Mortgage Pool and, with respect to Pool 1, each Loan Subgroup for the
related Distribution Date and include such information in the Distribution
Date
Statement.
(b) On
each
Distribution Date, Realized Losses in Pool 1 and Pool 2 that occurred during
the
related Prepayment Period shall be allocated as follows:
(i) to
the
Class 1PO Certificates, the applicable PO Percentage of the principal portion
of
any Realized Loss on a Discount Mortgage Loan in Pool 1 Subgroup 1, until
the
Class Principal Balance thereof has been reduced to zero;
(ii) on
each
Distribution Date prior to the Senior Credit Support Depletion Date,
distributions in respect of each PO Deferred Amount shall be made on the
Class
1PO Certificates in accordance with Section 5.01(a)(ii) above to the extent
of
any PO Recoveries and certain other Available Funds remaining after
distributions in accordance with Section 5.01(a)(i) above. Any distribution
of
such PO Recoveries and any other Available Funds in respect of a PO Deferred
Amount will not reduce the Class Principal Balance of the Class 1PO
Certificates. No interest will accrue on any PO Deferred Amount. After the
Senior Credit Support Depletion Date, no distributions will be made in respect
of any PO Deferred Amount and Realized Losses will be allocated to the Class
1PO
Certificates without a right of reimbursement from any other Class of
Certificates;
112
(iii) the
applicable Non-PO Percentage of the principal portion of all Realized Losses
with respect to the Mortgage Loans in any Loan Subgroup of Pool 1 or in Pool
2
will be allocated
first
to the
classes of Pool 1-2 Subordinate Certificates, in the reverse order of their
numerical Class designations (beginning with the class of Pool 1-2 Subordinate
Certificates then outstanding with the highest numerical class designation),
in
each case until the Class Principal Balances of each such Class is reduced
to
zero, second,
to the
Pool 1-2 Senior Certificates (other than the Class 1PO and any Interest-Only
Certificates) relating to all Loan Subgroups, on a pro
rata
basis,
until the Class Principal Balances of each such class has been reduced to
zero.
(iv) On
each
Distribution Date, the Class Principal Balance of the class of Pool 1-2
Subordinate Certificates then outstanding with the lowest payment priority
will
be allocated, as a further Realized Loss, in reduction of its Class Principal
Balance, the sum of (i) the amount of any Available Fund from Pool 1 (other
than
PO Recoveries) distributed on that distribution date to the Class 1PO
Certificates in reduction of a PO Deferred Amount and (ii) the excess, if
any,
of (a) the aggregate of the Class Principal Balances of all classes of Pool
1-2
Senior Certificates and Pool 1-2 Subordinate Certificates following all
distributions and the allocation of Realized Losses from Pool 1 and Pool
2 on
that Distribution Date over (b) the Pool 1-2 Aggregate Collateral Balance
as of
the first day of the month of that Distribution Date.
(c) The
Class
Principal Balance of the Class of Pool 1-2 Subordinate Certificates then
outstanding with the highest numerical Class designation shall be reduced
on
each Distribution Date by the amount, if any, by which the aggregate of the
Class Principal Balances of all outstanding Classes of Pool 1-2 Certificates
(after giving effect to the distribution of principal and the allocation
of
Realized Losses on such Distribution Date) exceeds the aggregate of the Stated
Principal Balances of all the Mortgage Loans in Pool 1 and Pool 2 for the
following Distribution Date.
(d) On
each
Distribution Date, Realized Losses in Pool 3 that occurred during the related
Prepayment Period shall be allocated as follows:
(i) to
the
Pool 3 Subordinate Certificates, in reverse order of numerical class
designations (beginning with the class of Pool 3 Subordinate Certificates
then
outstanding with the highest numerical class designation), in each case until
the Class Principal Balances of the respective Classes of Pool 3 Subordinate
Certificates have been reduced to zero, and then to all classes of Pool 3
Senior
Certificates on a pro
rata
basis,
until the Class Principal Balances of each such Class has been reduced to
zero;
provided,
however:,
that
all realized losses allocable to the Class 3A1 and Class 3A2 Certificates
shall
instead be allocated sequentially,
first,
to the
Class 3A2 Certificates until the Class Principal Balance thereof has been
reduced to zero and, second,
to the
Class 3A1 Certificates, in that order, for so long as such Certificates are
outstanding.
113
(ii) On
each
Distribution Date, the Class Principal Balance of the Class of Pool 3
Subordinate Certificates then outstanding with the lowest payment priority
will
be allocated, as a further Realized Loss, in reduction of its Class Principal
Balance, the excess, if any, of (a) the aggregate of the Class Principal
Balances of all Classes of Pool 3 Senior Certificates and Pool 3 Subordinate
Certificates following all distributions and the allocation of Realized Losses
from Pool 3 on that Distribution Date over (b) the Pool 3 Pool Balance as
of the
first day of the month of that Distribution Date.
(iii) On
each
Distribution Date, the interest portion of Realized Losses from Pool 3 will
reduce the amount available for distribution on the related Distribution
Date to
the Class of Pool 3 Subordinate Certificates with the highest numerical class
designation which is outstanding on such date and, when the Pool 3 Subordinate
Certificates have been reduced to zero, to all classes of Pool 3 Senior
Certificates, on a pro
rata
basis.
(e) The
Class
Principal Balance of the Class of Pool 3 Subordinate Certificates then
outstanding with the highest numerical Class designation shall be reduced
on
each Distribution Date by the amount, if any, by which the aggregate of the
Class Principal Balances of all outstanding Classes of Pool 3 Certificates
(after giving effect to the distribution of principal and the allocation
of
Realized Losses on such Distribution Date) exceeds the aggregate of the Stated
Principal Balances of all the Mortgage Loans in Pool 3 for the following
Distribution Date.
(f) Any
Realized Loss allocated to a Class of Certificates or any reduction in the
Class
Principal Balance of a Class of Certificates pursuant to Section 5.03(b),
(c),
(d) or (e) shall be allocated among the Certificates of such Class, pro
rata,
in
proportion to their respective Certificate Principal Balances.
(g) Any
allocation of Realized Losses to a Certificate or any reduction in the
Certificate Principal Balance of a Certificate pursuant to Section 5.03(b),
(c),
(d) or (e) shall be accomplished by reducing the Certificate Principal Balance
thereof immediately following the distributions made on the related Distribution
Date in accordance with the definition of “Certificate Principal
Balance.”
SECTION
5.04. Statements.
(a) On
each
Distribution Date, the Securities Administrator shall make available to the
Trustee, each Certificateholder, the Seller, the Master Servicer and each
Rating
Agency, a statement based, as applicable, on loan-level information obtained
from the Master Servicer and, if applicable, each Servicer (the “Distribution
Date Statement”)
as to
the distributions to be made or made, as applicable, on such Distribution
Date.
The Distribution Date Statement shall include the following information,
in each
case, with respect to such Distribution Date:
(i) the
amount of the distribution made on such Distribution Date to the Holders
of each
Class of Certificates allocable to principal;
(ii) the
amount of the distribution made on such Distribution Date to the Holders
of each
Class of Certificates allocable to interest;
114
(iii) the
Senior Percentage for the Senior Certificates and Components, the Senior
Prepayment Percentage for the Senior Certificates and Components, the
Subordinate Percentage and the Subordinate Prepayment Percentage with respect
to
each Mortgage Pool and each Loan Subgroup for the following Distribution
Date;
(iv) the
aggregate amount of servicing compensation received by the Servicers during
the
related Due Period and such other customary information as the Securities
Administrator deems necessary or desirable, or which a Certificateholder
reasonably requests, to enable Certificateholders to prepare their tax
returns;
(v) the
aggregate amount of Advances for the related Due Period and the amount of
unreimbursed Advances;
(vi) the
Asset
Balance for such Distribution Date;
(vii) the
Pool
Balances, the Loan Subgroup Balances, the Pool 1-2 Aggregate Collateral Balance,
the Non-PO Loan Subgroup Balance and related Net WAC for each Mortgage Pool
and
each Loan Subgroup at the Close of Business at the end of the related Due
Period;
(viii) [Reserved];
(ix) [Reserved];
(x) [Reserved];
(xi) for
each
Mortgage Pool and each Loan Subgroup, the number, weighted average remaining
term to maturity and weighted average Loan Rate of the related Mortgage Loans
as
of the related Due Date;
(xii) the
number and aggregate unpaid principal balance of Mortgage Loans, in the
aggregate and for each Mortgage Pool and each Loan Subgroup, (a) 30 to 59
days Delinquent, (b) 60 to 89 days Delinquent, (c) 90 or more days Delinquent,
(d) as to which foreclosure proceedings have been commenced and (e) in
bankruptcy, in each case as of the close of business on the last day of the
preceding calendar month, in each case, using the OTS method;
(xiii) the
book
value (if available) of any REO Property as of the Close of Business on the
last
Business Day of the calendar month preceding the Distribution Date, and,
cumulatively, the total number and cumulative principal balance of all REO
Properties in each Mortgage Pool and each Loan Subgroup as of the Close of
Business of the last day of the preceding Due Period;
(xiv) the
aggregate amount of Principal Prepayments with respect to each Mortgage Pool
and
each Loan Subgroup made during the related Prepayment Period;
(xv) the
aggregate amount of Realized Losses incurred during the related Due Period
for
each Mortgage Pool and each Loan Subgroup and the cumulative amount of Realized
Losses and the amount of Realized Losses, if any, allocated to each Class
of
Certificates and Components or after giving effect to any distribution made
thereon, on such Distribution Date;
115
(xvi) the
Class
Principal Balance or Class Notional Balance, as applicable, of each Class
of
Certificates and the Apportioned Principal Balances of the Subordinate
Certificates after giving effect to any distributions made thereon, on such
Distribution Date;
(xvii) the
Monthly Interest Distributable Amount and the Interest Distributable Amount
in
respect of each Class of Certificates and Components, for such Distribution
Date
and the respective portions thereof, if any, remaining unpaid following the
distributions made in respect of such Certificates and Components on such
Distribution Date;
(xviii) the
aggregate amount of any Net Interest Shortfalls and the Unpaid Interest
Shortfall Amount for such Distribution Date;
(xix) the
Available Funds with respect to each Mortgage Pool and each Loan
Subgroup;
(xx) the
Pass-Through Rate for each Class of Certificates for such Distribution Date;
(xxi) the
aggregate Principal Balance of Mortgage Loans purchased hereunder by the
Seller
during the related Due Period, and indicating the relevant section of the
Servicing Agreement, or the Section of this Agreement, as applicable, requiring
or allowing the purchase of each such Mortgage Loan;
(xxii) the
amount of any Principal Deficiency Amounts or Accrued Interest Amounts paid
to
an Undercollateralized Pool or an Undercollateralized Subgroup or amounts
paid
pursuant to Section 5.01(e)(i) or 5.01(e)(ii);
(xxiii) current
and cumulative Recoveries allocable to each Mortgage Pool and each Loan
Subgroup;
(xxiv) current
and cumulative PO Recoveries allocable to Pool 1 Subgroup 1;
(xxv) the
amount of any Class P Distributable Amount for such Distribution
Date;
(xxvi) the
amount on deposit in the Prefunding Account in the aggregate and for each
of
Pool 1 and Pool 2 (including a breakdown of amounts released during the prior
calendar month in respect of Aggregate Subsequent Transfer Amounts or amounts
included in Available Funds on the Distribution Date in the month following
the
end of the Prefunding Period) and the amount of funds remaining in the
Capitalized Interest Account (after giving effect to distributions on such
Distribution Date); and
116
(xxvii) the
aggregate Principal Balance and number of Subsequent Mortgage Loans purchased
in
the Prefunding Period.
The
Securities Administrator shall make the Distribution Date Statement (and,
at its
option, any additional files containing the same information in an alternative
format) available each month to Certificateholders and the other parties
to this
Agreement via the Securities Administrator’s internet website. The Securities
Administrator’s internet website shall initially be located at “xxx.xxxxxxx.xxx.”
Assistance in using the website can be obtained by calling the Securities
Administrator’s customer service desk at (000) 000-0000. Parties that are unable
to use the above distribution option are entitled to have a paper copy mailed
to
them via first class mail by calling the customer service desk and indicating
such. The Securities Administrator shall have the right to change the way
such
reports are distributed in order to make such distribution more convenient
and/or more accessible to the parties, and the Securities Administrator shall
provide timely and adequate notification to all parties regarding any such
change.
In
the
case of information furnished pursuant to subclauses (i) and (ii) above,
the
amounts shall be expressed in a separate section of the report as a dollar
amount for each Class for each $1,000 original dollar amount as of the Initial
Cut-off Date.
In
addition to the information listed above, such Distribution Date Statement
or
the report on Form 10-D for such Distribution Date shall also include any
other
information required by Item 1121 (§ 229.1121) of Regulation AB.
(b) Within
a
reasonable period of time after the end of each calendar year, the Securities
Administrator shall, upon written request, furnish to each Person who at
any
time during the calendar year was a Certificateholder of a Regular Certificate,
if requested in writing by such Person, such information as is reasonably
necessary to provide to such Person a statement containing the information
set
forth in subclauses (i) and (ii) above, aggregated for such calendar year
or
applicable portion thereof during which such Person was a Certificateholder
and
such other customary information which a Certificateholder reasonably requests
to prepare its tax returns. Such obligation of the Securities Administrator
shall be deemed to have been satisfied to the extent that substantially
comparable information shall be prepared and furnished by the Securities
Administrator to Certificateholders pursuant to any requirements of the Code
as
are in force from time to time.
(c) On
each
Distribution Date, the Securities Administrator shall supply an electronic
tape
to Bloomberg Financial Markets, Inc. in a format acceptable to Bloomberg
Financial Markets, Inc. on a monthly basis, and shall supply an electronic
tape
to Loan Performance and Intex Solutions in a format acceptable to Loan
Performance and Intex Solutions on a monthly basis.
SECTION
5.05. Remittance Reports; Advances.
(a) No
later
than the 10th
calendar
day of each month, the Master Servicer shall deliver to the Securities
Administrator by telecopy or electronic mail (or by such other means as the
Master Servicer and the Securities Administrator may agree from time to time)
the Remittance Report with respect to the related Distribution Date. No later
than the Close of Business New York time on the fifth Business Day prior
to the
related Distribution Date, the Master Servicer shall deliver or cause to
be
delivered to the Securities Administrator in addition to the information
provided on the Remittance Report, such other loan-level information reasonably
available to it with respect to the Mortgage Loans as the Securities
Administrator may reasonably require to perform the calculations necessary
to
make the distributions contemplated by Section 5.01. The Securities
Administrator shall have no duty or obligation to calculate, recompute or
verify
any information in any Remittance Report or other loan level information
that it
receives from a Servicer.
117
(b) If
the
Monthly Payment on a Mortgage Loan that was due on a related Due Date and
is
delinquent, other than as a result of application of the Relief Act, and
for
which the related Servicer was required to make an advance pursuant to the
related Servicing Agreement, exceeds the amount on deposit in the Distribution
Account which will be used for an advance with respect to such Mortgage Loan,
the Master Servicer shall, on the Business Day immediately preceding the
related
Distribution Date, deposit in the Distribution Account an amount equal to
such
deficiency, net of the Servicing Fee and the Master Servicing Fee, for such
Mortgage Loan except to the extent the Master Servicer determines any such
Advance to be Nonrecoverable from Liquidation Proceeds, Insurance Proceeds
or
future payments on the Mortgage Loan for which such Advance was made. Subject
to
the foregoing, the Master Servicer shall continue to make such Advances through
the date that such Servicer is required to do so under its Servicing Agreement.
If the Master Servicer determines that an Advance is Nonrecoverable, it shall,
on or prior to the related Distribution Date, present an Officer’s Certificate
to the Securities Administrator and the Trustee (i) stating that the Master
Servicer elects not to make a Advance in a stated amount and (ii) detailing
the
reason it deems the advance to be Nonrecoverable.
SECTION
5.06. Compensating Interest Payments.
The
amount of the Master Servicing Fee and any additional compensation due and
owing
to the Master Servicer pursuant to Section 3.14 in respect of any Distribution
Date shall be reduced (but not below zero) by the amount of any Compensating
Interest Payment for such Distribution Date, but only to the extent that
Interest Shortfalls relating to such Distribution Date are required to be
paid
but are not actually paid by the Servicers on the Servicer Remittance Date.
Such
amount shall not be treated as an Advance and shall not be reimbursable to
the
Master Servicer.
SECTION
5.07. Recoveries.
With
respect to any Class of Certificates or any Component to which a Realized
Loss
has been allocated (including any such Class or Component for which the related
Class Principal Balance or Component Principal Balance, as applicable, has
been
reduced to zero), the Class Principal Balance of such Class or the Component
Principal Balance of such Component, as applicable, will be increased by
the
amount of related Recoveries collected with regard to the related Mortgage
Pool (and, with respect to Pool 1, the related Loan Subgroup)
allocated to such Class or such Component for such Distribution Date as
follows:
118
(i) first,
the
Class Principal Balance of each Class of Senior Certificates related to the
Mortgage Pool (and, with respect to Pool 1, the related Loan Subgroup) from
which the Recovery was collected (and, with respect to the Class 1A1
Certificates, the related Class 1A1 Component), will be increased, pro
rata
up to
the Net Realized Losses for such Class or Component for such Distribution
Date,
and
(ii) second,
the
Class Principal Balance of each Class of related Subordinate Certificates
will
be increased in order of seniority, up to the Net Realized Losses for each
such
Class for such Distribution Date.
ARTICLE
VI
THE
CERTIFICATES
SECTION
6.01. The
Certificates.
The
Certificates shall be substantially in the form annexed hereto as Exhibit
A-1
through E. Each of the Certificates shall, on original issue, be executed
by the
Securities Administrator and authenticated and delivered by the Certificate
Registrar upon the written order of the Depositor concurrently with the sale
and
assignment to the Trustee of the Trust Fund. Each Class of the Regular
Certificates (other than the Interest-Only Certificates and the Class P
Certificates) shall be initially evidenced by one or more Certificates
representing a Percentage Interest with a minimum dollar denomination of
$25,000
and integral dollar multiples of $1 in excess thereof; in the case of the
Interest-Only Certificates, a minimum notional amount of $100,000 and integral
dollar multiples of $1 in excess thereof; provided,
that,
all such Certificates must be purchased in minimum total investments of at
least
$100,000. The Class P Certificates shall be issued in a minimum Percentage
Interest of 5% and in integral percentage of multiples of 1% in excess thereof.
The Class R and Class LT-R Certificates will each be issued as a single
certificate in physical form.
The
Certificates shall be executed on behalf of the Trust Fund by manual or
facsimile signature on behalf of the Securities Administrator by a Responsible
Officer. Certificates bearing the manual or facsimile signatures of individuals
who were, at the time when such signatures were affixed, authorized to sign
on
behalf of the Trustee shall be binding, notwithstanding that such individuals
or
any of them have ceased to be so authorized prior to the authentication and
delivery of such Certificates or did not hold such offices at the date of
such
Certificate. Each Certificate shall, on original issue, be authenticated
by the
Certificate Registrar upon the order of the Depositor. No Certificate shall
be
entitled to any benefit under this Agreement or be valid for any purpose,
unless
such Certificate shall have been manually authenticated by the Certificate
Registrar substantially in the form provided for herein, and such authentication
upon any Certificate shall be conclusive evidence, and the only evidence,
that
such Certificate has been duly authenticated and delivered hereunder. All
Certificates shall be dated the date of their authentication. At any time
and
from time to time after the execution and delivery of this Agreement, the
Depositor may deliver Certificates executed by the Securities Administrator
to
the Certificate Registrar for authentication and the Certificate Registrar
shall
authenticate and deliver such Certificates as provided in this Agreement
and not
otherwise. Subject to Section 6.02(c), the Senior Certificates (other than
the
Residual Certificates) and the Subordinate Certificates shall be Book-Entry
Certificates. The Residual Certificates and the Class P Certificates shall
be
Physical Certificates.
119
The
Privately-Offered B Certificates shall be offered and sold (i) to Qualified
Institutional Buyers, and shall be issued initially in the form of one or
more
permanent global Certificates in definitive, fully registered form with the
applicable legends set forth in Exhibit C (each, a “Restricted
Global Security”)
or
(ii) outside the United States in reliance on Regulation S under the Securities
Act, and shall be issued initially in the form of one or more permanent global
Certificates in definitive, fully registered form without interest coupons
with
the applicable legends set forth in Exhibit C hereto (each, a “Regulation
S Global Security”),
which
shall be deposited on behalf of the subscribers for such Certificates
represented thereby with the Securities Administrator, as custodian for DTC
and
registered in the name of a nominee of DTC, duly executed by the Securities
Administrator and authenticated by the Certificate Registrar as hereinafter
provided. The aggregate principal amounts of the Restricted Global Securities
or
Regulation S Global Securities, as applicable, may from time to time be
increased or decreased by adjustments made on the records of the Certificate
Registrar and DTC or its nominee, as the case may be, as hereinafter
provided.
The
Class
P Certificates shall be offered and sold either (i) to Qualified Institutional
Buyers, and shall be issued initially in the form of one or more permanent
global Certificates in definitive, fully registered form with the applicable
legends set forth in Exhibit D or (ii) outside the United States in reliance
on
Regulation S under the Securities Act, and shall be issued initially in the
form
of one or more permanent global Certificates in definitive, fully registered
form without interest coupons with the applicable legends set forth in Exhibit
D
which shall be registered in the name Greenwich Capital Markets, Inc., duly
executed by the Securities
Administrator
and
authenticated by the Certificate Registrar as hereinafter provided. The
aggregate principal amount of the Class P Certificates may from time to time
be
increased or decreased by adjustments made on the records of the Certificate
Registrar as hereinafter provided.
SECTION
6.02. Registration
of Transfer and Exchange of Certificates.
(a) The
Certificate Registrar shall cause to be kept a Certificate Register in which,
subject to such reasonable regulations as it may prescribe, the Certificate
Registrar shall provide for the registration of Certificates and of transfers
and exchanges of Certificates as herein provided. The Securities Administrator
is hereby appointed, and the Securities Administrator hereby accepts its
appointment as, initial Certificate Registrar on behalf of the Trustee, for
the
purpose of registering Certificates and transfers and exchanges of Certificates
as herein provided.
Upon
surrender for registration of transfer of any Certificate at the Corporate
Trust
Office of the Certificate Registrar maintained for such purpose pursuant
to the
foregoing paragraph, the Securities Administrator on behalf of the Trust
Fund
shall execute, and the Certificate Registrar shall authenticate and deliver,
in
the name of the designated transferee or transferees, one or more new
Certificates of the same aggregate Percentage Interest.
120
At
the
option of the Certificateholders, Certificates may be exchanged for other
Certificates in authorized denominations and the same aggregate Percentage
Interests, upon surrender of the Certificates to be exchanged at any such
office
or agency. Whenever any Certificates are so surrendered for exchange, the
Securities Administrator shall execute on behalf of the Trust Fund, and the
Certificate Registrar shall authenticate and deliver the Certificates which
the
Certificateholder making the exchange is entitled to receive. Every Certificate
presented or surrendered for registration of transfer or exchange shall (if
so
required by the Certificate Registrar) be duly endorsed by, or be accompanied
by
a written instrument of transfer satisfactory to the Certificate Registrar
duly
executed by, the Holder thereof or his attorney duly authorized in
writing.
(b) Except
as
provided in paragraph (c) or (d) below, the Book-Entry Certificates shall
at all
times remain registered in the name of the Depository or its nominee and
at all
times: (i) registration of such Certificates may not be transferred by the
Securities Administrator or the Certificate Registrar except to another
Depository; (ii) the Depository shall maintain book-entry records with respect
to the Certificate Owners and with respect to ownership and transfers of
such
Certificates; (iii) ownership and transfers of registration of such Certificates
on the books of the Depository shall be governed by applicable rules established
by the Depository; (iv) the Depository may collect its usual and customary
fees,
charges and expenses from its Depository Participants; (v) the Certificate
Registrar, the Paying Agent and the Trustee shall for all purposes deal with
the
Depository as representative of the Certificate Owners of such Certificates
for
purposes of exercising the rights of Holders under this Agreement, and requests
and directions for and votes of such representative shall not be deemed to
be
inconsistent if they are made with respect to different Certificate Owners;
(vi)
the Trustee, the Paying Agent and the Certificate Registrar may rely and
shall
be fully protected in relying upon information furnished by the Depository
with
respect to its Depository Participants and furnished by the Depository
Participants with respect to indirect participating firms and Persons shown
on
the books of such indirect participating firms as direct or indirect Certificate
Owners; and (vii) the direct participants of the Depository shall have no
rights under this Agreement under or with respect to any of the Certificates
held on their behalf by the Depository, and the Depository may be treated
by the
Trustee, the Paying Agent, the Certificate Registrar and their respective
agents, employees, officers and directors as the absolute owner of the
Certificates for all purposes whatsoever.
All
transfers by Certificate Owners of Book-Entry Certificates shall be made
in
accordance with the procedures established by the Depository Participant
or
brokerage firm representing such Certificate Owners. Each Depository Participant
shall only transfer Book-Entry Certificates of Certificate Owners that it
represents or of brokerage firms for which it acts as agent in accordance
with
the Depository’s normal procedures. The parties hereto are hereby authorized to
execute one or more Letter of Representations with the Depository or take
such
other action as may be necessary or desirable to register a Book-Entry
Certificate to the Depository. In the event of any conflict between the terms
of
any such Letter of Representation and this Agreement, the terms of this
Agreement shall control.
(c) If
(x)
the Depository or the Depositor advises the Certificate Registrar in writing
that the Depository is no longer willing or able to discharge properly its
responsibilities as Depository and (y) the Certificate Registrar or the
Depositor is unable to locate a qualified successor, upon surrender to the
Certificate Registrar of the Book-Entry Certificates by the Depository,
accompanied by registration instructions from the Depository for registration,
the Securities Administrator shall at the Seller’s expense execute on behalf of
the Trust Fund and authenticate definitive, fully registered certificates
(the
“Definitive
Certificates”).
Neither the Depositor nor the Certificate Registrar shall be liable for any
delay in delivery of such instructions and may conclusively rely on, and
shall
be protected in relying on, such instructions. Upon the issuance of Definitive
Certificates, the Trustee, the Certificate Registrar, the Paying Agent and
the
Depositor shall recognize the Holders of the Definitive Certificates as
Certificateholders hereunder.
121
(d) No
transfer, sale, pledge or other disposition of any Privately-Offered B
Certificate, other than a Private Certificate sold in an offshore transaction
in
reliance on Regulation S, shall be made unless such disposition is exempt
from
the registration requirements of the Securities Act, and any applicable state
securities laws or is made in accordance with the Securities Act and laws.
Any
Private Certificates sold to an “accredited investor” under Rule 501(a)(1), (2),
(3) or (7) under the Securities Act shall be issued only in the form of one
or
more Definitive Certificates and the records of the Certificate Registrar
(and
solely in the case of the Privately-Offered B Certificates, DTC or its nominee)
shall be adjusted to reflect the transfer of such Definitive Certificates.
In
the event of any transfer of any Private Certificate in the form of a Definitive
Certificate, (i) the transferee shall certify (A) such transfer is made to
a
Qualified Institutional Buyer in reliance upon Rule 144A (as evidenced by
an
investment letter delivered to the Certificate Registrar, in substantially
the
form attached hereto as Exhibit J-2) under the Securities Act, or (B) such
transfer is made to an “accredited investor” under Rule 501(c)(1), (2), (3) or
(7) under the Securities Act (as evidenced by an investment letter delivered
to
the Certificate Registrar, in substantially the form attached hereto as Exhibit
J-1, and, if so required by the Certificate Registrar and the Depositor,
a
written Opinion of Counsel (which may be in-house counsel) acceptable to
and in
form and substance reasonably satisfactory to the Certificate Registrar and
the
Depositor, delivered to the Certificate Registrar and the Depositor stating
that
such transfer may be made pursuant to an exemption, including a description
of
the applicable exemption and the basis therefor, from the Securities Act
or is
being made pursuant to the Securities Act, which Opinion of Counsel shall
not be
an expense of the Trust Fund, the Trustee, the Certificate Registrar, the
Master
Servicer, the Securities Administrator or the Depositor) or (ii) the Certificate
Registrar shall require the transferor to execute a transferor certificate
and
the transferee to execute an investment letter acceptable to and in form
and
substance reasonably satisfactory to the Depositor and the Certificate Registrar
certifying to the Depositor and the Certificate Registrar the facts surrounding
such transfer, which investment letter shall not be an expense of the Trust
Fund, the Trustee, the Certificate Registrar, the Master Servicer, the
Securities Administrator or the Depositor. Each Holder of a Private Certificate
desiring to effect such transfer shall, and does hereby agree to, indemnify
the
Trustee, the Certificate Registrar, the Securities Administrator, the Seller
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.
In
the
case of a Privately-Offered B Certificate that is a Book-Entry Certificate,
for
purposes of the preceding paragraph, the representations set forth in the
investment letter in clause (i) shall be deemed to have been made to the
Certificate Registrar by the transferee’s acceptance of such Privately-Offered B
Certificate that is also a Book-Entry Certificate (or the acceptance by a
Certificate Owner of the beneficial interest in such Certificate).
122
If
any
Certificate Owner that is required under this Section 6.02(d) to transfer
its
Privately-Offered B Certificate that are Book-Entry Certificates in the form
of
Definitive Certificates, (i) notifies the Securities Administrator of such
transfer or exchange and (ii) transfers such Book-Entry Certificates to the
Securities Administrator, in its capacity as such, through the book-entry
facilities of the Depository, then the Securities Administrator, on behalf
of
the Trust Fund, shall decrease the balance of such Book-Entry Certificates,
and
thereupon, the Securities Administrator shall execute, authenticate and deliver
to such Certificate Owner or its designee one or more Definitive Certificates
in
authorized denominations and with a like aggregate Certificate Principal
Balance.
Subject
to the provisions of this Section 6.02(d) governing registration of transfer
and
exchange Privately-Offered B Certificate (i) held as Definitive
Certificates may be transferred in the form of Book-Entry Certificates in
reliance on Rule 144A (to one or more Qualified Institutional Buyers) or
Regulation S under the Securities Act that are acquiring such Definitive
Certificates, their own accounts for or for the accounts of other Qualified
Institutional Buyers and (ii) held as Definitive Certificates by a
Qualified Institutional Buyer or an investor under Regulation S for its own
account or for the account of another Qualified Institutional Buyer or
Regulation S investor may be exchanged for Book-Entry Certificates, in each
case
upon surrender of such Certificates for registration of transfer or exchange
at
the offices of the Securities Administrator maintained for such purpose.
Whenever any such Certificates are so surrendered for transfer or exchange,
either the Securities Administrator shall increase the balance of the related
Book-Entry Certificates or the Securities Administrator shall execute,
authenticate and deliver the Book-Entry Certificates for which such Certificates
were transferred or exchanged, as necessary and appropriate. No Holder of
any
such Definitive Certificates other than a Qualified Institutional Buyer or
a
Regulation S investor holding such Certificates for its own account or for
the
account of another Qualified Institutional Buyer or Regulation S investor
may
exchange such Certificates for Book-Entry Certificates. Further, any Certificate
Owner of such Book-Entry Certificates other than any such Qualified
Institutional Buyers or Regulation S investors shall notify the Securities
Administrator of its status as such and shall transfer such Book-Entry
Certificate to the Securities Administrator, through the book-entry facilities
of the Depository, whereupon, and also upon surrender to the Securities
Administrator of such Book-Entry Certificates by the Depository, (which
surrender the Securities Administrator shall use reasonable efforts to cause
to
occur), the Securities Administrator shall execute, authenticate and deliver
to
such Certificate Owner or such Certificate Owner’s nominee one or more
Definitive Certificates in authorized denominations and with a like aggregate
Certificate Principal Balance.
None
of
the Depositor, the Seller, the Securities Administrator, the Certificate
Registrar or the Trustee is obligated to register or qualify the Private
Certificates under the Securities Act or any other securities laws or to
take
any action not otherwise required under this Agreement to permit the transfer
of
such Certificates without registration or qualification. Any Certificateholder
desiring to effect the transfer of a Private Certificate shall, and does
hereby
agree to, indemnify the Trustee, the Seller, the Securities Administrator,
the
Depositor and the Certificate Registrar 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.
123
No
transfer of an ERISA-Restricted Certificate in the form of a Definitive
Certificate shall be made unless the Certificate Registrar shall have received
either (i) a representation from the transferee of such Certificate, acceptable
to and in form and substance satisfactory to the Certificate Registrar and
the
Depositor (such requirement is satisfied only by the Certificate Registrar’s
receipt of a representation letter from the transferee substantially in the
form
of Exhibit I-1 or I-2, as applicable, hereto), to the effect that such
transferee is not an employee benefit plan subject to Section 406 of ERISA
or a
plan or arrangement subject to Section 4975 of the Code (a “Plan”),
nor a
person acting on behalf of any such plan or arrangement nor using the assets
of
any such plan or arrangement to effect such transfer or (ii) if such Certificate
has been the subject of an ERISA-Qualifying Underwriting, and the purchaser
is
an insurance company, a representation that the purchaser is an insurance
company which is purchasing such Certificates with funds contained in an
“insurance company general account” (as such term is defined in Section V(e) of
Prohibited Transaction Class Exemption 95-60 (“PTCE
95-60”)
and
that the purchase and holding of such Certificates are covered under Sections
I
and III of PTCE 95-60 or (iii) an Opinion of Counsel satisfactory to the
Certificate Registrar, which Opinion of Counsel shall not be an expense of
the
Trustee, the Certificate Registrar, the Master Servicer, the Securities
Administrator, the Depositor or the Trust Fund, addressed to the Certificate
Registrar, to the effect that the purchase and holding of such ERISA-Restricted
Certificate in the form of a Definitive 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, the Certificate Registrar, the
Master
Servicer, the Servicers, the Securities Administrator or the Depositor 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 an ERISA-Restricted Certificate in the form of a Definitive
Certificate to an employee benefit plan subject to ERISA or Section 4975
of the
Code without the delivery to the Certificate Registrar of an Opinion of Counsel
satisfactory to the Certificate Registrar as described above shall be void
and
of no effect.
In
the
case of an ERISA-Restricted Certificate that is a Book-Entry Certificate,
for
purposes of clauses (i) or (ii) of the first sentence of the preceding
paragraph, such representations shall be deemed to have been made to the
Certificate Registrar by the transferee’s acceptance of such ERISA-Restricted
Certificate that is also a Book-Entry Certificate (or the acceptance by a
Certificate Owner of the beneficial interest in such Certificate).
If
any
ERISA-Restricted Certificate, or any interest therein, is acquired or held
in
violation of the provisions of the preceding paragraph, the next preceding
permitted beneficial owner will be treated as the beneficial owner of that
Certificate, retroactive to the date of transfer to the purported beneficial
owner. Any purported beneficial owner whose acquisition or holding of an
ERISA-Restricted Certificate, or interest therein, was effected in violation
of
the provisions of the preceding paragraph shall indemnify to the extent
permitted by law and hold harmless the Depositor and the Certificate Registrar
from and against any and all liabilities, claims, costs or expenses incurred
by
such parties as a result of such acquisition or holding.
To
the
extent permitted under applicable law (including, but not limited to, ERISA),
the Certificate Registrar shall be under no liability to any Person for any
registration of transfer of any ERISA-Restricted Certificate that is in fact
not
permitted by this Section or for making any payments due on such Certificate
to
the Holder thereof or taking any other action with respect to such Holder
under
the provisions of this Agreement so long as the transfer was registered by
the
Certificate Registrar in accordance with the foregoing requirements.
124
To
the
extent permitted under applicable law (including, but not limited to, ERISA),
none of the Trustee, the Certificate Registrar or the Depositor shall have
any
liability to any Person for any registration of transfer of any ERISA-Restricted
Certificate that is in fact not permitted by this Section 6.02(d) or for
the
Paying Agent making any payments due on such Certificate to the Holder thereof
or taking any other action with respect to such Holder under the provisions
of
this Agreement so long as the transfer was registered by the Certificate
Registrar in accordance with the foregoing requirements. In addition, none
of
the Trustee, the Certificate Registrar or the Depositor shall be required
to
monitor, determine or inquire as to compliance with the transfer restrictions
with respect to any ERISA-Restricted Certificate in the form of a Book-Entry
Certificate, and none of the Trustee, the Certificate Registrar or the Depositor
shall have any liability for transfers of Book-Entry Certificates or any
interests therein made in violation of the restrictions on transfer described
in
the Prospectus Supplement or Private Placement Memorandum, as applicable,
and
this Agreement.
(e) Each
Person who has or who acquires any Ownership Interest in a Residual Certificate
shall be deemed by the acceptance or acquisition of such Ownership Interest
to
have agreed to be bound by the following provisions and to have irrevocably
appointed the Depositor or its designee as its attorney-in-fact to negotiate
the
terms of any mandatory sale under clause (v) below and to execute all
instruments of transfer and to do all other things necessary in connection
with
any such sale, and the rights of each Person acquiring any Ownership Interest
in
a Residual Certificate are expressly subject to the following
provisions:
(i) Each
Person holding or acquiring any Ownership Interest in a Residual Certificate
shall be a Permitted Transferee who acquires such Ownership Interest in a
Residual Certificate for its own account and not in the capacity as trustee,
nominee or agent for another Person and shall promptly notify the Certificate
Registrar and the Trustee of any change or impending change in its status
as
such a Permitted Transferee.
(ii) No
Ownership Interest in a Residual Certificate may be registered on the Closing
Date and no Ownership Interest in a Residual Certificate may thereafter be
transferred, and the Certificate Registrar shall not register the Transfer
of a
Residual Certificate unless, in addition to the certificates required to
be
delivered under subsection (d) above, the Trustee and the Certificate Registrar
shall have been furnished with an affidavit (“Transfer
Affidavit”)
of the
initial owner of such Residual Certificate or proposed transferee of a Residual
Certificate in the form attached hereto as Exhibit L.
(iii) In
connection with any proposed transfer of any Ownership Interest in a Residual
Certificate, the Trustee and the Certificate Registrar shall as a condition
to
registration of the transfer, require delivery to them of a Transferor
Certificate in the form of Exhibit K hereto from the proposed transferor
to the
effect that the transferor (a) has no knowledge the proposed Transferee is
not a
Permitted Transferee acquiring an Ownership Interest in such Residual
Certificate for its own account and not in a capacity as trustee, nominee,
or
agent for another Person, and (b) has not undertaken the proposed transfer
in
whole or in part to impede the assessment or collection of tax.
125
(iv) Any
attempted or purported Transfer of any Ownership Interest in a Residual
Certificate in violation of the provisions of this Section shall be absolutely
null and void and shall vest no rights in the purported transferee. If any
purported transferee shall, in violation of the provisions of this Section,
become a Holder of such Residual Certificate, then the prior Holder of such
Residual Certificate that is a Permitted Transferee shall, upon discovery
that
the registration of Transfer of such Residual Certificate was not in fact
permitted by this Section, be restored to all rights as Holder thereof
retroactive to the date of registration of transfer of such Residual
Certificate. None of the Trustee, the Certificate Registrar or the Depositor
shall have any liability to any Person for any registration of Transfer of
a
Residual Certificate that is in fact not permitted by this Section or for
the
Paying Agent making any distributions due on such Residual Certificate to
the
Holder thereof or taking any other action with respect to such Holder within
the
provisions of this Agreement so long as the Trustee and the Certificate
Registrar received the documents specified in clause (iii). The Certificate
Registrar shall be entitled to recover from any Holder of such Residual
Certificate that was in fact not a Permitted Transferee at the time such
distributions were made all distributions made on such Residual Certificate.
Any
such distributions so recovered by the Certificate Registrar shall be
distributed and delivered by the Certificate Registrar to the last Holder
of
such Residual Certificate that is a Permitted Transferee.
(v) If
any
Person other than a Permitted Transferee acquires any Ownership Interest
in a
Residual Certificate in violation of the restrictions in this Section, then
the
Certificate Registrar shall have the right but not the obligation, without
notice to the Holder of such Residual Certificate or any other Person having
an
Ownership Interest therein, to notify the Depositor to arrange for the sale
of
such Residual Certificate. The proceeds of such sale, net of commissions
(which
may include commissions payable to the Depositor or its affiliates in connection
with such sale), expenses and taxes due, if any, will be remitted by the
Certificate Registrar to the previous Holder of such Residual Certificate
that
is a Permitted Transferee, except that in the event that the Certificate
Registrar determines that the Holder of such Residual Certificate may be
liable
for any amount due under this Section or any other provisions of this Agreement,
the Certificate Registrar may withhold a corresponding amount from such
remittance as security for such claim. The terms and conditions of any sale
under this clause (v) shall be determined in the sole discretion of the Trustee
and the Certificate Registrar and they shall not be liable to any Person
having
an Ownership Interest in such Residual Certificate as a result of its exercise
of such discretion.
(vi) If
any
Person other than a Permitted Transferee acquires any Ownership Interest
in a
Residual Certificate in violation of the restrictions in this Section, then
the
Securities Administrator upon receipt of reasonable compensation will provide
to
the Internal Revenue Service, and to the persons specified in Sections
860E(e)(3) and (6) of the Code, information needed to compute the tax imposed
under Section 860E(e)(5) of the Code on transfers of residual interests to
disqualified organizations.
The
foregoing provisions of this Section shall cease to apply to transfers occurring
on or after the date on which there shall have been delivered to the Certificate
Registrar, in form and substance satisfactory to the Certificate Registrar,
(i)
written notification from each Rating Agency that the removal of the
restrictions on Transfer set forth in this Section will not cause such Rating
Agency to downgrade its ratings of the Certificates and (ii) an Opinion of
Counsel to the effect that such removal will not cause the REMIC created
hereunder to fail to qualify as a REMIC.
126
(f) Notwithstanding
any provision to the contrary herein, so long as a Restricted Global Security
or
Regulation S Global Security, as applicable, representing any Privately-Offered
B Certificates remains outstanding and is held by or on behalf of the
Depository, transfers of a Restricted Global Security or Regulation S Global
Security, as applicable, representing the Certificates, in whole or in part,
shall only be made in accordance with Section 6.01 and this Section
6.02(f).
(i) Subject
to clauses (ii) and (iii) of this Section 6.02(f), transfers of a Restricted
Global Security or Regulation S Global Security, as applicable, representing
any
Privately-Offered B Certificates shall be limited to transfers of such a
Restricted Global Security or Regulation S Global Security, as applicable,
in
whole, but not in part, to nominees of the Depository or to a successor of
the
Depository or such successor’s nominee.
(ii) Restricted
Global Security to Regulation S Global Security.
If a
holder of a beneficial interest in a Restricted Global Security deposited
with
or on behalf of the Depository wishes at any time to exchange its interest
in
such Restricted Global Security for an interest in a Regulation S Global
Security, or to transfer its interest in such Restricted Global Security
to a
Person who wishes to take delivery thereof in the form of an interest in
a
Regulation S Global Security, such holder, provided such holder is not a
U.S.
Person, may, subject to the rules and procedures of the Depository, exchange
or
cause the exchange of such interest for an equivalent beneficial interest
in the
Regulation S Global Security. Upon receipt by the Certificate Registrar,
of (A)
instructions from the Depository directing the Certificate Registrar, to
cause
to be credited a beneficial interest in a Regulation S Global Security in
an
amount equal to the beneficial interest in such Restricted Global Security
to be
exchanged but not less than the minimum denomination applicable to such
Certificateholders’ held through a Regulation S Global Security, (B) a written
order given in accordance with the Depository’s procedures containing
information regarding the participant account of the Depository and, in the
case
of a transfer pursuant to and in accordance with Regulation S, the Euroclear
or
Clearstream account to be credited with such increase and (C) a certificate
in
the form of Exhibit N-1 hereto given by the holder of such beneficial interest
stating that the exchange or transfer of such interest has been made in
compliance with the transfer restrictions applicable to the Global Securities,
including that the holder is not a U.S. Person and pursuant to and in accordance
with Regulation S, the Certificate Registrar shall reduce the principal amount
of the Restricted Global Security and increase the principal amount of the
Regulation S Global Security by the aggregate principal amount of the beneficial
interest in the Restricted Global Security to be exchanged, and shall instruct
Euroclear or Clearstream, as applicable, concurrently with such reduction,
to
credit or cause to be credited to the account of the Person specified in
such
instructions a beneficial interest in the Regulation S Global Security equal
to
the reduction in the principal amount of the Restricted Global
Security.
127
(iii) Regulation
S Global Security to Restricted Global Security.
If a
holder of a beneficial interest in a Regulation S Global Security deposited
with
or on behalf of the Depository wishes at any time to transfer its interest
in
such Regulation S Global Security to a Person who wishes to take delivery
thereof in the form of an interest in a Restricted Global Security, such
holder
may, subject to the rules and procedures of the Depository, exchange or cause
the exchange of such interest for an equivalent beneficial interest in a
Restricted Global Security. Upon receipt by the Certificate Registrar of
(A)
instructions from the Depository directing the Certificate Registrar to cause
to
be credited a beneficial interest in a Restricted Global Security in an amount
equal to the beneficial interest in such Regulation S Global Security to
be
exchanged but not less than the minimum denomination applicable to such
Certificateholder’s Certificates held through a Restricted Global Security, to
be exchanged, such instructions to contain information regarding the participant
account with the Depository to be credited with such increase, and (B) a
certificate in the form of Exhibit N-2 hereto given by the holder of such
beneficial interest and stating, among other things, that the Person
transferring such interest in such Regulation S Global Security reasonably
believes that the Person acquiring such interest in a Restricted Global Security
is a Qualified Institutional Buyer within the meaning of Rule 144A, is obtaining
such beneficial interest in a transaction meeting the requirements of Rule
144A
and in accordance with any applicable securities laws of any State of the
United
States or any other jurisdiction, then the Certificate Registrar will reduce
the
principal amount of the Regulation S Global Security and increase the principal
amount of the Restricted Global Security by the aggregate principal amount
of
the beneficial interest in the Regulation S Global Security to be transferred
and the Certificate Registrar shall instruct the Depository, concurrently
with
such reduction, to credit or cause to be credited to the account of the Person
specified in such instructions a beneficial interest in the Restricted Global
Security equal to the reduction in the principal amount of the Regulation
S
Global Security.
(iv) Other
Exchanges.
In the
event that a Restricted Global Security or Regulation S Global Security,
as
applicable, is exchanged for Certificates in definitive registered form without
interest coupons, such Certificates may be exchanged for one another only
in
accordance with such procedures as are substantially consistent with the
provisions above (including certification requirements intended to insure
that
such transfers comply with Rule 144A, comply with Rule 501(a)(1), (2), (3)
or
(7) or are to non U.S. Persons in compliance with Regulation S under the
Securities Act, as the case may be) and as may be from time to time adopted
by
the Depositor and the Certificate Registrar.
(v) Restrictions
on U.S. Transfers.
Transfers of interests in the Regulation S Global Security to U.S. persons
(as
defined in Regulation S) shall be limited to transfers made pursuant to the
provisions of Section 6.02(f)(iii).
(g) No
service charge shall be made for any registration of transfer or exchange
of
Certificates of any Class, but the Certificate Registrar may require payment
of
a sum sufficient to cover any tax or governmental charge that may be imposed
in
connection with any transfer or exchange of Certificates.
128
All
Certificates surrendered for registration of transfer or exchange shall be
cancelled by the Certificate Registrar and disposed of pursuant to its standard
procedures.
SECTION
6.03. Mutilated, Destroyed, Lost or Stolen Certificates.
If
(i)
any mutilated Certificate is surrendered to the Trustee or the Certificate
Registrar or the Trustee or the Certificate Registrar receives evidence to
its
satisfaction of the destruction, loss or theft of any Certificate and (ii)
there
is delivered to the Trustee, the Certificate Registrar and the Depositor
such
security or indemnity as may be required by them to save each of them harmless,
then, in the absence of notice to the Trustee, the Depositor or the Certificate
Registrar that such Certificate has been acquired by a bona fide purchaser,
the
Securities Administrator shall execute on behalf of the Trust Fund and the
Certificate Registrar shall authenticate and deliver, in exchange for or
in lieu
of any such mutilated, destroyed, lost or stolen Certificate, a new Certificate
of like tenor and Percentage Interest. Upon the issuance of any new Certificate
under this Section, the Trustee, the Depositor or the Certificate Registrar
may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Depositor and the Certificate Registrar) in
connection therewith. Any duplicate Certificate issued pursuant to this Section,
shall constitute complete and indefeasible evidence of ownership in the Trust
Fund, as if originally issued, whether or not the lost, stolen or destroyed
Certificate shall be found at any time.
SECTION
6.04. Persons Deemed Owners.
The
Depositor, the Trustee, the Certificate Registrar, the Paying Agent and any
agent of the Depositor, the Trustee, the Certificate Registrar or the Paying
Agent may treat the Person, including a Depository, in whose name any
Certificate is registered as the owner of such Certificate for the purpose
of
receiving distributions pursuant to Section 5.01 hereof and for all other
purposes whatsoever, and none of the Trust Fund, the Depositor, the Trustee,
the
Certificate Registrar, the Paying Agent or any agent of any of them shall
be
affected by notice to the contrary.
SECTION
6.05. Appointment of Paying Agent.
(a) The
Trustee may appoint a Paying Agent (which may be the Trustee) for the purpose
of
making distributions to Certificateholders hereunder. The Trustee hereby
appoints the Securities Administrator as the initial Paying Agent. The duties
of
the Paying Agent may include the obligation (i) to withdraw funds from the
Distribution Account pursuant to Section 4.03 hereof and (ii) to distribute
statements and provide information to Certificateholders as required hereunder.
The Paying Agent hereunder shall at all times be an entity duly incorporated
and
validly existing under the laws of the United States of America or any state
thereof, authorized under such laws to exercise corporate trust powers and
subject to supervision or examination by federal or state authorities.
(b) The
Securities Administrator, as Paying Agent, shall hold all sums, if any, held
by
it for payment to the Certificateholders in trust for the benefit of the
Certificateholders entitled thereto until such sums shall be paid to such
Certificateholders and shall comply with all requirements of the Code regarding
the withholding of payments in respect of federal income taxes due from
Certificate Owners and otherwise comply with the provisions of this Agreement
applicable to it.
129
ARTICLE
VII
DEFAULT
SECTION
7.01. Events of Default.
(a) If
any
one of the following events (each, an “Event
of Default”)
shall
occur and be continuing:
(i) the
failure by the Master Servicer to (A) make any Advance on the Business Day
immediately preceding the related Distribution Date or (B) to deposit in
the
Distribution Account any deposit required to be made under the terms of this
Agreement, and in either case such failure continues unremedied for a period
of
one Business Day after the date upon which written notice of such failure,
requiring the same to be remedied, shall have been given to the Master Servicer
(or, if applicable, such shorter time period as is provided in the penultimate
sentence of Section 7.01(c)); or
(ii) the
failure by the Master Servicer duly to observe or perform, in any material
respect, any other covenants, obligations or agreements of the Master Servicer
as set forth in this Agreement, which failure continues unremedied for a
period
of 60 days, in each case after the date (A) on which written notice of such
failure, requiring the same to be remedied, shall have been given to the
Master
Servicer by the Trustee or to the Master Servicer and the Trustee by Holders
of
Certificates evidencing at least 25% of the Voting Rights or (B) on which
a
Servicing Officer of the Master Servicer has actual knowledge of such failure
(or, in the case of a breach of its obligation beyond any applicable cure
period
to provide an assessment of compliance, an attestation report or a
Xxxxxxxx-Xxxxx Certification pursuant to Sections 3.16 and 3.19, respectively);
or
(iii) the
entry
against the Master Servicer of a decree or order by a court or agency or
supervisory authority having jurisdiction in the premises for the appointment
of
a trustee, conservator, receiver or liquidator in any insolvency,
conservatorship, receivership, readjustment of debt, marshalling of assets
and
liabilities or similar proceedings, or for the winding up or liquidation
of its
affairs, and the continuance of any such decree or order unstayed and in
effect
for a period of 60 days; or
(iv) the
Master Servicer shall voluntarily go into liquidation, consent to the
appointment of a conservator or receiver or liquidator or similar person
in any
insolvency, readjustment of debt, marshalling of assets and liabilities or
similar proceedings of or relating to the Master Servicer or of or relating
to
all or substantially all of its property; or a decree or order of a court
or
agency or supervisory authority having jurisdiction in the premises for the
appointment of a conservator, receiver, liquidator or similar person in any
insolvency, readjustment of debt, marshalling of assets and liabilities or
similar proceedings, or for the winding-up or liquidation of its affairs,
shall
have been entered against the Master Servicer and such decree or order shall
have remained in force undischarged, unbonded or unstayed for a period of
60
days; or the Master Servicer shall admit in writing its inability to pay
its
debts generally as they become due, file a petition to take advantage of
any
applicable insolvency or reorganization statute, make an assignment for the
benefit of its creditors or voluntarily suspend payment of its
obligations;
130
(b) then,
and
in each and every such case, so long as an Event of Default shall not have
been
remedied within the applicable grace period, the Trustee shall, at the written
direction of the Holders of Certificates evidencing Voting Rights aggregating
not less than 51%, or at its option may, by notice then given in writing
to the
Master Servicer, terminate all of the rights and obligations of the Master
Servicer as servicer under this Agreement. Any such notice to the Master
Servicer shall also be given to each Rating Agency, the Depositor and the
Seller. On or after the receipt by the Master Servicer (and by the Trustee
if
such notice is given by the Holders) of such written notice, all authority
and
power of the Master Servicer under this Agreement, whether with respect to
the
Certificates or the Mortgage Loans or otherwise, shall pass to and be vested
in
the Trustee and the Trustee is hereby authorized and empowered to execute
and
deliver, on behalf of the Master Servicer, as attorney-in-fact or otherwise,
any
and all documents and other instruments, and to do or accomplish all other
acts
or things necessary or appropriate to effect the purposes of such notice
of
termination, whether to complete the transfer and endorsement of each Mortgage
Loan and related documents or otherwise. The Master Servicer agrees to cooperate
with the Trustee in effecting the termination of the responsibilities and
rights
of the Master Servicer hereunder, including, without limitation, the delivery
to
the Trustee of all documents and records requested by it to enable it to
assume
the Master Servicer's functions under this Agreement within ten Business
Days
subsequent to such notice and the transfer within one Business Day subsequent
to
such notice to the Trustee for the administration by it of all cash amounts
that
shall at the time be held by the Master Servicer and to be deposited by it
in
the Distribution Account, any REO Account or any Servicing Account or that
have
been deposited by the Master Servicer in such accounts or thereafter received
by
the Master Servicer with respect to the Mortgage Loans or any REO Property
received by the Master Servicer. All reasonable costs and expenses (including
attorneys' fees) incurred in connection with transferring the Master Servicer's
duties and the Mortgage Files to the successor Master Servicer and amending
this
Agreement to reflect such succession as Master Servicer pursuant to this
Section
shall be paid by the predecessor Master Servicer (or if the predecessor Master
Servicer is the Trustee, the terminated Master Servicer) upon presentation
of
reasonable documentation of such costs and expenses. The termination of the
rights and obligations of the Master Servicer shall not affect any liability
it
may have incurred prior to such termination. To the extent that such costs
and
expenses of the Trustee are not fully and timely reimbursed by the predecessor
Master Servicer, the Trustee shall be entitled to reimbursement of such costs
and expenses from the Distribution Account.
131
(c) The
Securities Administrator shall not later than the close of business on the
Business Day immediately preceding the related Distribution Date notify the
Trustee in writing of the Master Servicer’s failure to make any Advance required
to be made under this Agreement on such date and the amount of such Advance.
By
no later than 10:00 A.M. (Chicago time) on the relevant Distribution Date,
the
Securities Administrator shall notify the Trustee of the continuance of such
failure or that the Master Servicer has made the Advance, as the case may
be.
Notwithstanding the terms of the Event of Default described in clause (i)
of
Section 7.01(a), the Trustee, upon receipt of written notice on the Distribution
Date from the Securities Administrator of the continuance of the failure
of the
Master Servicer to make an Advance or deposit funds to the Distribution Account,
shall, by notice in writing to the Master Servicer, which may be delivered
by
telecopy, immediately suspend all of the rights and obligations of the Master
Servicer thereafter arising under this Agreement, but without prejudice to
any
rights it may have as a Certificateholder or to reimbursement of outstanding
Advances or other amounts for which the Master Servicer was entitled to
reimbursement as of the date of suspension, and the Trustee, subject to the
cure
provided for in this paragraph, if available, shall act as provided in Section
7.02 to carry out the duties of the Master Servicer, including the obligation
to
make any Advance the nonpayment of which is described in clause (i)(A) of
Section 7.01(a). Any such action taken by the Trustee must be prior to the
distribution on the relevant Distribution Date, and shall have all of the
rights
incidental thereto. If the Master Servicer shall within two Business Days
following such suspension remit to the Trustee the amount of any Advance
the
nonpayment of which by the Master Servicer is described in clause (i)(A)
of
Section 7.01(a), together with all other amounts necessary to reimburse the
Trustee for actual, necessary and reasonable costs incurred by the Trustee
because of action taken pursuant to this subsection (including interest on
any
Advance or other amounts paid by the Trustee (from and including the respective
dates thereof) at a per annum rate equal to the prime rate for U.S. money
center
commercial banks as published in the Wall Street Journal), then the Trustee,
subject to the last two sentences of this paragraph, may at its sole discretion
permit the Master Servicer to resume its rights and obligations as Master
Servicer hereunder. If the Master Servicer shall fail to remit such amounts
to
the Trustee within such two Business Days after the Distribution Date, then
an
Event of Default shall occur and such notice of suspension shall be deemed
to be
a notice of termination without any further action on the part of the Trustee.
The Master Servicer agrees that if it fails to make a required Advance by
10:00
A.M. (Chicago time) on the related Distribution Date on more than two occasions
in any 12 month period, the Trustee shall be under no obligation to permit
the
Master Servicer to resume its rights and obligations as Master Servicer
hereunder, and notwithstanding the cure period provided in Section
7.01(a)(i)(A), an Event of Default shall be deemed to have occurred on the
relevant Distribution Date.
SECTION
7.02. Trustee to Act.
(a) From
and
after the date the Master Servicer (and the Trustee, if notice is sent by
the
Holders) receives a notice of termination pursuant to Section 7.01, the Trustee
shall be the successor in all respects to the Master Servicer in its capacity
as
servicer under this Agreement and the transactions set forth or provided
for
herein and shall be subject to all the responsibilities, duties and liabilities
relating thereto placed on the Master Servicer by the terms and provisions
hereof arising on and after its succession, including the obligation to make
Advances. As compensation therefor, the Trustee shall be entitled to such
compensation as the Master Servicer would have been entitled to hereunder
if no
such notice of termination had been given. Notwithstanding the above, (i)
if the
Trustee is unwilling to act as successor Master Servicer or (ii) if the Trustee
is legally unable so to act, the Trustee shall appoint or petition a court
of
competent jurisdiction to appoint, any established housing and home finance
institution, bank or other mortgage loan or home equity loan servicer having
a
net worth of not less than $15,000,000 as the successor to the Master Servicer
hereunder in the assumption of all or any part of the responsibilities, duties
or liabilities of the Master Servicer hereunder; provided
that the
appointment of any such successor Master Servicer shall not result in the
qualification, reduction or withdrawal of the ratings assigned to the
Certificates by each Rating Agency as evidenced by a letter to such effect
from
each Rating Agency. Pending appointment of a successor to the Master Servicer
hereunder, unless the Trustee is prohibited by law from so acting, the Trustee
shall act in such capacity as hereinabove provided. In connection with such
appointment and assumption, the successor shall be entitled to receive
compensation out of payments on Mortgage Loans in an amount equal to the
compensation which the Master Servicer would otherwise have received hereunder.
The appointment of a successor Master Servicer shall not affect any liability
of
the predecessor Master Servicer which may have arisen under this Agreement
prior
to its termination as Master Servicer to pay any deductible under an insurance
policy pursuant to Section 3.09 or to indemnify the Trustee pursuant to Section
3.30), nor shall any successor Master Servicer be liable for any acts or
omissions of the predecessor Master Servicer (except with respect to the
making
of Advances the defaulting Master Servicer was required to make but did not
make) or for any breach by such Master Servicer of any of its representations
or
warranties contained herein or in any related document or agreement. The
Trustee
and such successor shall take such action, consistent with this Agreement,
as
shall be necessary to effectuate any such succession.
132
(b) Any
successor, including the Trustee, to the Master Servicer as Master Servicer
shall during the term of its service as Master Servicer continue to service
and
administer the Mortgage Loans for the benefit of Certificateholders, and
maintain in force a policy or policies of insurance covering errors and
omissions in the performance of its obligations as Master Servicer hereunder
and
a Fidelity Bond in respect of its officers, employees and agents to the same
extent as the Master Servicer is so required pursuant to Section 3.04.
(c) Notwithstanding
anything else herein to the contrary, in no event shall the Trustee be liable
for any servicing fee or for any differential in the amount of the servicing
fee
paid hereunder and the amount necessary to induce any successor Master Servicer
to act as successor Master Servicer under this Agreement and the transactions
set forth or provided for herein.
SECTION
7.03. Waiver of Event of Default.
The
Majority Certificateholders may, on behalf of all Certificateholders, by
notice
in writing to the Trustee, direct the Trustee to waive any events permitting
removal of the Master Servicer under this Agreement, provided,
however,
that
the Majority Certificateholders may not waive an event that results in a
failure
to make any required distribution on a Certificate without the consent of
the
Holder of such Certificate. Upon any waiver of an Event of Default, such
event
shall cease to exist and any Event of Default arising therefrom shall be
deemed
to have been remedied for every purpose of this Agreement. No such waiver
shall
extend to any subsequent or other event or impair any right consequent thereto
except to the extent expressly so waived. Notice of any such waiver shall
be
given by the Trustee to each Rating Agency.
133
SECTION
7.04. Notification to Certificateholders.
(a) Upon
any
termination or appointment of a successor to the Master Servicer pursuant
to
this Article VII or Section 3.31, the Trustee shall give prompt written notice
thereof to the Securities Administrator, to each Rating Agency and to the
Certificateholders at their respective addresses appearing in the Certificate
Register.
(b) No
later
than 60 days after the occurrence of any event which constitutes or which,
with
notice or a lapse of time or both, would constitute an Event of Default of
which
a Responsible Officer of the Trustee becomes aware of the occurrence of such
an
event, the Trustee shall transmit by mail to all Certificateholders notice
of
such occurrence unless such Event of Default shall have been waived or
cured.
ARTICLE
VIII
THE
TRUSTEE AND THE SECURITIES ADMINISTRATOR
SECTION
8.01. Duties
of the Trustee and the Securities Administrator
The
Trustee, prior to the occurrence of an Event of Default and after the curing
or
waiver of all Events of Default which may have occurred, and the Securities
Administrator each undertake to perform such duties and only such duties
as are
specifically set forth in this Agreement. If an Event of Default has occurred
(which has not been cured or waived) of which a Responsible Officer has actual
knowledge, the Trustee shall exercise such of the rights and powers vested
in it
by this Agreement, and use the same degree of care and skill in their exercise,
as a prudent man would exercise or use under the circumstances in the conduct
of
his own affairs, unless the Trustee is acting as successor Master Servicer,
in
which case it shall use the same degree of care and skill as the Master Servicer
hereunder with respect to the exercise of the rights and powers of the Master
Servicer hereunder.
The
Trustee and the Securities Administrator, upon receipt of all resolutions,
certificates, statements, opinions, reports, documents, orders or other
instruments furnished to the Trustee and the Securities Administrator, which
are
specifically required to be furnished pursuant to any provision of this
Agreement, shall examine them to determine whether they conform to the
requirements of this Agreement; provided,
however,
that
neither the Trustee nor the Securities Administrator will be responsible
for the
accuracy or content of any such resolutions, certificates, statements, opinions,
reports, documents or other instruments. If any such instrument is found
not to
conform to the requirements of this Agreement in a material manner the Trustee
and the Securities Administrator shall take such action as it deems appropriate
to have the instrument corrected. If the instrument is not corrected to the
satisfaction of the Trustee or the Securities Administrator, as applicable,
the
Trustee or the Securities Administrator, as applicable, shall provide notice
thereof to the Certificateholders and will, at the expense of the Trust Fund,
which expense shall be reasonable given the scope and nature of the required
action, take such further action as directed by the Certificateholders.
134
On
each
Distribution Date, the Securities Administrator, as Paying Agent, shall make
monthly distributions and the final distribution to the Certificateholders
from
funds in the Distribution Account as provided in Sections 5.01 and 10.01
herein.
No
provision of this Agreement shall be construed to relieve the Trustee or
the
Securities Administrator from liability for its own negligent action, its
own
negligent failure to act or its own willful misconduct; provided,
however,
that:
(i) prior
to
the occurrence of an Event of Default, and after the curing of all such Events
of Default which may have occurred, the duties and obligations of the Trustee
and the Securities Administrator shall be determined solely by the express
provisions of this Agreement, neither the Trustee nor the Securities
Administrator shall be liable except for the performance of such of its duties
and obligations as are specifically set forth in this Agreement, no implied
covenants or obligations shall be read into this Agreement against the Trustee
or the Securities Administrator and, in the absence of bad faith on the part
of
the Trustee or the Securities Administrator, respectively, the Trustee or
the
Securities Administrator may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Trustee or the Securities
Administrator, respectively, and conforming to the requirements of this
Agreement;
(ii) neither
the Trustee nor the Securities Administrator shall be liable for an error
of
judgment made in good faith by a Responsible Officer of the Trustee or an
officer of the Securities Administrator, respectively, unless it shall be
proved
that the Trustee or the Securities Administrator, respectively, was negligent
in
ascertaining or investigating the facts related thereto;
(iii) neither
the Trustee nor the Securities Administrator shall be personally liable with
respect to any action taken, suffered or omitted to be taken by it in good
faith
in accordance with the consent or at the direction of Holders of Certificates
as
provided herein relating to the time, method and place of conducting any
remedy
pursuant to this Agreement, or exercising or omitting to exercise any trust
or
power conferred upon the Trustee or the Securities Administrator, respectively,
under this Agreement; and
(iv) the
Trustee shall not be charged with knowledge of any Event of Default or a
Document Transfer Event or any other event or matter that may require it
to take
action or omit to take action hereunder unless a Responsible Officer of the
Trustee at the Corporate Trust Office receives written notice of such Event
of
Default or Document Transfer Event.
Neither
the Trustee nor the Securities Administrator shall be required to expend
or risk
its own funds or otherwise incur financial or other liability in the performance
of any of its duties hereunder, or in the exercise of any of its rights or
powers, if there is reasonable ground for believing that the repayment of
such
funds or indemnity satisfactory to it against such risk or liability is not
assured to it, and none of the provisions contained in this Agreement shall
in
any event require the Trustee or the Securities Administrator to perform,
or be
responsible for the manner of performance of, any of the obligations of the
Master Servicer under this Agreement, except during such time, if any, as
the
Trustee shall be the successor to, and be vested with the rights, duties,
powers
and privileges of, the Master Servicer in accordance with the terms of this
Agreement.
135
SECTION
8.02. Certain Matters Affecting the Trustee and the Securities
Administrator.
Except
as
otherwise provided in Section 8.01 hereof:
(i) the
Trustee and the Securities Administrator may request and conclusively rely
upon,
and shall be fully protected in acting or refraining from acting upon, any
resolution, Officers’ Certificate, certificate of auditors or any other
certificate, statement, instrument, opinion, report, notice, request, consent,
order, appraisal, bond or other paper or document reasonably believed by
it to
be genuine and to have been signed or presented by the proper party or parties,
and the manner of obtaining consents and of evidencing the authorization
of the
execution thereof by Certificateholders shall be subject to such reasonable
regulations as the Trustee and the Securities Administrator may
prescribe;
(ii) the
Trustee and the Securities Administrator may consult with counsel and any
advice
of its counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or suffered or
omitted by it hereunder in good faith and in accordance with such advice
or
Opinion of Counsel;
(iii) neither
the Trustee nor the Securities Administrator shall be under any obligation
to
exercise any of the rights or powers vested in it by this Agreement, or to
institute, conduct or defend any litigation hereunder or in relation hereto,
at
the request, order or direction of any of the Certificateholders pursuant
to the
provisions of this Agreement, unless such Certificateholders shall have offered
to the Trustee or the Securities Administrator, respectively, reasonable
security or indemnity satisfactory to it against the costs, expenses and
liabilities which may be incurred therein or thereby; the right of the Trustee
to perform any discretionary act enumerated in this Agreement shall not be
construed as a duty, and the Trustee shall not be answerable for other than
its
negligence or willful misconduct in the performance of any such
act;
(iv) neither
the Trustee nor the Securities Administrator shall be personally liable for
any
action taken, suffered or omitted by it in good faith and believed by it
to be
authorized or within the discretion or rights or powers conferred upon it
by
this Agreement;
(v) neither
the Securities Administrator nor, prior to the occurrence of an Event of
Default
and after the curing or waiver of all Events of Default which may have occurred,
the Trustee shall be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion, report,
notice, request, consent, order, approval, bond or other paper or documents,
unless requested in writing to do so by the Majority Certificateholder;
provided,
however,
that if
the payment within a reasonable time to the Trustee or the Securities
Administrator of the costs, expenses or liabilities likely to be incurred
by it
in the making of such investigation is, in the opinion of the Trustee or
the
Securities Administrator, as applicable, not reasonably assured to the Trustee
or the Securities Administrator by the security afforded to it by the terms
of
this Agreement, the Trustee or the Securities Administrator, as applicable,
may
require reasonable indemnity against such cost, expense, liability or payment
of
such estimated expenses from the Certificateholders as a condition to such
proceeding. If the Master Servicer fails to reimburse the Trustee or the
Securities Administrator in respect of the reasonable expense of every such
examination relating to the Master Servicer, the Trustee or the Securities
Administrator shall be reimbursed by the Trust Fund;
136
(vi) the
Trustee shall not be accountable, shall have no liability and makes no
representation as to any acts or omissions hereunder of the Securities
Administrator or the Master Servicer until such time as the Trustee may be
required to act as the Master Servicer pursuant to Section 7.02 hereof and
thereupon only for the acts or omissions of the Trustee as a successor Master
Servicer;
(vii) the
Trustee and the Securities Administrator may execute any of the trusts or
powers
hereunder or perform any duties hereunder either directly or by or through
agents, nominees, attorneys or a custodian, and shall not be responsible
for any
willful misconduct or negligence on the part of any agent, nominee, attorney
or
custodian appointed by the Trustee or the Securities Administrator in good
faith;
(viii) the
right
of the Trustee or the Securities Administrator to perform any discretionary
act
enumerated in this Agreement shall not be construed as a duty, and neither
the
Trustee nor the Securities Administrator shall be answerable for other than
its
negligence or willful misconduct in the performance of such act;
and
(ix) in
order
to comply with laws, rules, regulations and executive orders in effect from
time
to time applicable to the banking institutions, including those relating
to the
funding of terrorism and money laundering (“Applicable Law”), the Trustee and
the Securities Administrator are required to obtain, verify and record certain
information relating to certain individuals and certain entities which maintain
a business relationship with the Trustee and the Securities Administrator.
Accordingly, each of the parties agrees to provide the Trustee and the
Securities Administrator upon its request from time to time such identifying
information and documentation as may be available for such party in order
to
enable the Trustee and the Securities Administrator to comply with Applicable
Law.
It
is
expressly understood and agreed that the Trustee shall be entitled to all
the
rights, protections, immunities and indemnities set forth herein with respect
to
the Reconstitution Agreements and the Servicing Agreements, as well as any
actions taken or omitted by the Trustee pursuant to the terms thereof, as
if
such rights, protections, immunities and indemnities were specifically set
forth
therein.
SECTION
8.03. Trustee
and the Securities Administrator Not Liable for Certificates or Mortgage
Loans.
The
recitals contained herein and in the Certificates (other than the authentication
of the Securities Administrator on the Certificates) shall be taken as the
statements of the Depositor or the Seller, and neither the Trustee nor the
Securities Administrator assumes responsibility for the correctness of the
same.
Neither the Trustee nor the Securities Administrator makes representations
or
warranties as to the validity or sufficiency of this Agreement or of the
Certificates (other than with respect to the Securities Administrator the
signature and authentication of the Securities Administrator on the
Certificates) or of any Mortgage Loan or related document or of MERS or the
MERS
System. The Trustee shall not be accountable for the use or application by
the
Master Servicer or the Securities Administrator, or for the use or application
of any funds paid to the Master Servicer in respect of related Mortgage Loans
or
deposited in or withdrawn from the Distribution Account by the Master Servicer
or the Securities Administrator. Neither the Trustee nor the Securities
Administrator shall at any time have any responsibility or liability for
or with
respect to the legality, validity and enforceability of any Mortgage or any
Mortgage Loan, or the perfection and priority of any Mortgage or the maintenance
of any such perfection and priority, or for or with respect to the sufficiency
of the Trust Fund or its ability to generate the payments to be distributed
to
Certificateholders under this Agreement, including, without limitation: the
existence, condition and ownership of any Mortgaged Property; the existence
and
enforceability of any hazard insurance thereon (other than if the Trustee
shall
assume the duties of the Master Servicer pursuant to Section 7.02 hereof);
the
validity of the assignment of any Mortgage Loan to the Trustee or of any
intervening assignment; the completeness of any Mortgage Loan; the performance
or enforcement of any Mortgage Loan (other than if the Trustee shall assume
the
duties of the Master Servicer pursuant to Section 7.02 hereof); the compliance
by the Depositor or the Seller with any warranty or representation made under
this Agreement or in any related document or the accuracy of any such warranty
or representation prior to the Trustee’s receipt of notice or other discovery of
any non-compliance therewith or any breach thereof; any investment of monies
by
or at the direction of the Master Servicer or any loss resulting therefrom,
it
being understood that the Trustee shall remain responsible for any Trust
Fund
property that it may hold in its individual capacity and the Securities
Administrator shall remain responsible for any Trust Fund property that it
may
hold in its individual capacity; the acts or omissions of the Master Servicer
(other than as to the Securities Administrator, if it is also the Master
Servicer, and as to the Trustee, if the Trustee shall assume the duties of the
Master Servicer pursuant to Section 7.02 hereof, and then only for the acts
or
omissions of the Trustee as the successor Master Servicer), or any acts or
omissions of, the Servicer or any Mortgagor; any action of the Master Servicer
(other than as to the Securities Administrator, if it is the Master Servicer,
and as to the Trustee, if the Trustee shall assume the duties of the Master
Servicer pursuant to Section 7.02 hereof), or in the case of the Trustee
the
Securities Administrator or the Servicer taken in the name of the Trustee;
the
failure of the Master Servicer or the Servicer to act or perform any duties
required of it as agent or on behalf of the Trustee or the Trust Fund hereunder;
or any action by the Trustee taken at the instruction of the Master Servicer
(other than if the Trustee shall assume the duties of the Master Servicer
pursuant to Section 7.02 hereof, and then only for the actions of the Trustee
as
the successor Master Servicer); provided,
however,
that
the foregoing shall not relieve the Trustee of its obligation to perform
its
duties under this Agreement, including, without limitation, the Trustee’s duty
to review the Mortgage Files, if so required pursuant to Section 2.01 of
this
Agreement.
137
SECTION
8.04. Trustee,
Custodian, Master Servicer and Securities Administrator May Own
Certificates.
The
Trustee, the Custodians, the Master Servicer and the Securities Administrator
in
their respective individual capacities, or in any capacity other than as
Trustee, Custodian, Master Servicer or Securities Administrator hereunder,
may
become the owner or pledgee of any Certificates with the same rights they
would
have if they were not Trustee, a Custodian, Master Servicer or Securities
Administrator, as applicable, and may otherwise deal with the parties
hereto.
138
SECTION
8.05. Trustee’s and Securities Administrator’s Fees and Expenses.
The
Trustee (including in its capacity as a Custodian) shall be compensated by
the
Master Servicer out of its own funds for the Trustee’s services hereunder on
behalf of the Trust Fund in the amount agreed upon by the Master Servicer
and
the Trustee. The Securities Administrator shall be compensated by the Master
Servicer out of its own funds for the Securities Administrator’s services
hereunder. In addition, the Trustee and the Securities Administrator will
be
entitled to recover from the Distribution Account pursuant to Section 4.03(a)
all reasonable out-of-pocket expenses, disbursements and advances and the
expenses of the Trustee (including for such purpose, any fees and expenses
relating to its capacity as a Custodian hereunder) and the Securities
Administrator, respectively, including without limitation, in connection
with
any filing that the Securities Administrator is required to make under Section
3.20 hereof, any Event of Default, any breach of this Agreement or any claim
or
legal action (including any pending or threatened claim or legal action)
incurred or made by the Trustee or the Securities Administrator, respectively,
in the performance of its duties or the administration of the trusts hereunder
(including, but not limited to, the performance of its duties under Section
2.03
hereof) (including the reasonable compensation, expenses and disbursements
of
its counsel), except any such expense, disbursement or advance as may arise
from
its negligence or intentional misconduct or which is specifically designated
herein as the responsibility of the Depositor, the Seller, the Master Servicer,
the Certificateholders or the Trust Fund hereunder or thereunder. If funds
in
the Distribution Account are insufficient therefor, the Trustee, the Custodians
and the Securities Administrator shall recover such expenses from future
collections on the Mortgage Loans or as otherwise agreed by the
Certificateholders. Such compensation and reimbursement obligation shall
not be
limited by any provision of law in regard to the compensation of a trustee
of an
express trust.
SECTION
8.06. Eligibility Requirements for Trustee and Securities
Administrator.
The
Trustee and Securities Administrator hereunder shall at all times (i) be
an
institution whose accounts are insured by the FDIC, (ii) be an entity duly
organized and validly existing under the laws of the United States of America
or
any state thereof, authorized under such laws to exercise corporate trust
powers, each having a combined capital and surplus of at least $50,000,000
and
(except with respect to the initial Trustee) a minimum long-term debt rating
in
the third highest rating category by each Rating Agency and in each Rating
Agency’s two highest short-term rating categories, and subject to supervision or
examination by federal or state authority and (iii) in the case of the Trustee,
not be an Affiliate of any Servicer. If such entity publishes reports of
condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section 8.06, the combined capital and surplus of such entity shall be deemed
to
be its combined capital and surplus as set forth in its most recent report
of
condition so published. The principal office of the Trustee (other than the
initial Trustee) shall be in a state with respect to which an Opinion of
Counsel
has been delivered to such Trustee at the time such Trustee is appointed
Trustee
to the effect that the Trust Fund will not be a taxable entity under the
laws of
such state. In case at any time the Trustee or the Securities Administrator
shall cease to be eligible in accordance with the provisions of this Section
8.06, the Trustee or the Securities Administrator, as applicable shall resign
immediately in the manner and with the effect specified in Section 8.07
hereof.
139
SECTION
8.07. Resignation or Removal of Trustee and Securities
Administrator.
The
Trustee and Securities Administrator (including the Securities Administrator
as
Certificate Registrar) may at any time resign and be discharged from the
obligations hereby created by giving written notice thereof to the Depositor,
the Seller, the Master Servicer and each Rating Agency. Upon receiving such
notice of resignation of the Trustee, the Depositor shall promptly appoint
a
successor Trustee that meets the requirements in Section 8.06; in the case
of
notice of resignation of the Securities Administrator, the Trustee (in
consultation with the Depositor) shall promptly appoint a successor Securities
Administrator that meets the requirements in Section 8.06, in each case,
by
written instrument, with a copy of such written instrument delivered to (i)
each
of the resigning Trustee or Securities Administrator, as applicable and (ii)
the
successor Trustee or successor Securities Administrator, as applicable. If
no
successor Trustee or successor Securities Administrator, as applicable, shall
have been so appointed and having accepted appointment within 30 days after
the
giving of such notice of resignation, the resigning Trustee or Securities
Administrator may petition any court of competent jurisdiction for the
appointment of a successor Trustee or Securities Administrator, as
applicable.
If
at any
time the Trustee or the Securities Administrator (a) shall cease to be eligible
in accordance with the provisions of Section 8.06 hereof and shall fail to
resign after written request therefor by the Depositor or if at any time
the
Trustee or the Securities Administrator, (b) shall be legally unable to act,
or
shall be adjudged a bankrupt or insolvent, or a receiver of the Trustee or
the
Securities Administrator, as applicable, or of its property shall be appointed,
or any public officer shall take charge or control of the Trustee or the
Securities Administrator, as applicable, or of its property or affairs for
the
purpose of rehabilitation, conservation or liquidation, or (iii) if the Trustee
(in its capacity as a Custodian) or the Securities Administrator fails to
provide an assessment of compliance or an attestation report required under
Section 3.16 within 15 calendar days of March 1 of each calendar year in
which
Exchange Act reports are required or (d) shall fail to file any Form 10-D
or
Form 10-K when due pursuant to Section 3.20 hereof (other than as a result
of
the failure of the Depositor to sign and return to the Trustee such Form
10-D or
Form 10-K within the time limitations of Section 3.20 or any other party
to
deliver information in a timely manner as set forth in Section 3.20) then
the
Depositor may remove the Trustee or the Trustee may remove the Securities
Administrator, as applicable. If the Depositor or the Trustee removes the
Trustee or the Securities Administrator, respectively under the authority
of the
immediately preceding sentence, the Depositor or the Trustee shall promptly
appoint a successor Trustee or successor Securities Administrator, in each
case
that meets the requirements of Section 8.06, by written instrument, with
a copy
of such written instrument delivered to (i) the Trustee or the Securities
Administrator, as applicable, so removed, (ii) the successor Trustee or
successor Securities Administrator, as applicable and (iii) the Master
Servicer.
140
The
Majority Certificateholders may at any time remove the Trustee or the Securities
Administrator by written instrument or instruments delivered to the Depositor
and the Trustee; the Depositor or the Trustee shall thereupon use its best
efforts to appoint a successor Trustee or successor Securities Administrator,
as
applicable, in accordance with this Section.
Any
resignation or removal of the Trustee or the Securities Administrator and
appointment of a successor Trustee or a successor Securities Administrator,
pursuant to any of the provisions of this Section 8.07 shall not become
effective until acceptance of appointment by the successor Trustee or a
successor Securities Administrator, as applicable, as provided in Section
8.08
hereof. If the Trustee or the Securities Administrator is removed pursuant
to
this Section 8.07, it shall be reimbursed any outstanding and unpaid fees
and
expenses, and if removed under the authority of the immediately preceding
paragraph, the Trustee or the Securities Administrator shall also be reimbursed
any outstanding and unpaid costs and expenses.
Notwithstanding
anything to the contrary contained herein, in the event that the Master Servicer
resigns or is removed as Master Servicer hereunder, the Securities Administrator
shall have the right to resign immediately as Securities Administrator by
giving
written notice to the Depositor and the Trustee, with a copy to each Rating
Agency.
SECTION
8.08. Successor Trustee and Successor Securities Administrator.
Any
successor Trustee or successor Securities Administrator appointed as provided
in
Section 8.07 hereof shall execute, acknowledge and deliver to the Depositor,
the
Seller and the Master Servicer and to its predecessor Trustee or predecessor
Securities Administrator, as applicable, an instrument accepting such
appointment hereunder, and thereupon the resignation or removal of the
predecessor Trustee or predecessor Securities Administrator, as applicable,
shall become effective, and such successor Trustee or successor Securities
Administrator, without any further act, deed or conveyance, shall become
fully
vested with all the rights, powers, duties and obligations of its predecessor
hereunder, with like effect as if originally named as Trustee or Securities
Administrator. The Depositor, the Seller, the Master Servicer and the
predecessor Trustee or predecessor Securities Administrator, as applicable,
shall execute and deliver such instruments and do such other things as may
reasonably be required for fully and certainly vesting and confirming in
the
successor Trustee or successor Securities Administrator, as applicable, all
such
rights, powers, duties and obligations.
No
successor Trustee or successor Securities Administrator shall accept appointment
as provided in this Section 8.08 unless at the time of such acceptance such
successor Trustee or successor Securities Administrator shall be eligible
under
the provisions of Section 8.06 hereof and the appointment of such successor
Trustee or successor Securities Administrator shall not result in a downgrading
of the Senior Certificates by each Rating Agency, as evidenced by a letter
from
each Rating Agency.
Upon
acceptance of appointment by a successor Trustee or successor Securities
Administrator, as applicable, as provided in this Section 8.08, the successor
Trustee or successor Securities Administrator shall mail notice of such
appointment of a successor Trustee or Securities Administrator hereunder
to all
Holders of Certificates at their addresses as shown in the Certificate Register
and to each Rating Agency.
141
SECTION
8.09. Merger or Consolidation of Trustee or Securities
Administrator.
Any
entity into which the Trustee or the Securities Administrator may be merged
or
converted or with which it may be consolidated, or any entity resulting from
any
merger, conversion or consolidation to which the Trustee or the Securities
Administrator shall be a party, or any entity succeeding to the corporate
trust
business of the Trustee or the Securities Administrator, shall be the successor
of the Trustee or the Securities Administrator, as applicable, hereunder,
provided
such
entity shall be eligible under the provisions of Section 8.06 and 8.08 hereof,
without the execution or filing of any paper or any further act on the part
of
any of the parties hereto, anything herein to the contrary
notwithstanding.
SECTION
8.10. Appointment of Co-Trustee or Separate Trustee.
Notwithstanding
any other provisions of this Agreement, at any time, for the purpose of meeting
any legal requirements of any jurisdiction in which any part of the Trust
Fund
or any Mortgaged Property may at the time be located, the Depositor and the
Trustee acting jointly shall have the power, and the Trustee shall, and shall
instruct the Depositor to, at the expense of the Trust Fund, execute and
deliver
all instruments to appoint one or more Persons, approved by the Trustee to
act
as co-trustee or co-trustees, jointly with the Trustee, or separate trustee
or
separate trustees, of all or any part of the Trust Fund, and to vest in such
Person or Persons, in such capacity and for the benefit of the
Certificateholders, such title to the Trust Fund, or any part thereof, and,
subject to the other provisions of this Section 8.10, such powers, duties,
obligations, rights and trusts as the Master Servicer and the Trustee may
consider necessary or desirable. No co-trustee or separate trustee hereunder
shall be required to meet the terms of eligibility as a successor Trustee
under
Section 8.06 hereof, and no notice to Certificateholders of the appointment
of
any co-trustee or separate trustee shall be required under Section 8.08
hereof.
Every
separate trustee and co-trustee shall, to the extent permitted by law, be
appointed and act subject to the following provisions and
conditions:
(i) all
rights, powers, duties and obligations conferred or imposed upon the Trustee
shall be conferred or imposed upon and exercised or performed by the Trustee
and
such separate trustee or co-trustee jointly (it being understood that such
separate trustee or co-trustee is not authorized to act separately without
the
Trustee joining in such act), except to the extent that under any law of
any
jurisdiction in which any particular act or acts are to be performed (whether
as
Trustee hereunder or as successor to the Master Servicer hereunder), the
Trustee
shall be incompetent or unqualified to perform such act or acts, in which
event
such rights, powers, duties and obligations (including the holding of title
to
the Trust Fund or any portion thereof in any such jurisdiction) shall be
exercised and performed singly by such separate trustee or co-trustee, but
solely at the direction of the Trustee;
(ii) no
trustee hereunder shall be held personally liable by reason of any act or
omission of any other trustee hereunder; and
142
(iii) the
Depositor and the Trustee, acting jointly may at any time accept the resignation
of or remove any separate trustee or co-trustee.
Any
notice, request or other writing given to the Trustee shall be deemed to
have
been given to each of the then separate trustees and co-trustees, as effectively
as if given to each of them. Every instrument appointing any separate trustee
or
co-trustee shall refer to this Agreement and the conditions of this Article
VIII. Each separate trustee and co-trustee, upon its acceptance of the trusts
conferred, shall be vested with the estates or property specified in its
instrument of appointment, either jointly with the Trustee or separately,
as may
be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the
conduct
of, affecting the liability of, or affording protection to, the Trustee.
Every
such instrument shall be filed with the Trustee and a copy thereof given
to the
Depositor.
Any
separate trustee or co-trustee may, at any time, constitute the Trustee,
its
agent or attorney-in-fact, with full power and authority, to the extent not
prohibited by law, to do any lawful act under or in respect of this Agreement
on
its behalf and in its name. If any separate trustee or co-trustee shall die,
become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by
the
Trustee, to the extent permitted by law, without the appointment of a new
or
successor Trustee.
SECTION
8.11. Limitation of Liability.
The
Certificates are executed by the Securities Administrator, not in its individual
capacity but solely as Securities Administrator on behalf of the Trust Fund,
in
the exercise of the powers and authority conferred and vested in it by this
Agreement. Each of the undertakings and agreements made on the part of the
Securities Administrator in the Certificates is made and intended not as
a
personal undertaking or agreement by the Trustee but is made and intended
for
the purpose of binding only the Trust Fund.
SECTION
8.12. Trustee May Enforce Claims Without Possession of
Certificates.
(a) All
rights of action and claims under this Agreement or the Certificates may
be
prosecuted and enforced by the Trustee without the possession of any of the
Certificates or the production thereof in any proceeding relating thereto,
and
such proceeding instituted by the Trustee shall be brought in its own name
or in
its capacity as Trustee for the benefit of all Holders of such Certificates,
subject to the provisions of this Agreement. Any recovery of judgment shall,
after provision for the payment of the reasonable compensation, expenses,
disbursement and advances of the Trustee (for the avoidance of doubt, in
its
individual capacity and as Trustee on behalf of the Trust Fund), its agents
and
counsel, be for the ratable benefit or the Certificateholders in respect
of
which such judgment has been recovered.
(b) The
Trustee shall afford the Seller, the Depositor and each Certificateholder
upon
reasonable notice during normal business hours at its Corporate Trust Office
or
other office designated by the Trustee, access to all records maintained
by the
Trustee in respect of its duties hereunder and access to officers of the
Trustee
responsible for performing such duties. Upon request, the Trustee shall furnish
the Depositor and any requesting Certificateholder with its most recent audited
financial statements. The Trustee shall cooperate fully with the Seller,
the
Depositor and such Certificateholder and shall, subject to the first sentence
of
this Section 8.12(b), make available to the Seller, the Depositor and such
Certificateholder for review and copying such books, documents or records
as may
be requested with respect to the Trustee’s duties hereunder. The Seller, the
Depositor and the Certificateholders shall not have any responsibility or
liability for any action or failure to act by the Trustee and are not obligated
to supervise the performance of the Trustee under this Agreement or
otherwise.
143
(c) The
Securities Administrator shall afford the Seller, the Depositor, the Trustee
and
each Certificateholder upon reasonable notice during normal business hours
at
its offices at 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000 or other
office
designated by the Securities Administrator, access to all records maintained
by
the Securities Administrator in respect of its duties hereunder and access
to
officers of the Securities Administrator responsible for performing such
duties.
The Securities Administrator shall cooperate fully with the Seller, the
Depositor, the Trustee and such Certificateholder and shall, subject to the
first sentence of this Section 8.12(c), make available to the Seller, the
Depositor and such Certificateholder for review and copying such books,
documents or records as may be reasonably requested with respect to the
Securities Administrator’s duties hereunder. The Seller, the Depositor, the
Trustee and the Certificateholders shall not have any responsibility or
liability for any action or failure to act by the Securities Administrator
and
are not obligated to supervise the performance of the Securities Administrator
under this Agreement or otherwise.
SECTION
8.13. Suits for Enforcement.
In
case
an Event of Default or a default by the Depositor hereunder shall occur and
be
continuing, the Trustee may proceed to protect and enforce its rights and
the
rights of the Certificateholders under this Agreement, as the case may be,
by a
suit, action or proceeding in equity or at law or otherwise, whether for
the
specific performance of any covenant or agreement contained in this Agreement
or
in aid of the execution of any power granted in this Agreement or for the
enforcement of any other legal, equitable or other remedy, as the Trustee,
being
advised by counsel, and subject to the foregoing, shall deem most effectual
to
protect and enforce any of the rights of the Trustee and the
Certificateholders.
SECTION
8.14. Waiver of Bond Requirement.
The
Trustee shall be relieved of, and each Certificateholder hereby waives, any
requirement of any jurisdiction in which the Trust Fund, or any part thereof,
may be located that the Trustee post a bond or other surety with any court,
agency or body whatsoever.
SECTION
8.15. Waiver of Inventory, Accounting and Appraisal Requirement.
The
Trustee shall be relieved of, and each Certificateholder hereby waives, any
requirement of any jurisdiction in which the Trust Fund, or any part thereof,
may be located that the Trustee file any inventory, accounting or appraisal
of
the Trust Fund with any court, agency or body at any time or in any manner
whatsoever.
144
SECTION
8.16. Appointment of Custodians.
The
Trustee may, and at the direction of the Depositor shall, appoint one or
more
custodians to hold all or a portion of the related Mortgage Files as agent
for
the Trustee, by entering into a custodial agreement. The custodian may at
any
time be terminated and a substitute custodian appointed therefor by the Trustee.
Subject to this Article VIII, the Trustee agrees to comply with the terms
of
each custodial agreement and to enforce the terms and provisions thereof
against
the custodian for the benefit of the Certificateholders having an interest
in
any Mortgage File held by such custodian. Each custodian shall be a depository
institution or trust company subject to supervision by federal or state
authority, shall have combined capital and surplus of at least $15,000,000
and
shall be qualified to do business in the jurisdiction in which it holds any
Mortgage File. The Seller shall pay from its own funds, without any right
to
reimbursement, the fees, costs and expenses of each custodian (including
the
costs of custodian’s counsel).
SECTION
8.17. Closing Opinion of Counsel.
On
or
before the Closing Date, the Securities Administrator shall cause to be
delivered to the Depositor, the Seller and Greenwich Capital Markets, Inc.
an
Opinion of Counsel, dated the Closing Date, in form and substance reasonably
satisfactory to the Depositor, Greenwich Capital Markets, Inc., and the Seller
as to the due authorization, execution and delivery of this Agreement by
the
Securities Administrator and the enforceability thereof.
ARTICLE
IX
REMIC
ADMINISTRATION
SECTION
9.01. REMIC
Administration.
(a) As
set
forth in the Preliminary Statement to this Agreement, 3 REMIC elections shall
be
made by the Trust Fund. The Trustee shall sign and the Securities Administrator
shall file such elections on Form 1066 or other appropriate federal tax or
information return for the taxable year ending on the last day of the calendar
year in which the Certificates are issued. The regular interests in each
REMIC
created hereunder and the related residual interest shall be as designated
in
the Preliminary Statement. Following the Closing Date, the Securities
Administrator shall apply to the Internal Revenue Service for an employer
identification number for each REMIC created hereunder by means of a Form
SS-4
or other acceptable method and shall file a Form 8811 with the Internal Revenue
Service.
(b) The
Closing Date is hereby designated as the “Startup Day” of each REMIC created
hereunder within the meaning of section 860G(a)(9) of the Code. The latest
possible maturity date for purposes of Treasury Regulation 1.860G-1(a)(4)
for
each interest in any REMIC created hereby shall be the Latest Possible Maturity
Date.
(c) Except
as
provided in subsection (d) of this Section 9.01, the Securities Administrator
shall pay any and all tax related expenses (not including taxes) of each
REMIC
created hereunder, including but not limited to any professional fees or
expenses related to audits or any administrative or judicial proceedings
with
respect to any such REMIC that involve the Internal Revenue Service or state
tax
authorities, but only to the extent that (i) such expenses are ordinary or
routine expenses, including expenses of a routine audit but not expenses
of
litigation (except as described in (ii)); or (ii) such expenses or liabilities
(including taxes and penalties) are attributable to the negligence or willful
misconduct of the Securities Administrator in fulfilling its duties hereunder
(including the Securities Administrator’s duties as tax return
preparer).
145
(d) The
Securities Administrator shall prepare and file, and the Trustee shall sign
all
of the federal and state tax and information returns of each REMIC created
hereunder (collectively, the “Tax
Returns”)
as the
direct representative. The expenses of preparing and filing such Tax Returns
shall be borne by the Securities Administrator. Notwithstanding the foregoing,
the Securities Administrator shall have no obligation to prepare, file or
otherwise deal with partnership tax information or returns. In the event
that
partnership tax information or returns are required by the Internal Revenue
Service, the Seller, at its own cost and expense, will prepare and file all
necessary returns. The Internal Revenue Service has issued OID regulations
under
Sections 1271 to 1275 of the Code generally addressing the treatment of debt
instruments issued with original issue discount. Under those regulations,
debt
issued to one Person generally is aggregated in determining if there is OID.
Because certain Classes of Regular Certificates are expected to be issued
to one
Person (which intends to continue to hold the Regular Certificates indefinitely
and, in any case, for at least 30 days), the Securities Administrator, on
behalf
of the Trust Fund and upon receipt of written direction from the Depositor,
will
determine the existence and amount of any OID as if those Classes of Regular
Certificates were one debt instrument and based solely on information provided
by the Depositor to the Securities Administrator.
(e) The
Securities Administrator shall perform on behalf of each REMIC created hereunder
all reporting and other tax compliance duties that are the responsibility
of
each such REMIC under the Code, the REMIC Provisions or other compliance
guidance issued by the Internal Revenue Service or any state or local taxing
authority. Among its other duties, if required by the Code, the REMIC Provisions
or other such guidance, the Securities Administrator, shall provide (i) to
the
Treasury or other governmental authority such information as is necessary
for
the application of any tax relating to the transfer of a Residual Certificate
to
any disqualified organization and (ii) to the Certificateholders such
information or reports as are required by the Code or REMIC Provisions.
(f) Each
of
the Master Servicer, Trustee and the Securities Administrator (to the extent
that the affairs of the REMICs are within such Person’s control and the scope of
its specific responsibilities under the Agreement) and the Holders of
Certificates shall take any action or cause any REMIC created hereunder to
take
any action necessary to create or maintain the status of any REMIC created
hereunder as a REMIC under the REMIC Provisions and shall assist each other
as
necessary to create or maintain such status. None of the Trustee, the Securities
Administrator or the Holder of a Residual Certificate shall take any action,
cause any REMIC created hereunder to take any action or fail to take (or
fail to
cause to be taken) any action that, under the REMIC Provisions, if taken
or not
taken, as the case may be, could result in an Adverse REMIC Event unless
the
Trustee and the Securities Administrator have received an Opinion of Counsel
(at
the expense of the party seeking to take such action) to the effect that
the
contemplated action will not result in an Adverse REMIC Event. In addition,
prior to taking any action with respect to any REMIC created hereunder or
the
assets therein, or causing any such REMIC to take any action which is not
expressly permitted under the terms of this Agreement, any Holder of the
Residual Certificate will consult with the Trustee, the Master Servicer,
the
Securities Administrator or their respective designees, in writing, with
respect
to whether such action could cause an Adverse REMIC Event to occur with respect
to any such REMIC, and no such Person shall take any such action or cause
any
REMIC created hereunder to take any such action as to which the Securities
Administrator has advised it in writing that an Adverse REMIC Event could
occur.
146
(g) Each
Holder of a Residual Certificate shall pay when due any and all taxes imposed
on
any REMIC created hereunder in which it owns the residual interest by federal
or
state governmental authorities. To the extent that such Trust Fund taxes
are not
paid by such Residual Certificateholder, the Securities Administrator shall
pay
any remaining REMIC taxes out of current or future amounts otherwise
distributable to such Holder or, if no such amounts are available, out of
other
amounts held in the Distribution Account, and shall reduce amounts otherwise
payable to holders of regular interests in such REMIC, as the case may
be.
(h) The
Securities Administrator shall, for federal income tax purposes, maintain
books
and records with respect to each REMIC created hereunder on a calendar year
and
on an accrual basis.
(i) No
additional contributions of assets shall be made to any REMIC created hereunder,
except as expressly provided in this Agreement with respect to eligible
substitute mortgage loans.
(j) None
of
the Trustee, the Master Servicer or the Securities Administrator shall enter
into any arrangement by which any REMIC created hereunder will receive a
fee or
other compensation for services.
SECTION
9.02. Prohibited
Transactions and Activities.
None
of
the Depositor, the Master Servicer or the Trustee shall sell, dispose of,
or
substitute for any of the Mortgage Loans, except in a disposition pursuant
to
(i) the foreclosure of a Mortgage Loan, (ii) the bankruptcy of the Trust
Fund, (iii) the termination of the REMICs created hereunder pursuant to Article
X of this Agreement, (iv) a substitution pursuant to Article II hereof or
(v) a
repurchase of Mortgage Loans as contemplated hereunder, nor acquire any assets
for any REMIC created hereunder, nor sell or dispose of any investments in
the
Distribution Account for gain, nor accept any contributions to any REMIC
created
hereunder after the Closing Date, unless the Depositor and the Trustee have
received an Opinion of Counsel (at the expense of the party causing such
sale,
disposition, or substitution) that such disposition, acquisition, substitution,
or acceptance will not result in an Adverse REMIC Event.
147
ARTICLE
X
TERMINATION
SECTION
10.01. Termination.
(a) The
respective obligations and responsibilities of the Seller, the Depositor,
the
Master Servicer, the Securities Administrator and the Trustee created hereby
(other than the obligation of the Securities Administrator, as Paying Agent,
to
make certain payments to Certificateholders after the Final Distribution
Date
and the obligation of the Master Servicer to send certain notices as hereinafter
set forth) shall terminate upon notice to the Trustee and the Securities
Administrator upon the earliest of (i) the Distribution Date on which the
Class Principal Balance of each Class of Certificates has been reduced to
zero,
(ii) the final payment or other liquidation of the last Mortgage Loan,
(iii) the optional purchase of the Mortgage Loans by the Terminator as
described in the following paragraph and (iv) the Latest Possible Maturity
Date. Notwithstanding the foregoing, in no event shall the trust created
hereby
continue beyond the expiration of 21 years from the death of the last survivor
of the descendants of Xxxxxx X. Xxxxxxx, the late ambassador of the United
States to the Court of St. James’s, living on the date hereof.
Following
the date on which the aggregate of the Stated Principal Balances of the Mortgage
Loans (after giving effect to scheduled payments of principal due during
the
related Due Period, to the extent received or advanced, and unscheduled
collections of principal received during the related Prepayment Period) on
such
date is equal to or less than 10% of the Cut-off Date Collateral Balance
(the
“Call
Option Date”),
the
Master Servicer (in such context, the “Terminator”)
may,
at its option, terminate this Agreement with regard to the Mortgage Loans
by
purchasing, on the next succeeding Distribution Date, all of the outstanding
Mortgage Loans and REO Properties at a price equal to (A) the greater of
(i) the
aggregate Stated Principal Balance of the Mortgage Loans (after giving effect
to
scheduled payments of principal due during the related Due Period, to the
extent
received or advanced, and unscheduled collections of principal received during
the related Prepayment Period) and the appraised value of the REO Properties
and
(ii) the fair market value of the Mortgage Loans and REO Properties (as
determined and as agreed upon by (x) the Terminator and (y) the Holders of
a
majority in Percentage Interest of the Class LT-R Certificates, in their
good
faith business judgment as of the close of business on the third Business
Day
next preceding the date upon which notice of any such termination is furnished
to the Certificateholders pursuant to Section 10.01(b)), plus, (B) in each
case,
accrued and unpaid interest thereon at the weighted average of the Loan Rates
through the end of the Due Period preceding the Final Distribution Date,
plus
any unreimbursed Servicing Advances and Advances and any unpaid Master Servicing
Fees and Servicing Fees allocable to such Mortgage Loans and REO Properties
and
all amounts, if any, then due and owing to the Trustee, the Master Servicer
and
the Securities Administrator under this Agreement (the “Termination
Price”);
provided,
however,
such
option may only be exercised if the Termination Price is sufficient to result
in
the payment of all interest accrued on, as well as amounts necessary to retire
the Class Principal Balance of, each Class of Certificates issued pursuant
to
this Agreement. The fair market value of the Mortgage Loans and REO Properties
shall be required to be made and agreed upon by the Master Servicer, if it
is
Terminator, and the Holders of a majority in Percentage Interest of the Class
LT-R Certificates as provided in (ii) above in their good faith business
judgment, and such determination shall take into consideration an appraisal
of
the value of the Mortgage Loans and REO Properties conducted by an independent
appraiser mutually agreed upon by the Master Servicer, if it is the Terminator,
the Holders of a majority in Percentage Interest of the Class LT-R Certificates
and the Terminator in their reasonable discretion, such appraisal to be obtained
by the Holders of a majority in Percentage Interest of the Class LT-R
Certificates at their expense, and (A) such appraisal shall be obtained at
no
expense to the Trustee and (B) the Trustee may conclusively rely on, and
shall
be protected in relying on, such fair market value determination.
148
(b) Notice
of
any termination pursuant to the second paragraph of Section 10.01(a), specifying
the Distribution Date (which shall be a date that would otherwise be a
Distribution Date) upon which the Certificateholders may surrender their
Certificates to the Certificate Registrar for payment of the final distribution
and cancellation, shall be given promptly by the Trustee upon the Trustee
receiving notice of such date from the Master Servicer by letter to the
Certificateholders mailed not earlier than the 10th
day and
not later than the 19th
day of
the month immediately preceding the month of such final distribution specifying
(1) the Distribution Date upon which final distribution of the Certificates
will be made upon presentation and surrender of such Certificates at the
office
or agency of the Certificate Registrar therein designated, (2) the amount
of any such final distribution and (3) that the Record Date otherwise
applicable to such Distribution Date is not applicable, distributions being
made
only upon presentation and surrender of the Certificates at the office or
agency
of the Certificate Registrar therein specified. The Trustee shall give such
notice to the Securities Administrator, the Master Servicer and the Certificate
Registrar at the time such notice is given to Holders of the Certificates.
Upon
any such termination, the duties of the Certificate Registrar with respect
to
the Certificates shall terminate and the Trustee shall terminate, or request
the
Securities Administrator to terminate, the Distribution Account and any other
account or fund maintained with respect to the Certificates, subject to the
Trustee’s obligation hereunder to hold all amounts payable to Certificateholders
in trust without interest pending such payment.
(c) Upon
presentation and surrender of the Certificates, the Securities Administrator,
as
Paying Agent, shall cause to be distributed to the Holders of the Certificates
on the Distribution Date for such final distribution, in proportion to the
Percentage Interests of their respective Class and to the extent that funds
are
available for such purpose, an amount equal to the amount required to be
distributed to such Holders in accordance with the provisions of
Section 5.01 hereof for such Distribution Date.
(d) In
the
event that all Certificateholders shall not surrender their Certificates
for
final payment and cancellation on or before such Final Distribution Date,
the
Securities Administrator shall promptly following such date cause all funds
in
the Distribution Account not distributed in final distribution to
Certificateholders to be withdrawn therefrom and credited to the remaining
Certificateholders by depositing such funds in a separate account for the
benefit of such Certificateholders, and within six months, the Trustee shall
give a second written notice to the remaining Certificateholders to surrender
their Certificates for cancellation and receive the final distribution with
respect thereto. If within nine months after the second notice all the
Certificates shall not have been surrendered for cancellation, the Master
Servicer shall be entitled to all unclaimed funds and other assets which
remain
subject hereto, and the Securities Administrator and the Trustee upon transfer
of such funds shall be discharged of any responsibility for such funds, and
the
Certificateholders shall look to the Master Servicer for payment.
149
SECTION
10.02. Additional
Termination Requirements.
(a) In
the
event the purchase option provided in Section 10.01 is exercised, the Trust
Fund shall be terminated in accordance with the following additional
requirements:
(i) The
Trustee at the direction of the Securities Administrator shall sell any
remaining assets of the Trust Fund to Xxxxx Fargo Bank, N.A. or its designee,
for cash and, within 90 days of such sale, shall distribute to (or credit
to the
account of) the Certificateholders the proceeds of such sale together with
any
cash on hand (less amounts retained to meet claims) in complete liquidation
of
the Trust Fund, and each REMIC created hereunder; and
(ii) The
Securities Administrator shall attach a statement to the final federal income
tax return for each REMIC created hereunder stating that pursuant to Treasury
Regulation §1.860F-1, the first day of the 90 day liquidation period for such
REMIC was the date on which the Trustee sold the assets of the Trust Fund
and
shall satisfy all requirements of a qualified liquidation under Section 860F
of
the Code and any regulations thereunder as evidenced by an Opinion of Counsel
delivered to the Trustee and the Securities Administrator obtained at the
expense of the Seller.
(b) By
their
acceptance of Certificates, the Holders thereof hereby agree to appoint the
Trustee and the Securities Administrator as their attorneys in fact to undertake
the foregoing steps.
ARTICLE
XI
[RESERVED]
ARTICLE
XII
MISCELLANEOUS
PROVISIONS
SECTION
12.01. Amendment.
This
Agreement may be amended from time to time by the Seller, the Depositor,
the
Master Servicer, the Securities Administrator and the Trustee without the
consent of the Certificateholders (i) to cure any ambiguity, (ii) to
correct or supplement any provisions herein which may be defective or
inconsistent with any other provisions herein, (iii) to make any other
provisions with respect to matters or questions arising under this Agreement,
which shall not be inconsistent with the provisions of this Agreement, or
(iv)
to conform the terms hereof to the description thereof provided in the
Prospectus or the Private Placement Memorandum, as applicable; provided,
however,
that
any such action listed in clause (i) through (iii) above shall not
adversely affect in any material respect the interests of any Certificateholder;
provided,
further,
that
any such action listed in (i) through (iii) above shall be deemed not to
adversely affect in any material respect the interests of any Certificateholder,
if evidenced by (i) written notice to the Depositor, the Seller, the Master
Servicer, the Securities Administrator and the Trustee from the Rating Agency
that such action will not result in the reduction or withdrawal of the rating
of
any outstanding Class of Certificates with respect to which it is a Rating
Agency or (ii) an Opinion of Counsel to the effect that such amendment
shall not adversely affect in any material respect the interests of any
Certificateholder, is permitted by the Agreement and all the conditions
precedent, if any, have been complied with, delivered to the Trustee, the
Securities Administrator and the Master Servicer.
150
In
addition, this Agreement may be amended from time to time by Seller, the
Depositor, the Master Servicer, the Securities Administrator, and the Trustee
with the consent of the Majority Certificateholders, for the purpose of adding
any provisions to or changing in any manner or eliminating any of the provisions
of this Agreement or of modifying in any manner the rights of the Holders
of
Certificates; and subject, in the case of any amendment or modification to
Section 5.01(a) hereof, to the consent of Deutsche Bank National Trust Company,
as a Custodian; provided,
however,
that no
such amendment or waiver shall (x) reduce in any manner the amount of, or
delay the timing of, payments on the Certificates that are required to be
made
on any Certificate without the consent of the Holder of such Certificate,
(y) adversely affect in any material respect the interests of the Holders
of any Class of Certificates in a manner other than as described in clause
(x)
above, without the consent of the Holders of Certificates of such Class
evidencing at least a 662/3%
Percentage Interest in such Class, or (z) reduce the percentage of Voting
Rights required by clause (y) above without the consent of the Holders of
all Certificates of such Class then outstanding. Upon approval of an amendment,
a copy of such amendment shall be sent to the Rating Agency.
Notwithstanding
any provision of this Agreement to the contrary, the Trustee shall not consent
to any amendment to this Agreement unless it shall have first received an
Opinion of Counsel, delivered by and at the expense of the Person seeking
such
Amendment (unless such Person is the Trustee, in which case the Trustee shall
be
entitled to be reimbursed for such expenses by the Trust Fund pursuant to
Section 8.05 hereof), to the effect that such amendment will not result in
the
imposition of an Adverse REMIC Event and that the amendment is being made
in
accordance with the terms hereof, such amendment is permitted by this Agreement
and all conditions precedent, if any, have been complied with.
Promptly
after the execution of any such amendment the Trustee shall furnish, at the
expense of the Person that requested the amendment if such Person is the
Seller
(but in no event at the expense of the Securities Administrator or the Trustee),
otherwise at the expense of the Trust Fund, a copy of such amendment and
the
Opinion of Counsel referred to in the immediately preceding paragraph to
the
Master Servicer and each Rating Agency.
It
shall
not be necessary for the consent of Certificateholders under this
Section 12.01 to approve the particular form of any proposed amendment;
instead it shall be sufficient if such consent shall approve the substance
thereof. The manner of obtaining such consents and of evidencing the
authorization of the execution thereof by Certificateholders shall be subject
to
such reasonable regulations as the Trustee may prescribe.
151
The
Trustee, the Master Servicer and Securities Administrator may, but shall
not be
obligated to, enter into any amendment pursuant to this 12.01 Section that
affects its rights, duties and immunities under this Agreement or
otherwise.
SECTION
12.02. Recordation
of Agreement; Counterparts.
To
the
extent permitted by applicable law, this Agreement is subject to recordation
in
all appropriate public offices for real property records in all the counties
or
other comparable jurisdictions in which any or all of the Mortgaged Properties
are situated, and in any other appropriate public recording office or elsewhere,
such recordation to be effected by the Trustee at the expense of the Trust
Fund,
but only upon direction of Certificateholders accompanied by an Opinion of
Counsel to the effect that such recordation materially and beneficially affects
the interests of the Certificateholders.
For
the
purpose of facilitating the recordation of this Agreement as herein provided
and
for other purposes, this Agreement may be executed simultaneously in any
number
of counterparts, each of which counterparts shall be deemed to be an original,
and such counterparts shall together constitute but one and the same
instrument.
SECTION
12.03. Limitation
on Rights of Certificateholders.
The
death
or incapacity of any Certificateholder shall not (i) operate to terminate
this Agreement or the Trust Fund, (ii) entitle such Certificateholder’s
legal representatives or heirs to claim an accounting or to take any action
or
proceeding in any court for a partition or winding up of the Trust Fund or
(iii) otherwise affect the rights, obligations and liabilities of the
parties hereto or any of them.
Except
as
expressly provided for herein, no Certificateholder shall have any right
to vote
or in any manner otherwise control the operation and management of the Trust
Fund, or the obligations of the parties hereto, nor shall anything herein
set
forth or contained in the terms of the Certificates be construed so as to
constitute the Certificateholders from time to time as partners or members of an
association; nor shall any Certificateholder be under any liability to any
third
person by reason of any action taken by the parties to this Agreement pursuant
to any provision hereof.
No
Certificateholder shall have any right by virtue of any provision of this
Agreement to institute any suit, action or proceeding in equity or at law
upon
or under or with respect to this Agreement, unless such Holder previously
shall
have given to the Trustee a written notice of default and of the continuance
thereof, as hereinbefore provided, and unless also the Holders of Certificates
entitled to at least 25% of the Voting Rights shall have made written request
upon the Trustee to institute such action, suit or proceeding in its own
name as
Trustee hereunder and shall have offered to the Trustee such reasonable
indemnity as it may require against the costs, expenses and liabilities to
be
incurred therein or thereby, and the Trustee for 15 days after its receipt
of such notice, request and offer of indemnity, shall have neglected or refused
to institute any such action, suit or proceeding and no direction inconsistent
with such written request has been given the Trustee by such Certificateholder.
It is understood and intended, and expressly covenanted by each
Certificateholder with every other Certificateholder, and the Trustee, that
no
one or more Holders of Certificates shall have any right in any manner whatever
by virtue of any provision of this Agreement to affect, disturb or prejudice
the
rights of the Holders of any other of such Certificates, or to obtain or
seek to
obtain priority over or preference to any other such Holder, which priority
or
preference is not otherwise provided for herein, or to enforce any right
under
this Agreement, except in the manner herein provided and for the equal, ratable
and common benefit of all Certificateholders. For the protection and enforcement
of the provisions of this Section 12.03, each and every Certificateholder
and the Trustee shall be entitled to such relief as can be given either at
law
or in equity.
152
SECTION
12.04. Governing
Law; Jurisdiction.
THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE
STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS (OTHER
THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW), AND THE OBLIGATIONS,
RIGHTS
AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH
SUCH LAWS.
SECTION
12.05. Notices.
All
directions, demands and notices hereunder shall be in writing and shall be
deemed to have been duly given if personally delivered at or mailed by first
class mail, postage prepaid, or by express delivery service, to (a) in the
case of the Seller, to Greenwich Capital Financial Products, Inc.,
000 Xxxxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxxx 00000, Attention: General
Counsel (telecopy number (000) 000-0000), or such other address or telecopy
number as may hereafter be furnished to the Depositor, the Master Servicer,
the
Securities Administrator and the Trustee in writing by the Seller, (b) in
the
case of the Trustee, to the Corporate Trust Office or such other address
or
telecopy number as may hereafter be furnished to the Depositor, the Master
Servicer, the Securities Administrator and the Seller in writing by the Trustee,
(c) in the case of the Depositor, to Greenwich Capital
Acceptance, Inc., 000 Xxxxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxxx 00000,
Attention: Legal (telecopy number (000) 000-0000), or such other address or
telecopy number as may be furnished to the Seller, the Master Servicer, the
Securities Administrator and the Trustee in writing by the Depositor; and
(d) in
the case of the Master Servicer or Securities Administrator, for certificate
transfer purposes, at its Corporate Trust Office and for all other purposes
at
X.X. Xxx 00, Xxxxxxxx, Xxxxxxxx 00000, or for overnight delivery, at 0000
Xxx
Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000 (Attention: RBSGC Mortgage Loan
Trust
2007-B), Facsimile no.: (000) 000-0000, or such other address or telecopy
number
as may be furnished to the Depositor, the Seller and the Trustee in writing
by
the Master Servicer or the Securities Administrator, as applicable. Any notice
required or permitted to be mailed to a Certificateholder shall be given
by
first class mail, postage prepaid, at the address of such Holder as shown
in the
Certificate Register. Notice of any Event of Default shall be given by telecopy
and by certified mail. Any notice so mailed within the time prescribed in
this
Agreement shall be conclusively presumed to have duly been given when mailed,
whether or not the Certificateholder receives such notice. A copy of any
notice
required to be telecopied hereunder shall also be mailed to the appropriate
party in the manner set forth above. Any notice required to be delivered
by the
Securities Administrator to the Depositor pursuant to Section 3.19 may be
delivered by the Securities Administrator, notwithstanding any provision
of this
Agreement to the contrary, to Greenwich Capital Acceptance, Inc.,
000 Xxxxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxxx 00000, Attention: Xxxx Xxxxxxx
(telephone number (000) 000-0000; fax number (000) 000-0000; e-mail
xxxx.xxxxxxx@xxx.xxx), or such other address or telecopy number as may be
furnished to the Securities Administrator in writing by the
Depositor.
153
SECTION
12.06. Severability
of Provisions.
If
any
one or more of the covenants, agreements, provisions or terms of this Agreement
shall for any reason whatsoever be held invalid, then such covenants,
agreements, provisions or terms shall be deemed severable from the remaining
covenants, agreements, provisions or terms of this Agreement and shall in
no way
affect the validity or enforceability of the other provisions of this Agreement
or of the Certificates or the rights of the Holders thereof.
SECTION
12.07. Article
and Section References.
All
article and section references used in this Agreement, unless otherwise
provided, are to articles and sections in this Agreement.
SECTION
12.08. Notices
to each Rating Agencies.
(a) The
Trustee shall be obligated to use its best reasonable efforts promptly to
provide notice to each Rating Agency with respect to each of the following
of
which a Responsible Officer of the Trustee has actual knowledge:
(i) any
material change or amendment to this Agreement;
(ii) the
occurrence of any Event of Default that has not been cured or
waived;
(iii) the
resignation or termination of the Master Servicer, a Servicer, the Securities
Administrator or the Trustee;
(iv) the
final
payment to Holders of the Certificates of any Class;
(v) any
change in the location of any Account; and
(vi) if
the
Trustee is acting as a successor Master Servicer pursuant to Section 7.02
hereof, any event that would result in the inability of the Trustee to make
Advances as successor Master Servicer.
(b) The
Securities Administrator shall promptly furnish to each Rating Agency copies
of
the following, unless such documents were made available on the Securities
Administrator’s website or filed with the SEC:
(i) each
Distribution Date Statement described in Section 5.04 hereof;
154
(ii) each
annual statement as to compliance described in Section 3.16 hereof;
(iii) each
annual assessment of compliance and attestation report described in Section
3.05
hereof; and
(iv) each
notice delivered pursuant to Section 5.05(b) hereof which relates to the
fact
that the Master Servicer has not made an Advance.
(c) All
notices to the Rating Agencies provided for in this Agreement shall be in
writing and sent by first class mail, telecopy or overnight courier, as
follows:
If
to
S&P, to:
Standard
& Poor’s Ratings Services,
a
division of The XxXxxx-Xxxx Companies, Inc.
00
Xxxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Residential Mortgages
If
to
Moody’s, to:
Xxxxx’x
Investors Service, Inc.
00
Xxxxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Residential Mortgages
If
to
Fitch, to:
Fitch
Ratings, Inc.
Xxx
Xxxxx
Xxxxxx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
SECTION
12.09. Further
Assurances.
Notwithstanding
any other provision of this Agreement, neither the Regular Certificateholders
nor the Trustee shall have any obligation to consent to any amendment or
modification of this Agreement unless they have been provided reasonable
security or indemnity against their out-of-pocket expenses (including reasonable
attorneys’ fees) to be incurred in connection therewith.
SECTION
12.10. Benefits
of Agreement.
Nothing
in this Agreement or in the Certificates, expressed or implied, shall give
to
any Person, other than the Certificateholders and the parties hereto and
their
successors hereunder, any benefit or any legal or equitable right, remedy
or
claim under this Agreement.
155
SECTION
12.11. Acts
of Certificateholders.
(a) Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Agreement to be given or taken by the Certificateholders
may be embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such Certificateholders in person or by agent duly
appointed in writing, and such action shall become effective when such
instrument or instruments are delivered to the Trustee or the Securities
Administrator and, when expressly required under this Agreement, to the Master
Servicer. Such instrument or instruments (and the action embodied therein
and
evidenced thereby) are herein sometimes referred to as the “act” of the
Certificateholders signing such instrument or instruments. Proof of execution
of
any such instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Agreement and conclusive in favor of the
Trustee and the Trust Fund, if made in the manner provided in this
Section 12.11.
(b) The
fact
and date of the execution by any Person of any such instrument or writing
may be
proved by the affidavit of a witness of such execution or by the certificate
of
a notary public or other officer authorized by law to take acknowledgments
of
deeds, certifying that the individual signing such instrument or writing
acknowledged to him the execution thereof. Whenever such execution is by
a
signer acting in a capacity other than his or her individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority.
(c) Any
request, demand, authorization, direction, notice, consent, waiver or other
action by any Certificateholder shall bind every future Holder of such
Certificate and the Holder of every Certificate issued upon the registration
of
transfer thereof or in exchange therefor or in lieu thereof, in respect of
anything done, omitted or suffered to be done by the Trustee or the Trust
Fund
in reliance thereon, whether or not notation of such action is made upon
such
Certificate.
SECTION
12.12. Successors
and Assigns.
The
provisions of this Agreement shall be binding upon and inure to the benefit
of
the respective successors and assigns of the parties hereto.
SECTION
12.13. Provision
of Information.
For
so
long as any of the Certificates of any Class are “restricted securities” within
the meaning of Rule 144(a)(3) under the Securities Act, the Depositor agrees
to
provide to any Certificateholders and to any prospective purchaser of
Certificates designated by such Holder, upon the request of such Holder or
prospective purchaser, any information required to be provided to such Holder
or
prospective purchaser to satisfy the condition set forth in Rule 144A(d)(4)
under the Securities Act.
The
Securities Administrator shall provide to any person to whom a Prospectus
or
Private Placement Memorandum was delivered by Greenwich Capital Markets,
Inc.
(as identified by Greenwich Capital Markets, Inc.), upon the request of such
person specifying the document or documents requested (and certifying that
it is
a Person entitled hereunder), (i) a copy (excluding exhibits) of any report
on
Form 8-K, Form 10-D or Form 10-K filed with the Securities and Exchange
Commission pursuant to this Agreement and (ii) a copy of any other document
incorporated by reference in the Prospectus or Private Placement Memorandum
(to
the extent in the Securities Administrator’s possession). Any reasonable
out-of-pocket expenses incurred by the Securities Administrator in providing
copies of such documents shall be reimbursed by the Depositor.
156
SECTION
12.14. Transfer of Servicing.
The
Master Servicer shall not consent to or approve the assignment of the Servicing
Agreements or the servicing thereunder or the delegation of a substantial
portion of each Servicer’s rights or duties thereunder unless it shall have
first received a letter from each Rating Agency to the effect that such action
on the part of the applicable Servicer will not result in a qualification,
withdrawal or downgrade of the then-current rating of any of the Certificates.
The Master Servicer (on behalf of the Trust Fund) shall be entitled to
conclusively rely upon documents received by it pursuant to clauses (i) and
(ii)
above in providing such written approval to the applicable Servicer and shall
not be liable for any action taken, suffered or omitted by it in good faith
and
believed by it to be authorized or within the discretion or rights or powers
conferred upon it by this Agreement with respect to such approval.
[SIGNATURE
PAGE IMMEDIATELY FOLLOWS]
157
IN
WITNESS WHEREOF, the parties hereto have caused their names to be signed
hereto
by their respective officers thereunto duly authorized, all as of the day
and
year first above written.
GREENWICH
CAPITAL ACCEPTANCE, INC.,
as
Depositor
By:
/s/
Xxxx Xxxxx
Name:
Xxxx Xxxxx
|
Title:
Vice President
|
GREENWICH
CAPITAL FINANCIAL PRODUCTS, INC., as Seller
By:
/s/
Xxxx Xxxxx
Name:
Xxxx Xxxxx
|
Title:
Vice President
|
XXXXX
FARGO BANK, N.A.,
as
Master Servicer
By: /s/
Xxxxxx X. Xxxxxxx
Name:
Xxxxxx X. Xxxxxxx
Title:
Vice President
XXXXX
FARGO BANK, N.A.,
as
Securities Administrator
By:
/s/ Xxxxxx
X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
DEUTSCHE
BANK NATIONAL TRUST COMPANY, as Trustee and Custodian
By:
/s/
Xxx Xxxxx
Name: Xxx Xxxxx
Title: Authorized Signer
Name: Xxx Xxxxx
Title: Authorized Signer
By:
/s/
Xxxxxxx Xxxxxx
Name: Xxxxxxx Xxxxxx
Name: Xxxxxxx Xxxxxx
|
Title:
Vice President
|
EXHIBIT
A-1
FORM
OF SENIOR CERTIFICATE
X-0-0
XXXXXXX
X-0
FORM
OF CLASS 1X CERTIFICATE
X-0-0
XXXXXXX
X-0
FORM
OF CLASS 1PO CERTIFICATE
A-3-1
EXHIBIT
B
FORM
OF RESIDUAL CERTIFICATE
B-1
EXHIBIT
C
FORM
OF SUBORDINATE CERTIFICATE
C-1
EXHIBIT
D
FORM
OF CLASS P CERTIFICATE
D-1
EXHIBIT
E
FORM
OF REVERSE OF THE CERTIFICATES
Mortgage
Loan Pass-Through Certificates, Series 2007-B
Reverse
Certificate
This
Certificate is one of a duly authorized issue of Certificates designated as
RBSGC Mortgage Loan Trust Mortgage Loan Pass-Through Certificates, Series 2007-B
(herein collectively called the “Certificates”), and representing a beneficial
ownership interest in the Trust Fund created by the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trustee is not liable to the Certificateholder for any
amount payable under this Certificate or the Agreement or, except as expressly
provided in the Agreement, subject to any liability under the
Agreement.
This
Certificate does not purport to summarize the Agreement and reference is made
to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trustee.
Pursuant
to the terms of the Agreement, distributions will be made on the 25th
day of
each month, or if the 25th
day is
not a Business Day, then on the next succeeding Business Day (the “Distribution
Date”), commencing on the Distribution Date in April 2007, to the Person in
whose name this Certificate is registered at the close of business on the
applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to Holders of Certificates of the Class to which this Certificate belongs on
such Distribution Date pursuant to the Agreement.
Distributions
on this Certificate shall be made, (i) in the case of a Physical Certificate,
by
check or money order mailed to the address of the person entitled thereto as
it
appears on the Certificate Register or, upon the request of a Certificateholder,
by wire transfer as set forth in the Agreement and (ii) in the case of a
Book-Entry Certificate, to the Depository, which shall credit the amounts of
such distributions to the accounts of its Depository Participants in accordance
with its normal procedures. The final distribution on each Certificate shall
be
made in like manner, but only upon presentment and surrender of such Certificate
at the office or agency of the Certificate Registrar specified in the notice
to
Certificateholders of such final distribution.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights of the Certificateholders under
the
Agreement at any time, by the Depositor, the Seller, the Master Servicer, the
Securities Administrator, the Trustee and Holders of the requisite percentage
of
the Percentage Interests of each Class of Certificates affected by such
amendment, as specified in the Agreement. Any such consent by the Holder of
this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange therefor or in lieu hereof whether or not notation of
such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders
of
any of the Certificates.
E-1
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable in the Certificate Register
of
the Certificate Registrar upon surrender of this Certificate for registration
of
transfer at the office or agency maintained by the Certificate Registrar
accompanied by a written instrument of transfer in form satisfactory to 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 and evidencing the same aggregate
Percentage Interest in the Trust Fund will be issued to the designated
transferee or transferees. The Certificates are issuable only as registered
Certificates without coupons in denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations set forth therein,
Certificates are exchangeable for new Certificates of the same Class in
authorized denominations and evidencing the same aggregate Percentage Interest,
as requested by the Holder surrendering the same. No service charge will be
made
for any such registration of transfer or exchange, but the Certificate Registrar
may require payment of a sum sufficient to cover any tax or other governmental
charge payable in connection therewith.
Subject
to the terms of the Agreement, each Class of Book-Entry Certificates will be
registered as being held by the Depository or its nominee and beneficial
interests will be held by Certificate Owners through the book-entry facilities
of the Depository or its nominee. The Class 1A1, Class 1A2, Class 1A3, Class
1A4, Class 1A5, Class 1A6, Class 2A1, Class 3A1, Class 3A2, Class 1PO, Class
R,
Class 1B1, Class 1B2, Class 1B3, Class 1B4, Class 3B1, Class 3B2 and Class
3B3
Certificates. Certificates will be issued in minimum denominations of $25,000
and integral dollar multiples of $1 in excess thereof; provided that such
certificates must be purchased in minimum total investments of at least
$100,000.
The
Class
1A2, Class 1A3, Class 1A6 and Class 1X Certificates will each be issued in
a
minimum notional amount of $100,000 and integral multiples of $1 in excess
thereof. Such
The
Class
P Certificates shall be issued in a minimum Percentage Interest of 5% and in
integral multiples of 1% in excess thereof.
Each
of
the Class LT-R and Class R Certificates shall be issued as a single certificate
and will be maintained in physical form.
The
Depositor, the Seller, the Master Servicer, the Securities Administrator, the
Trustee, the Certificate Registrar and any agent of the foregoing 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 Trustee, the Master
Servicer, the Securities Administrator, the Certificate Registrar or any agent
of any of them shall be affected by any notice to the contrary.
On
any
Distribution Date following the date on which the aggregate of the Stated
Principal Balances of the Mortgage Loans on such date is equal to or less than
10% of the Cut-Off Date Aggregate Principal Balance, the Servicer may, at its
option, terminate the Agreement by purchasing all of the outstanding Mortgage
Loans and REO Properties at the Termination Price as provided in the Agreement.
In the event that the Servicer does not exercise its right of optional
termination, the obligations and responsibilities created by the Agreement
will
terminate upon the earliest of (i) the Distribution Date on which the Class
Certificate Principal Balance of each Class of Certificates has been reduced
to
zero, (ii) the final payment or other liquidation of the last Mortgage Loan
and
(iii) the Latest Possible Maturity Date.
E-2
To
the
extent not defined herein, capitalized terms used herein have the meanings
assigned to them in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
E-3
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
____________________________________________________________________________________________________________________________________________________________
(Please
print or typewrite name and address including postal ZIP code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust.
I
(We)
further direct the Trustee to issue a new Certificate of a like denomination
and
Class, to the above named assignee and deliver such Certificate to the following
address:
_____________________________________________________________________________.
Dated:
_____________
Signature
by or on behalf of assignor
E-4
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
Distributions
shall be made, by wire transfer or otherwise, in immediately available funds
to__________________________________________________________________________________________________________________________________________________________for
the account
of_______________________________________________________________,
account
number ________________________, or, if mailed by check, to
___________________ ______________________________________________________________________________Applicable
statements should be mailed to ___________________________________________
_____________________________________________________________________________.
This
information is provided by
_____________________________________________,
the
assignee named above, or
_____________________________________________________,
as
its
agent.
E-5
EXHIBIT
F
REQUEST
FOR RELEASE
Date
[Addressed
to Trustee
or,
if
applicable, custodian]
In
connection with the administration of the mortgages held by you as [Trustee]
[Custodian, on behalf of the Trustee] under a certain Pooling and Servicing
Agreement dated as of March 1, 2007 among Greenwich Capital Acceptance, Inc.,
as
Depositor, Greenwich Capital Financial Products, Inc., as Seller, Xxxxx Fargo
Bank, N.A., as Master Servicer and Securities Administrator, and Deutsche Bank
National Trust Company, as Trustee and as a Custodian (the “Pooling and
Servicing Agreement”), the undersigned [Master Servicer] [Servicer] hereby
requests a release of the Mortgage File held by you as [Trustee] [Custodian,
on
behalf of the Trustee] with respect to the following described Mortgage Loan
for
the reason indicated below.
Mortgagor’s
Name:
Address:
Loan
No.:
Reason
for requesting file:
1. Mortgage
Loan paid in full. (The [Master Servicer] [Servicer] hereby certifies that
all
amounts received in connection with the loan have been or will be credited
to a
Servicing Account or the Distribution Account (whichever is applicable) pursuant
to the Pooling and Servicing Agreement.)
2. The
Mortgage Loan is being foreclosed.
3. Mortgage
Loan substituted. (The [Master Servicer] [Servicer] hereby certifies that a
Qualified Substitute Mortgage Loan has been assigned and delivered to you along
with the related Mortgage File pursuant to the Pooling and Servicing
Agreement.)
4. Mortgage
Loan repurchased. (The [Master Servicer] [Servicer] hereby certifies that the
Purchase Price has been credited to a Servicing Account or the Distribution
Account (whichever is applicable) pursuant to the Pooling and Servicing
Agreement.)
5. Other.
(Describe)
The
undersigned acknowledges that the above Mortgage File will be held by the
undersigned in accordance with the provisions of the Pooling and Servicing
Agreement and will be returned to you within ten (10) days of our receipt of
the
Mortgage File, except if the Mortgage Loan has been paid in full, or repurchased
or substituted for a Qualified Substitute Mortgage Loan (in which case the
Mortgage File will be retained by us without obligation to return to
you).
F-1
Capitalized
terms used herein shall have the meanings ascribed to them in the Pooling and
Servicing Agreement.
_____________________________________
[Name
of
[Master Servicer] [Servicer]]
By:__________________________________
Name:
Title:
Servicing Officer
F-2
EXHIBIT
G-1
FORM
OF RECEIPT OF MORTGAGE NOTE
RECEIPT
OF MORTGAGE NOTE
Greenwich
Capital Acceptance, Inc.
000
Xxxxxxxxx Xxxx
Xxxxxxxxx,
Xxxxxxxxxxx 00000
Xxxxx
Fargo Bank, N.A.
X.X.
Xxx
00
Xxxxxxxx,
Xxxxxxxx 00000
|
Re:
|
RBSGC
Mortgage Loan Trust 2007-B
|
| Mortgage Loan Pass-Through Certificates, Series 2007-B |
Ladies
and Gentlemen:
Pursuant
to Section 2.01 of the Pooling and Servicing Agreement, dated as of March 1,
2007, among Greenwich Capital Acceptance, Inc., as Depositor, Greenwich Capital
Financial Products, Inc., as Seller, Xxxxx Fargo Bank, N.A., as Master Servicer
and Securities Administrator, and Deutsche Bank National Trust Company, as
Trustee and as a Custodian, we hereby acknowledge receipt of an original
Mortgage Note with respect to each Mortgage Loan listed on Exhibit 1, with
any
exceptions thereto listed on Exhibit 2.
DEUTSCHE
BANK
NATIONAL TRUST COMPANY,
as
Trustee and as a Custodian
By:
Name:
Title:
Dated:
G-1-1
EXHIBIT
1
MORTGAGE
LOAN SCHEDULE
[To
be retained in a separate closing binder entitled “RBSGC 2007-B Mortgage Loan
Schedule” at the Washington DC offices of XxXxx Xxxxxx LLP]
G-1-2
EXHIBIT
2
EXCEPTIONS
REPORT
[To
be retained in a separate closing binder entitled “RBSGC 2007-B Mortgage Loan
Schedule” at the Washington DC offices of XxXxx Xxxxxx LLP]
G-1-3
EXHIBIT
G-2
FORM
OF INTERIM CERTIFICATION OF TRUSTEE
INTERIM
CERTIFICATION OF TRUSTEE
[Date]
|
Greenwich
Capital Acceptance, Inc.
000
Xxxxxxxxx Xxxx
Xxxxxxxxx,
Xxxxxxxxxxx 00000
|
|
|
Greenwich
Capital Financial Products, Inc.
000
Xxxxxxxxx Xxxx
Xxxxxxxxx,
Xxxxxxxxxxx 00000
|
|
|
Standard
& Poor’s Ratings Services,
a
division of The XxXxxx-Xxxx Companies, Inc.
00
Xxxxx Xxxxxx, 00xx
Xxxxx
Xxx
Xxxx, Xxx Xxxx 00000
|
|
|
Xxxxx’x
Investors Service, Inc.
00
Xxxxxx Xxxxxx
Xxx
Xxxx, Xxx Xxxx 00000
|
|
|
Fitch,
Inc.
Xxx
Xxxxx Xxxxxx Xxxxx
Xxx
Xxxx, Xxx Xxxx 00000
|
|
|
Xxxxx
Fargo Bank, N.A.
X.X.
Xxx 00
Xxxxxxxx,
Xxxxxxxx 00000
|
| Re: | RBSGC Mortgage Loan Trust 2007-B | |
| Mortgage Loan Pass-Through Certificates, Series 2007-B |
Ladies
and Gentlemen:
In
accordance with Section 2.02 of the Pooling and Servicing Agreement dated as
of
March 1, 2007 (the “Pooling and Servicing Agreement”), among Greenwich Capital
Acceptance, Inc., as Depositor, Greenwich Capital Financial Products, Inc.,
as
Seller, Xxxxx Fargo Bank, N.A., as Master Servicer and Securities Administrator,
and Deutsche Bank National Trust Company, as Trustee and a Custodian, the
undersigned, as Trustee (or as a Custodian on behalf of the Trustee), hereby
certifies that, as to each Mortgage Loan listed in the Mortgage Loan Schedule
(other than any Mortgage Loan paid in full or listed on the attached
schedule):
G-2-1
|
(i)
|
all
documents required to be delivered to the Trustee (or to the undersigned
Custodian, on behalf of the Trustee) pursuant to Section 2.01 of the
Pooling and Servicing Agreement are in its
possession;
|
|
(ii)
|
such
documents have been reviewed by the Trustee (or the undersigned Custodian
on behalf of the Trustee) and have not been mutilated, damaged or
torn and
relate to such Mortgage Loan; and
|
|
(iii)
|
based
on the Trustee’s (or undersigned Custodian’s) examination and only as to
the foregoing, the information set forth in the Mortgage Loan Schedule
that corresponds to items (i), (ii) and (xiii) of the Mortgage Loan
Schedule accurately reflects information set forth in the Mortgage
File.
|
Based
on
its review and examination and only as to the foregoing documents, such
documents appear regular on their face and related to such Mortgage
Loan.
The
Trustee (or the undersigned Custodian on behalf of the Trustee) has made no
independent examination of any documents contained in each Mortgage File beyond
the review specifically required in the Pooling and Servicing Agreement. The
Trustee (or the undersigned Custodian on behalf of the Trustee) makes no
representations as to: (i) the validity, legality, sufficiency, enforceability
or genuineness of any of the documents contained in each Mortgage File of any
of
the Mortgage Loans identified on the Mortgage Loan Schedule, or (ii) the
collectibility, insurability, effectiveness or suitability of any such Mortgage
Loan.
Capitalized
words and phrases used but otherwise not defined herein shall have the
respective meanings assigned to them in the Pooling and Servicing
Agreement.
DEUTSCHE
BANK NATIONAL TRUST COMPANY,
as
Trustee and as a Custodian
By:
Name:
Title:
G-2-2
EXHIBIT
G-3
FORM
OF FINAL CERTIFICATION OF TRUSTEE
FINAL
CERTIFICATION OF TRUSTEE
[Date]
|
Greenwich
Capital Acceptance, Inc.
000
Xxxxxxxxx Xxxx
Xxxxxxxxx,
Xxxxxxxxxxx 00000
|
|
|
Greenwich
Capital Financial Products, Inc.
000
Xxxxxxxxx Xxxx
Xxxxxxxxx,
Xxxxxxxxxxx 00000
|
|
|
Xxxxx
Fargo Bank, N.A.
X.X.
Xxx 00
Xxxxxxxx,
Xxxxxxxx 00000
|
| Re: | RBSGC Mortgage Loan Trust 2007-B | |
| Mortgage Loan Pass-Through Certificates, Series 2007-B |
Ladies
and Gentlemen:
In
accordance with Section 2.02 of the Pooling and Servicing Agreement dated as
of
March 1, 2007 (the “Pooling and Servicing Agreement”), among Greenwich Capital
Acceptance, Inc., as Depositor, Greenwich Capital Financial Products, Inc.,
as
Seller, Xxxxx Fargo Bank, N.A., as Master Servicer and Securities Administrator,
and Deutsche Bank National Trust Company, as Trustee and as a Custodian, the
undersigned, as Trustee (or as a Custodian on behalf of the Trustee), hereby
certifies that as to each Mortgage Loan listed in the Mortgage Loan Schedule
(other than any Mortgage Loan paid in full or listed in the attached schedule)
it has received all documents required to be delivered to the Trustee pursuant
to Section 2.01 of the Pooling and Servicing Agreement.
Based
on
its review and examination and only as to the foregoing documents, (a) such
documents appear regular on their face and related to such Mortgage Loan, and
(b) the information set forth in items (i), (ii) and (xiii) of the definition
of
“Mortgage Loan Schedule” in the Pooling and Servicing Agreement accurately
reflects the information set forth in each Mortgage File.
The
Trustee (or the undersigned Custodian on behalf of the Trustee) has made no
independent examination of any documents contained in each Mortgage File beyond
the review specifically required in the Pooling and Servicing Agreement. The
Trustee (or the undersigned Custodian on behalf of the Trustee) makes no
representations as to: (i) the validity, legality, sufficiency, enforceability
or genuineness of any of the documents contained in each Mortgage File of any
of
the Mortgage Loans identified on the Mortgage Loan Schedule, or (ii) the
collectibility, insurability, effectiveness or suitability of any such Mortgage
Loan.
G-3-1
Capitalized
words and phrases used but not otherwise defined herein shall have the
respective meanings assigned to them in the Pooling and Servicing
Agreement.
DEUTSCHE
BANK NATIONAL TRUST COMPANY,
as
Trustee and as a Custodian
By:
Name:
Title:
G-3-2
EXHIBIT
H
FORM
OF LOST NOTE AFFIDAVIT
Personally
appeared before me the undersigned authority to administer oaths,
______________________ who first being duly sworn deposes and says: Deponent
is
______________________ of Greenwich Capital Financial Products, Inc. (the
“Seller”) and who has personal knowledge of the facts set out in this
affidavit.
On
_______________, 200__, _________________________ did execute and deliver a
promissory note in the principal amount of $__________.
That
said
note has been misplaced or lost through causes unknown and is currently lost
and
unavailable after diligent search has been made. The Seller’s records show that
an amount of principal and interest on said note is still presently outstanding,
due, and unpaid, and such Seller is still owner and holder in due course of
said
lost note.
The
Seller executes this Affidavit for the purpose of inducing Deutsche Bank
National Trust Company, as trustee on behalf of RBSGC Mortgage Loan Trust
2007-B, Mortgage Loan Pass-Through Certificates, Series 2007-B, to accept the
transfer of the above-described mortgage loan from the Seller.
The
Seller agrees to indemnify Deutsche Bank National Trust Company and Greenwich
Capital Acceptance, Inc. and hold each of them harmless for any losses incurred
by such parties resulting from the fact that the above described Note has been
lost or misplaced.
By:
__________________________________
__________________________________
|
STATE
OF
|
)
|
|
|
)
|
ss:
|
|
|
COUNTY
OF
|
)
|
On
this
____ day of ___________ 20__, before me, a Notary Public, in and for said County
and State, appeared ________________________, who acknowledged the extension
of
the foregoing and who, having been duly sworn, states that any representations
therein contained are true.
Witness
my hand and Notarial Seal this ____ day of _______ 20__.
_______________________________
_______________________________
My
commission expires _______________.
H-1
EXHIBIT
I-1
FORM
OF ERISA REPRESENTATION FOR RESIDUAL CERTIFICATES
[Date]
Greenwich
Capital Acceptance, Inc.
000
Xxxxxxxxx Xxxx
Xxxxxxxxx,
Xxxxxxxxxxx 00000
Deutsche
Bank National Trust Company
0000
Xxxx
Xx. Xxxxxx Xxxxx,
Xxxxx
Xxx, Xxxxxxxxxx 00000-0000
Attention:
GC0605
Xxxxx
Fargo Bank, N.A.
Xxxxx
Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx,
Xxxxxxxxx 00000
|
Re:
|
RBSGC
Mortgage Loan Trust 2007-B
|
| Mortgage Loan Pass-Through Certificates, Series 2007-B, Class [R], [LT-R] |
Ladies
and Gentlemen:
1. The
undersigned is the ______________________ of _________________ (the
“Transferee”), a [corporation duly organized] and existing under the laws of
__________, on behalf of which she makes this affidavit.
2. The
Transferee either (x) is not an employee benefit plan subject to Section 406
of
the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or a
plan or arrangement subject to Section 4975 of the Internal Revenue Code of
1986, as amended (the “Code”) (collectively, a “Plan”) nor a person acting on
behalf of any such Plan nor using the assets of any such Plan to effect the
transfer; (y) if the Certificate has been the subject of a best efforts or
firm
commitment underwriting or private placement that meets the requirements of
Prohibited Transaction Exemption 2002-41, and is an insurance company which
is
purchasing such Certificates with funds contained in an “insurance company
general account” (as such term is defined in Section V(e) of Prohibited
Transaction Class Exemption 95-60 (“PTCE 95-60”) and that the purchase and
holding of such Certificates are covered under Section I and III of PTCE 95-60;
or (z) shall deliver to the Certificate Registrar an opinion of counsel (a
“Benefit Plan Opinion”) satisfactory to the Certificate Registrar, and upon
which the Certificate Registrar shall be entitled to rely, to the effect that
the purchase or holding of such Certificate by the Transferee 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, the Certificate Registrar, the
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 Certificate Registrar the Depositor
or the Trust Fund.
I-1-1
3. The
Transferee hereby acknowledges that under the terms of the Pooling and Servicing
Agreement dated as of March 1, 2007 (the “Pooling and Servicing Agreement”)
among Greenwich Capital Acceptance, Inc., as Depositor, Greenwich Capital
Financial Products, Inc., as Seller, Xxxxx Fargo Bank, N.A., as Master Servicer
and Securities Administrator, and Deutsche Bank National Trust Company, as
Trustee and as a Custodian, no transfer of any ERISA-Restricted Certificate
in
the form of a Definitive Certificate shall be permitted to be made to any person
unless the Depositor and the Certificate Registrar have received a certificate
from such transferee in the form hereof.
Capitalized
words and phrases used but not otherwise defined herein shall have the
respective meanings assigned to them in the Pooling and Servicing
Agreement.
IN
WITNESS WHEREOF, the Transferee has executed this certificate.
_________________________________
[Transferee]
By:______________________________
Name:
Title:
I-1-2
EXHIBIT
I-2
FORM
OF ERISA REPRESENTATION
FOR
ERISA-RESTRICTED CERTIFICATES
[Date]
Greenwich
Capital Acceptance, Inc.
000
Xxxxxxxxx Xxxx
Xxxxxxxxx,
Xxxxxxxxxxx 00000
Deutsche
Bank National Trust Company
0000
Xxxx
Xx. Xxxxxx Xxxxx,
Xxxxx
Xxx, Xxxxxxxxxx 00000-0000
Attention:
GC0605
Xxxxx
Fargo Bank, N.A.
Xxxxx
Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx,
Xxxxxxxxx 00000
|
Re:
|
RBSGC
Mortgage Loan Trust 2007-B
|
| Mortgage Loan Pass-Through Certificates, |
| Series 2007-B, ERISA-Restricted Certificates |
Ladies
and Gentlemen:
1. The
undersigned is the ______________________ of _________________ (the
“Transferee”), a [corporation duly organized] and existing under the laws of
__________, on behalf of which s/he makes this affidavit.
2. The
Transferee either (x) is not an employee benefit plan subject to Section 406
of
the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or a
plan or arrangement subject to Section 4975 of the Internal Revenue Code of
1986, as amended (the “Code”) (collectively, a “Plan”) nor a person acting on
behalf of any such Plan nor using the assets of any such Plan to effect the
transfer; (y) if the Certificate has been the subject of a best efforts or
firm
commitment underwriting or private placement that meets the requirements of
Prohibited Transaction Exemption 2002-41, is an insurance company which is
purchasing such Certificates with funds contained in an “insurance company
general account” (as such term is defined in Section V(e) of Prohibited
Transaction Class Exemption 95-60 (“PTCE 95-60”)) and that the purchase and
holding of such Certificates are covered under Section I and III of PTCE 95-60;
or (z) shall deliver to the Certificate Registrar an opinion of counsel (a
“Benefit Plan Opinion”) satisfactory to the Certificate Registrar, and upon
which the Certificate Registrar shall be entitled to rely, to the effect that
the purchase or holding of such Certificate by the Transferee 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, the Certificate Registrar, the
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 Certificate Registrar the Depositor
or the Trust Fund.
I-2-1
3. The
Transferee hereby acknowledges that under the terms of the Pooling and Servicing
Agreement dated as of March 1, 2007 (the “Pooling and Servicing Agreement”)
among Greenwich Capital Acceptance, Inc., as Depositor, Greenwich Capital
Financial Products, Inc., as Seller, Xxxxx Fargo Bank, N.A., as Master Servicer
and Securities Administrator, and Deutsche Bank National Trust Company, as
Trustee and as a Custodian, no transfer of any ERISA-Restricted Certificate
in
the form of a Definitive Certificate shall be permitted to be made to any person
unless the Depositor and the Certificate Registrar have received a certificate
from such transferee in the form hereof.
Capitalized
words and phrases used but not otherwise defined herein shall have the
respective meanings assigned to them in the Pooling and Servicing
Agreement.
IN
WITNESS WHEREOF, the Transferee has executed this certificate.
_________________________________
[Transferee]
By:______________________________
Name:
Title:
X-0-0
XXXXXXX
X-0
FORM
OF INVESTMENT LETTER [NON-RULE 144A]
[Date]
Greenwich
Capital Acceptance, Inc.
000
Xxxxxxxxx Xxxx
Xxxxxxxxx,
Xxxxxxxxxxx 00000
Deutsche
Bank National Trust Company
0000
Xxxx
Xx. Xxxxxx Xxxxx,
Xxxxx
Xxx, Xxxxxxxxxx 00000-0000
Attention:
GC0605
Xxxxx
Fargo Bank, N.A.
Xxxxx
Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx,
Xxxxxxxxx 00000
|
Re:
|
RBSGC
Mortgage Loan Trust 2007-B
|
| Mortgage Loan Pass-Through Certificates, Series 2007-B |
Ladies
and Gentlemen:
In
connection with our acquisition of the Class [ ] Certificates of the
above-captioned series (the “Certificates”), we certify that (a) we understand
that the Certificates are not being registered under the Securities Act of
1933,
as amended (the “Act”), or any state securities laws and are being transferred
to us in a transaction that is exempt from the registration requirements of
the
Act and any such laws, (b) we are an “accredited investor,” as defined in
Regulation D under the Act, and have such knowledge and experience in financial
and business matters that we are capable of evaluating the merits and risks
of
investments in the Certificates, (c) we have had the opportunity to ask
questions of and receive answers from the Depositor concerning the purchase
of
the Certificates and all matters relating thereto or any additional information
deemed necessary to our decision to purchase the Certificates, (d) we are
acquiring the Certificates for investment for our own account and not with
a
view to any distribution of such Certificates (but without prejudice to our
right at all times to sell or otherwise dispose of the Certificates in
accordance with clause (f) below), (e) we have not offered or sold any
Certificates to, or solicited offers to buy any Certificates from, any person,
or otherwise approached or negotiated with any person with respect thereto,
or
taken any other action which would result in a violation of Section 5 of the
Act, and (f) we will not sell, transfer or otherwise dispose of any Certificates
unless (1) such sale, transfer or other disposition is made pursuant to an
effective registration statement under the Act or is exempt from such
registration requirements, and if requested, we will at our expense provide
an
opinion of counsel satisfactory to the addressees of this Certificate that
such
sale, transfer or other disposition may be made pursuant to an exemption from
the Act, (2) the purchaser or transferee of such Certificate has executed and
delivered to you a certificate to substantially the same effect as this
certificate, and (3) the purchaser or transferee has otherwise complied with
any
conditions for transfer set forth in the Pooling and Servicing
Agreement.
J-1-1
Capitalized
words and phrases used but not otherwise defined herein shall have the
respective meanings assigned to them in the Pooling and Servicing Agreement
dated as of March 1, 2007 (the “Pooling and Servicing Agreement”) among
Greenwich Capital Acceptance, Inc., as Depositor, Greenwich Capital Financial
Products, Inc., as Seller, Xxxxx Fargo Bank, N.A., as Master Servicer and
Securities Administrator, and Deutsche Bank National Trust Company, as Trustee
and as a Custodian.
Very
truly yours,
[NAME
OF TRANSFEREE]
By:
Authorized
Officer
X-0-0
XXXXXXX
X-0
FORM
OF RULE 144A INVESTMENT LETTER
[Date]
Greenwich
Capital Acceptance, Inc.
000
Xxxxxxxxx Xxxx
Xxxxxxxxx,
Xxxxxxxxxxx 00000
Deutsche
Bank National Trust Company
0000
Xxxx
Xx. Xxxxxx Xxxxx,
Xxxxx
Xxx, Xxxxxxxxxx 00000-0000
Attention:
GC0605
Xxxxx
Fargo Bank, N.A.
Xxxxx
Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx,
Xxxxxxxxx 00000
|
Re:
|
RBSGC
Mortgage Loan Trust 2007-B
|
| Mortgage Loan Pass-Through Certificates, Series 2007-B |
Ladies
and Gentlemen:
In
connection with our acquisition of the above Certificates we certify that (a)
we
understand that the Certificates are not being registered under the Securities
Act of 1933, as amended (the “Act”), or any state securities laws and are being
transferred to us in a transaction that is exempt from the registration
requirements of the Act and any such laws, (b) we have had the opportunity
to
ask questions of and receive answers from the Depositor concerning the purchase
of the Certificates and all matters relating thereto or any additional
information deemed necessary to our decision to purchase the Certificates,
(c)
we have not, nor has anyone acting on our behalf offered, transferred, pledged,
sold or otherwise disposed of the Certificates, any interest in the Certificates
or any other similar security to, or solicited any offer to buy or accept a
transfer, pledge or other disposition of the Certificates, any interest in
the
Certificates or any other similar security from, or otherwise approached or
negotiated with respect to the Certificates, any interest in the Certificates
or
any other similar security with, any person in any manner, or made any general
solicitation by means of general advertising or in any other manner, or taken
any other action, that would constitute a distribution of the Certificates
under
the Securities Act or that would render the disposition of the Certificates
a
violation of Section 5 of the Securities Act or require registration pursuant
thereto, nor will act, nor has authorized or will authorize any person to act,
in such manner with respect to the Certificates, and (d) we are a “qualified
institutional buyer” as that term is defined in Rule 144A under the Securities
Act and have completed either of the forms of certification to that effect
attached hereto as Annex 1 or Annex 2. We are aware that the sale to us is
being
made in reliance on Rule 144A. We are acquiring the Certificates for our own
account or for resale pursuant to Rule 144A and further, understand that such
Certificates may be resold, pledged or transferred only (i) to a person
reasonably believed to be a qualified institutional buyer that purchases for
its
own account or for the account of a qualified institutional buyer to whom notice
is given that the resale, pledge or transfer is being made in reliance on Rule
144A, or (ii) pursuant to another exemption from registration under the
Securities Act.
J-2-1
Capitalized
words and phrases used but not otherwise defined herein shall have the
respective meanings assigned to them in the Pooling and Servicing Agreement
dated as of March 1, 2007, relating to the above-referenced
Certificates, among Greenwich Capital Acceptance, Inc., as Depositor, Greenwich
Capital Financial Products, Inc., as Seller, Xxxxx Fargo Bank, N.A., as Master
Servicer and Securities Administrator, and Deutsche Bank National Trust Company,
as Trustee and as a Custodian.
Very
truly yours,
[NAME
OF TRANSFEREE]
By:
Authorized
Officer
J-2-2
ANNEX
1 TO EXHIBIT J
QUALIFIED
INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For
Transferees Other Than Registered Investment Companies]
The
undersigned (the “Buyer”) hereby certifies as follows to the parties listed in
the Rule 144A Transferee Certificate to which this certification relates with
respect to the Certificates described therein:
i. As
indicated below, the undersigned is the President, Chief Financial Officer,
Senior Vice President or other executive officer of the Buyer.
ii. In
connection with purchases by the Buyer, the Buyer is a “qualified institutional
buyer” as that term is defined in Rule 144A under the Securities Act of 1933, as
amended (“Rule 144A”) because (i) the Buyer owned and/or invested on a
discretionary basis $ 1
in
securities (except for the excluded securities referred to below) as of the
end
of the Buyer’s most recent fiscal year (such amount being calculated in
accordance with Rule 144A and (ii) the Buyer satisfies the criteria in the
category marked below.
___ Corporation,
etc.
The
Buyer is a corporation (other than a bank, savings and loan association or
similar institution), Massachusetts or similar business trust, partnership,
or
charitable organization described in Section 501(c)(3) of the Internal Revenue
Code of 1986, as amended.
___ Bank.
The
Buyer (a) is a national bank or banking institution organized under the laws
of
any State, territory or the District of Columbia, the business of which is
substantially confined to banking and is supervised by the State or territorial
banking commission or similar official or is a foreign bank or equivalent
institution, and (b) has an audited net worth of at least $25,000,000 as
demonstrated in its latest annual financial statements, a
copy
of which is attached hereto.
___ Savings
and Loan.
The
Buyer (a) is a savings and loan association, building and loan association,
cooperative bank, homestead association or similar institution, which is
supervised and examined by a State or Federal authority having supervision
over
any such institutions or is a foreign savings and loan association or equivalent
institution and (b) has an audited net worth of at least $25,000,000 as
demonstrated in its latest annual financial statements, a
copy
of which is attached hereto.
1 Buyer
must own and/or invest on a discretionary basis at least $100,000,000 in
securities unless Buyer is a dealer, and, in that case, Buyer must own and/or
invest on a discretionary basis at least $10,000,000 in
securities.
J-2-3
___ Broker-dealer.
The
Buyer is a dealer registered pursuant to Section 15 of the Securities Exchange
Act of 1934.
___ Insurance
Company.
The
Buyer is an insurance company whose primary and predominant business activity
is
the writing of insurance or the reinsuring of risks underwritten by insurance
companies and which is subject to supervision by the insurance commissioner
or a
similar official or agency of a State, territory or the District of
Columbia.
___ State
or Local Plan.
The
Buyer is a plan established and maintained by a State, its political
subdivisions, or any agency or instrumentality of the State or its political
subdivisions, for the benefit of its employees.
___ ERISA
Plan.
The
Buyer is an employee benefit plan within the meaning of Title I of the Employee
Retirement Income Security Act of 1974.
___ Investment
Advisor.
The
Buyer is an investment advisor registered under the Investment Advisors Act
of
1940.
___ Small
Business Investment Company.
Buyer
is a small business investment company licensed by the U.S. Small Business
Administration under Section 301(c) or (d) of the Small Business Investment
Act
of 1958.
___ Business
Development Company.
Buyer
is a business development company as defined in Section 202(a)(22) of the
Investment Advisors Act of 1940.
iii. The
term
“securities”
as
used
herein does
not include
(i)
securities of issuers that are affiliated with the Buyer, (ii) securities that
are part of an unsold allotment to or subscription by the Buyer, if the Buyer
is
a dealer, (iii) securities issued or guaranteed by the U.S. or any
instrumentality thereof, (iv) bank deposit notes and certificates of deposit,
(v) loan participations, (vi) repurchase agreements, (vii) securities owned
but
subject to a repurchase agreement and (viii) currency, interest rate and
commodity swaps.
iv. For
purposes of determining the aggregate amount of securities owned and/or invested
on a discretionary basis by the Buyer, the Buyer used the cost of such
securities to the Buyer and did not include any of the securities referred
to in
the preceding paragraph, except (i) where the Buyer reports its securities
holdings in its financial statements on the basis of their market value, and
(ii) no current information with respect to the cost of those securities has
been published. If clause (ii) in the preceding sentence applies, the securities
may be valued at market. Further, in determining such aggregate amount, the
Buyer may have included securities owned by subsidiaries of the Buyer, but
only
if such subsidiaries are consolidated with the Buyer in its financial statements
prepared in accordance with generally accepted accounting principles and if
the
investments of such subsidiaries are managed under the Buyer’s direction.
However, such securities were not included if the Buyer is a majority-owned,
consolidated subsidiary of another enterprise and the Buyer is not itself a
reporting company under the Securities Exchange Act of 1934, as
amended.
J-2-4
v. The
Buyer
acknowledges that it is familiar with Rule 144A and understands that the seller
to it and other parties related to the Certificates are relying and will
continue to rely on the statements made herein because one or more sales to
the
Buyer may be in reliance on Rule 144A.
vi. Until
the
date of purchase of the Rule 144A Securities, the Buyer will notify each of
the
parties to which this certification is made of any changes in the information
and conclusions herein. Until such notice is given, the Buyer’s purchase of the
Certificates will constitute a reaffirmation of this certification as of the
date of such purchase. In addition, if the Buyer is a bank or savings and loan
is provided above, the Buyer agrees that it will furnish to such parties updated
annual financial statements promptly after they become available.
Print
Name of Buyer
By:
Name:
Title:
Date:
J-2-5
ANNEX
2 TO EXHIBIT J
QUALIFIED
INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For
Transferees That are Registered Investment Companies]
The
undersigned (the “Buyer”) hereby certifies as follows to the parties listed in
the Rule 144A Transferee Certificate to which this certification relates with
respect to the Certificates described therein:
1. As
indicated below, the undersigned is the President, Chief Financial Officer
or
Senior Vice President of the Buyer or, if the Buyer is a “qualified
institutional buyer” as that term is defined in Rule 144A under the Securities
Act of 1933, as amended (“Rule 144A”) because Buyer is part of a Family of
Investment Companies (as defined below), is such an officer of the
Adviser.
2. In
connection with purchases by Buyer, the Buyer is a “qualified institutional
buyer” as defined in SEC Rule 144A because (i) the Buyer is an investment
company registered under the Investment Company Act of 1940, as amended and
(ii)
as marked below, the Buyer alone, or the Buyer’s Family of Investment Companies,
owned at least $100,000,000 in securities (other than the excluded securities
referred to below) as of the end of the Buyer’s most recent fiscal year. For
purposes of determining the amount of securities owned by the Buyer or the
Buyer’s Family of Investment Companies, the cost of such securities was used,
except (i) where the Buyer or the Buyer’s Family of Investment Companies reports
its securities holdings in its financial statements on the basis of their market
value, and (ii) no current information with respect to the cost of those
securities has been published. If clause (ii) in the preceding sentence applies,
the securities may be valued at market.
___ The
Buyer
owned $
in
securities (other than the excluded securities referred to below) as of the
end
of the Buyer’s most recent fiscal year (such amount being calculated in
accordance with Rule 144A).
___ The
Buyer
is part of a Family of Investment Companies which owned in the aggregate
$
in
securities (other than the excluded securities referred to below) as of the
end
of the Buyer’s most recent fiscal year (such amount being calculated in
accordance with Rule 144A).
3. The
term
“Family
of Investment Companies”
as
used
herein means two or more registered investment companies (or series thereof)
that have the same investment adviser or investment advisers that are affiliated
(by virtue of being majority owned subsidiaries of the same parent or because
one investment adviser is a majority owned subsidiary of the
other).
4. The
term
“securities”
as
used
herein does not include (i) securities of issuers that are affiliated with
the
Buyer or are part of the Buyer’s Family of Investment Companies, (ii) securities
issued or guaranteed by the U.S. or any instrumentality thereof, (iii) bank
deposit notes and certificates of deposit, (iv) loan participations, (v)
repurchase agreements, (vi) securities owned but subject to a repurchase
agreement and (vii) currency, interest rate and commodity swaps.
J-2-6
5. The
Buyer
is familiar with Rule 144A and understands that the parties listed in the Rule
144A Transferee Certificate to which this certification relates are relying
and
will continue to rely on the statements made herein because one or more sales
to
the Buyer will be in reliance on Rule 144A. In addition, the Buyer will only
purchase for the Buyer’s own account.
6. Until
the
date of purchase of the Certificates, the undersigned will notify the parties
listed in the Rule 144A Transferee Certificate to which this certification
relates of any changes in the information and conclusions herein. Until such
notice is given, the Buyer’s purchase of the Certificates will constitute a
reaffirmation of this certification by the undersigned as of the date of such
purchase.
Print
Name of Buyer or Adviser
By:
Name:
Title:
IF
AN ADVISER:
Print
Name of Buyer
Date:
J-2-7
EXHIBIT
K
FORM
OF TRANSFEROR CERTIFICATE
[Date]
Greenwich
Capital Acceptance, Inc.
000
Xxxxxxxxx Xxxx
Xxxxxxxxx,
Xxxxxxxxxxx 00000
Attention:
Corporate Trust, RBSGC Mortgage Loan Trust 2007-B
DB
Services Tennessee
000
Xxxxxxxxx Xxxx Xx.
Xxxxxxxxx,
Xxxxxxxxx 00000-0000
Attention:
Transfer Unit-RBSGC 2007-B
Xxxxx
Fargo Bank, N.A.
Xxxxx
Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx,
Xxxxxxxxx 00000
|
Re:
|
RBSGC
Mortgage Loan Trust 2007-B
|
| Mortgage Loan Pass-Through Certificates, Series 2007-B, Class [R], [LT-R] |
Ladies
and Gentlemen:
In
connection with our proposed transfer of an Ownership Interest in the Class
[R],
[LT-R] Certificate, we hereby certify that (a) we have no knowledge that the
proposed Transferee is not a Permitted Transferee acquiring an Ownership
Interest in such Class [R], [LT-R] Certificate for its own account and not
in a
capacity as trustee, nominee, or agent for another Person, and (b) we have
not
undertaken the proposed transfer in whole or in part to impede the assessment
or
collection of tax.
Very
truly yours,
[_____________________]
By:
______________________________
K-1
EXHIBIT
L
TRANSFER
AFFIDAVIT FOR RESIDUAL CERTIFICATE
PURSUANT
TO SECTION 6.02(e)
RBSGC
MORTGAGE LOAN TRUST 2007-B
MORTGAGE
LOAN PASS-THROUGH CERTIFICATES,
SERIES
2007-B, CLASS [R],
[LT-R]
|
STATE
OF
|
)
|
|
|
)
|
ss:
|
|
|
COUNTY
OF
|
)
|
The
undersigned, being first duly sworn, deposes and says as follows:
|
1.
|
The
undersigned is an officer of ______________________, the proposed
Transferee of a 100% Ownership Interest in the Class [R], [LT-R]
Certificate (the “Certificate”) issued pursuant to the Pooling and
Servicing Agreement, (the “Agreement”) dated as of
March 1, 2007, relating to the above-referenced Certificates,
among Greenwich Capital Acceptance, Inc., as Depositor, Greenwich
Capital
Financial Products, Inc., as Seller, Xxxxx Fargo Bank, N.A., as Master
Servicer and Securities Administrator, and Deutsche Bank National
Trust
Company, as Trustee and as a Custodian. Capitalized terms used, but
not
defined herein, shall have the meanings ascribed to such terms in
the
Agreement. The Transferee has authorized the undersigned to make
this
affidavit on behalf of the
Transferee.
|
|
2.
|
The
Transferee is, as of the date hereof, and will be, as of the date
of the
Transfer, a Permitted Transferee. The Transferee is acquiring its
Ownership Interest for its own account and not in a capacity as trustee,
nominee or agent for another party.
|
|
3.
|
The
Transferee has been advised of, and understands that (i) a tax will
be
imposed on Transfers of the Certificate to Persons that are not Permitted
Transferees; (ii) such tax will be imposed on the transferor, or,
if such
Transfer is through an agent (which includes a broker, nominee or
middleman) for a Person that is not a Permitted Transferee, on the
agent;
and (iii) the Person otherwise liable for the tax shall be relieved
of
liability for the tax if the subsequent Transferee furnished to such
Person an affidavit that such subsequent Transferee is a Permitted
Transferee and, at the time of Transfer, such Person does not have
actual
knowledge that the affidavit is false. The Transferee has provided
financial statements or other financial information requested by
the
Transferor in connection with the transfer of the Certificate to
permit
the Transferor to assess the financial capability of the Transferee
to pay
such taxes.
|
|
4.
|
The
Transferee has been advised of, and understands that a tax may be
imposed
on a “pass-through entity” holding the Certificate if, at any time during
the taxable year of the pass-through entity, a Disqualified Organization
is the record holder of an interest in such entity. The Transferee
understands that such tax will not be imposed for any period with
respect
to which the record holder furnishes to the pass-through entity an
affidavit that such record holder is not a Disqualified Organization
and
the pass-through entity does not have actual knowledge that such
affidavit
is false. (For this purpose, a “pass-through entity” includes a regulated
investment company, a real estate investment trust or common trust
fund, a
partnership, trust or estate, and certain cooperatives and, except
as may
be provided in Treasury Regulations, persons holding interests in
pass-through entities as a nominee for another
Person.)
|
L-1
|
5.
|
The
Transferee has reviewed the provisions of Section 6.02(e) of the
Agreement
and understands the legal consequences of the acquisition of an Ownership
Interest in the Certificate including, without limitation, the
restrictions on subsequent Transfers and the provisions regarding
voiding
the Transfer and mandatory sales. The Transferee expressly agrees
to be
bound by and to abide by the provisions of Section 6.02(e) of the
Agreement and the restrictions noted on the face of the Certificate.
The
Transferee understands and agrees that any breach of any of the
representations included herein shall render the Transfer to the
Transferee contemplated hereby null and
void.
|
|
6.
|
The
Transferee agrees to require a Transfer Affidavit from any Person
to whom
the Transferee attempts to Transfer its Ownership Interest in the
Certificate, and the Transferee will not Transfer its Ownership Interest
or cause any Ownership Interest to be Transferred to any Person that
the
Transferee knows is not a Permitted Transferee. In connection with
any
such Transfer by the Transferee, the Transferee agrees to deliver
to the
Trustee a certificate substantially in the form set forth as Exhibit
K to
the Agreement (a “Transferor
Certificate”).
|
|
7.
|
The
Transferee does not have the intention to impede the assessment or
collection of any tax legally required to be paid with respect to
the
Certificate.
|
| 8. | The Transferee’s taxpayer identification number is . |
|
9.
|
The
Transferee is aware that the Certificate may be a “noneconomic residual
interest” within the meaning of the REMIC provisions and that the
transferor of a noneconomic residual interest will remain liable
for any
taxes due with respect to the income on such residual interest, unless
no
significant purpose of the transfer was to impede the assessment
or
collection of tax.
|
L-2
IN
WITNESS WHEREOF, the Transferee has caused this instrument to be executed on
its
behalf, pursuant to authority of its Board of Directors, by its duly authorized
officer and its corporate seal to be hereunto affixed, duly attested, this
day
of
,
20 .
[NAME
OF TRANSFEREE]
By:
Name:
Title:
[Corporate
Seal]
ATTEST:
[Assistant]
Secretary
Personally
appeared before me the above-named
,
known
or proved to me to be the same person who executed the foregoing instrument
and
to be the
of the
Transferee, and acknowledged that he executed the same as his free act and
deed
and the free act and deed of the Transferee.
Subscribed
and sworn before me this
day
of
,
20 .
NOTARY
PUBLIC
|
My
Commission expires the
day of ,
20 .
|
L-3
EXHIBIT
M
LIST
OF SERVICING AGREEMENTS
|
1.
|
Seller’s
Warranties and Servicing Agreement dated as of January 1, 2007 (WFHM
2007-PA01) as
reconstituted pursuant to a Reconstituted Servicing Agreement (Xxxxx
Fargo—Originated Mortgage Loans) dated as of March 1, 2007, by and between
Greenwich Capital Financial Products, Inc. (“GCFP”), and Xxxxx Fargo Bank,
N.A. (“Xxxxx Fargo”), and acknowledged by Xxxxx Fargo as master servicer
and Deutsche Bank National Trust Company
(“Deutsche Bank”),
as trustee.
|
|
2.
|
Seller’s
Warranties and Servicing Agreement dated as of January 1, 2007
(2007-PA01),
as reconstituted pursuant to a Reconstituted Servicing Agreement
(Xxxxx
Fargo—Servicing Acquired Mortgage Loans) dated as of March 1, 2007, by
and
between GCFP and Xxxxx Fargo, and acknowledged by Xxxxx
Fargo
as master servicer and Deutsche
Bank,
as trustee.
|
|
3.
|
Servicing
Agreement dated as of January 1, 2006 as reconstituted pursuant to
a
Reconstituted Servicing Agreement dated as of March 1, 2007, by and
among
GCFP, Greenwich Capital Acceptance, Inc. (“GCA”), and Central Mortgage
Company, and acknowledged by Xxxxx
Fargo
as master servicer and Deutsche
Bank,
as trustee.
|
|
4.
|
Amended
and Restated Master Flow Sale and Servicing Agreement dated May 1,
2006
(Adjustable
Rate Conventional Mortgage Loans, Group No. 2004-NC1),
as reconstituted pursuant to a Reconstituted Servicing Agreement
dated as
of March 1, 2007, by and among GCFP, GCA, and GMAC Mortgage, LLC,
and
acknowledged by Xxxxx
Fargo
as master servicer and Deutsche
Bank,
as trustee.
|
|
5.
|
Mortgage
Loan Flow Purchase, Sale and Servicing Agreement dated as of April
1,
2006, as reconstituted pursuant to a Reconstituted Servicing Agreement
dated as of March 1, 2007, by and among GCFP, PHH Mortgage Corporation,
and Xxxxxx’x Gate Residential Mortgage Trust and acknowledged by
Xxxxx
Fargo
as master servicer and Deutsche
Bank,
as trustee.
|
|
6.
|
Purchase,
Warranties and Servicing Agreement, dated as of August 1, 2004, as
amended
by that certain Amendment to the Purchase, Warranties and Servicing
Agreement, dated as of January 12, 2007 (the “Amendment No. 1”), and the
Term Sheet dated as of August 31, 2006, as reconstituted pursuant
to a
Assignment, Assumption and Recognition Agreement dated as of March
1,
2007, by and among GCFP, Deutsche
Bank,
as trustee, U.S. Central Federal Credit Union and GCA and acknowledged
by
Xxxxx
Fargo
as master servicer.
|
M-1
M-2
EXHIBIT
N-1
FORM
OF TRANSFER CERTIFICATE
(RESTRICTED
GLOBAL SECURITY
TO
REGULATION S GLOBAL SECURITY)
(Transfers
pursuant to §§ 6.02 (f) (ii)
of the Pooling and Servicing
Agreement)
DB
Services Tennessee
000
Xxxxxxxxx Xxxx Xx.
Xxxxxxxxx,
Xxxxxxxxx 00000-0000
Attention:
Transfer Unit-RBSGC 2007-B
|
Re:
|
RBSGC
Mortgage Loan Trust 2007-B
|
| Mortgage Loan Pass-Through Certificates, Series 2007-B |
Reference
is hereby made to the Pooling and Servicing Agreement dated as of March 1,
2007
(the “Pooling and Servicing Agreement”) relating to the above referenced
certificates, among Greenwich Capital Acceptance, Inc., as Depositor, Greenwich
Capital Financial Products, Inc., as Seller, Xxxxx Fargo Bank, N.A., as Master
Servicer and Securities Administrator, and Deutsche Bank National Trust Company,
as Trustee and as a Custodian. Capitalized terms used but not defined herein
shall have the meanings given them in the Pooling and Servicing
Agreement.
This
letter relates to U.S. $____________________________ aggregate principal amount
of Securities which are held in the form of a Restricted Global Security with
the Depository in the name of [name of transferor]
___________________________________ (the “Transferor”) to effect the transfer of
the Securities in exchange for an equivalent beneficial interest in a Regulation
S Global Security.
In
connection with such request, the Transferor does hereby certify that such
transfer has been effected in accordance with the transfer restrictions set
forth in the Pooling and Servicing Agreement and the private placement
memorandum dated March 28, 2007, relating to the Securities and in accordance
with Rule 904 of Regulation S, and that:
a. the
offer
of the Securities was not made to a person in the United States;
b. at
the
time the buy order was originated, the transferee was outside the United States
or the Transferor and any person acting on its behalf reasonably believed that
the transferee was outside the United States;
c. no
directed selling efforts have been made in contravention of the requirements
of
Rule 903 or 904 of Regulation S, as applicable;
N-1-1
d. the
transaction is not part of a plan or scheme to evade the registration
requirements of the United States Securities Act of 1933, as amended (the
“Securities Act”); and
e.
the
transferee is not a U.S. Person.
You
and
the Depositor are entitled to rely upon this letter and are irrevocably
authorized to produce this letter or a copy hereof to any interested party
in
any administrative or legal proceedings or official inquiry with respect to
the
matters covered hereby. Terms used in this certificate have the meanings set
forth in Regulation S.
[Name
of Transferor]
By:
Name:
Title:
Date:
,
N-1-2
EXHIBIT
N-2
FORM
OF TRANSFER CERTIFICATE FOR TRANSFER
(REGULATION
S GLOBAL SECURITY
TO
RESTRICTED GLOBAL SECURITY)
(Transfers
pursuant to §§ 6.02 (f) (iii)
of
the Pooling and Servicing
Agreement)
DB
Services Tennessee
000
Xxxxxxxxx Xxxx Xx.
Xxxxxxxxx,
Xxxxxxxxx 00000-0000
Attention:
Transfer Unit-RBSGC 2007-B
|
Re:
|
RBSGC
Mortgage Loan Trust 2007-B
|
| Mortgage Loan Pass-Through Certificates, Series 2007-B |
Reference
is hereby made to the Pooling and Servicing Agreement dated as of March 1,
2007
(the “Pooling and Servicing Agreement”) relating to the above referenced
certificates, among Greenwich Capital Acceptance, Inc., as Depositor, Greenwich
Capital Financial Products, Inc., as Seller, Xxxxx Fargo Bank, N.A. as Master
Servicer and Securities Administrator, and Deutsche Bank National Trust Company,
as Trustee and as a Custodian. Capitalized terms used but not defined herein
shall have the meanings given them in the Pooling and Servicing
Agreement.
This
letter relates to U.S. $____________________________ aggregate principal amount
of Securities which are held in the form of a Regulations S Global Security
in
the name of [name of transferor] ___________________________________ (the
“Transferor”) to effect the transfer of the Securities in exchange for an
equivalent beneficial interest in a Restricted Global Security.
In
connection with such request, and in respect of such Securities, the Transferor
does hereby certify that such Securities are being transferred in accordance
with (i) the transfer restrictions set forth in the Pooling and Servicing
Agreement and the private placement memorandum dated March 28, 2007, relating
to
the Securities and (ii) Rule 144A under the United States Securities Act of
1933, as amended, to a transferee that the Transferor reasonably believes is
purchasing the Securities for its own account or an account with respect to
which the transferee exercises sole investment discretion, the transferee or
any
such account is a qualified institutional buyer within the meaning of Rule
144A,
in a transaction meeting the requirements of Rule 144A and in accordance with
any applicable securities laws of any state of the United States or any other
jurisdiction.
[Name
of Transferor]
By:
Name:
Title:
Date: ,
N-2-1
N-2-2
EXHIBIT
O
FORM
OF BACK-UP XXXXXXXX-XXXXX CERTIFICATION
[ ]
[ ]
[ ]
[_______],
the [_______] of [_______] (the “Company”) hereby certifies to the Depositor,
the Master Servicer and the Securities Administrator, and each of their
officers, directors and affiliates that:
(1) I
have
reviewed [the servicer compliance statement of the Company provided in
accordance with Item 1123 of Regulation AB (the “Compliance Statement”),] the
report on assessment of the Company’s compliance with the Servicing Criteria set
forth in Item 1122(d) of Regulation AB (the “Servicing Criteria”), provided in
accordance with Rules 13a-18 and 15d-18 under the Securities Exchange Act of
1934, as amended (the “Exchange Act”) and Item 1122 of Regulation AB (the
“Servicing Assessment”), the registered public accounting firm’s attestation
report provided in accordance with Rules 13a-18 and 15d-18 under the Exchange
Act and Section 1122(b) of Regulation AB (the “Attestation Report”), and all
servicing reports, officer’s certificates and other information relating to the
servicing of the Mortgage Loans by the Company during 200[ ] that were delivered
by the Company to any of the Depositor and the Trustee pursuant to the Agreement
(collectively, the “Company Servicing Information”);
(2) Based
on
my knowledge, the Company Servicing Information, taken as a whole, does not
contain any untrue statement of a material fact or omit to state a material
fact
necessary to make the statements made, in the light of the circumstances under
which such statements were made, not misleading with respect to the period
of
time covered by the Company Servicing Information;
(3) Based
on
my knowledge, all of the Company Servicing Information required to be provided
by the Company under the Agreement has been provided to the Depositor and the
Trustee;
(4) I
am
responsible for reviewing the activities performed by [_______] as [_______]
under the [_______] (the “Agreement”), and based on my knowledge [and the
compliance review conducted in preparing the Compliance Statement] and except
as
disclosed in [the Compliance Statement,] the Servicing Assessment or the
Attestation Report, the Company has fulfilled its obligations under the
Agreement in all material respects; and
(5) [The
Compliance Statement required to be delivered by the Company pursuant to the
Agreement, and] [The] [the] Servicing Assessment and Attestation Report required
to be provided by the Company and [by any Subservicer or Subcontractor] pursuant
to the Agreement, have been provided to the Depositor, the Master Servicer
and
the Securities Administrator. Any material instances of noncompliance described
in such reports have been disclosed to the Depositor, the Master Servicer and
the Securities Administrator. Any material instance of noncompliance with the
Servicing Criteria has been disclosed in such reports.
O-1
Capitalized
terms used but not defined herein have the meanings ascribed to them in the
Pooling and Servicing Agreement dated as of March 1, 2007 (the “Pooling and
Servicing Agreement”) relating to the above referenced certificates, among
Greenwich Capital Acceptance, Inc., as Depositor, Greenwich Capital Financial
Products, Inc., as Seller, Xxxxx Fargo Bank, N.A. as Master Servicer and
Securities Administrator, and Deutsche Bank National Trust Company, as Trustee
and as a Custodian. Capitalized terms used but not defined herein shall have
the
meanings assigned to such terms in the Pooling and Servicing
Agreement.
[_______]
as
[_______]
By:
Name:
Title:
Date:
O-2
EXHIBIT
P
[FORM
OF SUBSEQUENT TRANSFER AGREEMENT]
P-1
SUBSEQUENT
TRANSFER AGREEMENT
This
SUBSEQUENT TRANSFER AGREEMENT dated as of [__________] (this “Subsequent
Transfer Agreement”), is among GREENWICH CAPITAL ACCEPTANCE, INC., a Delaware
corporation, as depositor (the “Depositor”), GREENWICH CAPITAL FINANCIAL
PRODUCTS, INC., a Delaware corporation, as seller (the “Seller”), and DEUTSCHE
BANK NATIONAL TRUST COMPANY, a national banking association, as trustee (the
“Trustee”);
WHEREAS,
the parties hereto are also among the parties to the Pooling and Servicing
Agreement dated as of March 1, 2007, among the Depositor, the Seller, Xxxxx
Fargo Bank, N.A., as master servicer and securities administrator, and the
Trustee, in such capacity as such and as a Custodian (the “Pooling and Servicing
Agreement”), in relation to the RBSGC Mortgage Loan Trust Mortgage Loan
Pass-Through Certificates, Series 2007-B;
WHEREAS,
the Seller desires to sell the Subsequent Mortgage Loans set forth on Schedule
A
hereto, including the related Mortgages, to the Depositor and the Depositor
desires to purchase such Subsequent Mortgage Loans;
WHEREAS,
the Depositor desires to convey such Subsequent Mortgage Loans to the Trustee,
for the benefit of the Certificateholders, and the Trustee desires to accept
such conveyance; and
WHEREAS,
Sections 2.01(b) of the Pooling and Servicing Agreement provides for the parties
hereto to enter into this Subsequent Transfer Agreement in accordance with
the
terms and conditions of the Pooling and Servicing Agreement;
NOW,
THEREFORE, in consideration of the premises and for other good and valuable
consideration the receipt and adequacy of which are hereby
acknowledged:
1. The
parties hereto agree as follows:
|
(i)
|
The
“Subsequent Transfer Date” with respect to this Subsequent Transfer
Agreement shall be [__________], and the “Subsequent Cut-off Date” with
respect to this Subsequent Transfer Agreement shall be the Close
of
Business in New York City on
[__________].
|
|
(ii)
|
The
“Aggregate Subsequent Purchase Amount” with respect to this Subsequent
Transfer Agreement shall be $____________ (representing an “Aggregate
Pool 1 Subsequent Purchase Amount” of $____________
and an “Aggregate Pool 2 Subsequent Purchase Amount” of $____________),
provided,
however,
that the Aggregate Subsequent Purchase Amount shall not exceed the
amount
on deposit in the Prefunding Account. The entire Aggregate Pool 1
Subsequent Purchase Amount shall be used to purchase Subsequent Mortgage
Loans for Mortgage Pool 1. The entire Aggregate Pool 2 Subsequent
Purchase
Amount shall be used to purchase Subsequent Mortgage Loans for Mortgage
Pool 2.
|
P-2
|
(iii)
|
In
case any provision of this Subsequent Transfer Agreement shall be
invalid,
illegal or unenforceable, the validity, legality and enforceability
of the
remaining provisions or obligations shall not in any way be affected
or
impaired thereby.
|
|
(iv)
|
In
the event of any conflict between the provisions of this Subsequent
Transfer Agreement and the Pooling and Servicing Agreement, the provisions
of the Pooling and Servicing Agreement shall prevail. Capitalized
terms
used herein and not otherwise defined have the meanings in the Pooling
and
Servicing Agreement.
|
2. The
Seller hereby agrees to the following:
|
(i)
|
The
Subsequent Mortgage Loans conveyed on the Subsequent Transfer Date
satisfy
the pool characteristics for the Trust Fund identified in Section
2.01(b)
of the Pooling and Servicing
Agreement.
|
|
(ii)
|
The
Seller hereby sells, transfers, assigns, sets over and otherwise
conveys
to the Depositor, without recourse, all right title and interest
in the
Subsequent Mortgage Loans identified in Schedule A, including all
interest
and principal due on or with respect to such Subsequent Mortgage
Loans
after the Subsequent Cut-off Date and all interest and principal
payments
on such Subsequent Mortgage Loans received prior to the Subsequent
Cut-off
Date in respect of installments of interest and principal due thereafter,
but not including principal and interest due on such Subsequent Mortgage
Loans prior to the Subsequent Cut-off Date, any insurance policies
in
respect of such Subsequent Mortgage Loans and all proceeds of any
of the
foregoing.
|
|
(iii)
|
The
Seller hereby makes the representations and warranties as set forth
in
Section 2.04 of the Pooling and Servicing Agreement to the Trustee
on
behalf of the Certificateholders and the Certificate Insurer as of
the
Subsequent Transfer Date with respect to the Subsequent Mortgage
Loans.
|
|
(iv)
|
The
Seller hereby makes the representations and warranties as set forth
in
Section 2.08 of the Pooling and Servicing Agreement to the Trustee
on
behalf of the Certificateholders and the Certificate Insurer as of
the
Subsequent Transfer Date.
|
3. The
Depositor hereby agrees to the following:
|
(i)
|
The
Depositor, concurrently with the execution and delivery hereof, does
hereby transfer, assign, set over and otherwise convey to the Trustee
without recourse for the benefit of the Certificateholders all the
right,
title and interest of the Depositor, including any security interest
therein for the benefit of the Depositor, in and to each Subsequent
Mortgage Loan included on the Mortgage Loan Schedule, including the
related Cut-off Date Principal Balance, all interest due thereon
after the
Subsequent Cut-off Date, all collections in respect of interest and
principal due after the Subsequent Cut-off Date, any insurance proceeds
in
respect of such Subsequent Mortgage Loans and all proceeds of any
of the
foregoing;
|
P-3
|
(ii)
|
The
Depositor hereby makes the representations and warranties as set
forth in
Section 2.06 of the Pooling and Servicing Agreement to the Trustee
on
behalf of the Certificateholders and the Certificate Insurer as of
the
Subsequent Transfer Date.
|
|
4.
|
THIS
SUBSEQUENT TRANSFER AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE
TO
ITS CONFLICT OF LAW PROVISIONS (OTHER THAN SECTION 5-1401 OF THE
GENERAL
OBLIGATIONS LAW), AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES
HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
|
|
5.
|
This
Subsequent Transfer Agreement may be executed in one or more counterparts,
each of which so executed and delivered shall be deemed an original,
but
all such counterparts together shall constitute but one and the same
instrument.
|
P-4
IN
WITNESS WHEREOF, the parties to this Subsequent Transfer Agreement have caused
their names to be signed hereto by their respective officers thereunto duly
authorized as of the day and year first above written.
GREENWICH
CAPITAL ACCEPTANCE, INC.,
as
Depositor
By:
Name:
Title:
GREENWICH
CAPITAL FINANCIAL PRODUCTS, INC.,
as
Seller
By:
Name:
Title:
DEUTSCHE
BANK NATIONAL TRUST COMPANY,
not
in its individual capacity, but solely as Trustee
By:
Name:
Title:
P-5
SCHEDULE
A
SUBSEQUENT
MORTGAGE LOAN SCHEDULE
[To
be
retained in a separate closing binder entitled “RBSGC 2007-B Mortgage Loan
Schedule” at the Washington DC office of XxXxx Xxxxxx LLP]
P-6
EXHIBIT
Q
FORM
OF SECURITIES ADMINISTRATOR CERTIFICATE
|
Re:
|
RBSGC
Mortgage Loan Trust (the “Trust”)
|
| Mortgage Loan Pass-Through Certificates, Series 2007-B |
I,
[identify the certifying individual], a [title] of Xxxxx Fargo Bank, N.A.,
as
Securities Administrator of the Trust, hereby certify to Greenwich Capital
Acceptance, Inc. (the “Depositor”), and its officers, directors and affiliates,
and with the knowledge and intent that they will rely upon this certification,
that:
1. I
have
reviewed the annual report on Form 10-K for the fiscal year [___], and all
reports on Form 10-D required to be filed in respect of the period covered
by
such Form 10-K of the Depositor relating to the above-referenced trust (the
“Exchange Act periodic reports”);
2. Based
on my knowledge, the information prepared by the Securities Administrator,
contained, in these distribution reports taken as a whole, do not contain any
untrue statement of a material fact or omit to state a material fact necessary
to make the statements made, in light of the circumstances under which such
statements were made, not misleading with respect to the period covered by
this
report; and
3. Based
on
my knowledge, the distribution information required to be provided by the
Securities
Administrator
under
the Pooling and Servicing Agreement is included in these reports.
Capitalized
terms used but not defined herein have the meanings ascribed to them in the
Pooling and Servicing Agreement, dated March 1, 2007 (the “Pooling and Servicing
Agreement”) among the Depositor, Greenwich Capital Financial Products, Inc., as
the seller, Xxxxx Fargo Bank, N.A., as master servicer and as securities
administrator and Deutsche Bank National Trust Company, as trustee and as a
custodian .
Xxxxx
Fargo Bank, N.A.,
as
Trustee
By:___________________________
[Name]
[Title]
[Date]
Q-1
EXHIBIT
R
SERVICING
CRITERIA TO BE ADDRESSED
IN
REPORT ON ASSESSMENT OF COMPLIANCE
The
assessment of compliance to be delivered by Xxxxx Fargo Bank, N.A. (Xxxxx
Fargo”), in its capacity as Master Servicer and Securities Administrator shall
address, at a minimum, the criteria identified below as “Applicable Servicing
Criteria.”
|
Servicing
Criteria
|
Applicable
Servicing Criteria
for
Xxxxx Fargo
|
|
|
Reference
|
Criteria
|
|
|
|
General
Servicing Considerations
|
|
|
1122(d)(1)(i)
|
Policies
and procedures are instituted to monitor any performance or other
triggers
and events of default in accordance with the transaction
agreements.
|
X
|
|
1122(d)(1)(ii)
|
If
any material servicing activities are outsourced to third parties,
policies and procedures are instituted to monitor the third party’s
performance and compliance with such servicing activities.
|
X
|
|
1122(d)(1)(iii)
|
Any
requirements in the transaction agreements to maintain a back-up
servicer
for the mortgage loans are maintained.
|
|
|
1122(d)(1)(iv)
|
A
fidelity bond and errors and omissions policy is in effect on the
party
participating in the servicing function throughout the reporting
period in
the amount of coverage required by and otherwise in accordance with
the
terms of the transaction agreements.
|
|
|
|
Cash
Collection and Administration
|
|
|
1122(d)(2)(i)
|
Payments
on mortgage loans are deposited into the appropriate custodial bank
accounts and related bank clearing accounts no more than two business
days
following receipt, or such other number of days specified in the
transaction agreements.
|
X
|
|
1122(d)(2)(ii)
|
Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made
only by authorized personnel.
|
X
|
|
1122(d)(2)(iii)
|
Advances
of funds or guarantees regarding collections, cash flows or distributions,
and any interest or other fees charged for such advances, are made,
reviewed and approved as specified in the transaction
agreements.
|
X
|
|
1122(d)(2)(iv)
|
The
related accounts for the transaction, such as cash reserve accounts
or
accounts established as a form of overcollateralization, are separately
maintained (e.g., with respect to commingling of cash) as set forth
in the
transaction agreements.
|
X
|
|
1122(d)(2)(v)
|
Each
custodial account is maintained at a federally insured depository
institution as set forth in the transaction agreements. For purposes
of
this criterion, “federally insured depository institution” with respect to
a foreign financial institution means a foreign financial institution
that
meets the requirements of Rule 13k-1(b)(1) of the Securities Exchange
Act.
|
X
|
|
1122(d)(2)(vi)
|
Unissued
checks are safeguarded so as to prevent unauthorized
access.
|
R-1
|
Servicing
Criteria
|
Applicable
Servicing Criteria
for
Xxxxx Fargo
|
|
|
Reference
|
Criteria
|
|
|
1122(d)(2)(vii)
|
Reconciliations
are prepared on a monthly basis for all asset-backed securities related
bank accounts, including custodial accounts and related bank clearing
accounts. These reconciliations are (A) mathematically accurate;
(B)
prepared within 30 calendar days after the bank statement cutoff
date, or
such other number of days specified in the transaction agreements;
(C)
reviewed and approved by someone other than the person who prepared
the
reconciliation; and (D) contain explanations for reconciling items.
These
reconciling items are resolved within 90 calendar days of their original
identification, or such other number of days specified in the transaction
agreements.
|
X
|
|
|
Investor
Remittances and Reporting
|
X
|
|
1122(d)(3)(i)
|
Reports
to investors, including those to be filed with the Commission, are
maintained in accordance with the transaction agreements and applicable
Commission requirements. Specifically, such reports (A) are prepared
in
accordance with timeframes and other terms set forth in the transaction
agreements; (B) provide information calculated in accordance with
the
terms specified in the transaction agreements; (C) are filed with
the
Commission as required by its rules and regulations; and (D) agree
with
investors’ or the trustee’s records as to the total unpaid principal
balance and number of mortgage loans serviced by the
Servicer.
|
X
|
|
1122(d)(3)(ii)
|
Amounts
due to investors are allocated and remitted in accordance with timeframes,
distribution priority and other terms set forth in the transaction
agreements.
|
X
|
|
1122(d)(3)(iii)
|
Disbursements
made to an investor are posted within two business days to the Servicer’s
investor records, or such other number of days specified in the
transaction agreements.
|
X
|
|
1122(d)(3)(iv)
|
Amounts
remitted to investors per the investor reports agree with cancelled
checks, or other form of payment, or custodial bank
statements.
|
X
|
|
|
Pool
Asset Administration
|
|
|
1122(d)(4)(i)
|
Collateral
or security on mortgage loans is maintained as required by the transaction
agreements or related mortgage loan documents.
|
|
|
1122(d)(4)(ii)
|
Mortgage
loan and related documents are safeguarded as required by the transaction
agreements
|
|
|
1122(d)(4)(iii)
|
Any
additions, removals or substitutions to the asset pool are made,
reviewed
and approved in accordance with any conditions or requirements in
the
transaction agreements.
|
|
|
1122(d)(4)(iv)
|
Payments
on mortgage loans, including any payoffs, made in accordance with
the
related mortgage loan documents are posted to the Servicer’s obligor
records maintained no more than two business days after receipt,
or such
other number of days specified in the transaction agreements, and
allocated to principal, interest or other items (e.g., escrow) in
accordance with the related mortgage loan documents.
|
|
|
1122(d)(4)(v)
|
The
Servicer’s records regarding the mortgage loans agree with the Servicer’s
records with respect to an obligor’s unpaid principal
balance.
|
|
|
1122(d)(4)(vi)
|
Changes
with respect to the terms or status of an obligor's mortgage loans
(e.g.,
loan modifications or re-agings) are made, reviewed and approved
by
authorized personnel in accordance with the transaction agreements
and
related pool asset documents.
|
|
|
1122(d)(4)(vii)
|
Loss
mitigation or recovery actions (e.g., forbearance plans, modifications
and
deeds in lieu of foreclosure, foreclosures and repossessions, as
applicable) are initiated, conducted and concluded in accordance
with the
timeframes or other requirements established by the transaction
agreements.
|
R-2
|
Servicing
Criteria
|
Applicable
Servicing Criteria
for
Xxxxx Fargo
|
|
|
Reference
|
Criteria
|
|
|
1122(d)(4)(viii)
|
Records
documenting collection efforts are maintained during the period a
mortgage
loan is delinquent in accordance with the transaction agreements.
Such
records are maintained on at least a monthly basis, or such other
period
specified in the transaction agreements, and describe the entity’s
activities in monitoring delinquent mortgage loans including, for
example,
phone calls, letters and payment rescheduling plans in cases where
delinquency is deemed temporary (e.g., illness or
unemployment).
|
|
|
1122(d)(4)(ix)
|
Adjustments
to interest rates or rates of return for mortgage loans with variable
rates are computed based on the related mortgage loan
documents.
|
|
|
1122(d)(4)(x)
|
Regarding
any funds held in trust for an obligor (such as escrow accounts):
(A) such
funds are analyzed, in accordance with the obligor’s mortgage loan
documents, on at least an annual basis, or such other period specified
in
the transaction agreements; (B) interest on such funds is paid, or
credited, to obligors in accordance with applicable mortgage loan
documents and state laws; and (C) such funds are returned to the
obligor
within 30 calendar days of full repayment of the related mortgage
loans,
or such other number of days specified in the transaction
agreements.
|
|
|
1122(d)(4)(xi)
|
Payments
made on behalf of an obligor (such as tax or insurance payments)
are made
on or before the related penalty or expiration dates, as indicated
on the
appropriate bills or notices for such payments, provided that such
support
has been received by the servicer at least 30 calendar days prior
to these
dates, or such other number of days specified in the transaction
agreements.
|
|
|
1122(d)(4)(xii)
|
Any
late payment penalties in connection with any payment to be made
on behalf
of an obligor are paid from the servicer’s funds and not charged to the
obligor, unless the late payment was due to the obligor’s error or
omission.
|
|
|
1122(d)(4)(xiii)
|
Disbursements
made on behalf of an obligor are posted within two business days
to the
obligor’s records maintained by the servicer, or such other number of days
specified in the transaction agreements.
|
|
|
1122(d)(4)(xiv)
|
Delinquencies,
charge-offs and uncollectible accounts are recognized and recorded
in
accordance with the transaction agreements.
|
|
|
1122(d)(4)(xv)
|
Any
external enhancement or other support, identified in Item 1114(a)(1)
through (3) or Item 1115 of Regulation AB, is maintained as set forth
in
the transaction agreements.
|
X
|
|
|
|
|
R-3
The
assessment of compliance to be delivered by Deutsche Bank National Trust Company
(“Deutsche Bank”), in its capacity as a Custodian, shall address, at a minimum,
the criteria identified as below as “Applicable Servicing
Criteria”:
|
Servicing
Criteria
|
Applicable
Servicing
Criteria
for Deutsche Bank
|
|
|
Reference
|
Criteria
|
|
|
General
Servicing Considerations
|
||
|
1122(d)(1)(i)
|
Policies
and procedures are instituted to monitor any performance or other
triggers
and events of default in accordance with the transaction
agreements.
|
|
|
1122(d)(1)(ii)
|
If
any material servicing activities are outsourced to third parties,
policies and procedures are instituted to monitor the third party’s
performance and compliance with such servicing activities.
|
|
|
1122(d)(1)(iii)
|
Any
requirements in the transaction agreements to maintain a back-up
servicer
for the mortgage loans are maintained.
|
|
|
1122(d)(1)(iv)
|
A
fidelity bond and errors and omissions policy is in effect on the
party
participating in the servicing function throughout the reporting
period in
the amount of coverage required by and otherwise in accordance with
the
terms of the transaction agreements.
|
|
|
Cash
Collection and Administration
|
||
|
1122(d)(2)(i)
|
Payments
on mortgage loans are deposited into the appropriate custodial bank
accounts and related bank clearing accounts no more than two business
days
following receipt, or such other number of days specified in the
transaction agreements.
|
|
|
1122(d)(2)(ii)
|
Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made
only by authorized personnel.
|
|
|
1122(d)(2)(iii)
|
Advances
of funds or guarantees regarding collections, cash flows or distributions,
and any interest or other fees charged for such advances, are made,
reviewed and approved as specified in the transaction
agreements.
|
|
|
1122(d)(2)(iv)
|
The
related accounts for the transaction, such as cash reserve accounts
or
accounts established as a form of overcollateralization, are separately
maintained (e.g., with respect to commingling of cash) as set forth
in the
transaction agreements.
|
|
|
1122(d)(2)(v)
|
Each
custodial account is maintained at a federally insured depository
institution as set forth in the transaction agreements. For purposes
of
this criterion, “federally insured depository institution” with respect to
a foreign financial institution means a foreign financial institution
that
meets the requirements of Rule 13k-1(b)(1) of the Securities Exchange
Act.
|
|
|
1122(d)(2)(vi)
|
Unissued
checks are safeguarded so as to prevent unauthorized
access.
|
|
|
1122(d)(2)(vii)
|
Reconciliations
are prepared on a monthly basis for all asset-backed securities related
bank accounts, including custodial accounts and related bank clearing
accounts. These reconciliations are (A) mathematically accurate;
(B)
prepared within 30 calendar days after the bank statement cutoff
date, or
such other number of days specified in the transaction agreements;
(C)
reviewed and approved by someone other than the person who prepared
the
reconciliation; and (D) contain explanations for reconciling items.
These
reconciling items are resolved within 90 calendar days of their original
identification, or such other number of days specified in the transaction
agreements.
|
|
|
Investor
Remittances and Reporting
|
||
|
1122(d)(3)(i)
|
Reports
to investors, including those to be filed with the Commission, are
maintained in accordance with the transaction agreements and applicable
Commission requirements. Specifically, such reports (A) are prepared
in
accordance with timeframes and other terms set forth in the transaction
agreements; (B) provide information calculated in accordance with
the
terms specified in the transaction agreements; (C) are filed with
the
Commission as required by its rules and regulations; and (D) agree
with
investors’ or the trustee’s records as to the total unpaid principal
balance and number of mortgage loans serviced by the
Servicer.
|
|
|
1122(d)(3)(ii)
|
Amounts
due to investors are allocated and remitted in accordance with timeframes,
distribution priority and other terms set forth in the transaction
agreements.
|
R-4
|
Servicing
Criteria
|
Applicable
Servicing
Criteria
for Deutsche Bank
|
|
|
Reference
|
Criteria
|
|
|
General
Servicing Considerations
|
||
|
1122(d)(3)(iii)
|
Disbursements
made to an investor are posted within two business days to the Servicer’s
investor records, or such other number of days specified in the
transaction agreements.
|
|
|
1122(d)(3)(iv)
|
Amounts
remitted to investors per the investor reports agree with cancelled
checks, or other form of payment, or custodial bank
statements.
|
|
|
Pool
Asset Administration
|
||
|
1122(d)(4)(i)
|
Collateral
or security on mortgage loans is maintained as required by the transaction
agreements or related mortgage loan documents.
|
X
|
|
1122(d)(4)(ii)
|
Mortgage
loan and related documents are safeguarded as required by the transaction
agreements.
|
X
|
|
1122(d)(4)(iii)
|
Any
additions, removals or substitutions to the asset pool are made,
reviewed
and approved in accordance with any conditions or requirements in
the
transaction agreements.
|
X
|
|
1122(d)(4)(iv)
|
Payments
on mortgage loans, including any payoffs, made in accordance with
the
related mortgage loan documents are posted to the Servicer’s obligor
records maintained no more than two business days after receipt,
or such
other number of days specified in the transaction agreements, and
allocated to principal, interest or other items (e.g., escrow) in
accordance with the related mortgage loan documents.
|
|
|
1122(d)(4)(v)
|
The
Servicer’s records regarding the mortgage loans agree with the Servicer’s
records with respect to an obligor’s unpaid principal
balance.
|
|
|
1122(d)(4)(vi)
|
Changes
with respect to the terms or status of an obligor’s mortgage loans (e.g.,
loan modifications or re-agings) are made, reviewed and approved
by
authorized personnel in accordance with the transaction agreements
and
related pool asset documents.
|
|
|
1122(d)(4)(vii)
|
Loss
mitigation or recovery actions (e.g., forbearance plans, modifications
and
deeds in lieu of foreclosure, foreclosures and repossessions, as
applicable) are initiated, conducted and concluded in accordance
with the
timeframes or other requirements established by the transaction
agreements.
|
|
|
1122(d)(4)(viii)
|
Records
documenting collection efforts are maintained during the period a
mortgage
loan is delinquent in accordance with the transaction agreements.
Such
records are maintained on at least a monthly basis, or such other
period
specified in the transaction agreements, and describe the entity’s
activities in monitoring delinquent mortgage loans including, for
example,
phone calls, letters and payment rescheduling plans in cases where
delinquency is deemed temporary (e.g., illness or
unemployment).
|
|
|
1122(d)(4)(ix)
|
Adjustments
to interest rates or rates of return for mortgage loans with variable
rates are computed based on the related mortgage loan
documents.
|
|
|
1122(d)(4)(x)
|
Regarding
any funds held in trust for an obligor (such as escrow accounts):
(A) such
funds are analyzed, in accordance with the obligor’s mortgage loan
documents, on at least an annual basis, or such other period specified
in
the transaction agreements; (B) interest on such funds is paid, or
credited, to obligors in accordance with applicable mortgage loan
documents and state laws; and (C) such funds are returned to the
obligor
within 30 calendar days of full repayment of the related mortgage
loans,
or such other number of days specified in the transaction
agreements.
|
|
|
1122(d)(4)(xi)
|
Payments
made on behalf of an obligor (such as tax or insurance payments)
are made
on or before the related penalty or expiration dates, as indicated
on the
appropriate bills or notices for such payments, provided that such
support
has been received by the servicer at least 30 calendar days prior
to these
dates, or such other number of days specified in the transaction
agreements.
|
|
|
1122(d)(4)(xii)
|
Any
late payment penalties in connection with any payment to be made
on behalf
of an obligor are paid from the servicer’s funds and not charged to the
obligor, unless the late payment was due to the obligor’s error or
omission.
|
|
|
1122(d)(4)(xiii)
|
Disbursements
made on behalf of an obligor are posted within two business days
to the
obligor’s records maintained by the servicer, or such other number of days
specified in the transaction agreements.
|
|
|
1122(d)(4)(xiv)
|
Delinquencies,
charge-offs and uncollectible accounts are recognized and recorded
in
accordance with the transaction agreements.
|
|
|
1122(d)(4)(xv)
|
Any
external enhancement or other support, identified in Item 1114(a)(1)
through (3) or Item 1115 of Regulation AB, is maintained as set forth
in
the transaction agreements.
|
R-5
EXHIBIT
S
TRANSACTION
PARTIES
Trustee:
Deutsche Bank National Trust Company
Securities
Administrator: Xxxxx Fargo Bank, N.A.
Master
Servicer: Xxxxx Fargo Bank, N.A.
Credit
Risk Manager: N/A.
PMI
Insurer(s): N/A.
Yield
Maintenance Provider: N/A
| Servicer(s): | Xxxxx Fargo Bank, N.A. |
| U.S. Central Credit Union |
| PHH Mortgage Corporation |
| Central Mortgage Company |
| GMAC Mortgage Corporation |
|
Originator(s):
|
Xxxxx
Fargo Bank, N.A.
|
|
First
National Bank of Arizona
|
|
Greenpoint
Mortgage Funding, Inc.
|
|
PHH
Mortgage Corporation
|
|
UBS
Mortgage LLC
|
|
U.S.
Central Credit Union
|
| Custodian(s): | Deutsche Bank National Trust Company |
| Xxxxx Fargo Bank, N.A. |
Seller:
Greenwich Capital Financial Products, Inc.
S-1
EXHIBIT
T
FORM
10-D,
FORM 8-K AND FORM 10-K REPORTING RESPONSIBILITY
As
to
each item described below, the entity indicated as the Responsible Party shall
be primarily responsible for reporting the information to the Trustee pursuant
to Section 3.07. If the Trustee is indicated below as to any item, then the
Trustee is primarily responsible for obtaining that information.
Under
Item 1 of Form 10-D: a) items marked “5.04 statement” are required to be
included in the periodic Distribution Date statement under Section 5.04,
provided by the Trustee, based upon information provided by the responsible
party; and b) items marked “Form 10-D report” are required to be in the Form
10-D report but not the 5.04 statement, provided by the party indicated.
Information under all other Items of Form 10-D is to be included in the Form
10-D report.
|
ADDITIONAL
FORM 10-D DISCLOSURE
|
|
|
Item
on Form 10-D
|
Party
Responsible
|
|
Item
1: Distribution and Pool Performance Information
|
|
|
Information
included in the [Monthly Statement]
|
Servicer
Master
Servicer
Securities
Administrator
|
|
Any
information required by 1121 which is NOT included on the [Monthly
Statement]
|
Depositor
|
|
Item
2: Legal Proceedings
Any
legal proceeding pending against the following entities or their
respective property, that is material to Certificateholders, including
any
proceeding sknown to be contemplated by governmental
authorities:
|
|
|
▪
Issuing Entity (Trust Fund)
|
Trustee,
Master Servicer, Securities Administrator and Depositor
|
|
▪
Sponsor (Seller)
|
Seller
(if a party to the Pooling and Servicing Agreement) or
Depositor
|
|
▪
Depositor
|
Depositor
|
|
▪
Trustee
|
Trustee
|
|
▪
Securities Administrator
|
Securities
Administrator
|
|
▪
Master Servicer
|
Master
Servicer
|
T-1
|
ADDITIONAL
FORM 10-D DISCLOSURE
|
|
|
Item
on Form 10-D
|
Party
Responsible
|
|
▪
Custodian
|
Custodian
|
|
▪
1110(b) Originator
|
Depositor
|
|
▪
Any 1108(a)(2) Servicer (other than the Master Servicer or Securities
Administrator)
|
Servicer
|
|
▪
Any other party contemplated by 1100(d)(1)
|
Depositor
|
|
Item
3: Sale of Securities and Use of Proceeds
Information
from Item 2(a) of Part II of Form 10-Q:
With
respect to any sale of securities by the sponsor, depositor or issuing
entity, that are backed by the same asset pool or are otherwise issued
by
the issuing entity, whether or not registered, provide the sales
and use
of proceeds information in Item 701 of Regulation S-K. Pricing information
can be omitted if securities were not registered.
|
Depositor
|
|
Item
4: Defaults Upon Senior Securities
Information
from Item 3 of Part II of Form 10-Q:
Report
the occurrence of any Event of Default (after expiration of any grace
period and provision of any required notice)
|
Securities
Administrator
Trustee
|
|
Item
5: Submission of Matters to a Vote of Security
Holders
Information
from Item 4 of Part II of Form 10-Q
|
Securities
Administrator
Trustee
|
|
Item
6: Significant Obligors of Pool Assets
Item
1112(b) - Significant
Obligor Financial Information*
|
Depositor
|
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Item.
|
|
|
Item
7: Significant Enhancement Provider Information
Item
1114(b)(2) - Credit Enhancement Provider Financial
Information*
|
|
|
▪
Determining applicable disclosure threshold
|
Depositor
|
|
▪
Requesting required financial information (including any required
accountants’ consent to the use thereof) or effecting incorporation by
reference
|
Depositor
|
T-2
|
ADDITIONAL
FORM 10-D DISCLOSURE
|
|
|
Item
on Form 10-D
|
Party
Responsible
|
|
Item
1115(b) - Derivative Counterparty Financial
Information*
|
|
|
▪
Determining current maximum probable exposure
|
Depositor
|
|
▪
Determining current significance percentage
|
Depositor
|
|
▪
Requesting required financial information (including any required
accountants’ consent to the use thereof) or effecting incorporation by
reference
|
Depositor
|
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Items.
|
|
|
Item
8: Other Information
Disclose
any information required to be reported on Form 8-K during the period
covered by the Form 10-D but not reported
|
Any
party responsible for the applicable Form 8-K Disclosure
item
|
|
Item
9: Exhibits
|
|
|
Monthly
Statement to Certificateholders
|
Securities
Administrator
|
|
Exhibits
required by Item 601 of Regulation S-K, such as material
agreements
|
Depositor
|
|
ADDITIONAL
FORM 10-K DISCLOSURE
|
|
|
Item
on Form 10-K
|
Party
Responsible
|
|
Item
1B: Unresolved Staff Comments
|
Depositor
|
|
Item
9B: Other Information
Disclose
any information required to be reported on Form 8-K during the fourth
quarter covered by the Form 10-K but not reported
|
Any
party responsible for disclosure items on Form 8-K
|
|
Item
15: Exhibits, Financial Statement Schedules
|
Securities
Administrator
Depositor
|
|
Reg
AB Item 1112(b): Significant Obligors of Pool
Assets
|
|
|
Significant
Obligor Financial Information*
|
Depositor
|
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Item.
|
|
|
Reg
AB Item 1114(b)(2): Credit
Enhancement
Provider Financial Information
|
|
|
▪
Determining applicable disclosure threshold
|
Depositor
|
T-3
|
ADDITIONAL
FORM 10-K DISCLOSURE
|
|
|
Item
on Form 10-K
|
Party
Responsible
|
|
▪
Requesting required financial information (including any required
accountants’ consent to the use thereof) or effecting incorporation by
reference
|
Depositor
|
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Items.
|
|
|
Reg
AB Item 1115(b): Derivative Counterparty Financial
Information
|
|
|
▪
Determining current maximum probable exposure
|
Depositor
|
|
▪
Determining current significance percentage
|
Depositor
|
|
▪
Requesting required financial information (including any required
accountants’ consent to the use thereof) or effecting incorporation by
reference
|
Depositor
|
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Items.
|
|
|
Reg
AB Item 1117: Legal Proceedings
Any
legal proceeding pending against the following entities or their
respective property, that is material to Certificateholders, including
any
proceeding sknown to be contemplated by governmental
authorities:
|
|
|
▪
Issuing Entity (Trust Fund)
|
Trustee,
Master Servicer, Securities Administrator and Depositor
|
|
▪
Sponsor (Seller)
|
Seller
(if a party to the Pooling and Servicing Agreement) or
Depositor
|
|
▪
Depositor
|
Depositor
|
|
▪
Trustee
|
Trustee
|
|
▪
Securities Administrator
|
Securities
Administrator
|
|
▪
Master Servicer
|
Master
Servicer
|
|
▪
Custodian
|
Custodian
|
|
▪
1110(b) Originator
|
Depositor
|
|
▪
Any 1108(a)(2) Servicer (other than the Master Servicer or Securities
Administrator)
|
Servicer
|
|
▪
Any other party contemplated by 1100(d)(1)
|
Depositor
|
|
Reg
AB Item 1119: Affiliations and Relationships
|
|
|
Whether
(a) the Sponsor (Seller), Depositor or Issuing Entity is an affiliate
of
the following parties, and (b) to the extent known and material,
any of
the following parties are affiliated with one another:
|
Depositor
as to (a)
Sponsor/Seller
as to (a)
|
T-4
|
ADDITIONAL
FORM 10-K DISCLOSURE
|
|
|
Item
on Form 10-K
|
Party
Responsible
|
|
▪
Master Servicer
|
Master
Servicer
|
|
▪
Securities Administrator
|
Securities
Administrator
|
|
▪
Trustee
|
Trustee
|
|
▪
Any other 1108(a)(3) servicer
|
Servicer
|
|
▪
Any 1110 Originator
|
Depositor/Sponsor
|
|
▪
Any 1112(b) Significant Obligor
|
Depositor/Sponsor
|
|
▪
Any 1114 Credit Enhancement Provider
|
Depositor/Sponsor
|
|
▪
Any 1115 Derivate Counterparty Provider
|
Depositor/Sponsor
|
|
▪
Any other 1101(d)(1) material party
|
Depositor/Sponsor
|
|
Whether
there are any “outside the ordinary course business arrangements” other
than would be obtained in an arm’s length transaction between (a) the
Sponsor (Seller), Depositor or Issuing Entity on the one hand, and
(b) any
of the following parties (or their affiliates) on the other hand,
that
exist currently or within the past two years and that are material
to a
Certificateholder’s understanding of the Certificates:
|
Depositor
as to (a)
Sponsor/Seller
as to (a)
|
|
▪
Master Servicer
|
Master
Servicer
|
|
▪
Securities Administrator
|
Securities
Administrator
|
|
▪
Trustee
|
Trustee
|
|
▪
Any other 1108(a)(3) servicer
|
Servicer
|
T-5
|
ADDITIONAL
FORM 10-K DISCLOSURE
|
|
|
Item
on Form 10-K
|
Party
Responsible
|
|
▪
Any 1110 Originator
|
Depositor/Sponsor
|
|
▪
Any 1112(b) Significant Obligor
|
Depositor/Sponsor
|
|
▪
Any 1114 Credit Enhancement Provider
|
Depositor/Sponsor
|
|
▪
Any 1115 Derivate Counterparty Provider
|
Depositor/Sponsor
|
|
▪
Any other 1101(d)(1) material party
|
Depositor/Sponsor
|
|
Whether
there are any specific relationships involving the transaction or
the pool
assets between (a) the Sponsor (Seller), Depositor or Issuing Entity
on
the one hand, and (b) any of the following parties (or their affiliates)
on the other hand, that exist currently or within the past two years
and
that are material:
|
Depositor
as to (a)
Sponsor/Seller
as to (a)
|
|
▪
Master Servicer
|
Master
Servicer
|
|
▪
Securities Administrator
|
Securities
Administrator
|
|
▪
Trustee
|
Trustee
|
|
▪
Any other 1108(a)(3) servicer
|
Servicer
|
|
▪
Any 1110 Originator
|
Depositor/Sponsor
|
|
▪
Any 1112(b) Significant Obligor
|
Depositor/Sponsor
|
|
▪
Any 1114 Credit Enhancement Provider
|
Depositor/Sponsor
|
|
▪
Any 1115 Derivate Counterparty Provider
|
Depositor/Sponsor
|
|
▪
Any other 1101(d)(1) material party
|
Depositor/Sponsor
|
|
FORM
8-K DISCLOSURE INFORMATION
|
|
|
Item
on Form 8-K
|
Party
Responsible
|
|
Item
1.01- Entry into a Material Definitive Agreement
Disclosure
is required regarding entry into or amendment of any definitive agreement
that is material to the securitization, even if depositor is not
a party.
Examples:
servicing agreement, custodial agreement.
Note:
disclosure not required as to definitive agreements that are fully
disclosed in the prospectus
|
All
parties
|
|
Item
1.02- Termination of a Material Definitive Agreement
Disclosure
is required regarding termination of any definitive agreement that
is
material to the securitization (other than expiration in accordance
with
its terms), even if depositor is not a party.
Examples:
servicing agreement, custodial agreement.
|
All
parties
|
|
Item
1.03- Bankruptcy or Receivership
Disclosure
is required regarding the bankruptcy or receivership, with respect
to any
of the following:
|
Depositor
|
|
▪
Sponsor (Seller)
|
Depositor/Sponsor
(Seller)
|
|
▪
Depositor
|
Depositor
|
|
▪
Master Servicer
|
Master
Servicer
|
|
▪
Affiliated Servicer
|
Servicer
|
|
▪
Other Servicer servicing 20% or more of the pool assets at the time
of the
report
|
Servicer
|
|
▪
Other material servicers
|
Servicer
|
T-6
|
FORM
8-K DISCLOSURE INFORMATION
|
|
|
Item
on Form 8-K
|
Party
Responsible
|
|
▪
Trustee
|
Trustee
|
|
▪
Securities Administrator
|
Securities
Administrator
|
|
▪
Significant Obligor
|
Depositor
|
|
▪
Credit Enhancer (10% or more)
|
Depositor
|
|
▪
Derivative Counterparty
|
Depositor
|
|
▪
Custodian
|
Custodian
|
|
Item
2.04- Triggering Events that Accelerate or Increase a Direct Financial
Obligation or an Obligation under an Off-Balance Sheet
Arrangement
Includes
an early amortization, performance trigger or other event, including
event
of default, that would materially alter the payment priority/distribution
of cash flows/amortization schedule.
Disclosure
will be made of events other than waterfall triggers which are disclosed
in the monthly statements to the certificateholders.
|
Depositor
Master
Servicer
Securities
Administrator
|
|
Item
3.03- Material Modification to Rights of Security
Holders
Disclosure
is required of any material modification to documents defining the
rights
of Certificateholders, including the Pooling and Servicing
Agreement.
|
Securities
Administrator
Trustee
Depositor
|
|
Item
5.03- Amendments of Articles of Incorporation or Bylaws; Change of
Fiscal
Year
Disclosure
is required of any amendment “to the governing documents of the issuing
entity”.
|
Depositor
|
|
Item
6.01- ABS Informational and Computational
Material
|
Depositor
|
|
Item
6.02- Change of Servicer or Securities Administrator
Requires
disclosure of any removal, replacement, substitution or addition
of any
master servicer, affiliated servicer, other servicer servicing 10%
or more
of pool assets at time of report, other material servicers or
trustee.
|
Master
Servicer/Securities Administrator/Depositor/
Servicer/Trustee
|
|
Reg
AB disclosure about any new servicer or master servicer is also
required.
|
Servicer/Master
Servicer/Depositor
|
|
Reg
AB disclosure about any new Trustee is also required.
|
Trustee
|
T-7
|
FORM
8-K DISCLOSURE INFORMATION
|
|
|
Item
on Form 8-K
|
Party
Responsible
|
|
Item
6.03- Change in Credit Enhancement or External
Support
Covers
termination of any enhancement in manner other than by its terms,
the
addition of an enhancement, or a material change in the enhancement
provided. Applies to external credit enhancements as well as derivatives.
|
Depositor/Securities
Administrator/Trustee
|
|
Reg
AB disclosure about any new enhancement provider is also
required.
|
Depositor
|
|
Item
6.04- Failure to Make a Required Distribution
|
Securities
Administrator
Trustee
|
|
Item
6.05- Securities Act Updating Disclosure
If
any material pool characteristic differs by 5% or more at the time
of
issuance of the securities from the description in the final prospectus,
provide updated Reg AB disclosure about the actual asset
pool.
|
Depositor
|
|
If
there are any new servicers or originators required to be disclosed
under
Regulation AB as a result of the foregoing, provide the information
called
for in Items 1108 and 1110 respectively.
|
Depositor
|
|
Item
7.01- Reg FD Disclosure
|
All
parties
|
|
Item
8.01- Other Events
Any
event, with respect to which information is not otherwise called
for in
Form 8-K, that the registrant deems of importance to
certificateholders.
|
Depositor
|
|
Item
9.01- Financial Statements and Exhibits
|
Responsible
party for reporting/disclosing the financial statement or
exhibit
|
T-8
EXHIBIT
U
ADDITIONAL
DISCLOSURE NOTIFICATION
Xxxxx
Fargo Bank, N.A. as Securities Administrator
X.X.
Xxx
00
Xxxxxxxx,
Xxxxxxxx 00000
Fax:
(000) 000-0000
E-mail:
xxx.xxx.xxxxxxxxxxxxx@xxxxxxxxxx.xxx
Attn:
Corporate Trust Services - RBSGC MORTGAGE LOAN TRUST 2007-B-SEC REPORT
PROCESSING
RE:
**Additional Form [ ] Disclosure**Required
Ladies
and Gentlemen:
In
accordance with Sections 3.20(a)(ii), 3.20(b)(ii) and 3.20(c)(ii) of the Pooling
and Servicing Agreement dated as of March 1, 2007, among Greenwich Capital
Acceptance, Inc., as Depositor, Greenwich Capital Financial Products, Inc.,
as
Seller, Xxxxx Fargo Bank, N.A., as Master Servicer and Securities Administrator,
and Deutsche Bank National Trust Company, as Trustee and as a Custodian, the
undersigned, as [ ], hereby notifies you that certain events have come to our
attention that [will][may] need to be disclosed on Form [ ].
Description
of Additional Form [ ] Disclosure:
List
of
Any Attachments hereto to be included in the Additional Form [ ]
Disclosure:
Any
inquiries related to this notification should be directed to [ ], phone number:
[ ]; email address: [ ].
[NAME
OF
PARTY]
as
[role]
By:
__________________
Name:
Title
U-1
EXHIBIT
V
LIST
OF ORIGINATORS AND PURCHASE AGREEMENTS
|
1.
|
Seller’s
Warranties and Servicing Agreement dated as of January 1, 2007 (WFHM
2007-PA01) between
Greenwich Capital Financial Products, Inc. (“GCFP”), and Xxxxx Fargo Bank,
N.A. (“Xxxxx Fargo”)
|
|
2.
|
Seller’s
Warranties and Servicing Agreement dated as of December 1, 2006 (WFHM
2006-W109),
between GCFP, as purchaser and Xxxxx Fargo, as seller and
servicer.
|
|
3.
|
[[Central
Mortgage Company]].
|
|
4.
|
[[Greenpoint
Mortgage Funding, Inc.]].
|
|
5.
|
Amended
and Restated Master Flow Sale and Servicing Agreement dated as of
May 1,
2006 (Adjustable
Rate Conventional Mortgage Loans, Group No. 2004-NC1),
between GCFP and GMAC Mortgage, LLC
(“GMACM”).
|
|
6.
|
Mortgage
Loan Flow Purchase, Sale and Servicing Agreement dated as of April
1,
2006, between GCFP, PHH Mortgage Corporation (“PHH”), and Xxxxxx’x Gate
Residential Mortgage Trust (“Xxxxxx’x
Gate”)
|
|
7.
|
Purchase,
Warranties and Servicing Agreement, dated as of August 1, 2004
between U.S.
Central Federal Credit Union (“U.S. Central”) and GCFP, as amended by that
certain Amendment to the Purchase, Warranties and Servicing Agreement,
dated as of January 12, 2007 (the “Amendment No. 1”), and the Term Sheet
dated as of August 31, 2006, between the U.S. Central and
GCFP.
|
V-1
SCHEDULE
I
MORTGAGE
LOAN SCHEDULE
[To
be
retained in a Separate Closing Binder entitled “RBSGC 2007-B Mortgage Loan
Schedule” at the Washington DC Offices of XxXxx Xxxxxx LLP]
