MORGAN STANLEY CAPITAL I INC. Depositor WELLS FARGO BANK, NATIONAL ASSOCIATION Master Servicer and Securities Administrator and LASALLE BANK NATIONAL ASSOCIATION Trustee and a Custodian POOLING AND SERVICING AGREEMENT Dated as of July 1, 2007 MORGAN...
EXHIBIT
99.1
EXECUTION
VERSION
XXXXXX
XXXXXXX CAPITAL I INC.
Depositor
XXXXX
FARGO BANK, NATIONAL ASSOCIATION
Master
Servicer and Securities Administrator
and
LASALLE
BANK NATIONAL ASSOCIATION
Trustee
and a Custodian
___________________________
Dated
as
of July 1, 2007
___________________________
XXXXXX
XXXXXXX MORTGAGE LOAN TRUST 2007-12
MORTGAGE
PASS-THROUGH CERTIFICATES, SERIES 2007-12
TABLE
OF
CONTENTS
Page
|
ARTICLE
I DEFINITIONS
|
4
|
|
Section
1.01. Definitions.
|
4
|
|
ARTICLE
II DECLARATION OF TRUST; ISSUANCE OF CERTIFICATES
|
55
|
|
Section
2.01. Creation and Declaration of Trust Fund; Conveyance of Mortgage
Loans.
|
55
|
|
Section
2.02. Acceptance of Trust Fund by Trustee; Review of Documentation
for
Trust Fund.
|
58
|
|
Section
2.03. Representations and Warranties of the Depositor.
|
59
|
|
Section
2.04. Representations and Warranties of the Depositor and the Seller
as to
the Mortgage Loans.
|
61
|
|
Section
2.05. Representations and Warranties of the Seller; Discovery of
Breach;
Repurchase or Substitution of Mortgage Loans.
|
62
|
|
Section
2.06. Grant Clause.
|
66
|
|
Section
2.07. Depositor’s Option to Purchase Breached Mortgage
Loans.
|
67
|
|
Section
2.08. Release of Mortgage Documents for Servicing.
|
67
|
|
ARTICLE
III THE CERTIFICATES
|
68
|
|
Section
3.01. The Certificates.
|
68
|
|
Section
3.02. Registration.
|
69
|
|
Section
3.03. Transfer and Exchange of Certificates.
|
69
|
|
Section
3.04. Cancellation of Certificates.
|
72
|
|
Section
3.05. Replacement of Certificates.
|
73
|
|
Section
3.06. Persons Deemed Owners.
|
73
|
|
Section
3.07. Temporary Certificates.
|
73
|
|
Section
3.08. Appointment of Paying Agent.
|
74
|
|
Section
3.09. Book-Entry Certificates.
|
74
|
|
ARTICLE
IV ADMINISTRATION OF THE TRUST FUND
|
76
|
|
Section
4.01. Custodial Accounts; Distribution Account.
|
76
|
|
Section
4.02. Permitted Withdrawals from the Custodial Accounts and the
Distribution Account.
|
77
|
|
Section
4.03. Depositable and Exchangeable Certificates.
|
78
|
|
Section
4.04. [Reserved].
|
81
|
|
Section
4.05. Reports to Trustee and Certificateholders.
|
81
|
|
ARTICLE
V DISTRIBUTIONS TO HOLDERS OF CERTIFICATES
|
84
|
|
Section
5.01. Distributions Generally.
|
84
|
|
Section
5.02. Priorities of Distribution.
|
85
|
|
Section
5.03. [Reserved].
|
93
|
|
Section
5.04. Allocation of Losses.
|
93
|
|
Section
5.05. Advances by the Master Servicer.
|
95
|
|
Section
5.06. Compensating Interest Payments.
|
95
|
|
Section
5.07. [Reserved].
|
96
|
|
Section
5.08. Cross-Collateralization; Adjustments to Available
Funds.
|
96
|
|
Section
5.09. Determination of Pass-Through Rates for LIBOR
Certificates.
|
97
|
|
ARTICLE
VI CONCERNING THE TRUSTEE AND THE SECURITIES ADMINISTRATOR; EVENTS
OF
DEFAULT
|
99
|
|
Section
6.01. Duties of Trustee and the Securities Administrator.
|
99
|
|
Section
6.02. Certain Matters Affecting the Trustee and the Securities
Administrator.
|
102
|
|
Section
6.03. Trustee and Securities Administrator Not Liable for
Certificates.
|
103
|
|
Section
6.04. Trustee and the Securities Administrator May Own
Certificates.
|
104
|
|
Section
6.05. Eligibility Requirements for Trustee.
|
104
|
|
Section
6.06. Resignation and Removal of Trustee and the Securities
Administrator.
|
104
|
|
Section
6.07. Successor Trustee and Successor Securities
Administrator.
|
107
|
|
Section
6.08. Merger or Consolidation of Trustee or the Securities
Administrator.
|
108
|
|
Section
6.09. Appointment of Co-Trustee, Separate Trustee or
Custodian.
|
109
|
|
Section
6.10. Authenticating Agents.
|
110
|
|
Section
6.11. Indemnification of the Trustee and the Securities
Administrator.
|
111
|
|
Section
6.12. Fees and Expenses of the Master Servicer, Securities Administrator,
the Trustee and each Custodian.
|
112
|
|
Section
6.13. Collection of Monies.
|
112
|
|
Section
6.14. Events of Default; Trustee To Act; Appointment of
Successor.
|
112
|
|
Section
6.15. Additional Remedies of Trustee Upon Event of
Default.
|
117
|
|
Section
6.16. Waiver of Defaults.
|
118
|
|
Section
6.17. Notification to Holders.
|
118
|
|
Section
6.18. Directions by Certificateholders and Duties of Trustee During
Event
of Default.
|
118
|
|
Section
6.19. Action Upon Certain Failures of the Master Servicer and Upon
Event
of Default.
|
118
|
|
Section
6.20. Preparation of Tax Returns and Other Reports.
|
119
|
|
Section
6.21. Certain Matters Regarding any Custodian Appointed
Hereunder.
|
119
|
|
Section
6.22. WHFIT Regulation Compliance.
|
121
|
|
ARTICLE
VII PURCHASE OF MORTGAGE LOANS AND TERMINATION OF THE TRUST
FUND
|
122
|
|
Section
7.01. Purchase of Mortgage Loans; Termination of Trust Fund Upon
Purchase
or Liquidation of All Mortgage Loans.
|
122
|
|
Section
7.02. Procedure Upon Termination of Trust Fund.
|
123
|
|
Section
7.03. Additional Trust Fund Termination Requirements.
|
124
|
|
ARTICLE
VIII RIGHTS OF CERTIFICATEHOLDERS
|
125
|
|
Section
8.01. Limitation on Rights of Holders.
|
125
|
ii
|
Section
8.02. Access to List of Holders.
|
126
|
|
Section
8.03. Acts of Holders of Certificates.
|
126
|
|
ARTICLE
IX ADMINISTRATION AND SERVICING OF MORTGAGE LOANS BY THE MASTER
SERVICER
|
127
|
|
Section
9.01. Duties of the Master Servicer; Enforcement of Servicers’ and Master
Servicer’s Obligations.
|
127
|
|
Section
9.02. Assumption of Master Servicing by Trustee.
|
130
|
|
Section
9.03. Representations and Warranties of the Master
Servicer.
|
131
|
|
Section
9.04. Compensation to the Master Servicer.
|
132
|
|
Section
9.05. Merger or Consolidation.
|
133
|
|
Section
9.06. Resignation of Master Servicer and Securities
Administrator.
|
133
|
|
Section
9.07. Assignment or Delegation of Duties by the Master Servicer and
Securities Administrator.
|
134
|
|
Section
9.08. Limitation on Liability of the Master Servicer and
Others.
|
135
|
|
Section
9.09. Indemnification; Third-Party Claims.
|
135
|
|
Section
9.10. Eligibility Requirements for Securities
Administrator.
|
135
|
|
Section
9.11. Annual Statement as to Compliance.
|
136
|
|
ARTICLE
X REMIC ADMINISTRATION
|
137
|
|
Section
10.01. REMIC Administration.
|
137
|
|
Section
10.02. Prohibited Transactions and Activities.
|
139
|
|
Section
10.03. Indemnification with Respect to Prohibited Transactions or
Loss of
REMIC Status.
|
140
|
|
Section
10.04. REO Property.
|
140
|
|
Section
10.05. Fidelity.
|
141
|
|
ARTICLE
XI MISCELLANEOUS PROVISIONS
|
141
|
|
Section
11.01. Binding Nature of Agreement; Assignment.
|
141
|
|
Section
11.02. Entire Agreement.
|
141
|
|
Section
11.03. Amendment.
|
142
|
|
Section
11.04. Voting Rights.
|
143
|
|
Section
11.05. Provision of Information.
|
143
|
|
Section
11.06. Governing Law.
|
144
|
|
Section
11.07. Notices.
|
144
|
|
Section
11.08. Severability of Provisions.
|
144
|
|
Section
11.09. Indulgences; No Waivers.
|
144
|
|
Section
11.10. Headings Not To Affect Interpretation.
|
145
|
|
Section
11.11. Benefits of Agreement.
|
145
|
|
Section
11.12. Special Notices to the Rating Agencies.
|
145
|
|
Section
11.13. Conflicts.
|
146
|
|
Section
11.14. Counterparts.
|
146
|
|
Section
11.15. No Petitions.
|
146
|
|
Section
11.16. Indemnification by Trust.
|
146
|
iii
|
ARTICLE
XII EXCHANGE ACT REPORTING
|
146
|
|
Section
12.01. Filing Obligations.
|
146
|
|
Section
12.02. Form 10-D Reporting.
|
148
|
|
Section
12.03. Form 8-K Reporting.
|
149
|
|
Section
12.04. Form 10-K Reporting.
|
151
|
|
Section
12.05. Xxxxxxxx-Xxxxx Certification.
|
152
|
|
Section
12.06. Reports on Assessment of Compliance and
Attestation.
|
152
|
|
Section
12.07. Use of Subcontractors.
|
154
|
|
Section
12.08. Indemnification by the Master Servicer and the Securities
Administrator.
|
155
|
|
Section
12.09. Indemnification by each Custodian.
|
156
|
iv
ATTACHMENTS
|
Exhibit
A
|
Forms
of Certificates
|
|
Exhibit
B
|
Form
of Residual Certificate Transfer Affidavit (Transferee)
|
|
Exhibit
C
|
Form
of Residual Certificate Transfer Affidavit (Transferor)
|
|
Exhibit
D
|
Reserved
|
|
Exhibit
E
|
List
of Purchase and Servicing Agreements
|
|
Exhibit
F
|
Reserved
|
|
Exhibit
G
|
Assignment
and Notice of Transfer with respect to each Additional Collateral
Mortgage
Loan
|
|
Exhibit
H
|
Form
of Rule 144A Transfer Certificate
|
|
Exhibit
I
|
Form
of Purchaser’s Letter for Institutional Accredited
Investors
|
|
Exhibit
J
|
Form
of ERISA Transfer Affidavit
|
|
Exhibit
K
|
Form
of Letter of Representations with the Depository Trust
Company
|
|
Exhibit
L-1
|
Form
of Initial Custodian Certification
|
|
Exhibit
L-2
|
Form
of Final Custodian Certification
|
|
Exhibit
M
|
Assignment
and Notice of Transfer with respect to each Additional Collateral
Mortgage
Loan
|
|
Exhibit
N
|
Additional
Disclosure Required Under Regulation AB
|
|
Exhibit
O
|
Form
of Servicing Criteria to be Addressed in Assessment of Compliance
Statement
|
|
Exhibit
P
|
Additional
Disclosure Notification
|
|
Exhibit
Q
|
Glossary
of Terms for Standard & Poor’s LEVELS® Version 5.7 File
Format
|
|
Exhibit
R
|
Form
of Lost Note Affidavit
|
|
Exhibit
S-1
|
Form
of Exchange Letter (Depositable Certificates for Exchangeable
Certificates)
|
|
Exhibit
S-2
|
Form
of Exchange Letter (Exchangeable Certificates for Depositable
Certificates)
|
|
Schedule
A
|
Mortgage
Loan Schedule
|
|
Schedule
B
|
Principal
Balances Schedule
|
|
Schedule
C
|
Available
Exchanges of Depositable Certificates for Exchangeable
Certificates
|
v
This
POOLING AND SERVICING AGREEMENT, dated as of July 1, 2007 (the “Agreement”), by
and among XXXXXX XXXXXXX CAPITAL I INC., a Delaware corporation, as depositor
(the “Depositor”), LASALLE BANK NATIONAL ASSOCIATION, a national banking
association, as trustee (the “Trustee”), and as a custodian (a “Custodian”) and
XXXXX FARGO BANK, NATIONAL ASSOCIATION, in its separate capacities as master
servicer (the “Master Servicer”), as securities administrator (the “Securities
Administrator”) and acknowledged by XXXXXX XXXXXXX MORTGAGE CAPITAL HOLDINGS
LLC, a New York corporation, as seller (the “Seller”), for purposes of Section
2.05.
WITNESSETH
THAT
In
consideration of the mutual agreements herein contained, the parties hereto
agree as follows:
PRELIMINARY
STATEMENT
The
Depositor is the owner of the Trust Fund that is hereby conveyed to the Trustee
in return for the Certificates. As provided herein, the Trustee, for federal
income tax purposes, shall treat the Trust Fund as consisting of a
trust (the “ES Trust”) beneath which are four real estate mortgage investment
conduits (or in the alternative, “REMIC 1”, “REMIC 2”, “REMIC 3” and the “Master
REMIC”) and the Securities Administrator, on behalf of the Trustee, shall make
all elections as necessary for
such treatment. REMIC 1 will consist
of the Mortgage Loans,
excluding any rights of the Trust Fund in respect of the Additional
Collateral. REMIC 1 will issue uncertificated REMIC regular interests
(the “REMIC 1 Regular Interests”). The REMIC 1 Regular Interests will
represent the “regular interests” in REMIC 1, and the Class R1 Interest will
represent the single Class of “residual interest” in REMIC 1.
The
Trustee will hold the REMIC 1 Regular Interests for the benefit of REMIC
2. REMIC 2 will consist of the REMIC 1 Interests and will be
evidenced by the REMIC 2 Interests (other than the Class R2 Interests), which
will constitute the regular interests in REMIC 2 and the Class R2 Interest,
which will represent the single Class of “residual interest” in REMIC
2.
The
Trustee will hold the REMIC 2 Regular Interests for the benefit of REMIC
3. REMIC 3 will consist of the REMIC 2 Interests and will be
evidenced by the REMIC 3 Interests (other than the Class R3 Interests), which
will constitute the regular interests in REMIC 3 and the Class R3 Interest,
which will represent the single Class of “residual interest” in REMIC
3.
The
Trustee will hold the REMIC 3 Regular Interests for the benefit of the Master
REMIC. The Master REMIC will consist of the REMIC 3 Interests and
will be evidenced by the Master REMIC Interests (other than the Class R4
Interests), which will constitute the regular interests in the Master REMIC
and
the Class R4 Interest, which will represent the single Class of “residual
interest” in the Master REMIC. The “latest possible maturity date”
for federal income tax purposes of all regular and residual interests created
hereunder will be the Latest Possible Maturity Date.
The
ES
Trust shall hold the R1 Interest, R2 Interest, the R3 Interest, the R4 Interest
and all Master REMIC regular interests, and shall issue the
Certificates. Each Certificate, other than the Class A-R Certificate,
will represent ownership of one or more of the Master REMIC regular interests
held by the ES Trust. For federal income tax purposes the Trustee
shall treat the ES Trust as a Grantor Trust and shall treat each Holder of
an ES
Trust Certificate as the owner of the individual, underlying assets represented
by such ES Trust Certificate. In addition, to the fullest extent
possible, ownership of an ES Trust Certificate shall be treated as direct
ownership of the individual, underlying assets represented by such ES Trust
Certificate for federal income tax reporting purposes.
REMIC
1
2
Except
as
provided below, REMIC 1 will issue a single regular interest corresponding
to
each Mortgage Loan in Collateral Allocation Group 1, Collateral Allocation
Group
2, Collateral Allocation Group 3 and Collateral Allocation Group 4 having a
Net
Mortgage Rate equal to that of its corresponding Mortgage Loan and allocated
principal, interest and Realized Losses in the same manner as such items are
allocated to their corresponding Mortgage Loans.
REMIC
1
will issue a single regular interest corresponding to each Mortgage Loan in
Loan
Group 1 having a Net Mortgage Rate less than or equal to 5.50% and each Mortgage
Loan in Loan Group 2 having a Net Mortgage Rate less than or equal to 6.00%,
two
regular interests (referred to collectively herein as the “Class 1-A Interests”
and the “Class 1-B Interests”) for each Mortgage Loan in Loan Group 1 having a
Net Mortgage Rate greater than 5.50% and less than 6.00% and for each Mortgage
Loan in Loan Group 2 having a Net Mortgage Rate greater than 6.00% and less
than
7.50%.
Each
REMIC 1 Regular Interest corresponding to a Mortgage Loan in Loan Group 1 having
a Net Mortgage Rate less than or equal to 5.50% will have a Pass Through Rate
of
5.50% and each REMIC 1 Regular Interest corresponding to a Mortgage Loan in
Loan
Group 2 having a Net Mortgage Rate less than or equal to 6.00% will have a
Pass
Through Rate of 6.00%. Each such Class will have a principal balance,
following the allocation of scheduled principal, prepayments of principal and
Realized Losses, equal to the product of: (i) the Non-A-P Percentage of the
related Mortgage Loan and (ii) the related Mortgage Loan’s principal
balance. For purposes of the calculating the Calculation Rate,
each of the foregoing REMIC 1 Regular Interests relating to a Group 1 Mortgage
Loan will be treated as part of Collateral Allocation Group 1 and each of the
foregoing REMIC 1 Regular Interests relating to a Group 2 Mortgage Loan will
be
treated as part of Collateral Allocation Group 3.
Each
of
the Class 1-A Interests relating to a Mortgage Loan in Loan Group 1 will have
a
Pass Through Rate of 5.50% and a principal balance, following the allocation
of
scheduled principal, prepayments of principal and Realized Losses, equal to
the
product of: (i) 6.00% minus the Net Mortgage Rate in respect of the related
Mortgage Loan, divided by .50%, and (ii) the related Mortgage Loan’s principal
balance. For purposes of the calculating the Calculation Rate, each
Class 1-A Interest relating to a Group 1 Mortgage Loan will be treated as part
of Collateral Allocation Group 1.
Each
of
the Class 1-A Interests relating to a Mortgage Loan in Loan Group 2 will have
a
Pass Through Rate of 6.00% and a principal balance, following the allocation
of
scheduled principal, prepayments of principal and Realized Losses, equal to
the
product of: (i) 7.50% minus the Net Mortgage Rate in respect of the related
Mortgage Loan, divided by 1.50%, and (ii) the related Mortgage Loan’s principal
balance. For purposes of the calculating the Calculation Rate, each
Class 1-A Interest relating to a Group 2 Mortgage Loan will be treated as part
of Collateral Allocation Group 3.
Each
of
the Class 1-B Interests relating to a Mortgage Loan in Loan Group 1 will have
a
Pass Through Rate of 6.00% and a principal balance, following the allocation
of
scheduled principal, prepayments of principal and Realized Losses, equal to
the
product of: (i) the Net Mortgage Rate in respect of the related Mortgage Loan
minus 5.50%, divided by .50%,
3
and
(ii)
the related Mortgage Loan’s principal balance. For purposes of the
calculating the Calculation Rate, each Class 1-B Interest relating to a Group
1
Mortgage Loan will be treated as part of Collateral Allocation Group
2.
Each
of
the Class 1-B Interests relating to a Mortgage Loan in Loan Group 2 will have
a
Pass Through Rate of 7.50% and a principal balance, following the allocation
of
scheduled principal, prepayments of principal and Realized Losses, equal to
the
product of: (i) the Net Mortgage Rate in respect of the related Mortgage Loan
minus 6.00%, divided by 1.50%, and (ii) the related Mortgage Loan’s principal
balance. For purposes of the calculating the Calculation Rate, each
Class 1-B Interest relating to a Group 2 Mortgage Loan will be treated as part
of Collateral Allocation Group 4.
Each
of
the Class 1-B Interests relating to a Mortgage Loan in Loan Group 1 having
a Net
Mortgage Rate that exceeds 6.00% will have a Pass Through Rate of 6.00% and
a
principal balance, following the allocation of scheduled principal, prepayments
of principal and Realized Losses, equal to the related Mortgage Loan’s principal
balance. For purposes of the calculating the Calculation Rate, each
Class 1-B Interest relating to a Group 2 Mortgage Loan will be treated as part
of Collateral Allocation Group 2.
Each
of
the Class 1-B Interests relating to a Mortgage Loan in Loan Group 2 having
a Net
Mortgage Rate that exceeds 7.50% will have a Pass Through Rate of 7.50% and
a
principal balance, following the allocation of scheduled principal, prepayments
of principal and Realized Losses, equal to the related Mortgage Loan’s principal
balance. For purposes of the calculating the Calculation Rate, each
Class 1-B Interest relating to a Group 2 Mortgage Loan will be treated as part
of Collateral Allocation Group 4.
REMIC
1
also will issue the Class 1-1-A-P Interest, Class 1-3-A-P Interest, Class
1-2-A-X Interest, Class 1-4-A-X Interest, Class 1-P Interest and the Class
R-1
Interest. The Class 1-1-A-P and 1-3-A-P Interests will have principal
balances, following the allocation of scheduled principal, prepayments of
principal and Realized Losses, equal to the principal balances in respect of
the
Class 1-A-P and 3-A-P Certificates, respectively, and will not be entitled
to
receive distributions of interest. The Class 1-2-A-X will have
notional balances equal to the aggregate principal balance of the Loan Group
1
Mortgage Loans having a Net Mortgage rate exceeeding 6.00% and a Pass-Through
Rate equal to the excess of the weighted average Net Mortgage Rate in respect
of
such Mortgage Loans over 6.00%. The Class 1-4-A-X will have notional
balances equal to the aggregate principal balance of the Loan Group 2 Mortgage
Loans having a Net Mortgage rate exceeeding 7.50% and a Pass-Through Rate equal
to the excess of the weighted average Net Mortgage Rate in respect of such
Mortgage Loans over 7.50%. The Class 1-P Interest will not be
entitled to any interest, but will be entitled to 100% of any prepayment
premiums paid on the Mortgage Loans. The Class R-1 Interest is the
residual interest and will not be entitled to any distributions of interest
or
principal.
REMIC
2
The
REMIC
2 Regular Interests will have the initial principal balance, Pass-Through Rates
and corresponding Loan Groups as set forth in the following table:
4
|
REMIC
2 Interests
|
Initial
Principal Balance
|
Pass-Through
Rate
|
Corresponding
Collateral Allocation Group
|
|
A-1
(0.9% of SP Loan Group 1)
|
(1)
|
5.50%
|
1
|
|
B-1 (0.1%
of SP Loan Group 1)
|
(1)
|
5.50%
|
1
|
|
C-1 (Excess
of Loan Group 1)
|
(1)
|
5.50%
|
1
|
|
2-1-A-P
|
(1)
|
0.00%
|
1
|
|
A-2 (0.9%
of SP Loan Group 2)
|
(1)
|
6.00%
|
2
|
|
B-2 (0.1%
of SP Loan Group 2)
|
(1)
|
6.00%
|
2
|
|
C-2 (Excess
of Loan Group 2)
|
(1)
|
6.00%
|
2
|
|
2-2-A-X
|
(1)
|
(2)
|
2
|
|
A-3
(0.9% of SP Loan Group 3)
|
(1)
|
6.00%
|
3
|
|
B-3 (0.1%
of SP Loan Group 3)
|
(1)
|
6.00%
|
3
|
|
C-3 (Excess
of Loan Group 3)
|
(1)
|
6.00%
|
3
|
|
2-3-A-P
|
(1)
|
0.000%
|
3
|
|
A-4 (0.9%
of SP Loan Group 4)
|
(1)
|
7.50%
|
4
|
|
B-4 (0.1%
of SP Loan Group 4)
|
(1)
|
7.50%
|
4
|
|
C-4 (Excess
of Loan Group 4)
|
(1)
|
7.50%
|
4
|
|
2-4-A-X
|
(1)
|
(2)
|
4
|
|
2-P
|
$100
|
(3)
|
N/A
|
|
R-2
|
(4)
|
(4)
|
N/A
|
_______________
(1)
Each
Class A Interest will have a principal balance initially equal to 0.9% of the
Subordinated Portion (“SP”) of its corresponding Loan Group. Each
Class B Interest will have a principal balance initially equal to 0.1% of the
SP
of its corresponding Loan Group. The initial principal balance of each Class
C
Interest will equal the excess of the initial aggregate principal balance of
its
corresponding Loan Group over the initial aggregate principal balances of the
Class A and Class B Interests corresponding to such Loan Group. On
each Distribution Date, the Class 2-1-A-P and 2-3-A-P Interests will have
principal balances, following the allocation of scheduled principal, prepayments
of principal and Realized Losses, equal to the principal balances in respect
of
the Class 1-A-P and 3-A-P Certificates, respectively, and will not be entitled
to receive distributions of interest.
(2) The
Class 2-2-A-X and Class 2-4-A-X Interests will be entitled to all interest
accruals in respect of the Class 1-2-A-X and Class 1-4-A-X
Interests.
(3) The
Class 2-P Interests will not bear interest. The Class 2-P will be
entitled to all Prepayment Charges collected in respect of the Mortgage
Loans.
(4) The
Class R-2 Interest is the sole class of residual interest in REMIC
2. It has no principal balance and pays no principal or
interest.
On
each
Distribution Date, interest and the Non-A-P Percentage principal collections
shall be distributed with respect to the REMIC 2 Interests in the following
manner:
5
(1)
Interest is to be distributed with respect to each REMIC 2 Interest according
to
the formulas described above;
(2)
If a
Cross-Over Situation does not exist with respect to any Class of Interests,
then
Principal Amounts and Realized Losses arising with respect to each Collateral
Allocation Group will be allocated: first to cause the Collateral Allocation
Group's corresponding Class A and Class B to equal, respectively, 0.9% of the
SP
and 0.1% of the SP; and second to the Collateral Allocation Group’s
corresponding Class C Interest;
(3)
If a
Cross-Over Situation exists with respect to the Class A and B Interests
then:
(a)
if
the Calculation Rate in respect of such Class A and Class B Interests is less
than the Pass Through Rate in respect of the Subordinated Certificates,
Principal Relocation Payments will be made proportionately to the outstanding
Class A Interests prior to any other distributions of principal from each such
Collateral Allocation Group; and
(b)
if
the Calculation Rate in respect of such outstanding Class A and Class B
Interests is greater than the Pass Through Rate in respect of the Subordinated
Certificates, Principal Relocation Payments will be made proportionately to
the
outstanding Class B Interests prior to any other distributions of principal
from
each such Collateral Allocation Group.
In
case
of either (a) or (b), Principal Relocation Payments will be made so as to cause
the Calculation Rate in respect of the outstanding Class A and B Interests
to
equal the Pass Through Rate in respect of the Subordinate Certificates. With
respect to each Collateral Allocation Group, if (and to the extent that) the
sum
of (a) the principal payments comprising the Principal Amount received during
the Due Period and (b) the Realized Losses on the Mortgage Loans in that
Collateral Allocation Group, are insufficient to make the necessary reductions
of principal on the Class A and B Interests, then interest will be added to
the
Collateral Allocation Group's other REMIC 2 Interests that are not receiving
Principal Relocation Payments, in proportion to their principal
balances.
(c)
Unless required to achieve the Calculation Rate, the outstanding aggregate
Class
A and B Interests will not be reduced below 1% of the excess of (i) the
aggregate Stated Principal Balance of the Mortgage Loans as of the end of any
Due Period over (ii) the Certificate Balance Senior Certificates (excluding
the
Class A-R Certificates) as of the related Distribution Date (after taking into
account distributions of principal on such Distribution Date).
If
(and
to the extent that) the limitation in paragraph (c) prevents the distribution
of
principal to the Class A and Class B Interests of a Collateral Allocation Group,
and if the Collateral Allocation Group's Class C Interest has already been
reduced to zero, then the excess principal from that Collateral Allocation
Group
will be paid to the Class C Interests of the other Collateral Allocation Group,
the aggregate Class A and Class B Interests of which are less than 1% of the
SP. If the pass through rate of the Collateral Allocation Group of
the Class C Interest that receives such
6
payment
is below the pass through rate of the Collateral Allocation Group making the
payment, then the payment will be treated by the REMIC 2 as a Realized Loss.
Conversely, if the pass through rate of the Collateral Allocation Group of
the
Class C Interest that receives such payment is higher than the pass through
rate
of the Collateral Allocation Group making the payment, then the payment will
be
treated by the REMIC 2 as a reimbursement for prior Realized
Losses.+
REMIC
3
The
REMIC
3 Interests, each of which (except for the Class R3 Interests) is hereby
designated as a REMIC regular interest for federal income tax purposes, will
have the principal balances, Pass-Through Rates and Corresponding Master REMIC
Interests as set forth in the following table:
|
REMIC
3 Interest(1)
|
Initial
Principal Balance
|
Pass-Through
Rate
(per
annum)
|
Corresponding
Master REMIC Class
|
|
Class
3-1-A-1A
|
$21,468,000.00
|
5.50000%
|
Class
MR-1-A-1A
|
|
Class
3-1-A-1B
|
$802,000.00
|
5.50000%
|
Class
MR-1-A-1B
|
|
Class
3-1-A-P
|
$211.406
|
0.00000%
|
Class
MR-1-A-P
|
|
Class
3-2-A-1A
|
$22,336,000.00
|
6.00000%
|
Class
MR-2-A-1A
|
|
Class
3-2-A-1B
|
$835,000.00
|
6.00000%
|
Class
MR-2-A-1B
|
|
Class
3-2-A-X
|
(2)
|
(2)
|
Class
MR-2-A-X
|
|
Class
3-3-A-1
|
$13,806,000.00
|
6.00000%
|
Class
MR-3-A-1
|
|
Class
3-3-A-2
|
$2,491,000.00
|
6.00000%
|
Class
MR-3-A-2
|
|
Class
3-3-A-3
|
$25,120,000.00
|
6.00000%
|
Class
MR-3-A-3
|
|
Class
3-3-A-4
|
$75,000,000.00
|
6.25000%
|
Class
MR-3-A-4
|
|
Class
3-3-A-5
|
$24,960.00
|
6.25000%
|
Class
MR-3-A-5
|
|
Class
3-3-A-6
|
$3,126,040.00
|
0.00000%
|
Class
MR-3-A-6
|
|
Class
3-3-A-7
|
$17,822,000.00
|
6.00000%
|
Class
MR-3-A-7
|
|
Class
3-3-A-8
|
$6,828,000.00
|
6.00000%
|
Class
MR-3-A-8
|
|
Class
3-3-A-10
|
$8,108,000.00
|
6.00000%
|
Class
MR-3-A-10
|
|
Class
3-3-A-11PO1
|
$31,013,142.00
|
0.00000%
|
Class
MR-3-A-11PO1
|
|
Class
3-3-A-11PO2
|
$12,405,258.00
|
0.00000%
|
Class
MR-3-A-11PO2
|
|
Class
3-3-A-11
|
$ 19,624,800.00
|
7.50000%
|
Class
MR-3-A-11
|
|
Class
3-3-A-12
|
$ 49,366,400.00
|
7.50000%
|
Class
MR-3-A-12
|
|
Class
3-3-A-13
|
$ 74,049,600.00
|
7.50000%
|
Class
MR-3-A-13
|
|
Class
3-3-A-16
|
$ 10,991,200.00
|
7.50000%
|
Class
MR-3-A-16
|
|
Class
3-3-A-17
|
$ 14,201,600.00
|
7.50000%
|
Class
MR-3-A-17
|
|
Class
3-3-A-18
|
$ 5,440,000.00
|
7.50000%
|
Class
MR-3-A-18
|
|
Class
3-3-A-P
|
$5,589,268.00
|
0.00000%
|
Class
MR-3-A-P
|
|
Class
3-4-A-3
|
$73,859,000.00
|
7.50000%
|
Class
MR-4-A-3
|
|
Class
3-4-A-4
|
$3,077,000.00
|
7.50000%
|
Class
MR-4-A-4
|
|
Class
3-4-A-X
|
(2)
|
(2)
|
Class
MR-4-A-X
|
|
Class 3-$100
|
$100.00
|
6.00000%
|
N/A
|
|
Class
3-B-1
|
$18,273,000.00
|
(3)
|
Class
MR-B-1
|
|
Class
3-B-2
|
$8,121,000.00
|
(3)
|
Class
MR-B-2
|
|
Class
3-B-3
|
$5,075,000.00
|
(3)
|
Class
MR-B-3
|
|
Class
3-B-4
|
$4,873,000.00
|
(3)
|
Class
MR-B-4
|
|
Class
3-B-5
|
$4,061,000.00
|
(3)
|
Class
MR-B-5
|
7
|
Class
3-B-6
|
$3,248,562.58
|
(3)
|
Class
MR-B-6
|
|
Class
3-P
|
$1,000.00
|
(4)
|
Class
MR-P
|
|
Class
R3
|
(5)
|
(5)
|
|
(1)
|
For
each Distribution Date, following the allocation of scheduled principal,
prepayments and Realized Losses, each such Class of Interests will
have a
principal balance equal to the principal balance in respect of the
Corresponding Class of Master REMIC
Interests.
|
(2) The
Class 3-2-A-X and Class 3-4-A-X Interests will be entitled to all interest
accruals in respect of the Class 2-2-A-X and Class 2-4-A-X
Interests.
|
(3)
|
The
interest rate with respect to any Distribution Date (and the related
Interest Accrual Period) for this REMIC Interest is a per annum rate
equal
to the Calculation Rate.
|
|
(4)
|
The
Class 3-P Interest will not be entitled to any interest, but will
be
entitled to 100% of any prepayment premiums paid on the Mortgage
Loans.
|
|
(5)
|
The
R3 Interest is the sole Class of residual interest in REMIC
3. It pays no interest or
principal.
|
The
Master REMIC
The
Master REMIC Interests, each of which (except for the Class R2 Interests) is
hereby designated as a REMIC regular interest for federal income tax purposes,
will have the principal balances and Pass-Through Rates as set forth in the
following table:
|
Master
REMIC Interest
|
Initial
Principal Balance
|
Pass-Through
Rate
(per
annum)
|
|
Class
MR-1-A-1A
|
$21,468,000.00
|
5.50000%
|
|
Class
MR-1-A-1B
|
$802,000.00
|
5.50000%
|
|
Class
MR-1-A-P
|
$211.406
|
0.00000%
|
|
Class
MR-2-A-1A
|
$22,336,000.00
|
6.00000%
|
|
Class
MR-2-A-1B
|
$835,000.00
|
6.00000%
|
|
Class
MR-2-A-X
|
(1)
|
(1)
|
|
Class
MR-3-A-1
|
$13,806,000.00
|
6.00000%
|
|
Class
MR-3-A-2
|
$2,491,000.00
|
6.00000%
|
|
Class
MR-3-A-3
|
$25,120,000.00
|
6.00000%
|
|
Class
MR-3-A-4
|
$75,000,000.00
|
6.25000%
|
|
Class
MR-3-A-5
|
$24,960.00
|
6.25000%
|
|
Class
MR-3-A-6
|
$3,126,040.00
|
0.000000%
|
|
Class
MR-3-A-7
|
$17,822,000.00
|
6.00000%
|
|
Class
MR-3-A-8
|
$6,828,000.00
|
6.00000%
|
|
Class
MR-3-A-10
|
$8,108,000.00
|
6.00000%
|
|
Class
MR-3-A-11PO1
|
$31,013,142.00
|
0.00000%
|
|
Class
MR-3-A-11PO2
|
$12,405,258.00
|
0.00000%
|
|
Class
MR-3-A-11A1
|
$ 19,624,800.00
|
(2)
|
|
Class
MR-3-A-11A2 though EE3
|
(2)
|
(2)
|
|
Class
MR-3-A-12A1
|
$ 49,366,400.00
|
(3)
|
8
|
Class
MR-3-A-12A2 though EE3
|
(3)
|
(3)
|
|
Class
MR-3-A-13A1
|
$ 74,049,600.00
|
(4)
|
|
Class
MR-3-A-13A2 though EE3
|
(4)
|
(4)
|
|
Class
MR-3-A-16A1
|
$ 10,991,200.00
|
(5)
|
|
Class
MR-3-A-16A2 though EE3
|
(5)
|
(5)
|
|
Class
MR-3-A-17A1
|
$ 14,201,600.00
|
(6)
|
|
Class
MR-3-A-17A2 though EE3
|
(6)
|
(6)
|
|
Class
MR-3-A-18A1
|
$ 5,440,000.00
|
(7)
|
|
Class
MR-3-A-18A2 though EE3
|
(7)
|
(7)
|
|
Class
MR-3-A-P
|
$5,589,268.00
|
0.00000%
|
|
Class
MR-4-A-2
|
(8)
|
(8)
|
|
Class
MR-4-A-3
|
$73,859,000.00
|
(9)
|
|
Class
MR-4-A-4
|
$3,077,000.00
|
(9)
|
|
Class
MR-4-A-5
|
(10)
|
(10)
|
|
Class
MR-4-A-X
|
(1)
|
(1)
|
|
Class A-R
|
$100.00
|
6.00000%
|
|
Class
MR-B-1
|
$18,273,000.00
|
(11)
|
|
Class
MR-B-2
|
$8,121,000.00
|
(11)
|
|
Class
MR-B-3
|
$5,075,000.00
|
(11)
|
|
Class
MR-B-4
|
$4,873,000.00
|
(11)
|
|
Class
MR-B-5
|
$4,061,000.00
|
(11)
|
|
Class
MR-B-6
|
$3,248,562.58
|
(11)
|
|
Class
MR-P
|
$1,000.00
|
(12)
|
|
Class
R4
|
(13)
|
(13)
|
__________________________________________
|
(1)
|
The
Class MR-2-A-X and Class MR-4-A-X Interests will be entitled to all
interest accruals in respect of the Class 3-2-A-X and Class 3-4-A-X
Interests.
|
|
(2)
|
Each
of the MR-3-A-11A2, XX-0-X-00X0, XX-0-X-00X0, XX-0-X-00XX0, XX-0-X-00XX0
XX-0-X-00XX0, MR-3-A-11B1, MR-3-A-11B2, MR-3-A-11B3, MR-3-A-11BB1,
XX-0-X-00XX0, XX-0-X-00XX0, XX-0-X-00X0, XX-0-X-00X0, XX-0-X-00X0,
MR-3-A-11CC1, MR-3-A-11CC2, MR-3-A-11CC3, XX-0-X-X0, XX-0-X-X0,
XX-0-X-00X0, XX-0-X-XX0, XX-0-X-00XX0, XX-0-X-00XX0, XX-0-X-X0,
MR-3-A-11E2, XX-0-X-00X0, XX-0-X-X0, XX-0-X-XX0, XX-0-X-00XX0
and MR-3-A-11EE3 Interests for any Distribution Date will have notional
balances equal to the principal balances of the Class 3-3-A-11
Interest. The MR-3-A-11A1 Interests for any
Distribution Date will have a Pass-Through Rate equal to LIBOR plus
0.40%,
subject to a maximum per annum rate of 6.41667%. The
MR-3-A-11A2 Interests for any Distribution Date will have a Pass-Through
Rate equal to LIBOR plus 0.40%, subject to a maximum per annum rate
of
6.708333% and a minimum rate of 6.41667%. The MR-3-A-11A3
Interests for any Distribution Date will have a Pass-Through Rate
equal to
LIBOR plus 0.40%, subject to a maximum per annum rate of 7.00% and
a
minimum rate of 6.70833%. The MR-3-A-11A4 Interests for any
Distribution Date will have a Pass-Through Rate equal to LIBOR plus
0.40%,
subject to a maximum per annum rate of 7.50% and a minimum rate of
7.00%. The MR-3-A-11AA1 Interests for any Distribution Date
will have a Pass-Through Rate equal to (i) the product of 14 and
(ii) the
excess of
|
9
|
|
(a)
LIBOR plus 0.40%, subject to a maximum per annum rate of 6.41667%,
over
(b) the excess of LIBOR over 7.00%. The MR-3-A-11AA2 Interests
for any Distribution Date will have a Pass-Through Rate equal to:
(i) the
product of 14 and (ii) the excess of (a) LIBOR plus 0.40%, subject
to a
maximum per annum rate of 6.708333% and a minimum rate of 6.41667%,
over
(b) the excess of LIBOR over 7.00%. The MR-3-A-11AA3 Interests
for any Distribution Date will have a Pass-Through Rate equal to:
(i) the
product of 14 and (ii) the excess of (a) LIBOR plus 0.40%, subject
to a
maximum per annum rate of 7.00% and a minimum rate of 6.70833%,
over (b)
the excess of LIBOR over 7.00%. The Class
MR-3-A-11B1 Interests for any Distribution Date will have
a pass through rate equal to 6.01667% minus LIBOR subject to a
cap of
.10%. The Class MR-3-A-11B2 Interests for any Distribution Date
will have a pass through rate equal to 6.30833% minus LIBOR, subject
to a
cap of .10%. The Class MR-3-A-11B3 Interests for any
Distribution Date will have a pass through rate equal to 6.60%
minus
LIBOR, subject to a cap of .10%. The Class MR-3-A-11BB1
Interests for any Distribution Date will have a pass through rate
equal
to: (i) the product of 14 and (ii) the excess of (a) 6.01667% minus
LIBOR
subject to a cap of .10%, over (b) the excess of LIBOR over
7.00%. The Class MR-3-A-11BB2 Interests for any Distribution
Date will have a pass through rate equal to: (i) the product of
14 and
(ii) the excess of 6.30833% minus LIBOR, subject to a cap of .10%,
over
(b) the excess of LIBOR over 7.00%. The Class MR-3-A-11BB3
Interests for any Distribution Date will have a pass through rate
equal
to: (i) the product of 14 and (ii) the excess of (a) 6.60% minus
LIBOR,
subject to a cap of .10%, over (b) the excess of LIBOR over
7.00%. The Class MR-3-A-11C1 Interests for any
Distribution Date will have a pass through rate equal to 5.91667%
minus
LIBOR subject to a cap of .05%. The Class MR-3-A-11C2 Interests
for any Distribution Date will have a pass through rate equal to
6.20833%
minus LIBOR, subject to a cap of .05%. The Class MR-3-A-11C3
Interests for any Distribution Date will have a pass through rate
equal to
6.50% minus LIBOR, subject to a cap of .05%. The Class
MR-3-A-11CC1 Interests for any Distribution Date will have a pass
through
rate equal to: (i) the product of 14 and (ii) the excess of (a)
5.91667%
minus LIBOR subject to a cap of .05%, over (b) the excess of LIBOR
over
7.00%. The Class MR-3-A-11CC2 Interests for any Distribution
Date will have a pass through rate equal to: (i) the product of
14 and
(ii) the excess of (a) 6.20833% minus LIBOR, subject to a cap of
.05%,
over (b) the excess of LIBOR over 7.00%. The Class MR-3-A-11CC3
Interests for any Distribution Date will have a pass through rate
equal
to: (i) the product of 14 and (ii) the excess of (a) 6.50% minus
LIBOR,
subject to a cap of .05%, over (b) the excess of LIBOR over
7.00%. The Class MR-3-A-11D1 Interests for any
Distribution Date will have a pass through rate equal to 5.86667%
minus
LIBOR subject to a cap of .05%. The Class MR-3-A-11D2 Interests
for any Distribution Date will have a pass through rate equal to
6.15833%
minus LIBOR, subject to a cap of .05%. The Class MR-3-A-11D3
Interests for any Distribution Date will have a pass through rate
equal to
6.45% minus LIBOR, subject to a cap of .05%. The Class
MR-3-A-11DD1 Interests for any Distribution Date will have a pass
through
rate equal to: (i) the product of 14 and (ii) the excess of (a)
5.86667%
minus LIBOR subject to a cap of .05%, over (b) the excess of LIBOR
over
7.00%. The Class MR-3-A-11DD2 Interests for any Distribution
Date will have a pass through rate equal to: (i) the product of
14 and
(ii) the excess of (a) 6.15833% minus LIBOR, subject to a cap of
.05%,
over (b) the excess of LIBOR over 7.00%. The Class MR-3-A-11DD3
Interests for any Distribution Date
will
|
10
|
|
have
a pass through rate equal to: (i) the product of 14 and (ii)
the excess of
(a) 6.45% minus LIBOR, subject to a cap of .05%, over (b) the
excess of
LIBOR over 7.00%.. The Class MR-3-A-11E1
Interests for any Distribution Date will have a pass through
rate equal to
5.81667% minus LIBOR. The Class MR-3-A-11E2 Interests for any
Distribution Date will have a pass through rate equal to 6.10833%
minus
LIBOR, subject to a cap of .291667%. The Class MR-3-A-11E3
Interests for any Distribution Date will have a pass through
rate equal to
6.40% minus LIBOR, subject to a cap of .291667. The Class
MR-3-A-11E4 Interests for any Distribution Date will have a pass
through
rate equal to 6.90% minus LIBOR, subject to a cap of .50%. The
Class MR-3-A-11EE1 Interests for any Distribution Date will have
a pass
through rate equal to: (i) the product of 14 and (ii) the excess
of (a)
5.81667% minus LIBOR, over (b) the excess of LIBOR over
7.00%. The Class MR-3-A-11EE2 Interests for any Distribution
Date will have a pass through rate equal to: (i) the product
of 14 and
(ii) the excess of (a) 6.10833% minus LIBOR, subject to a cap
of .291667%,
over (b) the excess of LIBOR over 7.00%. The Class MR-3-A-11EE3
Interests for any Distribution Date will have a pass through
rate equal
to: (i) the product of 14 and (ii) the excess of (a) 6.40% minus
LIBOR,
subject to a cap of .291667%, over (b) the excess of LIBOR over
7.00%.
|
|
(3)
|
The
Pass-Through Rates and notional balances in respect of each of these
classes will be identical in all respects to those described in Note
(2)
above except that “12” is substituted for each reference to
“-11”.
|
|
(4)
|
The
Pass-Through Rates and notional balances in respect of each of these
classes will be identical in all respects to those described in Note
(2)
above except that “13” is substituted for each reference to
“-11”.
|
|
(5)
|
The
Pass-Through Rates and notional balances in respect of each of these
classes will be identical in all respects to those described in Note
(2)
above except that “16” is substituted for each reference to
“-11”.
|
|
(6)
|
The
Pass-Through Rates and notional balances in respect of each of these
classes will be identical in all respects to those described in Note
(2)
above except that “17” is substituted for each reference to
“-11”.
|
|
(7)
|
The
Pass-Through Rates and notional balances in respect of each of these
classes will be identical in all respects to those described in Note
(2)
above except that “18” is substituted for each reference to
“-11”.
|
|
(8)
|
For
each Distribution this Class will accrue interest on a notional balance
equal to the Class 3-4-A-3 Interest balance and bear interest at
a
Pass-Through Rate equal to 7.10000% minus one-month
LIBOR.
|
|
(9)
|
The
pass-through rate for the Class MR-4-A-3 Interests for the Interest
Accrual Period related to any Distribution Date will be a per annum
rate
equal to the sum of one-month LIBOR plus 0.39000%, subject to a maximum
per annum rate of 7.50000% and a minimum rate of 0.39000%. The
pass-through rate for the Class MR-4-A-4 Interests for the Interest
Accrual Period related to any Distribution Date will be a per annum
rate
|
11
|
|
equal
to the sum of one-month LIBOR plus 0.64000%, subject to a maximum
per
annum rate of 7.50000% and a minimum rate of 0.
64000%.
|
|
(10)
|
For
each Distribution this Class will accrue interest on a notional balance
equal to the Class 3-4-A-4 Interest balance and bear interest for
the
Interest Accrual Period related to any Distribution Date (a) on which
one-month LIBOR is less than or equal to 7.10000% per annum will
be a per
annum rate equal to the excess, if any, of one-month LIBOR over 6.86000%,
and (b) on which one-month LIBOR is greater than 7.10000% per annum
will
be a per annum rate equal to the product of (1) 24 and (2) 7.11000%
minus
one-month LIBOR, in each case, subject to a maximum per annum rate
of
0.24000% and a minimum rate of
0.00000%.
|
|
(11)
|
The
interest rate with respect to any Distribution Date (and the related
Interest Accrual Period) for this REMIC Interest is a per annum rate
equal
to the Calculation Rate.
|
|
(12)
|
The
Class MR-P Interest will not be entitled to any interest, but will
be
entitled to 100% of any prepayment premiums paid on the Mortgage
Loans.
|
|
(13)
|
The
R4 Interest is the sole Class of residual interest in REMIC
4. It pays no interest or
principal.
|
The
ES
Trust
The
following table sets forth characteristics of the ES Trust Certificates,
together with the minimum denominations and integral multiples in excess thereof
in which such Classes shall be issuable (except that other than as explicitly
set forth below, one Certificate of each Class of Certificates may be issued
in
a different amount and, in addition, one Residual Certificate representing
the
Tax Matters Person Certificate may be issued in a different
amount):
|
Class
Designation
|
Initial
Class Principal Balance
|
Pass-Through
Rate
(per
annum)
|
Minimum
Denomination
|
Integral
Multiples in Excess of Minimum
|
Classes
of Master REMIC Interests Represented(1)
|
|
Class
1-A-1
|
$22,270,000.00
|
5.50000%
|
$25,000.00
|
$1,000.00
|
Class
MR-1-A-1A,
Class
MR-1-A-1B
|
|
Class
1-A-2
|
$21,468,000.00
|
5.50000%
|
$25,000.00
|
$1,000.00
|
Class
MR-1-A-1A
|
|
Class
1-A-3
|
$802,000.00
|
5.50000%
|
$25,000.00
|
$1,000.00
|
Class
MR-1-A-1B
|
|
Class
1-A-P
|
$211,406.00
|
(2)
|
$25,000.00
|
$1,000.00
|
Class
MR-1-A-P
|
|
Class
2-A-1
|
$23,171,000.00
|
6.00000%
|
$25,000.00
|
$1,000.00
|
Class
MR-2-A-1A,
Class
MR-2-A-1B
|
|
Class
2-A-2
|
$22,336,000.00
|
6.00000%
|
$25,000.00
|
$1,000.00
|
Class
MR-2-A-1A
|
|
Class
2-A-3
|
$835,000.00
|
6.00000%
|
$25,000.00
|
$1,000.00
|
Class
MR-2-A-1B
|
|
Class
2-A-X
|
(3)
|
6.00000%
|
$100,000.00(4)
|
$1,000.00(4)
|
Class
MR-2-A-X
|
|
Class
3-A-1
|
$13,806,000.00
|
6.00000%
|
$25,000.00
|
$1,000.00
|
Class
MR-3-A-1
|
|
Class
3-A-2
|
$2,491,000.00
|
6.00000%
|
$25,000.00
|
$1,000.00
|
Class
MR-3-A-2
|
|
Class
3-A-3
|
$25,120,000.00
|
6.00000%
|
$25,000.00
|
$1,000.00
|
Class
MR-3-A-3
|
|
Class
3-A-4
|
$75,000,000.00
|
6.25000%
|
$25,000.00
|
$1,000.00
|
Class
MR-3-A-4
|
12
|
Class
Designation
|
Initial
Class Principal Balance
|
Pass-Through
Rate
(per
annum)
|
Minimum
Denomination
|
Integral
Multiples in Excess of Minimum
|
Classes
of Master REMIC Interests
Represented(1)
|
|
Class
3-A-5
|
$24,960.00
|
6.25000%
|
$24,960.00
|
N/A
|
Class
MR-3-A-5
|
|
Class
3-A-6
|
$3,126,040.00
|
(2)
|
$25,000.00
|
$1,000.00
|
Class
MR-3-A-6
|
|
Class
3-A-7
|
$17,822,000.00
|
6.00000%
|
$25,000.00
|
$1,000.00
|
Class
MR-3-A-7
|
|
Class
3-A-8
|
$6,828,000.00
|
6.00000%
|
$25,000.00
|
$1,000.00
|
Class
MR-3-A-8
|
|
Class
3-A-9
|
$24,650,000.00
|
6.00000%
|
$25,000.00
|
$1,000.00
|
Class
MR-3-A-7,
Class
MR-3-A-8
|
|
Class
3-A-10
|
$8,108,000.00
|
6.00000%
|
$25,000.00
|
$1,000.00
|
Class
MR-3-A-10
|
|
Class
3-A-11
|
$24,531,000.00
|
6.00000%
|
$25,000.00
|
$1,000.00
|
Class
MR-3-A-11,
plus
11.2982% of
the
MR-3-A-11PO1
and MR-3-A-11PO2
Interests(1)
|
|
Class
3-A-12
|
$61,708,000.00
|
6.00000%
|
$25,000.00
|
$1,000.00
|
Class
MR-3-A-12,
plus
28.42482% of
\the
MR-3-A-11PO1
and MR-3-A-11PO2
Interests
(1)
|
|
Class
3-A-13
|
$92,562,000.00
|
6.00000%
|
$25,000.00
|
$1,000.00
|
Class
MR-3-A-13
plus
42.63722% of
the
MR-3-A-11PO1
and MR-3-A-11PO2
Interests
(1)
|
|
Class
3-A-14
|
$154,270,000.00
|
6.00000%
|
$25,000.00
|
$1,000.00
|
Class
MR-3-A-12,
Class
MR-3-A-13
plus
71.06204% of
the
MR-3-A-11PO1
and MR-3-A-11PO2
Interests
(1)
|
|
Class
3-A-15
|
$168,009,000.00
|
6.00000%
|
$25,000.00
|
$1,000.00
|
Class
MR-3-A-12,
Class
MR-3-A-13,
Class
MR-3-A-16
plus
77.39069% of
the
MR-3-A-11PO1
and MR-3-A-11PO2
Interests
(1)
|
|
Class
3-A-16
|
$13,739,000.00
|
6.00000%
|
$25,000.00
|
$1,000.00
|
Class
MR-3-A-16
plus
6.32865% of
the
MR-3-A-11PO1
and MR-3-A-11PO2
Interests
(1)
|
|
Class
3-A-17
|
$17,752,000.00
|
6.00000%
|
$25,000.00
|
$1,000.00
|
Class
MR-3-A-17
plus
8.17718% of
the
MR-3-A-11PO1
and MR-3-A-11PO2
Interests
(1)
|
13
|
Class
Designation
|
Initial
Class Principal Balance
|
Pass-Through
Rate
(per
annum)
|
Minimum
Denomination
|
Integral
Multiples in Excess of Minimum
|
Classes
of Master REMIC Interests
Represented(1)
|
|
Class
3-A-18
|
$6,800,000.00
|
6.00000%
|
$25,000.00
|
$1,000.00
|
Class
MR-3-A-18
plus
3.13231% of
the
MR-3-A-11PO1
and MR-3-A-11PO2
Interests
(1)
|
|
Class
3-A-19
|
$38,291,000.00
|
6.00000%
|
$25,000.00
|
$1,000.00
|
Class
MR-3-A-16,
Class
MR-3-A-17,
Class
MR-3-A-18
plus
17.63814% of
the
MR-3-A-11PO1
and MR-3-A-11PO2
Interests
(1)
|
|
Class
3-A-20
|
$24,552,000.00
|
6.00000%
|
$25,000.00
|
$1,000.00
|
Class
MR-3-A-17,
Class
MR-3-A-18
plus
71.06204% of
the
MR-3-A-11PO1
and MR-3-A-11PO2
Interests
(1)
|
|
Class
3-A-21
|
$49,202,000.00
|
6.00000%
|
$25,000.00
|
$1,000.00
|
Class
MR-3-A-7,
Class
MR-3-A-8,
Class
MR-3-A-17,
Class
MR-3-A-18
plus
11.30949% of
the
MR-3-A-11PO1
and MR-3-A-11PO2
Interests
(1)
|
|
Class
3-A-22
|
$217,092,000.00
|
6.00000%
|
$25,000.00
|
$1,000.00
|
Class
MR-3-A-11,
Class
MR-3-A-12,
Class
MR-3-A-13,
Class
MR-3-A-16,
Class
MR-3-A-17,
Class
XX-0-X-00,
XX-0-X-00XX0
xxx XX-0-X-00XX0
Interests
(1)
|
|
Class
3-A-23
|
$186,078,857.00
|
(5)
|
$25,000.00
|
$1,000.00
|
XX0,
X0, X0, X0,
XX0,
XX0, XX0,
X0,
X0, X0, BB1,
BB2,
BB3 (1)
|
|
Class
3-A-24
|
(3)
|
(6)
|
$100,000.00(4)
|
$1,000.00(4)
|
X0,
X0, X0, X0,
XX0,
XX0, XX0,
X0,
X0, X0, XX0,
XX0,
XX0, X0, X0,
X0,
X0, XX0, XX0,
XX0
(1)
|
14
|
Class
Designation
|
Initial
Class Principal Balance
|
Pass-Through
Rate
(per
annum)
|
Minimum
Denomination
|
Integral
Multiples in Excess of Minimum
|
Classes
of Master REMIC Interests
Represented(1)
|
|
Class
3-A-25
|
$31,013,143.00
|
(2)
|
$25,000.00
|
$1,000.00
|
PO1(1)
|
|
Class
3-A-26
|
$31,013,143.00
|
(7)
|
$25,000.00
|
$1,000.00
|
XX0,
X0, X0, X0,
X0,
XX0, XX0,
XX0,
X0, X0, X0,
XX0,
XX0, XX0,
X0,
X0, X0, X0,
XX0,
XX0, XX0 (1)
|
|
Class
3-A-27
|
$186,078,857.00
|
(8)
|
$25,000.00
|
$1,000.00
|
XX0,
X0, X0, X0,
XX0,
XX0, XX0,
X0,
X0, B3, BB1,
BB2,
BB3, C1, C2,
C3,
CC1, CC2, CC3
(1)
|
|
Class
3-A-28
|
(3)
|
(9)
|
$100,000.00(4)
|
$1,000.00(4)
|
PO2,
A4, X0, X0,
X0,
XX0, XX0,
XX0,
X0, X0, X0,
X0,
XX0, XX0, XX0
(1)
|
|
Class
3-A-29
|
$31,013,143.00
|
(10)
|
$25,000.00
|
$1,000.00
|
XX0,
X0, X0, X0,
XX0,
XX0, XX0,
X0,
X0, X0, XX0,
XX0,
XX0 (1)
|
|
Class
3-A-30
|
$186,078,857.00
|
(11)
|
$25,000.00
|
$1,000.00
|
XX0,
X0, X0, X0,
XX0,
XX0, XX0,
X0,
X0, B3, BB1,
BB2,
BB3, C1, C2,
C3,
CC1, CC2,
CC3,
D1, D2, D3,
DD1,
DD2, DD3 (1)
|
|
Class
3-A-31
|
(3)
|
(12)
|
$100,000.00(4)
|
$1,000.00(4)
|
X0,
X0, X0, X0, X0,
XX0,
XX0, XX0 (1)
|
|
Class
3-A-32
|
$31,013,143.00
|
(13)
|
$25,000.00
|
$1,000.00
|
XX0,
X0, X0, X0,
X0,
X0, XX0, XX0,
XX0
(1)
|
|
Class
3-A-33
|
$173,673,600.00
|
(14)
|
$25,000.00
|
$1,000.00
|
X0,
X0, X0, A4 (1)
|
|
Class
3-A-34
|
(3)
|
(15)
|
$100,000.00(4)
|
$1,000.00(4)
|
X0,
X0, X0, X0, X0,
X0,
X0, X0, X0, X0,
X0,
X0, X0 (1)
|
|
Class
3-A-35
|
$43,418,400.00
|
(2)
|
$25,000.00
|
$1,000.00
|
PO1,
PO2(1)
|
|
Class
3-A-36
|
$43,418,400.00
|
(16)
|
$25,000.00
|
$1,000.00
|
XX0,
XX0, XX0,
XX0,
XX0, X0, X0,
X0,
XX0, BB2,
BB3,
C1, C2, C3,
CC1,
CC2, CC3,
D1,
D2, D3, DD1,
|
15
|
Class
Designation
|
Initial
Class Principal Balance
|
Pass-Through
Rate
(per
annum)
|
Minimum
Denomination
|
Integral
Multiples in Excess of Minimum
|
Classes
of Master REMIC Interests
Represented(1)
|
| XX0,
XX0, X0, X0,
X0,
X0, XX0, XX0,
XX0
(1)
|
|||||
|
Class
3-A-37
|
$217,092,000.00
|
5.75000%
|
$25,000.00
|
$1,000.00
|
XX0,
XX0, X0, X0,
XX0,
XX0, X0, X0,
BB1,
BB2, C1, C2,
CC1,
CC2, X0, X0,
XX0,
XX0, X0, X0,
XX0,
XX0 (1)
|
|
Class
3-A-38
|
(3)
|
6.00000%
|
$100,000.00(4)
|
$1,000.00(4)
|
X0,
X0, XX0, X0,
XX0,
X0, XX0, X0,
XX0,
X0, X0, XX0
(1)
|
|
Class
3-A-39
|
$217,092,000.00
|
5.50000%
|
$25,000.00
|
$1,000.00
|
XX0,
XX0, X0,
XX0,
X0, XX0, X0,
XX0,
X0, XX0, X0,
XX0
(1)
|
|
Class
3-A-40
|
(3)
|
6.00000%
|
$100,000.00(4)
|
$1,000.00(4)
|
X0,
X0, X0, XX0,
XX0,
X0, X0, BB2,
BB3,
C2, C3, CC2,
CC3,
X0, X0, XX0,
XX0,
X0, X0, X0, XX0,
XX0
(1)
|
|
Class
3-A-41
|
$108,546,000.00
|
5.75000%
|
$25,000.00
|
$1,000.00
|
50%
interest in
XX0,
XX0, X0, X0,
XX0,
XX0, X0, X0,
BB1,
BB2, C1, C2,
CC1,
CC2, X0, X0,
XX0,
XX0, X0, X0,
XX0,
XX0 (1)
|
|
Class
3-A-42
|
$108,546,000.00
|
6.25000%
|
$25,000.00
|
$1,000.00
|
50%
interest in
XX0,
XX0, X0, X0,
XX0,
XX0, X0, X0,
BB1,
BB2, C1, C2,
CC1,
CC2, X0, X0,
XX0,
XX0, X0, X0,
XX0,
XX0 and 100%
xx
X0, X0, XX0,
X0,
XX0, X0, XX0,
X0,
XX0, X0, X0,
XX0
(1)
|
|
Class
3-A-P
|
$5,589,268.00
|
(2)
|
$25,000.00
|
$1,000.00
|
Class
MR-3-A-P
|
|
Class
4-A-1
|
$76,936,000.00
|
(17)
|
$25,000.00
|
$1,000.00
|
Class
MR-4-A-3,
Class
MR-4-A-4,
Class
MR-4-A-5
|
16
|
Class
Designation
|
Initial
Class Principal Balance
|
Pass-Through
Rate
(per
annum)
|
Minimum
Denomination
|
Integral
Multiples in Excess of Minimum
|
Classes
of Master REMIC Interests
Represented(1)
|
|
Class
4-A-2
|
(3)
|
(18)
|
$100,000.00(4)
|
$1,000.00(4)
|
Class
MR-4-A-2
|
|
Class
4-A-3
|
$73,859,000.00
|
(19)
|
$25,000.00
|
$1,000.00
|
Class
MR-4-A-3
|
|
Class
4-A-4
|
$3,077,000.00
|
(20)
|
$25,000.00
|
$1,000.00
|
Class
MR-4-A-4
|
|
Class
4-A-5
|
(3)
|
(21)
|
$100,000.00(4)
|
$1,000.00(4)
|
Class
MR-4-A-5
|
|
Class
4-A-X
|
(3)
|
7.50000%
|
$33,624.00(4)
|
N/A
|
Class
MR-4-A-X
|
|
Class A-R
(22)
|
$100.00
|
6.00000%
|
(23)
|
(23)
|
N/A
|
|
Class
B-1
|
$9,033,000.00
|
(24)
|
$25,000.00
|
$1,000.00
|
Class
MR-B-1
|
|
Class
B-2
|
$3,355,000.00
|
(24)
|
$25,000.00
|
$1,000.00
|
Class
MR-B-2
|
|
Class
B-3
|
$1,548,000.00
|
(24)
|
$25,000.00
|
$1,000.00
|
Class
MR-B-3
|
|
Class
B-4
|
$1,549,000.00
|
(24)
|
$100,000.00
|
$1,000.00
|
Class
MR-B-4
|
|
Class
B-5
|
$1,806,000.00
|
(24)
|
$100,000.00
|
$1,000.00
|
Class
MR-B-5
|
|
Class
B-6
|
$1,292,228.67
|
(24)
|
$100,000.00
|
$1,000.00
|
Class
MR-B-6
|
|
Class
P
|
$1,000.00
|
(25)
|
$1,000.00
|
N/A
|
Class
MR-P
|
__________________________________________
|
(1)
|
For
federal income tax purposes: (i) each Class of Certificates will
be
entitled to receive distributions of interest and principal and will
be
allocated Realized Losses in the same proportions as their corresponding
classes of Master REMIC Interests enumerated in the column titled
“Classes
of Master REMIC Interests Represented”, (ii) each of the Class 3-A-11,
3-A-12, 3-A-13, 3-A-14, 3-A-15, 3-A-16, 3-A-17, 3-A-18, 3-A-19, 3-A-20,
3-A-21 and 3-A-22 Certificates will represent the beneficical ownership
of
each of the related Master REMIC Interests described in Notes (2),
(3),
(4), (5) (6) or (7), as applicable to the chart of Master REMIC Interests
described above, and (iii) each of the Class of REMIC Interests set
forth
for each of the Class 3-A-23, 3-A-24, 3-A-25, 3-A-26, 3-A-27, 3-A-28,
3-A-29, 3-A-30, 3-A-31, 3-A-32, 3-A-33, 3-A-34, 3-A-35, 3-A-36, 3-A-37,
3-A-38, 3-A-39, 3-A-40, 3-A-41 and 3-A-42 Certificates refers to
the
related REMIC Interests described in Note (2) to the chart of Master
REMIC
Interests described above, or cross referenced in Notes (3), (4),
(5) (6)
and (7) to such chart of Master REMIC
Interests.
|
|
(2)
|
The
Class 1-A-P, Class 3-A-6, Class 3-A-25, Class 3-A-35 and Class 3-A-P
Certificates are principal only certificates and are not entitled
to
receive any distributions of
interest.
|
|
(3)
|
The
Class 2-A-X, Class 3-A-24, Class 3-A-28, Class 3-A-31, Class 3-A-34,
Class
3-A-38, Class 3-A-40, Class 4-A-2, Class 4-A-5 and Class 4-A-X
Certificates will be Notional Amount Certificates, will have no Class
Principal Balances and will bear interest on their respective initial
Notional Amounts (initially, $989,479, $186,078,857,
$186,078,857,$186,078,857, $173,673,600, $9,045,500, $18,091,000,
$76,936,000, $3,077,000 and $33,624,
respectively).
|
|
(4)
|
Minimum
denomination is based on the Notional Amount of such
Class.
|
|
(5)
|
The
Pass-Through Rate for the Class 3-A-23 Certificates for the Interest
Accrual Period related to any Distribution Date will be a per annum
rate
equal to the sum of one-month LIBOR plus 0.50000%, subject to a maximum
per annum rate of 7.00000% and a
|
17
|
|
minimum
rate of 0.50000%. The pass-through rate for the Class 3-A-23
Certificates for the first distribution date will be a per annum
rate
of 5.82000%.
|
|
(6)
|
The
Pass-Through Rate for the Class 3-A-24 Certificates for the Interest
Accrual Period related to any Distribution Date will be a per annum
rate
equal to 6.50000% minus one-month LIBOR, subject to a maximum per
annum
rate of 6.50000% and a minimum rate of 0.00000%. The
Pass-Through Rate for the Class 3-A-24 Certificates for the first
Distribution Date will be a per annum rate
of 1.18000%.
|
|
(7)
|
The
Pass-Through Rate for the Class 3-A-26 Certificates for the Interest
Accrual Period related to any Distribution Date will be a per annum
rate
equal to (0) 00.00000% minus (2) the product of 6 and one-month LIBOR,
subject to a maximum per annum rate of 39.00000% and a minimum rate
of
0.00000%. The Pass-Through Rate for the Class 3-A-26
Certificates for the first Distribution Date will be a per annum
rate
of 7.08000%.
|
|
(8)
|
The
Pass-Through Rate for the Class 3-A-27 Certificates for the Interest
Accrual Period related to any Distribution Date will be a per annum
rate
equal to the sum of one-month LIBOR plus 0.55000%, subject to a maximum
per annum rate of 7.00000% and a minimum rate of 0.55000%. The
Pass-Through Rate for the Class 3-A-27 Certificates for the first
Distribution Date will be a per annum rate
of 5.87000%.
|
|
(9)
|
The
Pass-Through Rate for the Class 3-A-28 Certificates for the Interest
Accrual Period related to any Distribution Date will be a per annum
rate
equal to 6.45000% minus one-month LIBOR, subject to a maximum per
annum
rate of 6.45000% and a minimum rate of 0.00000%. The
Pass-Through Rate for the Class 3-A-28 Certificates for the first
Distribution Date will be a per annum rate
of 1.13000%.
|
|
(10)
|
The
Pass-Through Rate for the Class 3-A-29 Certificates for the Interest
Accrual Period related to any Distribution Date will be a per annum
rate
equal to (0) 00.00000% minus (2) the product of 6 and one-month LIBOR,
subject to a maximum per annum rate of 38.70000% and a minimum rate
of
0.00000%. The Pass-Through Rate for the Class 3-A-29
Certificates for the first Distribution Date will be a per annum
rate
of 6.78000%.
|
|
(11)
|
The
Pass-Through Rate for the Class 3-A-30 Certificates for the Interest
Accrual Period related to any Distribution Date will be a per annum
rate
equal to the sum of one-month LIBOR plus 0.60000%, subject to a maximum
per annum rate of 7.00000% and a minimum rate of 0.60000%. The
Pass-Through Rate for the Class 3-A-30 Certificates for the first
Distribution Date will be a per annum rate
of 5.92000%.
|
|
(12)
|
The
Pass-Through Rate for the Class 3-A-31 Certificates for the Interest
Accrual Period related to any Distribution Date will be a per annum
rate
equal to 6.40000% minus one-month LIBOR, subject to a maximum per
annum
rate of 6.40000% and a minimum rate of 0.00000%. The
Pass-Through Rate for the Class 3-A-31 Certificates for the first
Distribution Date will be a per annum rate
of 1.08000%.
|
|
(13)
|
The
Pass-Through Rate for the Class 3-A-32 Certificates for the Interest
Accrual Period related to any Distribution Date will be a per annum
rate
equal to (0) 00.00000% minus (2) the product of 6 and one-month LIBOR,
subject to a maximum per annum rate of 38.40000% and a minimum rate
of
0.00000%. The Pass-Through Rate for the Class 3-A-32 Certificates
for the
first Distribution Date will be a per annum rate
of 6.48000%.
|
18
|
(14)
|
The
Pass-Through Rate for the Class 3-A-33 Certificates for the Interest
Accrual Period related to any Distribution Date will be a per annum
rate
equal to the sum of one-month LIBOR plus 0.40000%, subject to a maximum
per annum rate of 7.50000% and a minimum rate of 0.40000%. The
Pass-Through Rate for the Class 3-A-33 Certificates for the first
Distribution Date will be a per annum rate
of 5.72000%.
|
|
(15)
|
The
Pass-Through Rate for the Class 3-A-34 Certificates for the Interest
Accrual Period related to any Distribution Date will be a per annum
rate
equal to 7.10000% minus one-month LIBOR, subject to a maximum per
annum
rate of 7.10000% and a minimum rate of 0.00000%. The
Pass-Through Rate for the Class 3-A-34 Certificates for the first
Distribution Date will be a per annum rate
of 1.78000%.
|
|
(16)
|
The
Pass-Through Rate for the Class 3-A-36 Certificates for the Interest
Accrual Period related to any Distribution Date will be a per annum
rate
equal to (0) 00.00000% minus (2) the product of 4 and one-month LIBOR,
subject to a maximum per annum rate of 28.40000% and a minimum rate
of
0.00000%. The Pass-Through Rate for the Class 3-A-36
Certificates for the first Distribution Date will be a per annum
rate
of 7.12000%.
|
|
(17)
|
The
Pass-Through Rate for the Class 4-A-1 Certificates for the Interest
Accrual Period related to any Distribution Date will be a per annum
rate
equal to the sum of one-month LIBOR plus 0.40000%, subject to a maximum
per annum rate of 7.50000% and a minimum rate of 0.40000%. The
Pass-Through Rate for the Class 4-A-1 Certificates for the first
Distribution Date will be a per annum rate
of 5.72000%.
|
|
(18)
|
The
pass-through rate for the Class 4-A-2 Certificates for the Interest
Accrual Period related to any Distribution Date will be a per annum
rate
equal to 7.10000% minus one-month LIBOR, subject to a maximum per
annum
rate of 7.10000% and a minimum rate of 0.00000%. The
pass-through rate for the Class 4-A-2 Certificates for the first
Distribution Date will be a per annum rate
of 1.78000%.
|
|
(19)
|
The
pass-through rate for the Class 4-A-3 Certificates for the Interest
Accrual Period related to any Distribution Date will be a per annum
rate
equal to the sum of one-month LIBOR plus 0.39000%, subject to a maximum
per annum rate of 7.50000% and a minimum rate of 0.39000%. The
pass-through rate for the Class 4-A-3 Certificates for the first
Distribution Date will be a per annum rate
of 5.71000%.
|
|
(20)
|
The
pass-through rate for the Class 4-A-4 Certificates for the Interest
Accrual Period related to any Distribution Date will be a per annum
rate
equal to the sum of one-month LIBOR plus 0.64000%, subject to a maximum
per annum rate of 7.50000% and a minimum rate of 0. 64000%. The
pass-through rate for the Class 4-A-4 Certificates for the first
Distribution Date will be a per annum rate
of 5.96000%.
|
|
(21)
|
The
pass-through rate for the Class 4-A-5 Certificates for the Interest
Accrual Period related to any Distribution Date (a) on which one-month
LIBOR is less than or equal to 7.10000% per annum will be a per annum
rate
equal to the excess, if any, of one-month LIBOR over 6.86000%, and
(b) on
which one-month LIBOR is greater than 7.10000% per annum will be
a per
annum rate equal to the product of (1) 24 and (2) 7.11000% minus
one-month
LIBOR, in each case, subject to a maximum per annum rate of 0.24000%
and a
minimum rate of 0.00000%. The pass-through rate for the Class
4-A-5 Certificates for the first Distribution Date will be a per
annum
rate of 0.00000%.
|
19
|
(22)
|
The
Class A-R Certificates represent the sole Class of residual interest
in
each REMIC.
|
|
(23)
|
The
Class A-R Certificate shall be issued as two separate certificates,
one with an initial Certificate Balance of $99.99 and the Tax Matters
Person Certificate with an initial Certificate Balance of
$0.01.
|
|
(24)
|
The
Pass-Through Rate for the Subordinated Certificates for the Interest
Accrual Period related to any Distribution Date will be a per annum
rate
equal to the sum of: (1) 5.50000% multiplied by the excess of the
aggregate Stated Principal Balance of the Collateral Allocation Group
1
Mortgage Loans as of the Due Date in the month preceding the month
of that
Distribution Date (after giving effect to prepayments received in
the
Prepayment Period related to such prior Due Date) over the aggregate
Class
Principal Balance of the Group 1 Senior Certificates immediately
prior to
that Distribution Date, (2) 6.00000% multiplied by the excess of
the
aggregate Stated Principal Balance of the Collateral Allocation Group
2
Mortgage Loans as of the Due Date in the month preceding the month
of that
Distribution Date (after giving effect to prepayments received in
the
Prepayment Period related to such prior Due Date) over the aggregate
Class
Principal Balance of the Group 2 Senior Certificates immediately
prior to
that Distribution Date, (3) 6.00000% multiplied by the excess of
the
aggregate Stated Principal Balance of the Collateral Allocation Group
3
Mortgage Loans as of the Due Date in the month preceding the month
of that
Distribution Date (after giving effect to prepayments received in
the
Prepayment Period related to such prior Due Date) over the aggregate
Class
Principal Balance of the Group 3 Senior Certificates immediately
prior to
that Distribution Date, and (4) 7.50000% multiplied by the excess
of the
aggregate Stated Principal Balance of the Collateral Allocation Group
4
Mortgage Loans as of the Due Date in the month preceding the month
of that
Distribution Date (after giving effect to prepayments received in
the
Prepayment Period related to such prior Due Date) over the aggregate
Class
Principal Balance of the Group 4 Senior Certificates immediately
prior to
that Distribution Date; divided by the aggregate of the Class Principal
Balances of the Class B-1, Class B-2, Class B-3, Class B-4, Class
B-5 and
Class B-6 Certificates immediately prior to that Distribution
Date. The pass-through rate for the Class B-1, Class B-2, Class
B-3, Class B-4, Class B-5 and Class B-6 Certificates for the first
Distribution Date will be a per annum rate of
6.21231%.
|
|
(25)
|
The
Class P Certificates will not be entitled to any interest, but will
be
entitled to 100% of any prepayment premiums paid on the Mortgage
Loans. For the federal income tax purposes, the Class P
Certificates will be entitled to 100% of the monies distributed in
respect
of the Class 1-P Interest.
|
The
foregoing provisions in the Preliminary Statement are intended to cause net
interest and principal collections in respect of the Mortgage Loans to be
distributed from REMIC 1 to the Master REMIC and from the Master REMIC to each
Class of Certificates. The Preliminary Statement will be interpreted
and applied consistently with such intent.
For
any
purpose for which the Pass-Through Rate is calculated, the interest rate on
the
Mortgage Loans shall be appropriately adjusted to account for the difference
between the monthly day count convention of the Mortgage Loans and the monthly
day count convention of the regular interests issued by each of the
REMICs. For purposes of calculating the Pass-Through Rates for each
of the interests issued by each REMIC other than the Master REMIC
20
such
rates shall be adjusted to equal a monthly day count convention based on a
30
day month for each Due Period and a 360-day year so that the Mortgage Loans
and
all regular interests will be using the same monthly day count
convention.
The
fiscal year of each REMIC will end on December 31.
21
Set
forth
below are designations of Classes or Components of Certificates and other
defined terms to the categories used herein:
|
Accretion
Directed Certificates
|
Class
3-A-4, Class 3-A-7 and Class 3-A-17 Certificates.
|
|
Accretion
Directed Components
|
None.
|
|
Accrual
Certificates
|
Class
3-A-5, Class 3-A-8 and Class 3-A-18 Certificates.
|
|
Accrual
Components
|
None.
|
|
Book-Entry
Certificates
|
All
Classes of Certificates other than the Definitive
Certificates.
|
|
Class
A
Certificates
|
All
of the Senior Certificates other than the Class A-R
Certificates
|
|
Class
B
Certificates
|
Class
B-1, Class B-2, Class B-3, Class B-4, Class B-5 and Class B-6
Certificates.
|
|
Class
M
Certificates
|
None.
|
|
Class
M Senior
Certificates
|
None.
|
|
Component
Certificates
|
None.
|
|
Components
|
For
purposes of calculating distributions of principal and/or interest,
the
Component Certificates, if any, will be comprised of multiple payment
components having the designations, Initial Component Balances or
Notional
Amounts, as applicable, and Pass-Through Rates set forth
below:
|
|
Destination
|
Initial
Component Principal Balance
|
Pass-Through
Rate
|
|
|
N/A
|
N/A
|
N/A
|
|
Definitive
Certificates
|
Private
Certificates and the Residual Certificates.
|
|
Delay
Certificates
|
All
interest-bearing Classes of Certificates other than the Non-Delay
Certificates, if any.
|
|
Depositable
Certificates
|
Class
1-A-1, Class 2-A-1, Class
3-A-7, Class 3-A-8, Class 3-A-11, Class 3-A-12, Class 3-A-13, Class
3-A-16, Class 3-A-17, Class 3-A-18 and Class 4-A-1
Certificates.
|
|
ERISA-Restricted
Certificates
|
The
Residual Certificates and Private Certificates; and any Certificate
of a
Class that ceases to satisfy the applicable rating requirement under
the Underwriter’s Exemption.
|
|
Exchangeable
Certificates
|
Class
1-A-2, Class 1-A-3, Class 2-A-2, Class 2-A-3, Class 3-A-9, Class
3-A-14,
Class 3-A-15, Class 3-A-19, Class 3-A-20, Class 3-A-21, Class 3-A-22,
Class 3-A-23, Class 3-A-24, Class 3-A-25, Class 3-A-26, Class 3-A-27,
Class
|
| 3-A-28, Class 3-A-29, Class 3-A-30, Class 3-A-31, Class 3-A-32, Class 3-A-33, Class 3-A-34, Class 3-A-35, Class 3-A-36, Class 3-A-37, Class 3-A-38, Class 3-A-39, Class 3-A-40, Class 3-A-41, Class 3-A-42, Class 4-A-3, Class 4-A-4 and Class 4-A-5 Certificates. | |
|
Floating
Rate
Certificates
|
Class
3-A-23, Class 3-A-27, Class 3-A-30, Class 3-A-33, Class 4-A-1, Class
4-A-3
and Class 4-A-4 Certificates.
|
|
Group
1
Certificates
|
Group
1 Senior Certificates and the portions of the Subordinated Certificates
related to Collateral Allocation Group 1.
|
|
Group
1 Senior
Certificates
|
Class
1-A-1, Class 1-A-2, Class 1-A-3 and Class 1-A-P
Certificates.
|
|
Group
2
Certificates
|
Group
2 Senior Certificates and the portions of the Subordinated Certificates
related to Collateral Allocation Group 2.
|
|
Group
2 Senior
Certificates
|
Class
2-A-1, Class 2-A-2, Class 2-A-3 and Class 2-A-X
Certificates.
|
|
Group
3
Certificates
|
Group
3 Senior Certificates and the portions of the Subordinated Certificates
related to Collateral Allocation Group 3.
|
|
Group
3 Senior
Certificates
|
Class
3-A-1, Class 3-A-2, Class 3-A-3, Class 3-A-4, Class 3-A-5, Class
3-A-6,
Class 3-A-7, Class 3-A-8, Class 3-A-9, Class 3-A-10, Class 3-A-11,
Class
3-A-12, Class 3-A-13, Class 3-A-14, Class 3-A-15, Class 3-A-16, Class
3-A-17, Class 3-A-18, Class 3-A-19, Class 3-A-20, Class 3-A-21, Class
3-A-22, Class 3-A-23, Class 3-A-24, Class 3-A-25, Class 3-A-26, Class
3-A-27, Class 3-A-28, Class 3-A-29, Class 3-A-30, Class 3-A-31, Class
3-A-32, Class 3-A-33, Class 3-A-34, Class 3-A-35, Class 3-A-36, Class
3-A-37, Class 3-A-38, Class 3-A-39, Class 3-A-40, Class 3-A-41, Class
3-A-42, Class 3-A-P and Class A-R Certificates.
|
|
Group
4
Certificates
|
Group
4 Senior Certificates and the portions of the Subordinated Certificates
related to Collateral Allocation Group 4.
|
|
Group
4 LIBOR Certificates
|
Class
4-A-1, Class 4-A-2, Class 4-A-3, Class 4-A-4 and Class 4-A-5
Certificates.
|
|
Group
4 Senior
Certificates
|
Class
4-A-1, Class 4-A-2, Class 4-A-3, Class 4-A-4, Class 4-A-5 and Class
4-A-X
Certificates.
|
|
Inverse
Floating Rate Certificates
|
Class
3-A-24, Class 3-A-26, Class 3-A-28, Class 3-A-29,
|
2
| Class 3-A-31, Class 3-A-32, Class 3-A-34, Class 3-A-36, Class 4-A-2 and Class 4-A-5 Certificates. | |
|
LIBOR
Certificates
|
Floating
Rate Certificates and Inverse Floating Rate
Certificates.
|
|
Non-Delay
Certificates
|
The
LIBOR Certificates.
|
|
Notional
Amount Certificates
|
Class
2-A-X, Class 3-A-24, Class 3-A-28, Class 3-A-31, Class 3-A-34, Class
3-A-38, Class 3-A-40, Class 4-A-2, Class 4-A-5 and Class 4-A-X
Certificates.
|
|
Notional
Amount Components
|
None.
|
|
Offered
Certificates
|
All
Classes of Certificates other than the Private
Certificates.
|
|
Planned
Principal
Classes
|
Class
3-A-3 Certificates.
|
|
Principal
Only
Certificates
|
Class
1-A-P, Class 3-A-6, Class 3-A-25, Class 3-A-35 and Class 3-A-P
Certificates.
|
|
Private
Certificates
|
Class
B-4, Class B-5, Class B-6 and Class P Certificates.
|
|
Rating
Agencies
|
S&P
and Fitch.
|
|
Regular
Certificates
|
All
Classes of Certificates, other than the Residual
Certificates.
|
|
Residual
Certificates
|
Class A-R
Certificates.
|
|
Scheduled
Principal Classes
|
None.
|
|
Senior
Certificate
Group
|
The
Group 1 Senior Certificates, Group 2 Senior Certificates, Group 3
Senior
Certificates and Group 4 Senior Certificates, as
applicable.
|
|
Senior
Certificates
|
Collectively,
the Group 1 Senior Certificates, Group 2 Senior Certificates, Group
3
Senior Certificates and Group 4 Senior Certificates.
|
|
Subordinated
Certificates
|
Class
B Certificates.
|
|
Targeted
Principal
Classes
|
Class
3-A-4 Certificates.
|
|
Underwriter
|
Xxxxxx
Xxxxxxx & Co. Incorporated.
|
With
respect to any of the foregoing designations as to which the corresponding
reference is “None,” all defined terms and provisions herein relating solely to
such designations shall be of no force or effect, and any calculations herein
incorporating references to such designations shall be interpreted without
reference to such designations and amounts. Defined terms and
provisions herein relating to statistical rating agencies not designated above
as Rating Agencies shall be of no force or effect.
3
ARTICLE
I
DEFINITIONS
Section
1.01. Definitions.
The
following words and phrases, unless the context otherwise requires, shall have
the following meanings:
A-P
Formula Principal Amount: As to any Distribution Date and any
Class of Class A-P Certificates, the sum of (i) the sum of the applicable A-P
Percentage of (a) the principal portion of each Scheduled Payment (without
giving effect, prior to the Bankruptcy Coverage Termination Date, to any
reductions thereof caused by any Debt Service Reductions or Deficient
Valuations) due on the Applicable Fraction of each Mortgage Loan in the related
Collateral Allocation Group on the related Due Date, (b) the Stated Principal
Balance of the Applicable Fraction of each Mortgage Loan in the related
Collateral Allocation Group that was repurchased by the Seller, the Depositor,
or the related Originator or purchased by the Master Servicer pursuant to this
Agreement as of such Distribution Date, (c) the Substitution Adjustment Amount
in connection with any the Applicable Fraction of Deleted Mortgage Loan in
the
related Collateral Allocation Group received with respect to such Distribution
Date, (d) any Insurance Proceeds or Liquidation Proceeds allocable to recoveries
of principal of the Applicable Fraction of Mortgage Loans in the related
Collateral Allocation Group that are not yet Liquidated Mortgage Loans received
during the calendar month preceding the month of such Distribution Date, (e)
with respect to the Applicable Fraction of each Mortgage Loan in the related
Collateral Allocation Group that became a Liquidated Mortgage Loan during the
calendar month preceding the month of such Distribution Date, the amount of
Liquidation Proceeds allocable to principal received with respect to such
Mortgage Loan allocable to that Collateral Allocation Group during the calendar
month preceding the month of such Distribution Date with respect to such
Mortgage Loan and, if such Liquidated Mortgage Loan is an Additional Collateral
Mortgage Loan, the principal portion of the proceeds of any Additional
Collateral allocated to the Collateral Allocation Group and (f) the Applicable
Fraction of all Principal Prepayments with respect to the Mortgage Loans in
the
related Collateral Allocation Group received during the related Prepayment
Period, and (ii) with respect to Subsequent Recoveries attributable to the
Applicable Fraction of a Discount Mortgage Loan in the related Collateral
Allocation Group which incurred (1) an Excess Loss or (2) a Realized Loss after
the Senior Credit Support Depletion Date, the A-P Percentage of the Applicable
Fraction of any Subsequent Recoveries on the Mortgage Loans related to such
Collateral Allocation Group received during the calendar month preceding the
month of such Distribution Date.
A-P
Percentage: As to any Discount Mortgage Loan or Applicable
Fraction thereof in Collateral Allocation Group 1 or Collateral Allocation
Group
3, a fraction (expressed as a percentage) the numerator of which is the excess
of the Required Coupon for such Collateral Allocation Group over the Net
Mortgage Rate of such Discount Mortgage Loan and the denominator of which is
such Required Coupon. As to any Non-Discount Mortgage Loan or
Applicable Fraction thereof in Collateral Allocation Group 1 or Collateral
Allocation Group 3 and as to any Mortgage Loan or Applicable Fraction thereof
in
Collateral Allocation Group 2 or Collateral Allocation Group 4, 0%.
4
Accountant: A
Person engaged in the practice of accounting who (except when this Agreement
provides that an Accountant must be Independent) may be employed by or
affiliated with the Depositor or an Affiliate of the Depositor.
Accretion
Directed Certificates: As specified in the Preliminary
Statement.
Accretion
Direction Rule: With respect to the Class 3-A-5, Class 3-A-8 and
Class 3-A-18 Certificates, the Class 3-A-5 Accretion Direction Rule, Class
3-A-8
Accretion Direction Rule and Class 3-A-18 Accretion Direction Rule,
respectively.
Accrual
Amount: With respect to any Class of Accrual Certificates or any
Accrual Component and any Distribution Date, the amount allocable to interest
on
such Class of Accrual Certificates or Accrual Component with respect to such
Distribution Date pursuant to Section 5.02(a)(1)(iii), 5.02(a)(2)(iii),
5.02(a)(3)(iii) or 5.02(a)(4)(iii),as applicable.
Accrual
Certificates: As specified in the Preliminary
Statement.
Accrual
Components: As specified in the Preliminary
Statement.
Accrual
Termination Date: The Senior Credit Support Depletion
Date.
Acknowledgements: The
Assignment, Assumption and Recognition Agreements, each dated as of July 1,
2007, assigning rights under the Purchase and Servicing Agreements from the
Seller to the Depositor and from the Depositor to the Trustee, for the benefit
of the Certificateholders.
Act: The
Securities Act of 1933, as amended.
Additional
Collateral: With respect to any Additional Collateral Mortgage
Loan, the marketable securities and other acceptable collateral pledged as
collateral pursuant to the related pledge agreements.
Additional
Collateral Mortgage Loan: Each Mortgage Loan identified as such
in the Mortgage Loan Schedule.
Additional
Form 10-D Disclosure: As defined in Section 12.02 hereof.
Additional
Form 10-K Disclosure: As defined in Section 12.04 hereof.
Additional
Servicer: Each affiliate of each Servicer that services any of
the Mortgage Loans and each Person who is not an affiliate of the any Servicer,
who services 10% or more of the Mortgage Loans. For clarification
purposes, the Master Servicer and the Securities Administrator are Additional
Servicers.
Adjustment
Date: Not Applicable.
Advance: With
respect to a Mortgage Loan, the payments required to be made by the Master
Servicer or the applicable Servicer with respect to any Distribution Date
pursuant to this
5
Agreement
or the applicable Purchase and Servicing Agreement, as applicable, the amount
of
any such payment being equal to the aggregate of the payments of principal
and
interest (net of the applicable Servicing Fee and net of any net income in
the
case of any REO Property) on the Mortgage Loans that were due on the related
Due
Date and not received as of the close of business on the related Determination
Date, less the aggregate amount of any such delinquent payments that the Master
Servicer or the applicable Servicer has determined would constitute
Nonrecoverable Advances if advanced.
Adverse
REMIC Event: Either (i) 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) 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 specified Person, any other Person controlling or controlled
by
or under common control with such specified Person. For the purposes
of this definition, “control” when used with respect to any specified Person
means the power to direct the management and policies of such Person, directly
or indirectly, whether through the ownership of voting securities, by contract
or otherwise; and the terms “controlling” and “controlled” have meanings
correlative to the foregoing.
Aggregate
Denomination: With respect to any date of determination and Class
or Classes Certificates, the aggregate of the denominations of the Outstanding
Certificates of such Class or Classes on such date.
Aggregate
Expense Rate: With respect to any Mortgage Loan, the applicable
Servicing Fee Rate and, with respect to any LPMI Mortgage Loan, the interest
premium charged by the mortgagee to obtain or maintain any Primary Mortgage
Insurance Policy.
Aggregate
Planned Balance: With respect to any group of Planned Principal
Classes or Components and any Distribution Date, the amount set forth for such
group for such Distribution Date in Schedule B hereto.
Aggregate
Targeted Balance: With respect to any group of Targeted Principal
Classes or Components and any Distribution Date, the amount set forth for such
group for such Distribution Date in Schedule B hereto.
Aggregate
Voting Interests: The aggregate of the Voting Interests of all
the Certificates under this Agreement.
Agreement: This
Pooling and Servicing Agreement and all amendments or supplements
hereto.
Allocable
Share: As to any Distribution Date and any Mortgage Loan (i) with
respect to Principal Only Certificates, zero, (ii) with respect to the Class
2-A-X and Class 4-A-X Certificates, (a) the ratio that the excess, if any,
of
the Net Mortgage Rate with respect to such Mortgage Loan or the Applicable
Fraction thereof, over the related Required Coupon bears to
6
such
Net
Mortgage Rate or (b) if the Net Mortgage Rate with respect to such Mortgage
Loan
or the Applicable Fraction thereof does not exceed the related Required Coupon,
zero, (iii) with respect to each other Class of Group 1, Group 2, Group 3 or
Group 4 Certificates the product of (a) the lesser of (I) the ratio that the
related Required Coupon bears to the Net Mortgage Rate of such Mortgage
Loan or the Applicable Fraction thereof and (II) one, multiplied by
(b) the ratio that the amount calculated with respect to such Distribution
Date
(A) with respect to the Senior Certificates of the related Senior Certificate
Group, pursuant to clause (i) of the definition of Class Optimal Interest
Distribution Amount (without giving effect to any reduction of such amount
pursuant to Section 5.02 (d)) and (B) with respect to the Subordinated
Certificates, pursuant to the definition of Assumed Interest Amount or after
the
third Senior Termination Date, pursuant to clause (i) of the definition of
Class
Optimal Interest Distribution Amount (without giving effect to any reduction
of
such amount pursuant to Section 5.02(d)) bears to the amount calculated with
respect to such Distribution Date for each Class of Certificates pursuant to
clause (i) of the definition of Class Optimal Interest Distribution Amount
(without giving effect to any reduction of such amount pursuant to Section
5.02(d)) or the definition of Assumed Interest Amount for such Collateral
Allocation Group and Class, as applicable and (iv) with respect to any other
Class of Certificates, the ratio that the amount calculated with respect to
such
Distribution Date (A) with respect to the Senior Certificates of the related
Senior Certificate Group, pursuant to clause (i) of the definition of Class
Optimal Interest Distribution Amount (without giving effect to any reduction
of
such amount pursuant to Section 5.02 (d)) and (B) with respect to the
Subordinated Certificates, pursuant to the definition of Assumed Interest Amount
or after the third Senior Termination Date, pursuant to clause (i) of the
definition of Class Optimal Interest Distribution Amount (without giving effect
to any reduction of such amount pursuant to Section 5.02(d)) bears to the amount
calculated with respect to such Distribution Date for each Class of Certificates
pursuant to clause (i) of the definition of Class Optimal Interest Distribution
Amount (without giving effect to any reduction of such amount pursuant to
Section 5.02(d)) or the definition of Assumed Interest Amount for such
Collateral Allocation Group and Class, as applicable.
Allocation
Ratio: With respect to each Class of Exchangeable Certificates, a
fraction, the numerator of which is equal to the Aggregate Denomination of
such
Class of Exchangeable Certificates at the close of business on the related
Record Date and the denominator of which is the Initial Authorized Determination
with respect to such Exchangeable Certificates.
Amount
Available for Senior Principal: As to any Distribution Date and
(a) Collateral Allocation Group 1, Available Funds for such Distribution Date
and Collateral Allocation Group, reduced by the aggregate amount distributable
(or allocable to the Accrual Amount, if applicable) on such Distribution Date
in
respect of interest on the related Senior Certificates pursuant to Section
5.02(a)(1)(ii), (b) Collateral Allocation Group 2, Available Funds for such
Distribution Date and Collateral Allocation Group, reduced by the aggregate
amount distributable (or allocable to the Accrual Amount, if applicable) on
such
Distribution Date in respect of interest on the related Senior Certificates
pursuant to Section 5.02(a)(2)(ii), (c) Collateral Allocation Group 3, Available
Funds for such Distribution Date and Collateral Allocation Group, reduced by
the
aggregate amount distributable (or allocable to the Accrual Amount, if
applicable) on such Distribution Date in respect of interest on the related
Senior Certificates pursuant to Section 5.02(a)(3)(ii) or (d) Collateral
Allocation Group 4, Available Funds for such Distribution Date and Collateral
Allocation Group, reduced by the aggregate
7
amount
distributable (or allocable to the Accrual Amount, if applicable) on such
Distribution Date in respect of interest on the related Senior Certificates
pursuant to Section 5.02(a)(4)(ii).
Amount
Held for Future Distribution: As to any Distribution Date and
Mortgage Loans related to a Collateral Allocation Group, the aggregate amount
held in the Custodial Accounts at the close of business on the related
Determination Date on account of (i) Principal Prepayments received after the
related Prepayment Period and Liquidation Proceeds and Subsequent Recoveries
received in the month of such Distribution Date relating to such Collateral
Allocation Group and (ii) all Scheduled Payments due after the related Due
Date
relating to such Collateral Allocation Group.
Applicable
Credit Support Percentage: As defined in Section
5.02(e).
Applied
Loss Amount: Not Applicable.
Applicable
Fraction: With respect to (a) any Mortgage Loan related to any
Collateral Allocation Group, the percentage for such Mortgage Loan and
Collateral Allocation Group set forth on the Mortgage Loan Schedule but
generally calculated as follows:
The
Applicable Fraction of each Mortgage Loan in Loan Group 1 that is allocated
to
Collateral Allocation Group 1 and Collateral Allocation Group 2 is as
follows:
|
Loan
Group 1
|
|||
|
Net
Mortgage Rate
of
the Mortgage Loan
|
Collateral
Allocation Group 1
|
Collateral
Allocation
Group
2
|
|
|
less
than or equal to
5.50%
|
100.00%
|
0.00%
|
|
|
Greater
than 5.50% and less than 6.00%
|
6.00%
- Net Mortgage Rate
|
100.00%
-
|
6.00%
- Net Mortgage Rate
|
|
0.50%
|
0.50%
|
||
|
6.00%
and
above
|
0.00%
|
100.00%
|
|
8
The
Applicable Fraction of each Mortgage Loan in Loan Group 2 that is allocated
to
Collateral Allocation Group 3 and Collateral Allocation Group 4 is as
follows:
|
Loan
Group 2
|
|||
|
Net
Mortgage Rate
of
the Mortgage Loan
|
Collateral
Allocation Group 3
|
Collateral
Allocation
Group
4
|
|
|
less
than or equal to
6.00%
|
100.00%
|
0.00%
|
|
|
Greater
than 6.00% and less than 7.50%
|
7.50%
- Net Mortgage Rate
|
100.00%
-
|
7.50%
- Net Mortgage Rate
|
|
1.50%
|
1.50%
|
||
|
7.50%
and
above
|
0.00%
|
100.00%
|
|
Appraised
Value: With respect to any Mortgage Loan, the Appraised Value of
the related Mortgaged Property shall be: (i) with respect to a Mortgage
Loan other than a Refinancing Mortgage Loan, the lesser of (a) the value of
the Mortgaged Property based upon the appraisal made at the time of the
origination of such Mortgage Loan and (b) the sales price of the Mortgaged
Property at the time of the origination of such Mortgage Loan; and
(ii) with respect to a Refinancing Mortgage Loan, the value of the
Mortgaged Property based upon the appraisal made at the time of the origination
of such Refinancing Mortgage Loan.
Assets: Not
Applicable.
Assignment
of Mortgage: An assignment of the Mortgage, notice of transfer or
equivalent instrument, in recordable form, sufficient under the laws of the
jurisdiction wherein the related Mortgaged Property is located to reflect the
sale of the Mortgage to the Trustee, which assignment, notice of transfer or
equivalent instrument may be in the form of one or more blanket assignments
covering the Mortgage Loans secured by Mortgaged Properties located in the
same
jurisdiction, if permitted by law; provided, however, that the
Trustee shall not be responsible for determining whether any such assignment
is
in recordable form or sufficient under the laws of the applicable jurisdiction
to reflect the sale of the Mortgage to the Trustee.
Assignment
of Proprietary Lease: With respect to a Cooperative Loan, an
assignment of the Proprietary Lease sufficient under the laws of the
jurisdiction wherein the related Cooperative Unit is located to reflect the
assignment of such Proprietary Lease; provided, however, that
the Trustee shall not be responsible for determining whether such assignment
is
sufficient to reflect the assignment of the Proprietary Lease.
9
Assignment
of Recognition Agreement: With respect to a Cooperative Loan, an
assignment of the Recognition Agreement sufficient under the laws of the
jurisdiction wherein the related Cooperative Unit is located to reflect the
assignment of such Recognition Agreement; provided, however,
that the Trustee shall not be responsible for determining whether such
assignment is sufficient to reflect the assignment of the Recognition
Agreement.
Assumed
Balance: With respect to any Distribution Date, Class of Subordinated
Certificates and Collateral Allocation Group, each such Class’ pro rata interest
(based on their respective Class Principal Balances) in such Collateral
Allocation Group equal to the product of the Subordinated Percentage for such
Collateral Allocation Group as of such Distribution Date and the aggregate
of
the applicable Non-A-P Percentage of the Stated Principal Balance of each
Mortgage Loan or Applicable Fraction thereof in such Collateral Allocation
Group
as of the Due Date occurring in the month preceding the month of such
Distribution Date (after giving effect to Principal Prepayments received in
the
related Prepayment Period).
Assumed
Interest Amount: With respect to any Distribution Date and Class
of Subordinated Certificates, one month’s interest accrued during the related
Interest Accrual Period at the Pass-Through Rate for such Class on the
applicable Assumed Balance immediately prior to that Distribution
Date.
Auction: Not
Applicable.
Auction
Administrator: Not Applicable.
Auction
Date: Not Applicable.
Auction
Excess Proceeds: Not Applicable.
Auction
Purchaser: Not Applicable.
Auction
Sale: Not Applicable.
Authenticating
Agent: Any authenticating agent appointed pursuant to
Section 6.10 until any successor authenticating agent for the Certificates
is named, and thereafter “Authenticating Agent” shall mean any such
successor. The initial Authenticating Agent shall be the Securities
Administrator under this Agreement.
Authorized
Officer: Any Person who may execute an Officer’s Certificate on
behalf of the Depositor.
Available
Distribution Amount: Not Applicable.
Available
Funds: As to any Distribution Date and the Mortgage Loans or
Applicable Fractions thereof in a Collateral Allocation Group, the sum,
for that Collateral Allocation Group, of (a) the aggregate amount
held in the Custodial Accounts at the close of business on the related
Determination Date, including any Subsequent Recoveries, in respect of such
Mortgage Loans in the related Loan Group in proportion to the Applicable
Fraction of those Mortgage Loans in that Collateral Allocation Group net of
(i)
the Amount Held for Future Distribution, (ii) amounts
10
permitted
to be withdrawn from the Custodial Accounts pursuant to Section 4.02(a) in
respect of such Mortgage Loans or Applicable Fractions thereof and (iii) amounts
permitted to be withdrawn from the Distribution Account pursuant to clauses
(i)–(v) inclusive of Section 4.02(b), in each case in the related Loan Group in
proportion to the Applicable Fraction of those Mortgage Loans in that Collateral
Allocation Group, (b) the amount of all related Advances made by the Servicers
and the Master Servicer and all Compensating Interest Payments or payments
made
in respect of Prepayment Interest Shortfalls paid by the Servicers and the
Master Servicer, in each case, in respect of such Mortgage Loans in the related
Loan Group in proportion to the Applicable Fraction of those Mortgage Loans
in
that Collateral Allocation Group, (c) in connection with Defective Mortgage
Loans in the related Loan Group, as applicable, the aggregate of the Purchase
Prices and Substitution Adjustment Amounts, in each case, in proportion to
the
Applicable Fraction of those Mortgage Loans in that Collateral Allocation Group
deposited on the related Distribution Account Deposit Date minus (d)
all related fees, charges and other amounts payable or reimbursable to the
Master Servicer, the Securities Administrator, any Custodian or the Trustee
under this Agreement or the related Custodial Agreement or to the Servicers
under the Purchase and Servicing Agreements, or, if any amounts are not
specifically related to the Mortgage Loans or Applicable Fractions thereof
in
that Collateral Allocation Group or the related Certificate Group, then the
applicable Collateral Allocation Group Percentage for such Collateral Allocation
Group for such Distribution Date of such amounts. The Holders of the
Class P Certificates will be entitled to all Prepayment Penalties received
on
the Mortgage Loans and such amounts will not be available for distribution
to
the Holders of any other Class of Certificates.
Balloon
Loan: Any Mortgage Loan which, by its terms, does not fully amortize the
principal balance thereof by its stated maturity and thus requires a payment
at
the stated maturity larger than the monthly payments due
thereunder.
Bankruptcy: As
to any Person, the making of an assignment for the benefit of creditors, the
filing of a voluntary petition in bankruptcy, adjudication as a bankrupt or
insolvent, the entry of an order for relief in a bankruptcy or insolvency
proceeding, the seeking of reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief, or seeking, consenting
to or acquiescing in the appointment of a trustee, receiver or liquidator,
dissolution, or termination, as the case may be, of such Person pursuant to
the
provisions of either the Bankruptcy Code or any other similar state
laws.
Bankruptcy
Code: The United States Bankruptcy Code of 1986, as
amended.
Bankruptcy
Coverage Termination Date: The point in time at which the
Bankruptcy Loss Coverage Amount is reduced to zero.
Bankruptcy
Loss: With respect to any Mortgage Loan, a Deficient Valuation or
Debt Service Reduction reported to the Master Servicer by the related Servicer;
provided, however, that a Bankruptcy Loss shall not be deemed a Bankruptcy
Loss
hereunder so long as the related Servicer has notified the Master Servicer
in
writing that the related Servicer is diligently pursuing any remedies that
may
exist in connection with the related Mortgage Loan and either (A) the related
Mortgage Loan is not in default with regard to payments due thereunder or (B)
delinquent payments of principal and interest under the related Mortgage Loan
and any related
11
escrow
payments in respect of such Mortgage Loan are being advanced on a current basis
by the Master Servicer or the related Servicer, in either case without giving
effect to any Debt Service Reduction or Deficient Valuation, as reported by
the
related Servicer to the Master Servicer.
Bankruptcy
Loss Coverage Amount: As of any date of determination, the
Bankruptcy Loss Coverage Amount shall equal the Initial Bankruptcy Coverage
Amount as reduced by (i) the aggregate amount of Bankruptcy Losses allocated
to
the Certificates since the Cut-off Date and (ii) any permissible reductions
in
the Bankruptcy Loss Coverage Amount as evidenced by a letter of each Rating
Agency to the Trustee and the Securities Administrator to the effect that any
such reduction will not result in a downgrading of the then current ratings
assigned to the Classes of Certificates rated by it.
Basic
Principal Distribution Amount: Not Applicable.
Basis
Risk Carry Forward Amount: Not Applicable.
Basis
Risk Carry Forward Reserve Fund: Not Applicable.
Book-Entry
Certificates: Beneficial interests in Certificates designated as
“Book-Entry Certificates” in this Agreement, ownership and transfers of which
shall be evidenced or made through book entries by a Clearing Agency as
described in Section 3.09; provided, that after the
occurrence of a Book-Entry Termination whereupon book-entry registration and
transfer are no longer permitted and Definitive Certificates are to be issued
to
Certificate Owners, such Book-Entry Certificates shall no longer be “Book-Entry
Certificates.” The Classes of Certificates that constitute
“Book-Entry Certificates” as of the Closing Date are set forth in the
Preliminary Statement.
Book-Entry
Termination: The date on which the Clearing Agency is no longer
willing or able to properly discharge its responsibilities with respect to
the
Book Entry Certificates, and the Depositor is unable to locate a qualified
successor.
Breached
Mortgage Loan: A Mortgage Loan (a)(i) on which the first payment was not
made or (ii) that has been delinquent one or two times in the six months
following the Cut-off Date and (b) as to which the Seller obtained a
representation or warranty that no condition set forth in (a)(i) or, for the
same or other period time specified in such representation or warranty (a)(ii),
exists.
Business
Day: Any day other than (i) a Saturday or a Sunday or
(ii) a day on which banking institutions in New York, New York or, if other
than New York, the city in which the Corporate Trust Office of the Trustee
is
located, or the States of Maryland, Minnesota or Texas, are authorized or
obligated by law or executive order to be closed.
Calculation
Rate: For each Distribution Date, the product of (i) 10 and (ii) the
weighted average pass-through rate of the outstanding Class A and Class B
Interests, treating each of the Class A Interests as having an Interest Rate
of
0.00%.
12
Certificate: Any
one of the certificates signed by the Trustee, or the Securities Administrator
on the Trustee’s behalf, and authenticated by the Securities Administrator as
Authenticating Agent in substantially the forms attached hereto as
Exhibit A.
Certificate
Balance: With respect to any Certificate at any date, the maximum
dollar amount of principal to which the Holder thereof is then entitled
hereunder, such amount being equal to the principal balance or notional amount,
as applicable, as of the Closing Date (A) plus any Subsequent Recoveries added
to the Certificate Balance of such Certificate pursuant to Section 5.02, (B)
minus the sum of (i) all distributions of principal previously made with respect
thereto and (ii) all Realized Losses (including Excess Losses) allocated thereto
and, in the case of any Subordinated Certificates, all other reductions in
Certificate Balance previously allocated thereto pursuant to Section 5.04 and
(C) in the case of any Class of Accrual Certificates, increased by the Accrual
Amount added to the Class Principal Balance of such Class prior to such
date.
Certificate
Group: As specified in the Preliminary Statement.
Certificate
Insurance Account: Not Applicable.
Certificate
Insurance Payment: Not Applicable.
Certificate
Insurer: Not Applicable.
Certificate
Insurer Contact Person: Not Applicable.
Certificate
Insurer Default: Not Applicable.
Certificate
Owner: With respect to a Book-Entry Certificate, the Person who
is the owner of such Book-Entry Certificate, as reflected on the books of the
Clearing Agency, or on the books of a Person maintaining an account with such
Clearing Agency (directly or as an indirect participant, in accordance with
the
rules of such Clearing Agency).
Certificate
Register and Certificate Registrar: The register maintained and
the registrar appointed pursuant to Section 3.02. The initial
Certificate Registrar is the Securities Administrator under this
Agreement.
Certificateholder: The
meaning provided in the definition of “Holder.”
Certification
Party: As defined in Section 12.05 hereof.
Certifying
Person: As defined in Section 12.05 hereof.
Class: All
Certificates bearing the same Class designation as set forth in the Preliminary
Statement.
Class
3-A-1 and Class 3-A-2 Priority Amount: With respect to any Distribution
Date, the sum of (A) the Senior Percentage for the Group 3 Senior Certificates,
(B) the Scheduled Principal Distribution Amount for Collateral Allocation Group
3, (C) the Shift Percentage and
13
(D)
the
Class 3-A-1 and Class 3-A-2 Priority Percentage and (ii) the product of (A)
the
Senior Prepayment Percentage for the Group 3 Senior Certificates, (B) the
Unscheduled Principal Distribution Amount for Collateral Allocation Group 3,
(C)
the Prepayment Shift Percentage and (D) the Class 3-A-1 and Class 3-A-2 Priority
Percentage.
Class
3-A-1 and Class 3-A-2 Priority Percentage: With respect to any Distribution
Date, the percentage equivalent of a fraction, the numerator of which is the
aggregate Class Principal Balance of the Class 3-A-1 and Class 3-A-2
Certificates immediately prior to such Distribution Date, and the denominator
of
which is the aggregate Class Principal Balance of the Group 3 Senior
Certificates (other than the Class 3-A-P Certificates) immediately prior to
such
Distribution Date.
Class
3-A-5 Accretion Direction Rule: On each Distribution Date until
the Senior Credit Support Depletion Date, the Class 3-A-5 Accrual Amount will
be
distributed as principal sequentially, first, to the Class 3-A-4 Certificates,
in an amount up to the amount necessary to reduce its Class Principal Balance
to
its Targeted Balance for that Distribution Date, and then to the Class 3-A-5
Certificates, until its Class Principal Balance is reduced to zero.
Class
3-A-8 Accretion Direction Rule: On each Distribution Date until
the Senior Credit Support Depletion Date, the amount of accrued interest on
the
Class 3-A-8 Accrual Amount will be distributed as principal sequentially, to
the
Class 3-A-7 and Class 3-A-8 Certificates, in that order, until their respective
Class Principal Balances are reduced to zero.
Class
3-A-11 Priority Amount: With respect to any Distribution Date, the sum of
(A) the Senior Percentage for the Group 3 Senior Certificates, (B) the Scheduled
Principal Distribution Amount for Collateral Allocation Group 3, (C) the Shift
Percentage and (D) the Class 3-A-11 Priority Percentage and (ii) the product
of
(A) the Senior Prepayment Percentage for the Group 3 Senior Certificates, (B)
the Unscheduled Principal Distribution Amount for Collateral Allocation Group
3,
(C) the Prepayment Shift Percentage and (D) the Class 3-A-11 Priority
Percentage.
Class
3-A-11 Priority Percentage: With respect to any Distribution Date, the
percentage equivalent of a fraction, the numerator of which is the Class
Principal Balance of the Class 3-A-11 Certificates immediately prior to such
Distribution Date, and the denominator of which is the aggregate Class Principal
Balance of the Group 3 Senior Certificates (other than the Class 3-A-P
Certificates) immediately prior to such Distribution Date.
Class
3-A-18 Accretion Direction Rule: On each Distribution Date until
the Senior Credit Support Depletion Date, the Class 3-A-18 Accrual Amount will
be distributed as principal sequentially, to the Class 3-A-17 and Class 3-A-18
Certificates, in that order, until their respective Class Principal Balances
are
reduced to zero.
Class
A Interest: Each of the Class A-1 and Class A-2 Interests.
Class
A-P Certificates: The Class 1-A-P and Class 3-A-P
Certificates.
Class
A-P Deferred Amount: As to any Distribution Date and Collateral
Allocation Group, the aggregate of the applicable A-P Percentage of each
Realized Loss, other than any Excess Loss, on a Discount Mortgage Loan in that
Collateral Allocation Group to be allocated to
14
the
related Class of Class A-P Certificates on such Distribution Date on or prior
to
the Senior Credit Support Depletion Date or previously allocated to but not
yet
paid to the Holders of that Class of Class A-P Certificates.
Class
B Certificates: As specified in the Preliminary
Statement.
Class
B Interest: Each of the Class B-1 and Class B-2 Interests.
Class
C Interest: Each of the Class C-1 and Class C-2 Interests.
Class
Interest Shortfall: As to any Distribution Date and Class, the
amount by which the amount described in clause (i) of the definition of Class
Optimal Interest Distribution Amount for such Class exceeds the amount of
interest actually distributed on such Class on such Distribution Date pursuant
to such clause (i).
Class
M Certificates: As specified in the Preliminary Statement.
Class
M Senior Certificates: As specified in the Preliminary
Statement.
Class
Optimal Interest Distribution Amount: With respect to any
Distribution Date and interest bearing Class or, with respect to any interest
bearing Component, the sum of (i) one month’s interest accrued during the
related Interest Accrual Period at the Pass-Through Rate for such Class on
the
related Class Principal Balance, Component Balance, Notional Amount or Component
Notional Amount, as applicable, immediately prior to such Distribution Date,
subject to reduction as provided in Section 5.02(d) and (ii) any Class Unpaid
Interest Amounts for such Class or Component.
Class
P Distribution Amount: For each Distribution Date, an amount
equal to the total of all Prepayment Penalties received by the Securities
Administrator from the Servicers on the Mortgage Loans in the prior Due
Period. The Class P Distribution Amount is not part of the Available
Funds and is therefore not available for distributions to the other Classes
of
Certificates.
Class
Principal Balance: With respect to any Class of Certificates and
as to any date of determination, the aggregate of the Certificate Balances
of
all Certificates of such Class as of such date.
Class
Principal Balance: With respect to any Class and as to any date
of determination, the aggregate of the Certificate Balances of all Certificates
of such Class as of such date.
Class
Subordination Percentage: With respect to any Distribution Date
and each Class of Subordinated Certificates, the quotient (expressed as a
percentage) of (a) the Class Principal Balance of such Class of
Subordinated Certificates immediately prior to such Distribution Date, divided
by (b) the aggregate of the Class Principal Balances of all Classes of
Certificates (other than the Notional Amount Certificates) immediately prior
to
such Distribution Date.
Class
Unpaid Interest Amounts: As to any Distribution Date and Class of
interest bearing Certificates, the amount by which the aggregate Class Interest
Shortfalls for such Class on prior
15
Distribution
Dates exceeds the amount distributed on such Class on prior Distribution Dates
pursuant to clause (ii) of the definition of Class Optimal Interest Distribution
Amount.
Clearing
Agency: An organization registered as a “clearing agency”
pursuant to Section 17A of the Securities Exchange Act of 1934, as
amended. As of the Closing Date, the Clearing Agency shall be The
Depository Trust Company.
Clearing
Agency Participant: A broker, dealer, bank, other financial
institution or other Person for whom from time to time a Clearing Agency effects
book-entry transfers and pledges of securities deposited with the Clearing
Agency.
Closing
Date: July 31, 2007.
Code: The
Internal Revenue Code of 1986, as amended, and as it may be further amended
from
time to time, any successor statutes thereto, and applicable U.S. Department
of
Treasury regulations issued pursuant thereto in temporary or final
form.
Collateral
Allocation Group: Any of Collateral Allocation Group 1, Collateral
Allocation Group 2, Collateral Allocation Group 3 or Collateral Allocation
Group
4.
Collateral
Allocation Group 1: The respective Applicable Fractions of the Mortgage
Loans in Loan Group 1 so identified on the Mortgage Loan Schedule.
Collateral
Allocation Group 1 Mortgage Loans: The Mortgage Loans or Applicable
Fractions thereof in Collateral Allocation Group 1.
Collateral
Allocation Group 2: The respective Applicable Fractions of the Mortgage
Loans in Loan Group 1 so identified on the Mortgage Loan Schedule.
Collateral
Allocation Group 2 Mortgage Loans: The Mortgage Loans or Applicable
Fractions thereof in Collateral Allocation Group 2.
Collateral
Allocation Group 3: The respective Applicable Fractions of the Mortgage
Loans in Loan Group 2 so identified on the Mortgage Loan Schedule.
Collateral
Allocation Group 3 Mortgage Loans: The Mortgage Loans or Applicable
Fractions thereof in Collateral Allocation Group 3.
Collateral
Allocation Group 4: The respective Applicable Fractions of the Mortgage
Loans in Loan Group 3 so identified on the Mortgage Loan Schedule.
Collateral
Allocation Group 4 Mortgage Loans: The Mortgage Loans or Applicable
Fractions thereof in Collateral Allocation Group 4.
Collateral
Allocation Group Percentage: As to any Collateral Allocation
Group and any Distribution Date, the fraction, expressed as a percentage, the
numerator of which is the aggregate Stated Principal Balance of the Applicable
Fractions of all the Mortgage Loans in that
16
Collateral
Allocation Group as of the related Due Date, and the denominator of which is
the
aggregate Stated Principal Balance of all of the Mortgage Loans as of that
Due
Date.
Collateral
Allocation Group Principal Balance: As to any Distribution Date
and Collateral Allocation Group, the sum of, with respect to each Mortgage
Loan
related to that Collateral Allocation Group, the product of (x) the Stated
Principal Balance of that Mortgage Loan as of the Due Date in the month
preceding the month of the Distribution Date (after giving effect to prepayments
received in the Prepayment Period related to such prior Due Date) and (y) the
Applicable Fraction for that Mortgage Loan.
Collateralization
Event: Not Applicable.
Commission: The
U.S. Securities and Exchange Commission.
Compensating
Interest Payment: As to any Distribution Date, an amount equal to
the lesser of (i) the Prepayment Interest Shortfall on the Mortgage Loans
serviced by such Servicer with respect to such Distribution Date and (ii) the
portion of the applicable Servicing Fee that the related Servicer is required
to
remit to the Trust as compensation therefor in accordance with the terms of
the
related Purchase and Servicing Agreement.
Component: As
specified in the Preliminary Statement.
Component
Balance: With respect to any Component and any Distribution Date,
the Initial Component Balance thereof on the Closing Date, (A) plus any
Subsequent Recoveries added to the Component Balance of such Component pursuant
to Section 5.02, (B) minus the sum of all amounts applied in reduction of the
principal balance of such Component and Realized Losses allocated thereto on
previous Distribution Dates.
Component
Certificates: As specified in the Preliminary
Statement.
Component
Notional Amount: Not Applicable.
Confirmation: Not
Applicable.
Consent: A
document executed by the Cooperative Corporation (i) consenting to the sale
of
the Cooperative Unit to the Mortgagor and (ii) certifying that all maintenance
charges relating to the Cooperative Unit have been paid.
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: A Mortgage Loan secured by Cooperative Shares and a
Proprietary Lease, if any.
17
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 shares of the Cooperative Corporation.
Cooperative
Shares: Shares issued by a Cooperative Corporation.
Cooperative
Unit: With respect to any Cooperative Loan, a specific unit in a
Cooperative Property.
Corporate
Trust Office: With respect to the Trustee, the designated office
of the Trustee in the State of Illinois at which at any particular time its
corporate trust business with respect to this Agreement is administered, which
office at the date of the execution of this Agreement is located at 000 Xxxxx
XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, Attn: Global Securities
and
Trust Services MSM 2007-12, and which is the address to which notices to and
correspondence with the Trustee should be directed, or at such other address
as
the Trustee may designate from time to time by notice to the Certificateholders,
the Depositor, the Master Servicer and the Securities Administrator or the
principal corporate trust office of any successor Trustee. With
respect to the Certificate Registrar and presentment of Certificates for
registration of transfer, exchange or final payment, Xxxxx Fargo Bank, National
Association, Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000,
Attention: Corporate Trust, Xxxxxx Xxxxxxx Mortgage Loan Trust 2007-12, and
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, Xxxxxx Xxxxxxx Mortgage Loan Trust 2007-12.
Corridor
Contract: Not Applicable.
Corridor
Contract Counterparty: Not Applicable.
Corridor
Contract Scheduled Termination Date: Not Applicable.
Cross-Over
Situation: For any Distribution Date and for each Loan Group
(after taking into account principal distributions on such Distribution Date)
with respect to the Class A and Class B Interests, the Class A and Class B
Interests corresponding to any Loan Group are in the aggregate less than 1%
of
the Assumed Balance of the Loan Group to which they correspond.
Current
Interest: For any Distribution Date and any Class of
Certificates, the interest accrued during the related Interest Accrual Period
at
the Pass-Through Rate for such Class of Certificates on the related Class
Principal Balance immediately prior to such Distribution Date.
Custodial
Account: Each custodial account (other than an Escrow Account)
established and maintained by a Servicer pursuant to a Purchase and Servicing
Agreement.
Custodial
Agreement: The Custodial Agreements, listed in Exhibit F hereof,
as each such agreement may be amended or supplemented from time to time as
permitted hereunder.
Custodial
Delivery Failure: With respect to any Custodian appointed
hereunder, as defined in Section 6.21 hereof.
18
Custodian: A
Person who is at anytime appointed by the Depositor as a custodian of the
Mortgage Documents and the Trustee Mortgage Files. The initial
Custodians are LaSalle Bank National Association and Xxxxx Fargo Bank, National
Association. “Custodian” shall refer to each Custodian or all
Custodians, as the context requires.
Custodian
Certification: As defined in Section 2.01.
Cut-off
Date: July 1, 2007.
Cut-off
Date Pool Principal Balance: $516,179,003.52.
Cut-off
Date Principal Balance: As to any Mortgage Loan, the Stated
Principal Balance thereof as of the close of business on the Cut-off
Date.
Debt
Service Reduction: With respect to any Mortgage Loan, a reduction
by a court of competent jurisdiction in a proceeding under the Bankruptcy Code
in the Scheduled Payment for such Mortgage Loan which became final and
non-appealable, except such a reduction resulting from a Deficient Valuation
or
any reduction that results in a permanent forgiveness of principal.
Deceased
Holder: Not Applicable.
Defaulted
Swap Termination Payment: Not Applicable.
Defective
Mortgage Loan: The meaning specified in
Section 2.05(a).
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 indebtedness under the Mortgage Loan, or any
reduction in the amount of principal to be paid in connection with any Scheduled
Payment that results in a permanent forgiveness of principal, which valuation
or
reduction results from an order of such court which is final and non-appealable
in a proceeding under the Bankruptcy Code.
Definitive
Certificate: A Certificate of any Class issued in definitive,
fully registered, certificated form. As of the Closing Date the
Classes of Certificates being issued as “Definitive Certificates” are set forth
in the Preliminary Statement.
Delay
Certificates: As specified in the Preliminary Statement.
Deleted
Mortgage Loan: A Mortgage Loan that is repurchased, or replaced
or to be replaced with a Replacement Mortgage Loan.
Delinquent: Any
Mortgage Loan with respect to which the Scheduled Payment due on a Due Date
is
not received.
Depositable
Certificates: As specified in the Preliminary
Statement.
Depositor: Xxxxxx
Xxxxxxx Capital I Inc., a Delaware corporation having its principal place of
business in New York, or its successors in interest.
19
Depository: Cede
& Co., or any other organization registered as a “clearing agency” pursuant
to Section 17A of the Securities Exchange Act of 1934, as
amended. 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(a)(5) of the Uniform
Commercial Code of the State of New York.
Determination
Date: With respect to each Servicer, the “Determination Date” set
forth in the related Purchase and Servicing Agreement.
Discount
Mortgage Loan: Any Mortgage Loan or Applicable Fraction thereof
in Collateral Allocation Group 1 or Collateral Allocation Group 3, as
applicable, with a Net Mortgage Rate that is less than the Required Coupon
for
that Loan Group. For the avoidance of doubt, there are no Discount
Mortgage Loans in Collateral Allocation Group 2 or Collateral Allocation Group
4.
Disqualified
Organization: A “disqualified organization” as defined in Section
860E(e)(5) of the Code.
Distribution
Account: The separate Eligible Account created and maintained by
the Securities Administrator, on behalf of the Trustee, pursuant to
Section 4.01. Funds in the Distribution Account (exclusive of
any earnings on investments made with funds deposited in the Distribution
Account) shall be held in trust for the Trustee and the Certificateholders
for
the uses and purposes set forth in this Agreement.
Distribution
Account Deposit Date: With respect to each Servicer, not later
than 1:00 p.m., New York time, on 18th day of each calendar month after the
initial issuance of the Certificates or, if such 18th day is not a Business
Day,
either the immediately preceding or immediately following Business Day, as
set
forth in the related Acknowledgement, commencing in August 2007.
Distribution
Date: The 25th day of each month or, if such 25th day is not a
Business Day, the next succeeding Business Day, commencing in August
2007.
Due
Date: With respect to any Distribution Date, the first day of the
month in which such Distribution Date occurs. With respect to any
Mortgage Loan, the date on which a Scheduled Payment is due under the related
Mortgage Note as indicated in the applicable Purchase and Servicing
Agreement.
Due
Period: As to any Distribution Date, the period beginning on the
second day of the calendar month preceding the calendar month in which such
Distribution Date occurs to, and including the first day of the calendar month
in which such Distribution Date occurs.
XXXXX: The
Commission’s Electronic Data Gathering, Analysis and Retrieval
system.
Eligible
Account: Any of (i) an account or accounts maintained with a
federal or state chartered depository institution or trust company that is
an
Eligible Institution, 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 debt obligations of such holding
20
company)
have the highest short-term ratings of each Rating Agency at the time any
amounts are held on deposit therein, or (ii) a trust account or accounts
maintained with the corporate trust department of a federal depository
institution or state-chartered depository institution subject to the regulations
regarding fiduciary funds on deposit similar to Title 12 of the U.S. Code of
Federal Regulations Section 9.10(b) which, in either case, has corporate trust
powers and is acting in its fiduciary capacity, or (iii) any other account
acceptable to each Rating Agency, as evidenced by a signed writing delivered
by
each Rating Agency. Eligible Accounts may bear interest, and may include, if
otherwise qualified under this definition, accounts maintained with the Trustee,
the Paying Agent, the Securities Administrator or the Master
Servicer.
Eligible
Institution: An institution having the highest short-term debt
rating, and one of the two highest long-term debt ratings of the Rating Agencies
or the approval of the Rating Agencies. Upon a downgrade in the
rating of an Eligible Institution at which an Eligible Account is held below
the
required ratings set forth in the definition of Eligible Account, within 30
days
of such downgrade, such account will be transferred to an account meeting the
requirements of the definition of Eligible Account; provided, however, that
this
transfer requirement may be waived by the applicable Rating Agency.
ERISA: The
Employee Retirement Income Security Act of 1974, as amended.
ERISA-Qualifying
Underwriting: A best efforts or firm commitment underwriting or
private placement that meets the requirements of an Underwriter’s
Exemption.
ERISA-Restricted
Certificate: As specified in the Preliminary
Statement.
Escrow
Account: With respect to each Mortgage Loan, as defined in
Article I of the related Purchase and Servicing Agreement.
ES
Trust: The separate trust created under this Agreement pursuant to Section
4.03(a).
ES
Trust Certificate: Any Class of Certificates issued by the ES
Trust and representing beneficial ownership of one or more uncertificated Master
REMIC Interests held by such ES Trust.
Estoppel
Letter: A document executed by the Cooperative Corporation
certifying, with respect to a Cooperative Unit, (i) the appurtenant Proprietary
Lease will be in full force and effect as of the date of issuance thereof,
(ii)
the related stock certificate was registered in the Mortgagor’s name and the
Cooperative Corporation has not been notified of any lien upon, pledge of,
levy
of execution on or disposition of such stock certificate, and (iii) the
Mortgagor is not in default under the appurtenant Proprietary Lease and all
charges due the Cooperative Corporation have been paid.
Event
of Default: Any one of the conditions or circumstances enumerated
in Section 6.14.
Excess
Loss: The amount of any (i) Fraud Loss on a Mortgage Loan
realized after the Fraud Loss Coverage Termination Date, (ii) Special
Hazard Loss on a Mortgage Loan realized
21
after
the
Special Hazard Coverage Termination Date or (iii) Bankruptcy Loss on a
Mortgage Loan realized after the Bankruptcy Coverage Termination
Date.
Excess
Priority Amount: Not Applicable.
Excess
Subordinated Amount: Not Applicable.
Exchange
Act: The Securities Exchange Act of 1934, as amended, and the
rules and regulations promulgated thereunder.
Exchange
Act Reports: Any reports on Form 10-D, Form 8-K and Form 10-K
required to be filed with respect to the Trust Fund under the Exchange
Act.
Exchangeable
Certificates: As specified in the Preliminary
Statement.
Exchangeable
Certificates Distribution Account: The separate Eligible Account
created and maintained by the Securities Administrator on behalf of the ES
Trust
pursuant to Section 4.03(a) in the name of the Securities Administrator, on
behalf of the Trustee for the benefit of the Holders of the Exchangeable
Certificates and designated “Xxxxx Fargo Bank National Association in trust for
registered Holders of Xxxxxx Xxxxxxx Mortgage Loan Trust 2007-12, Mortgage
Pass-Through Certificates, Series 2007-12.” Funds in the Exchangeable
Certificates Distribution Account shall be held in trust for the
Certificateholders for the uses and purposes set forth in this
Agreement.
Extra
Principal Distribution Amount: Not Applicable.
Xxxxxx
Mae: The entity formerly known as the Federal National Mortgage
Association, a federally chartered and privately owned corporation organized
and
existing under the Federal National Mortgage Association Charter Act, or any
successor thereto.
FDIC: The
Federal Deposit Insurance Corporation or any successor thereto.
FHLMC: The
Federal Home Loan Mortgage Corporation, a corporate instrumentality of the
United States created and existing under Title III of the Emergency Home
Finance Act of 1970, as amended, or any successor thereto.
Final
Custodian Certification: As defined in Section 2.02
hereof.
FNBN
Mortgage Loan: Each Mortgage Loan originated by First National
Bank of Nevada and listed on the Mortgage Loan Schedule.
FNBN
Purchase Agreement: The Mortgage Loan Purchase Agreement listed
in Exhibit E hereto between the Seller and First National Bank of
Nevada.
Fiscal
Agent: Not Applicable.
Fitch: Fitch,
Inc., or any successor thereto. If Fitch is designated as a Rating
Agency in the Preliminary Statement, for purposes of Section 11.07 the address
for notices to Fitch shall be
22
Fitch, Inc.,
Xxx Xxxxx Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Residential Mortgage Surveillance Group, or such other address as Fitch may
hereafter furnish to the Depositor, the Trustee and the Master
Servicer.
Form
8-K Disclosure: As defined in Section 12.03 hereof.
Fraud
Loan: A Liquidated Mortgage Loan as to which a Fraud Loss has
occurred, as reported by the related Servicer to the Master
Servicer.
Fraud
Loss Coverage Amount: As of the Closing Date, (x) $5,161,790,
subject to reduction from time to time, by the amount of Fraud Losses allocated
to the Certificates. In addition, the Fraud Loss Coverage Amount will
be reduced on the fifth anniversary of the Cut-off Date, to zero and on the
first, second, third and fourth anniversaries of the Cut-off Date, to an amount
equal to the lesser of (x) 1%, in the case of the first and second
anniversaries, and 0.50%, in the case of the third and fourth anniversaries,
of
the then current aggregate Stated Principal Balance of the Mortgage Loans and
(y) the excess of the Fraud Loss Coverage Amount as of the preceding anniversary
of the Cut-off Date over the cumulative amount of Fraud Losses allocated to
the
Certificates since the preceding anniversary.
Fraud
Loss Coverage Termination Date: The point in time at which the
Fraud Loss Coverage Amount is reduced to zero.
Fraud
Losses: Realized Losses on Mortgage Loans as to which a loss is
sustained by reason of a default arising from fraud, dishonesty or
misrepresentation in connection with the related Mortgage Loan, including a
loss
by reason of the denial of coverage under any related Primary Mortgage Insurance
Policy because of such fraud, dishonesty or misrepresentation.
Global
Securities: The global certificates representing the Book-Entry
Certificates.
GMAC
Serviced Mortgage Loan: Each Mortgage Loan serviced by GMAC
Mortgage, LLC and listed on the Mortgage Loan Schedule.
GMAC
Servicing Agreement: The Servicing Agreement listed in Exhibit E
hereto between the Seller and GMAC Mortgage, LLC.
Grantor
Trust: A trust described in Section 671 of the Code, the items of
income, deductions and credits of which must be included in computing the
taxable income and credits of the person treated as the owner of such trust
(either the grantor or other person designated under the Code).
GreenPoint
Mortgage Loan: Each Mortgage Loan originated by GreenPoint
Mortgage Funding, Inc. and listed on the Mortgage Loan Schedule.
GreenPoint
Purchase Agreement: The Mortgage Loan Purchase and Warranties
Agreement listed in Exhibit E hereto between the Seller and GreenPoint Mortgage
Funding, Inc. as seller and servicer.
23
GreenPoint
Serviced Mortgage Loan: Each Mortgage Loan serviced by GreenPoint
Mortgage Funding, Inc. and listed on the Mortgage Loan Schedule.
GreenPoint
Servicing Agreement: The Servicing Agreement listed in Exhibit E
hereto between the Seller and GreenPoint Mortgage Funding, Inc.
Group
1 Certificates: As specified in the Preliminary
Statement.
Group
1 Mortgage Loans: The Mortgage Loans in Loan Group
1.
Group
1 Senior Certificates: As specified in the Preliminary
Statement.
Group
1 Subordinated Certificates: As specified in the Preliminary
Statement.
Group
2 Certificates: As specified in the Preliminary
Statement.
Group
2 Mortgage Loans: The Mortgage Loans in Loan Group
2.
Group
2 Senior Certificates: As specified in the Preliminary
Statement.
Group
2 Subordinated Certificates: As specified in the Preliminary
Statement.
Group
3 Certificates: As specified in the Preliminary
Statement.
Group
3 Senior Certificates: As specified in the Preliminary
Statement.
Group
3 Subordinated Certificates: As specified in the Preliminary
Statement.
Group
4 Certificates: As specified in the Preliminary
Statement.
Group
4 Senior Certificates: As specified in the Preliminary
Statement.
Group
4 Subordinated Certificates: As specified in the Preliminary
Statement.
Holder: The
registered owner of any Certificate as recorded on the books of the Certificate
Registrar except 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
and any Servicer, or any Affiliate thereof 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
or
the Securities Administrator shall be protected in relying upon any such
consent, only Certificates that a Responsible Officer of the Trustee or the
Securities Administrator, respectively, knows to be so owned shall be
disregarded. The Trustee or the Securities Administrator may request
and conclusively rely on certifications by the Depositor, the Master Servicer,
the Securities Administrator or any Servicer in determining whether any
Certificates are registered to an Affiliate of the Depositor, the Master
Servicer, the Securities Administrator or any Servicer.
24
HUD: The
United States Department of Housing and Urban Development, or any successor
thereto.
Indemnifying
Party: As specified in Section 12.08 hereof.
Independent: When
used with respect to any Accountants, a Person who is “independent” within the
meaning of Rule 2-01(b) of the Securities and Exchange Commission’s
Regulation S-X. When used with respect to any other Person, a
Person who (a) is in fact independent of another specified Person and any
Affiliate of such other Person, (b) does not have any material direct
financial interest in such other Person or any Affiliate of such other Person,
and (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.
Index: As
to each Mortgage Loan, the index from time to time in effect for adjustment
of
the Mortgage Rate as set forth as such on the related Mortgage
Note.
IndyMac
Mortgage Loan: Each Mortgage Loan originated by IndyMac Bank,
F.S.B. and listed on the Mortgage Loan Schedule.
IndyMac
Purchase Agreement: The Mortgage Loan Purchase and Warranties
Agreement listed in Exhibit E hereto between the Seller and IndyMac Bank, F.S.B.
as seller and servicer.
IndyMac
Serviced Mortgage Loan: Each Mortgage Loan serviced by IndyMac
Bank, F.S.B. and listed on the Mortgage Loan Schedule.
IndyMac
Servicing Agreement: The Servicing Agreement listed in Exhibit E
hereto between the Seller and IndyMac Bank, F.S.B.
Initial
Authorized Determination: With respect to any Depositable
Certificate or Exchangeable Certificate, the amount set forth with respect
to
such Class in Schedule C under the heading, “Original Certificate Balance or
Notional Amount”.
Initial
Bankruptcy Coverage Amount: $168,700.
Initial
Component Balance: As specified in the Preliminary
Statement.
Initial
Custodian Certification: As defined in Section 2.02.
Initial
Optional Termination Date: The first Distribution Date following
the date on which the aggregate Stated Principal Balance of the Mortgage Loans
is equal to or less than 1% of the aggregate Stated Principal Balance thereof
as
of the Cut-off Date.
Insurance
Agreement: Not Applicable.
Insurance
Policy: With respect to any Mortgage Loan, any insurance policy,
including all names and endorsements thereto in effect, including any
replacement policy or policies for any Insurance Policies.
25
Insurance
Proceeds: Proceeds paid by any Insurance Policy (excluding
proceeds required to be applied to the restoration and repair of the related
Mortgaged Property or released to the Mortgagor), in each case other than any
amount included in such Insurance Proceeds in respect of Insured Expenses and
the proceeds from any Limited Purpose Surety Bond.
Insured
Certificates: Not Applicable.
Insured
Expenses: Expenses covered by an Insurance Policy or any other
insurance policy with respect to the Mortgage Loans.
Insured
Payment: Not Applicable.
Interest
Accrual Period: With respect to each Class of Delay Certificates,
its corresponding Subsidiary REMIC Regular Interest and any Distribution Date,
the calendar month prior to the month of such Distribution Date. With
respect to any Class of Non-Delay Certificates, its corresponding Subsidiary
REMIC Regular Interest and each Distribution Date, the one month period
commencing on the 25th day of
the
calendar month preceding the month in which such Distribution Date occurs and
ending on the 24th day of
the
calendar month in which such Distribution Date occurs. For purposes of computing
interest accruals on each Class of Certificates, each Interest Accrual Period
has 30 days in such month and each year is assumed to have 360
days.
Interest
Carry Forward Amount: Not Applicable.
Interest
Determination Date: With respect to any Interest Accrual Period
for any Class of LIBOR Certificates, the second LIBOR Business Day prior to
the
first day of such Interest Accrual Period.
Interest
Distribution Amount: Not Applicable.
Interest
Remittance Amount: Not Applicable.
Interest
Transfer Amount: For any Distribution Date and for any
Undercollateralized Group of Senior Certificates, an amount equal to one month’s
interest on the applicable Principal Transfer Amount at the weighted average
Pass-Through Rate of the applicable Undercollateralized Group, plus any interest
accrued on such Undercollateralized Group remaining unpaid from prior
Distribution Dates.
Investor
Based Exemption: Any of Prohibited Transaction Class Exemption
(“PTCE”) 84-14 (for transactions by independent “qualified professional asset
managers”), XXXX 00-0 (for transactions by insurance company pooled separate
accounts), PTCE 91-38 (for transactions by bank collective investment funds),
PTCE 95-60 (for transactions by insurance company general accounts), PTCE 96-23
(for transactions effected by “in house asset managers”) the service provider
exemption provided by Section 308(b)(17) of ERISA and Section 4975(d)(20) of
the
Code, or any comparable exemption available under Similar Law.
Last
Scheduled Distribution Date: With respect to the Group 1 Senior
Certificates and the Group 2 Senior Certificates, the Distribution Date
occurring in August 2022. With respect to
26
the
Group
3 Senior Certificates, the Group 4 Senior Certificates and the Subordinated
Certificates is the Distribution Date occurring in August 2037.
Latest
Possible Maturity Date: The Distribution Date in August
2037.
LIBOR: The
London interbank offered rate for one-month United States dollar deposits
calculated in the manner described in Section 5.09.
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: As specified in the Preliminary
Statement.
Limited
Purpose Surety Bond: Collectively, Ambac Assurance Corporation
Surety Bond No. AB0039BE and any other Limited Purpose Surety Bond securing
an
Additional Collateral Mortgage Loan.
Liquidated
Mortgage Loan: With respect to any Distribution Date, a defaulted
Mortgage Loan (including any REO Property) which was liquidated in the calendar
month preceding the month of such Distribution Date and as to which the related
Servicer has certified (in accordance with its Purchase and Servicing Agreement)
that it has received all amounts it expects to receive in connection with the
liquidation of such Mortgage Loan including the final disposition of an REO
Property.
Liquidation
Proceeds: Amounts, including Insurance Proceeds, received in
connection with the partial or complete liquidation of defaulted Mortgage Loans,
whether through trustee’s sale, foreclosure sale or otherwise or amounts
received in connection with any condemnation or partial release of a Mortgaged
Property and any other proceeds received in connection with an REO
Property.
Living
Holders: Not Applicable.
Loan
Group: Any of Loan Group 1 or Loan Group 2, as
applicable.
Loan
Group 1: All Mortgage Loans identified as Group 1 Mortgage Loans
on the Mortgage Loan Schedule.
Loan
Group 2: All Mortgage Loans identified as Group 2 Mortgage Loans
on the Mortgage Loan Schedule.
Loan
Group Percentage: As to any Loan Group and any Distribution Date,
the fraction, expressed as a percentage, the numerator of which is the aggregate
Stated Principal Balance of all of the Mortgage Loans in that Loan Group as
of
the related Due Date, and the denominator of which is the aggregate Stated
Principal Balance of all of the Mortgage Loans as of that Due Date.
Loan
Group Principal Balance: As to any Distribution Date and Loan
Group, the aggregate Stated Principal Balance of the Mortgage Loans in that
Loan
Group outstanding on the
27
Due
Date
in the month preceding the month of the Distribution Date (after giving effect
to prepayments received in the Prepayment Period related to such prior Due
Date).
Loan-To-Value
Ratio: With respect to any Mortgage Loan and as to any date of
determination, the fraction (expressed as a percentage) the numerator of which
is the principal balance of the related Mortgage Loan at such date of
determination and the denominator of which is the Appraised Value of the related
Mortgaged Property.
LPMI
Mortgage Loan: Certain Mortgage Loans as to which the lender
(rather than the borrower) acquires the Primary Mortgage Insurance Policy and
charges the related borrower an interest premium.
Master
REMIC: As described in the Preliminary Statement.
Master
Servicer: Xxxxx Fargo Bank, National Association, a national
banking association organized under the laws of the United States in its
capacity as Master Servicer and any Person succeeding as Master Servicer
hereunder or any successor in interest, or if any successor master servicer
shall be appointed as herein provided, then such successor master
servicer.
Master
Servicer Compensation: With respect to any Master Servicer that
is a successor to Xxxxx Fargo Bank, National Association as Master Servicer,
the
portion of the earnings on the funds on deposit in the Distribution Account
payable on each Distribution Date pursuant to Section 4.02(b)(ii) hereof agreed
to by and between such successor Master Servicer and the successor securities
administrator; provided, that the sum of such Master Servicer Compensation
and
the Securities Administrator Compensation payable on each Distribution Date
shall not exceed the total earnings on funds in the Distribution Account payable
pursuant to Section 4.02(b)(ii) hereof earned since the prior Distribution
Date.
Memorandum: The
private placement memorandum dated the Closing Date, relating to the Private
Certificates.
MERS: Mortgage
Electronic Registration Systems, Inc., a corporation organized and existing
under the laws of the State of Delaware, or any successor to Mortgage Electronic
Registration Systems, Inc.
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.
Minimum
Auction Price: Not Applicable.
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
and assigns.
28
Moody’s: Xxxxx’x
Investors Service, Inc., or any successor thereto. If Xxxxx’x is
designated as a Rating Agency in the Preliminary Statement, for purposes of
Section 11.07 the address for notices to Moody’s shall be Xxxxx’x Investors
Service, Inc., 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Residential Pass-Through Monitoring, or such other address as Moody’s may
hereafter furnish to the Depositor or the Master Servicer.
Mortgage: A
mortgage, deed of trust or other instrument encumbering a fee simple interest
in
real property securing a Mortgage Note, together with improvements
thereto.
Mortgage
Documents: With respect to each Mortgage Loan, the mortgage
documents required to be delivered to each Custodian delievered pursuant to
this
Agreement or the related Custodial Agreement.
Mortgage
Loan: A Mortgage and the related notes or other evidences of
indebtedness secured by each such Mortgage conveyed, transferred, sold, assigned
to or deposited with the Trustee pursuant to Section 2.01 (including any
REO Property), including without limitation, each Mortgage Loan listed on the
Mortgage Loan Schedule, as amended from time to time.
Mortgage
Loan Auction Price: Not Applicable.
Mortgage
Loan Schedule: The schedule attached hereto as Schedule A, which
shall identify each Mortgage Loan, as such schedule may be amended by the
Depositor or a Servicer from time to time to reflect the addition of Replacement
Mortgage Loans to, or the deletion of Deleted Mortgage Loans from, the Trust
Fund. Such schedule shall, among other things (i) designate the
Servicer servicing such Mortgage Loan and the applicable Servicing Fee Rate;
(ii) identify the designated Loan Group in which such Mortgage Loan is
included, (iii) identify any LPMI Mortgage Loan and designate the rate at which
the premium for such insurance is calculated and (iv) separately identify the
Additional Collateral Mortgage Loans, if any.
Mortgage
Note: The original executed note or other evidence of the
indebtedness of a Mortgagor secured by a Mortgage under a Mortgage
Loan.
Mortgage
Rate: As to any Mortgage Loan, the annual rate of interest borne
by the related Mortgage Note.
Mortgaged
Property: The underlying property, including any Additional
Collateral, securing a Mortgage Loan which, with respect to a Cooperative Loan,
is the related Cooperative Shares and Proprietary Lease.
Mortgagor: The
obligor on a Mortgage Note.
MSCC
Serviced Mortgage Loan: Each Mortgage Loan originated and
serviced by Xxxxxx Xxxxxxx Credit Corp. and listed on the Mortgage Loan
Schedule.
MSCC
Purchase Agreement: The Second Amended and Restated Master
Mortgage Loan Purchase Agreement listed in Exhibit E hereto between the Seller
and Xxxxxx Xxxxxxx Credit Corp.
29
MSCC
Purchase and Servicing Agreement: Collectively, the MSCC Purchase
Agreement and the MSCC Servicing Agreement.
MSCC
Servicing Agreement: The Amended and Restated Master Servicing
Agreement listed in Exhibit E hereto between the Seller and Xxxxxx Xxxxxxx
Credit Corp.
MSMCI
Mortgage Loan: A Mortgage Loan sold by the Seller to the
Depositor pursuant to the MSMCI Purchase Agreement.
MSMCI
Purchase Agreement: The Mortgage Loan Purchase Agreement listed
in Exhibit E hereto between the Seller and the Depositor.
Net
Liquidation Proceeds: With respect to any Liquidated Mortgage
Loan or any other disposition of related Mortgaged Property, the related
Liquidation Proceeds net of Advances, Servicer Advances, Servicing Fees and
any
other accrued and unpaid servicing fees received and retained in connection
with
the liquidation of such Mortgage Loan or Mortgaged Property.
Net
Monthly Excess Cashflow: Not Applicable.
Net
Mortgage Rate: With respect to any Mortgage Loan and any
Distribution Date, the related Mortgage Rate as of the Due Date in the month
preceding the month of such Distribution Date reduced by the Aggregate Expense
Rate for such Mortgage Loan.
Net
Prepayment Interest Shortfalls: As to any Distribution Date and
Collateral Allocation Group, the amount by which the aggregate of Prepayment
Interest Shortfalls for the Mortgage Loans in such Collateral Allocation Group
exceeds the Compensating Interest Payments for the Mortgage Loans or Applicable
Fractions thereof in such Collateral Allocation Group (and any amounts paid
by
the Master Servicer in respect of such shortfalls pursuant to Section 5.06)
and that Distribution Date, in each case, based upon the Applicable Fractions
thereof that are part of such Collateral Allocation Group.
Net
Swap Payment: Not Applicable.
Net
Swap Receipt: Not Applicable.
Net
WAC Pass-Through Rate: Not Applicable.
Non-A-P
Formula Principal Amount: As to any Distribution Date and
Collateral Allocation Group, the sum of (i) the sum of (x) the applicable
Non-A-P Percentage of (a) the principal portion of each Scheduled Payment
(without giving effect, prior to the Bankruptcy Coverage Termination Date,
to
any reductions thereof caused by any Debt Service Reductions or Deficient
Valuations) due on the Applicable Fraction of each Mortgage Loan in the related
Collateral Allocation Group on the related Due Date, (b) the Stated Principal
Balance of the Applicable Fraction of each Mortgage Loan in the related
Collateral Allocation Group that was repurchased by the Seller or an Originator
or purchased by the Master Servicer pursuant to this Agreement as of such
Distribution Date, (c) the Substitution Adjustment Amount in connection with
any
Deleted Mortgage Loan in such Collateral Allocation Group received with respect
to such Distribution Date, (d) any Insurance Proceeds or Liquidation Proceeds
allocable to
30
recoveries
of principal of the Applicable Fraction of Mortgage Loans in the related
Collateral Allocation Group that are not yet Liquidated Mortgage Loans received
during the calendar month preceding the month of such Distribution Date, (e)
with respect to the Applicable Fraction of each Mortgage Loan in the related
Collateral Allocation Group that became a Liquidated Mortgage Loan during the
calendar month preceding the month of such Distribution Date, the amount of
Liquidation Proceeds allocable to principal received with respect to such
Mortgage Loan allocable to that Collateral Allocation Group during the calendar
month preceding the month of such Distribution Date with respect to such
Mortgage Loan and, if such Liquidated Mortgage Loan is an Additional Collateral
Mortgage Loan, the principal portion of the proceeds of any Additional
Collateral allocated to the Collateral Allocation Group, and (f) the Applicable
Fraction of all Principal Prepayments with respect to the Mortgage Loans in
the
related Collateral Allocation Group received during the related Prepayment
Period, and (ii) (A) any Subsequent Recoveries for such Loan Group received
during the calendar month preceding the month of such Distribution Date, or
(B)
with respect to Subsequent Recoveries attributable to the Applicable Fraction
of
a Discount Mortgage Loan in the related Collateral Allocation Group which
incurred (1) an Excess Loss or (2) a Realized Loss after the Senior Credit
Support Depletion Date, the Non-A-P Percentage of the Applicable Fraction of
any
Subsequent Recoveries on the Mortgage Loans related to such Collateral
Allocation Group received during the calendar month preceding the month of
such
Distribution Date.
Non-A-P
Percentage: As to the Applicable Fraction any Discount Mortgage
Loan in Collateral Allocation Group 1 or Collateral Allocation Group 3, a
fraction (expressed as a percentage) the numerator of which is the Net Mortgage
Rate of such Discount Mortgage Loan and the denominator of which is the Required
Coupon for such Collateral Allocation Group. As to any Non-Discount
Mortgage in Collateral Allocation Group 1 or Collateral Allocation Group 3
and
any Mortgage Loan or Applicable Fraction thereof in Collateral Allocation Group
2 or Collateral Allocation Group 4, 100%.
Non-A-P
Pool Balance: With respect to Collateral Allocation Group 1 and
Collateral Allocation Group 3 and any Due Date is equal to the excess, if any,
of (x) the Applicable Fraction of the aggregate Stated Principal Balance of
all
Mortgage Loans in the related Collateral Allocation Group over (y) the sum
of
the product of the A-P Percentage of the Applicable Fraction of the Stated
Principal Balance of each Discount Mortgage Loan in that Collateral Allocation
Group. The Non-A-P Pool Balance for Collateral Allocation Group 2 or
Collateral Allocation Group 4, and any Due Date is equal to the Applicable
Fraction of the aggregate Stated Principal Balance of all of the Collateral
Allocation Group 2 or Collateral Allocation Group 4, respectively.
Non-Book-Entry
Certificate: Any Certificate other than a Book-Entry
Certificate.
Non-Delay
Certificates: As specified in the Preliminary
Statement.
Non-Discount
Mortgage Loan: Any Mortgage Loan in Collateral Allocation Group 1
or Collateral Allocation Group 3 with an Net Mortgage Rate that is greater
than
or equal to the Required Coupon for that Collateral Allocation
Group. For the avoidance of doubt, all of the Mortgage Loans in
Collateral Allocation Group 2 and Collateral Allocation Group 4 are Non-Discount
Mortgage Loans.
31
Non-permitted
Foreign Holder: As defined in Section 3.03(f).
Non-U.S.
Person: Any person other than a “United States person” within the
meaning of Section 7701(a)(30) of the Code.
Nonrecoverable
Advance: Any portion of an Advance or Servicer Advance previously
made or proposed to be made by the Master Servicer and/or a Servicer (as
certified in an Officer’s Certificate of such Servicer), which in the good faith
judgment of such party, shall not be ultimately recoverable by such party from
the related Mortgagor, related Liquidation Proceeds or otherwise.
Notional
Amount: With respect to any Distribution Date and:
(i) the
Class 2-A-X Certificates, the product of (i) a fraction, the numerator of which
is the excess of (a) the weighted average of the Net Mortgage Rates for each
Mortgage Loan in Loan Group 1 with a Net Mortgage Rate greater than 6.00% (all
of which have been allocated to Collateral Allocation Group 2) as of the Due
Date in the preceding calendar month (after giving effect to prepayments
received in the related Prepayment Period) over (b) 6.00%, and the denominator
of which is 6.00% and (ii) the aggregate of the Stated Principal Balances of
each such Mortgage Loan with a Net Mortgage Rate greater than 6.00% as of that
Due Date (after giving effect to prepayments received in the related Prepayment
Period).
(ii) the
Class 3-A-24 Certificates, the Class Principal Balance of the Class
3-A-23 Certificates immediately prior to that Distribution Date.
(iii) the
Class 3-A-27 Certificates, the Class Principal Balance of the Class
3-A-28 Certificates immediately prior to that Distribution Date.
(iv) the
Class 3-A-31 Certificates, the Class Principal Balance of the Class
3-A-30 Certificates immediately prior to that Distribution Date.
(v)
the Class 3-A-34 Certificates, the Class Principal Balance of the
Class 3-A-33 Certificates immediately prior to that Distribution
Date.
(vi) the
Class 3-A-38 Certificates, the product of (i) a fraction, the
numerator of which is 0.25 and the denominator of which is 6.00, and (ii) the
Class Certificate Balance of the Class 3-A-37 Certificates immediately prior
to
such Distribution Date.
(vii)
the Class 3-A-40 Certificates, the product of (i) a fraction, the
numerator of which is 0.50 and the denominator of which is 6.00, and (ii) the
Class Certificate Balance of the Class 3-A-39 Certificates immediately prior
to
such Distribution Date.
(viii) the
Class 4-A-2 Certificates, the Class Principal Balance of the Class 4-A-1
Certificates immediately prior to that Distribution Date.
(ix) the
Class 4-A-5 Certificates, the Class Principal Balance of the Class
4-A-4 Certificates immediately prior to that Distribution Date.
32
(x) the
Class 4-A-X Certificates, an amount equal to the product of (i) a
fraction, the numerator of which is the excess of (a) the weighted average
of
the Net Mortgage Rates for each Mortgage Loan in Loan Group 2 with a Net
Mortgage Rate greater than 7.50% (all of which have been allocated to Collateral
Allocation Group 4) as of the Due Date in the preceding calendar month (after
giving effect to prepayments received in the related Prepayment Period) over
(b)
7.50%, and the denominator of which is 7.50% and (ii) the aggregate of the
Stated Principal Balances of each such Mortgage Loan with a Net Mortgage Rate
greater than 7.50% as of that Due Date (after giving effect to prepayments
received in the related Prepayment Period).
Notional
Amount Certificates: As specified in the Preliminary
Statement.
Offered
Certificates: As specified in the Preliminary
Statement.
Offering
Document: The Prospectus or the Memorandum, as
applicable.
Officer’s
Certificate: A certificate signed by two Authorized Officers of
the Depositor or the Chairman of the Board, any Vice Chairman, the President,
any Vice President or any Assistant Vice President of the Master Servicer or
the
Securities Administrator or in the case of any other Person, signed by an
authorized officer of such Person, and in each case delivered to the Trustee or
the Securities Administrator, as applicable signed by an authorized officer
of
that Person.
Officer’s
Certificate of a Servicer: A certificate (i) signed by the
Chairman of the Board, the Vice Chairman of the Board, the President, a Managing
Director, a Vice President (however denominated), an Assistant Vice President,
the Treasurer, the Secretary, or one of the Assistant Treasurers or Assistant
Secretaries of a Servicer, or (ii) if provided for herein, signed by a
Servicing Officer, as the case may be, and delivered to the Trustee, the
Securities Administrator or the Master Servicer, as required
hereby.
Opinion
of Counsel: A written opinion of counsel, reasonably acceptable
in form and substance to the Trustee, the Securities Administrator or the Master
Servicer, as required hereby, and who may be in-house or outside counsel to
the
Depositor, the Master Servicer, the Securities Administrator or the Trustee
but
which must be Independent outside counsel with respect to any such opinion
of
counsel concerning the transfer of any Residual Certificate or concerning
certain matters with respect to ERISA, or the taxation, or the federal income
tax status, of each REMIC.
Original
Applicable Credit Support Percentage: With respect to each of the
following Classes of Subordinated Certificates, the corresponding percentage
described below, as of the Closing Date:
|
Subordinated
Certificates
|
|||
|
Class
B-1
|
3.60%
|
||
|
Class
B-2
|
1.85%
|
||
|
Class
B-3
|
1.20%
|
||
|
Class
B-4
|
0.90%
|
||
33
|
Class
B-5
|
0.60%
|
||
|
Class
B-6
|
0.25%
|
||
Original
Subordinate Principal Balance: With respect to any Collateral
Allocation Group and any date of determination on or prior to a Senior
Termination Date, the Assumed Balance for that Collateral Allocation Group
as of
the Cut-off Date. With respect to any Loan Group and any date of
determination after the third Senior Termination Date, the aggregate Class
Principal Balance of the Subordinated Certificates as of the Closing
Date.
Originator: Any
one of First National Bank of Nevada, GreenPoint Mortgage Funding, Inc., IndyMac
Bank, F.S.B., Xxxxxx Xxxxxxx Credit Corporation, Quicken Loans, Inc., US Bank,
N.A. and Wachovia Mortgage Corporation, as applicable.
Outstanding
Certificate: Any Outstanding Exchangeable Certificate and
Outstanding Depositable Certificate.
Outstanding
Depositable Certificate: Any Depositable Certificate issued
hereunder; provided, however, that upon the exchange of any Depositable
Certificate pursuant to Section 4.03 hereof, the Depositable Certificate so
exchanged shall be deemed no longer to be an Outstanding Depositable
Certificate, and the Exchangeable Certificate issued in exchange therefore
shall
be deemed to be an Outstanding Exchangeable Certificate.
Outstanding
Exchangeable Certificate: Any Exchangeable Certificate issued hereunder;
provided, however, that upon the exchange of any Exchangeable Certificate
pursuant to Section 4.03 hereof, the Exchangeable Certificate so exchanged
shall
be deemed no longer to be an Oustanding Certificate, and each Depositable
Certificate issued in exchange therefore shall be deemed to be an Outstanding
Depositable Certificate.
Overcollateralization
Increase Amount: Not Applicable.
Overcollateralization
Release Amount: Not Applicable.
Overcollateralization
Target Amount: Not Applicable.
Overcollateralized
Amount: Not Applicable.
Overcollateralized
Group: As defined in Section 5.08 hereof.
Pass-Through
Rate: For any interest bearing Class of Certificates or
Component, the per annum rate set forth or calculated in the manner described
in
the Preliminary Statement.
Paying
Agent: Any paying agent appointed pursuant to
Section 3.08. The initial Paying Agent shall be the Securities
Administrator under this Agreement.
PCOAB: The
Public Company Accounting Oversight Board.
34
Percentage
Interest: As to any Certificate, the percentage interest
evidenced thereby in distributions required to be made on the related Class,
such percentage interest being set forth on the face thereof or equal to the
percentage obtained by dividing the initial principal balance or notional
amount, as applicable, of such Certificate by the aggregate of the Class
Principal Balance or Notional Amount, as applicable, of all Certificates of
the
same Class.
Permitted
Investments: At any time, any one or more of the following
obligations and securities:
(i) obligations
of the United States or any agency thereof, provided that such obligations
are
backed by the full faith and credit of the United States;
(ii) general
obligations of or obligations guaranteed by any state of the United States
or
the District of Columbia receiving the highest long-term debt rating of each
Rating Agency, or such lower rating as shall not result in the downgrading
or
withdrawal of the ratings then assigned to the Certificates by the Rating
Agencies, as evidenced by a signed writing delivered by each Rating
Agency;
(iii) commercial
or finance company paper which is then receiving the highest commercial or
finance company paper rating of each Rating Agency rating such paper, or such
lower rating as shall not result in the downgrading or withdrawal of the ratings
then assigned to the Certificates by the Rating Agencies, as evidenced by a
signed writing delivered by each Rating Agency;
(iv) certificates
of deposit, demand or time deposits, or bankers’ acceptances issued by any
depository institution or trust company incorporated under the laws of the
United States or of any state thereof and subject to supervision and examination
by federal and/or state banking authorities, provided that the commercial paper
and/or long-term unsecured debt obligations of such depository institution
or
trust company (or in the case of the principal depository institution in a
holding company system, the commercial paper or long-term unsecured debt
obligations of such holding company, but only if Xxxxx’x is not the applicable
Rating Agency) are then rated one of the two highest long-term and the highest
short-term ratings of each Rating Agency for such securities, or following
a
downgrade, withdrawal, or suspension of such institution’s rating, each account
should promptly (and in any case within not more than 10 calendar days) be
moved
to a qualifying institution or to one or more segregated trust accounts in
the
trust department of such institution, if permitted unless such lower ratings
as
shall not result in the downgrading or withdrawal of the ratings then assigned
to the Certificates by the Rating Agencies, as evidenced by a signed writing
delivered by each Rating Agency;
(v) guaranteed
reinvestment agreements issued by any bank, insurance company or other
corporation acceptable to the Rating Agencies at the time of the issuance of
such agreements, as evidenced by a signed writing delivered by each Rating
Agency;
35
(vi) repurchase
obligations with respect to any security described in clauses (i) and (ii)
above, in either case entered into with a depository institution or trust
company (acting as principal) described in clause (iv) above;
(vii) securities
(other than stripped bonds, stripped coupons or instruments sold at a purchase
price in excess of 115% of the face amount thereof) bearing interest or sold
at
a discount issued by any corporation incorporated under the laws of the United
States or any state thereof which, at the time of such investment, have one
of
the two highest ratings of each Rating Agency (except if the Rating Agency
is
Moody’s, such rating shall be the highest commercial paper rating of Moody’s for
any such series), or such lower rating as shall not result in the downgrading
or
withdrawal of the ratings then assigned to the Certificates by the Rating
Agencies, as evidenced by a signed writing delivered by each Rating
Agency;
(viii) interests
in any money market fund which at the date of acquisition of the interests
in
such fund and throughout the time such interests are held in such fund has
the
highest applicable rating by each Rating Agency rating such fund or such lower
rating as shall not result in a change in the rating then assigned to the
Certificates by each Rating Agency, as evidenced by a signed writing delivered
by each Rating Agency, including funds for which the Trustee, the Master
Servicer, the Securities Administrator or any of its Affiliates is investment
manager or adviser;
(ix) short-term
investment funds sponsored by any trust company or national banking association
incorporated under the laws of the United States or any state thereof which
on
the date of acquisition has been rated by each applicable Rating Agency in
their
respective highest applicable rating category or following a downgrade,
withdrawal, or suspension of such institution’s rating, each account should
promptly (and in any case within not more than 10 calendar days) be moved to
a
qualifying institution or to one or more segregated trust accounts in the trust
department of such institution, if permitted unless such lower rating as shall
not result in a change in the rating then specified stated maturity and bearing
interest or sold at a discount acceptable to each Rating Agency as shall not
result in the downgrading or withdrawal of the ratings then assigned to the
Certificates by the Rating Agencies, as evidenced by a signed writing delivered
by each Rating Agency; and
(x) such
other investments having a specified stated maturity and bearing interest or
sold at a discount acceptable to the Rating Agencies as shall not result in
the
downgrading or withdrawal of the ratings then assigned to the Certificates
by
the Rating Agencies, as evidenced by a signed writing delivered by each Rating
Agency;
provided,
that no such instrument shall be a Permitted Investment if (i) such instrument
evidences the right to receive interest only payments with respect to the
obligations underlying such instrument or (ii) such instrument would require
the
Depositor to register as an investment company under the Investment Company
Act
of 1940, as amended.
36
Person: Any
individual, corporation, partnership, joint venture, association, joint-stock
company, limited liability company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
Plan: Any
employee benefit plan or other plan or arrangement subject to Section 406 of
ERISA or Section 4975 of the Code, including individual retirement accounts
and
annuities, Xxxxx plans and collective investment funds and separate accounts
in
which such plans, accounts or arrangements are invested.
Plan
Asset Regulations: The Department of Labor regulations set forth
in 29 C.F.R. §2510.3-101.
Planned
Balance: With respect to any group of Planned Principal Classes
or Components in the aggregate and any Distribution Date appearing in Schedule
B
hereto, the Aggregate Planned Balance for such group and Distribution
Date. With respect to any other Planned Principal Class or Component
and any Distribution Date appearing in Schedule B hereto, the applicable amount
appearing opposite such Distribution Date for such Class or
Component.
Planned
Principal Classes: As specified in the Preliminary
Statement.
Pool
Factor: With respect to each Loan Group and Distribution Date, the ten-digit
decimal that the Securities Administrator will compute for that Distribution
Date expressing the outstanding Stated Principal Balance of the Mortgage Loans
in that Loan Group as of the end of the Due Period related to the immediately
prior Distribution Date (after giving effect to the distributions made on that
Distribution Date) as a proportion of the Cut-off Date Loan Group Principal
Balance.
Prepayment
Interest Shortfall: With respect to each Mortgage Loan, the
amount of the shortfall in interest payable on such Mortgage Loan that occurs
as
a result of the prepayment by the related Mortgagor of such Mortgage Loan
calculated in accordance with formula set forth in the related Purchase and
Servicing Agreement.
Prepayment
Penalty: As to a Mortgage Loan, any penalty payable by a
Mortgagor in connection with certain partial prepayments and all prepayments
in
full made within the related Prepayment Penalty Period, the Prepayment Penalties
with respect to each applicable Mortgage Loan so held by the Trust Fund being
identified in the Prepayment Penalty Schedule.
Prepayment
Penalty Period: As to any Mortgage Loan, the period of time
during which a Prepayment Penalty may be imposed.
Prepayment
Penalty Schedule: As of any date, the list of Prepayment
Penalties included in the Trust Fund on that date (including the Prepayment
Penalty summary attached thereto). The Prepayment Penalty Schedule
shall set forth the following information with respect to each Prepayment
Penalty:
|
|
·
|
the
Mortgage Loan account number;
|
|
|
·
|
a
code indicating the type of Prepayment
Penalty;
|
37
|
|
·
|
the
state of origination in which the related Mortgage Property is
located;
|
|
|
·
|
the
first date on which a monthly payment is or was due under the related
Mortgage Note;
|
|
|
·
|
the
term of the Prepayment Penalty;
|
|
|
·
|
the
original principal amount of the related Mortgage Loan;
and
|
|
|
·
|
the
Cut-off Date Principal Balance of the related Mortgage
Loan.
|
The
Prepayment Penalty Schedule shall be amended from time to time by the Seller
in
accordance with this Agreement.
Prepayment
Period: With respect to any Mortgage Loan and any Distribution
Date, the calendar month preceding that Distribution Date.
Prepayment
Shift Percentage: With respect to any Distribution Date occurring
during the five years beginning on the first Distribution Date, 0%. Thereafter,
the Prepayment Shift Percentage for any Distribution Date occurring on or after
the fifth anniversary of the first Distribution Date will be as
follows: for any Distribution Date in the first year thereafter, 30%;
for any Distribution Date in the second year thereafter, 40%; for any
Distribution Date in the third year thereafter, 60%; for any Distribution Date
in the fourth year thereafter, 80%; for any Distribution Date thereafter,
100%.
Primary
Mortgage Insurance Policy: Each policy of primary mortgage
guaranty insurance or any replacement policy therefor with respect to any
Mortgage Loan.
Principal
Amount: Not Applicable.
Principal
Distribution Amount: Not Applicable.
Principal
Prepayment: Any payment of principal by a Mortgagor on a Mortgage
Loan that is received in advance of its scheduled Due Date and is not
accompanied by an amount representing scheduled interest due on any date or
dates in any month or months subsequent to the month of prepayment.
Principal
Prepayment in Full: Any Principal Prepayment made by a Mortgagor
of the entire principal balance of a Mortgage Loan.
Principal
Reductions: For each Collateral Allocation Group, the sum of the
Non-A-P Formula Principal Distribution Amount and the Non-A-P Percentage of
any
Realized Losses allocated to such Collateral Allocation Group.
Principal
Relocation Payment: A payment from any Collateral Allocation
Group to a Subsidiary REMIC Regular Interest other than a Regular Interest
corresponding to that Collateral Allocation Group as provided in the Preliminary
Statement. Principal Relocation Payments shall be made of principal
allocations comprising the Non-A-P Formula Principal Distribution
38
Amount
from a Collateral Allocation Group and shall include a proportionate allocation
of Realized Losses from the Mortgage Loans or Applicable Fractions thereof
related to such Collateral Allocation Group.
Principal
Remittance Amount: Not Applicable.
Principal
Transfer Amount: For any Distribution Date and for any
Undercollateralized Group, the excess, if any, of the aggregate Class Principal
Balance of such Undercollateralized Group immediately prior to such Distribution
Date, over the aggregate Stated Principal Balance of the related Collateral
Allocation Group immediately prior to such Distribution Date.
Priority
Amount: Not Applicable.
Priority
Percentage: Not Applicable.
Private
Certificate: As specified in the Preliminary
Statement.
Pro
Rata Portion: Not Applicable.
Pro
Rata Share: As to any Distribution Date, the Subordinated
Principal Distribution Amount for a Class of Subordinated Certificates, the
portion of the Subordinated Principal Distribution Amount allocable to such
Class, equal to the product of the Subordinated Principal Distribution Amount
on
such Distribution Date and a fraction, the numerator of which is the related
Class Principal Balance thereof and the denominator of which is the aggregate
of
the Class Principal Balances of the Subordinated Certificates.
Pro
Rata Subordinated Percentage: As to any Distribution Date and
Loan Group, 100% minus the Senior Percentage for such Distribution
Date.
Proceeding: Any
suit in equity, action at law or other judicial or administrative
proceeding.
Proprietary
Lease: With respect to any Cooperative Property, 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 December
1, 2006, relating to the Offered Certificates.
Prospectus
Supplement: The prospectus supplement dated July 27, 2007 as
modified by the supplement to the prospectus supplement dated August 6, 2007,
relating to the Offered Certificates.
Purchase
and Servicing Agreements: Collectively, the mortgage loan
purchase and servicing agreements, each as amended by the related
Acknowledgement, listed in Exhibit E hereto, as each such agreement may be
amended or supplemented from time to time as permitted hereunder.
Purchase
Date: As defined in Section 7.01(c).
39
Purchase
Price: With respect to any Mortgage Loan required or permitted to
be purchased by the Seller or Depositor pursuant to this Agreement, or by the
related Originator or Servicer pursuant to the related Purchase and Servicing
Agreement, an amount equal to the sum of (i) 100% of the unpaid principal
balance of the Mortgage Loan on the date of such purchase and (ii) accrued
interest thereon at the applicable Net Mortgage Rate from the date through
which
interest was last paid by the Mortgagor to the Due Date in the month in which
the Purchase Price is to be distributed to Certificateholders, or such other
amount as may be specified in the related Purchase and Servicing Agreement
and
(iii) costs and damages incurred by the Trust Fund in connection with a
repurchase pursuant to Section 2.05 hereof that arises out of a violation of
any
predatory or abusive lending law with respect to the related Mortgage
Loan.
Quicken
Mortgage Loan: Each Mortgage Loan originated by Quicken Loans,
Inc. and listed on the Mortgage Loan Schedule.
Quicken
Purchase Agreement: The Mortgage Loan Purchase Agreement listed
in Exhibit E hereto between the Seller and Quicken Loans, Inc.
Rating
Agency: Each of the Rating Agencies specified in the Preliminary
Statement. If any such organization or a successor is no longer in
existence, “Rating Agency” shall be such nationally recognized statistical
rating organization, or other comparable Person, as is designated by the
Depositor, notice of which designation shall be given to the
Trustee. References herein to a given rating category of a Rating
Agency shall mean such rating category without giving effect to any
modifiers.
Realized
Loss: With respect to each Liquidated Mortgage Loan, an amount
(not less than zero or more than the Stated Principal Balance of the related
Mortgage Loan) as of the date of such liquidation, equal to (i) the Stated
Principal Balance of the Liquidated Mortgage Loan as of the date of such
liquidation, plus (ii) interest at the Net Mortgage Rate from the Due Date
as to
which interest was last paid or advanced (and not reimbursed) to
Certificateholders up to the Due Date in the month in which Liquidation Proceeds
are required to be distributed on the Stated Principal Balance of such
Liquidated Mortgage Loan from time to time, minus (iii) the Liquidation
Proceeds, if any, received during the month in which such liquidation occurred,
to the extent applied as recoveries of interest at the Net Mortgage Rate and
to
principal of the Liquidated Mortgage Loan. With respect to each
Mortgage Loan which has become the subject of a Deficient Valuation, if the
principal amount due under the related Mortgage Note has been reduced, the
difference between the principal balance of the Mortgage Loan outstanding
immediately prior to such Deficient Valuation and the principal balance of
the
Mortgage Loan as reduced by the Deficient Valuation. With respect to
each Mortgage Loan which has become the subject of a Debt Service Reduction
and
any Distribution Date, the amount, if any, by which the principal portion of
the
related Scheduled Payment has been reduced.
To
the
extent the Master Servicer or a Servicer receives Subsequent Recoveries with
respect to any Mortgage Loan, the amount of the Realized Loss with respect
to
that Mortgage Loan will be reduced by such Subsequent Recoveries.
Recognition
Agreement: An agreement among a Cooperative Corporation, a lender
and a Mortgagor with respect to a Cooperative Loan whereby such parties (i)
acknowledge that such
40
lender
may make, or intends to make, such Cooperative Loan, and (ii) make certain
agreements with respect to such Cooperative Loan.
Recombination
Group: The Class or Classes of Depositable Certificates and the
related Class or Classes of Exchangeable Certificates included within any
particular “Recombination” specified in Schedule C.
Record
Date: As to any Distribution Date (i) with respect to the
Non-Delay Certificates, the last Business Day preceding such Distribution Date
(or the Closing Date, in the case of the first Distribution Date) unless such
Certificates shall no longer be Book-Entry Certificates, in which case the
Record Date shall be the last Business Day of the month preceding the month
of
such Distribution Date and (ii) in the case of the Delay Certificates (including
the Non-Delay Certificates that are subsequently reissued as Definitive
Certificates), the last Business Day of the month preceding the month of each
Distribution Date.
Redemption
Price: With respect to any Class of Certificates to be redeemed,
an amount equal to 100% of the related Class Principal Balance of the
Certificates to be so redeemed, together with interest on such amount at the
applicable Pass-Through Rate through the related Accrual Period (as increased
by
any Class Unpaid Interest Amounts), and including, in the case of the Redemption
Price payable in connection with the redemption and retirement of all of the
Certificates, the payment of all amounts (including, without limitation, all
previously unreimbursed Advances and Servicer Advances and accrued and unpaid
Servicing Fees) payable or reimbursable to the Trustee, the Securities
Administrator, the Master Servicer, the Servicers or each Custodian pursuant
to
this Agreement or the Purchase and Servicing Agreements, or the Custodial
Agreements (to the extent such amounts are not paid to each Custodian by the
Seller).
Refinancing
Mortgage Loan: Any Mortgage Loan originated in connection with
the refinancing of an existing mortgage loan.
Regular
Certificates: As specified in the Preliminary
Statement.
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 clarification and interpretation as have been provided by the
Commission in the adopting release (Asset-Backed Securities, Securities Act
Release No. 33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005)) or by the staff
of the Commission, or as may be provided by the Commission or its staff from
time to time.
Reimbursement
Amount: Not Applicable.
Relevant
Servicing Criteria: The Servicing Criteria applicable to the various
parties, as set forth on Exhibit O attached hereto. For clarification
purposes, multiple parties can have responsibility for the same Relevant
Servicing Criteria. With respect to a Servicing Function Participant
engaged by the Master Servicer, the Securities Administrator, any Servicer
or
any Custodian, 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 (formerly known as the
Soldiers’ and Sailors’ Civil Relief Act of 1940), as amended, and any similar
state laws.
Relief
Act Shortfalls: With respect to any Distribution Date and any
Mortgage Loan as to which there has been a reduction in the amount of interest
collectible thereon for the most recently ended calendar month as a result
of
the application of the Relief Act, the amount, if any, by which
(i) interest collectible on such Mortgage Loan for the most recently ended
calendar month is less than (ii) interest accrued thereon for such month
pursuant to the Mortgage Note.
Relief
Act Reduction: A reduction in the amount of the monthly interest
payment on a Mortgage Loan pursuant to the Servicemembers’ Civil Relief
Act.
REMIC: Each
pool of assets in the Trust Fund designated as a REMIC as described in the
Preliminary Statement.
REMIC
1: As specified in the Preliminary Statement.
REMIC
1 Interest: As specified in the Preliminary
Statement.
REMIC
1 Regular Interest: As specified in the Preliminary
Statement.
REMIC
Provisions: The provisions of the federal income tax law relating
to real estate mortgage investment conduits, which appear at Sections 860A
through 860G of the Code, and related provisions, and regulations, including
proposed regulations and rulings, and administrative pronouncements promulgated
thereunder, as the foregoing may be in effect from time to time.
REO
Property: A Mortgaged Property acquired by the Trust Fund through
foreclosure or deed-in-lieu of foreclosure in connection with a defaulted
Mortgage Loan or otherwise treated as having been acquired pursuant to the
REMIC
Provisions.
Replacement
Mortgage Loan: A mortgage loan substituted by an Originator or
the Seller for a Deleted Mortgage Loan which must, on the date of such
substitution, as confirmed in a Request for Release, (i) have a Stated Principal
Balance, after deduction of all Scheduled Payments due in the month of
substitution, not in excess of the Stated Principal Balance of the Deleted
Mortgage Loan, (ii) if such Mortgage Loan is a fixed-rate Mortgage Loan, have
a
Mortgage Rate not less than (and not more than two percentage points greater
than) the mortgage rate of the Deleted Mortgage Loan, (iii) if such Mortgage
Loan is an adjustable-rate Mortgage Loan, have a Mortgage Rate not less than
(and not more than two percentage points greater than) the mortgage rate of
the
Deleted Mortgage Loan, (iv) have a Loan-to-Value Ratio equal to or less than
that of the Deleted Mortgage Loan, (v) have a remaining term to maturity not
greater than (and not more than one year less than) that of the Deleted Mortgage
Loan, (vi) is otherwise acceptable to the Seller, (vii) if such Mortgage Loan
is
an adjustable-rate Mortgage Loan, have the same adjustment date as that of
the
Deleted Mortgage Loan, (viii) if such Mortgage Loan is an adjustable-rate
Mortgage Loan, have a minimum Mortgage Rate not less than that of the Deleted
Mortgage Loan, (ix) if such Mortgage Loan is an adjustable-rate Mortgage Loan,
have the same Index as that of the Deleted Mortgage Loan, (x) comply with all
of
the representations and warranties set forth in the related underlying servicing
agreement, as modified by any related
42
assignment
thereof, and (xi) shall be accompanied by an Opinion of Counsel that such
Replacement Mortgage Loan would not adversely affect the REMIC status of any
REMIC created hereunder or would not otherwise be prohibited by this Pooling
and
Servicing Agreement.
Replacement
Swap Counterparty Payment: Not Applicable.
Reportable
Event: As defined in Section 12.03 hereof.
Reporting
Party: The Depositor, any Originator, the Master Servicer, any
Custodian, any Servicer, any originator identified in the Prospectus Supplement,
any credit enhancement provider described herein and any other material
transaction party as may be mutually agreed between the Depositor and the Master
Servicer from time to time for the purpose of complying with the requirements
of
the Commission.
Reporting
Subcontractor: With respect to the Master Servicer, the
Securities Administrator or each Custodian, any Subcontractor determined by
such
Person pursuant to Section 12.08(b) to be “participating in the servicing
function” within the meaning of Item 1122 of Regulation
AB. References to a Reporting Subcontractor shall refer only to the
Subcontractor of such Person and shall not refer to Subcontractors
generally.
Repurchase
Price: With respect to any Mortgage Loan purchased from the Trust
pursuant to Section 2.07 hereof, 100% of the unpaid principal balance of such
Mortgage Loan, plus all related accrued and unpaid interest, and the amount
of
any unreimbursed Servicing Advances made by the Servicers or the Master Servicer
related to the Mortgage Loan.
Request
for Release: The Request for Release submitted by the applicable
Servicer to the Trustee or the applicable Custodian, as applicable,
substantially in the form of Exhibit M or the equivalent form under the
applicable Custodial Agreement.
Required
Coupon: With respect to the Collateral Allocation Group 1
Mortgage Loans, 5.50% per annum, with respect to the Collateral Allocation
Group
2 Mortgage Loans 6.00% per annum, with respect to the Collateral Allocation
Group 3 Mortgage Loans, 6.00% per annum and, with respect to the Collateral
Allocation Group 4 Mortgage Loans, 7.50% per annum.
Required
Distributions: Not Applicable.
Reserve
Fund: Not Applicable.
Reserve
Fund Deposit: Not Applicable.
Residual
Certificate: The Class A-R Certificates.
Responsible
Officer: With respect to the Trustee, any officer in the
corporate trust department or similar group of the Trustee with direct
responsibility for the administration of this Agreement and also, with respect
to a particular corporate trust matter, any other officer to whom such matter
is
referred because of his or her knowledge of and familiarity with the particular
subject. With respect to the Master Servicer, any officer in its
master servicing operations with
43
direct
responsibility for the Administration of this Agreement. With respect
to the Securities Administrator, any officer in the corporate trust department
or similar group of the Securities Administrator with direct responsibility
for
the administration of this Agreement and also, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of his or her knowledge of and familiarity with the particular
subject.
Restricted
Classes: As defined in Section 5.02(e).
Restricted
Global Security: As defined in Section 3.01(c).
Reuters
Page LIBOR01: The display designated as “LIBOR01” on Reuters (or such other
page as may replace Reuters Page LIBOR01 on that service for the purpose of
displaying London interbank offered rates of major banks).
Rule
144A: Rule 144A under the Securities Act.
Xxxxxxxx-Xxxxx
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).
Xxxxxxxx-Xxxxx
Certification: A written certification covering the activities of
all Servicing Function Participants and signed by a senior officer of the Master
Servicer in charge of the master servicing function 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.
Saxon
Serviced Mortgage Loan: Each Mortgage Loan serviced by Saxon
Mortgage Services, Inc. and listed on the Mortgage Loan Schedule.
Saxon
Servicing Agreement: The Servicing Agreement listed in Exhibit E
hereto between the Seller and Saxon Mortgage Services, Inc.
S&P: Standard
& Poor’s, a division of The XxXxxx-Xxxx Companies, Inc. If
S&P is designated as a Rating Agency in the Preliminary Statement, for
purposes of Section 11.07 the address for notices to S&P shall be Standard
& Poor’s, 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Mortgage
Surveillance Monitoring, or such other address as S&P may hereafter furnish
to the Depositor and the Master Servicer.
Scheduled
Balances: Not Applicable.
Scheduled
Payment: The scheduled monthly payment on a Mortgage Loan due on
any Due Date allocable to principal and/or interest on such Mortgage Loan which,
unless otherwise specified in the related Purchase and Servicing Agreement,
shall give effect to any related Debt Service Reduction and any Deficient
Valuation that affects the amount of the monthly payment due on such Mortgage
Loan.
Scheduled
Principal Classes: As specified in the Preliminary
Statement.
44
Scheduled
Principal Distribution Amount: As to any Distribution Date and a
Collateral Allocation Group, an amount equal to the Non-A-P Percentage of all
amounts described in subclauses (a) through (d) of clause (i) of the definition
of “Non-A-P Formula Principal Amount” for such Distribution Date and such
Collateral Allocation Group; provided, however, that if a Bankruptcy Loss that
is an Excess Loss is sustained with respect to a Mortgage Loan in the related
Loan Group that is not a Liquidated Mortgage Loan, the Scheduled Principal
Distribution Amount for such Collateral Allocation Group will be reduced on
the
related Distribution Date by the applicable Non-A-P Percentage of the principal
portion of such Bankruptcy Loss based on the Applicable Fraction of such
Mortgage Loan.
Securities
Act: The Securities Act of 1933, as amended, and the rules and
regulations thereunder.
Securities
Administrator: Xxxxx Fargo Bank, National Association, not in its
individual capacity but solely as Securities Administrator, or any successor
in
interest, or if any successor Securities Administrator shall be appointed as
herein provided, then such successor Securities Administrator.
Securities
Administrator Compensation: With respect to any Securities Administrator
that is a successor to Xxxxx Fargo Bank, National Association as Securities
Administrator, the portion of the earnings on the funds on deposit in the
Distribution Account payable on each Distribution Date pursuant to Section
4.02(b)(ii) hereof agreed to by and between such Securities Administrator and
the successor master servicer; provided, that (x) such Securities Administrator
Compensation payable on each Distribution Date shall equal at least one day’s
earnings accrued since the prior Distribution Date and (y) the sum of such
Securities Administrator Compensation and the Master Servicer Compensation
payable on each Distribution Date shall not exceed the total earnings on the
funds on deposit in the Distribution Account payable on each Distribution Date
pursuant to Section 4.02(b)(ii) hereof earned since the prior Distribution
Date.
Seller: Xxxxxx
Xxxxxxx Mortgage Capital Holdings LLC, a New York limited liability
company.
Senior
Certificate Group: As specified in the Preliminary Statement.
Senior
Certificates: As specified in the Preliminary
Statement.
Senior
Credit Support Depletion Date: The date on which the aggregate
Class Principal Balance of the Subordinated Certificates have been reduced
to
zero.
Senior
Defaulted Swap Termination Payment: Not Applicable.
Senior
Enhancement Percentage: Not Applicable.
Senior
Interest Distribution Amount: Not Applicable.
Senior
Percentage: As to any Senior Certificate Group and Distribution Date, the
percentage equivalent of a fraction the numerator of which is the aggregate
of
the Class Principal Balances of each Class of Senior Certificates in that Senior
Certificate Group (other than the
45
related
Class of Class A-P Certificates and Notional Amount Certificates) immediately
prior to such Distribution Date and the denominator of which is the aggregate
of
the applicable Non-A-P Percentage of the Stated Principal Balance of each
Mortgage Loan or the Applicable Fraction thereof in the related Collateral
Allocation Group as of the Due Date occurring in the month prior to the month
of
such Distribution Date (after giving effect to prepayments received in the
Prepayment Period related to such prior Due Date); provided, however, that
on
any Distribution Date after the third Senior Termination Date, the Senior
Percentage for the Senior Certificates of the remaining Senior Certificate
Group
is the percentage equivalent of a fraction, the numerator of which is the
aggregate of the Class Principal Balances of each such Class of Senior
Certificates (other than the related Class of Class A-P Certificates and
Notional Amount Certificates) of such remaining Senior Certificate
Group immediately prior to such Distribution Date and the denominator is the
aggregate of the Class Principal Balances of all Classes of Certificates (other
than the related Class of Class A-P Certificates and related Classes of Notional
Amount Certificates), immediately prior to such Distribution Date.
Senior
Prepayment Percentage: As to an Senior Certificate Group and any
Distribution Date during the five years beginning on the first Distribution
Date, 100%. The Senior Prepayment Percentage for any Distribution
Date occurring on or after the fifth anniversary of the first Distribution
Date
will, except as provided herein, be as follows: for any Distribution Date in
the
first year thereafter, the related Senior Percentage plus 70% of the related
Subordinated Percentage for such Distribution Date; for any Distribution Date
in
the second year thereafter, the related Senior Percentage plus 60% of the
related Subordinated Percentage for such Distribution Date; for any Distribution
Date in the third year thereafter, the related Senior Percentage plus 40% of
the
related Subordinated Percentage for such Distribution Date; for any Distribution
Date in the fourth year thereafter, the related Senior Percentage plus 20%
of
the related Subordinated Percentage for such Distribution Date; and for any
Distribution Date thereafter, the related Senior Percentage for such
Distribution Date (unless on any Distribution Date the Senior Percentage exceeds
the initial Senior Percentage of such Senior Certificate Group, in which case
the Senior Prepayment Percentage for such Distribution Date will once again
equal 100%). Notwithstanding the foregoing, no decrease in any Senior
Prepayment Percentage will occur unless both of the Senior Step Down Conditions
are satisfied with respect to all Collateral Allocation Groups.
Senior
Principal Distribution Amount: As to any Distribution Date and
Senior Certificate Group, the sum of (i) the sum, not less than zero, of the
related Senior Percentage of the applicable Non-A-P Percentage of all amounts
described in subclauses (a) through (d) of clause (i) of the definition of
Non-A-P Formula Principal Amount with respect to the related Collateral
Allocation Group for such Distribution Date, (ii) with respect to any Mortgage
Loan in the related Loan Group that became a Liquidated Mortgage Loan during
the
calendar month preceding the month of such Distribution Date, the lesser of
(x)
the related Senior Percentage of the applicable Non-A-P Percentage of the Stated
Principal Balance of the Applicable Fraction of such Mortgage Loan and (y)
either (A) the related Senior Prepayment Percentage of the applicable Non-A-P
Percentage of the amount of the Liquidation Proceeds allocable to principal
received on the Applicable Fraction of the Mortgage Loan, or (B) if an Excess
Loss was sustained with respect to such Liquidated Mortgage Loan during such
prior calendar month, the related Senior Percentage, of the applicable Non-A-P
Percentage of the amount of the Liquidation Proceeds allocable to principal
received with respect to the Applicable Fraction of
46
such
Mortgage Loan, and (iii) the sum of (x) the related Senior Prepayment Percentage
of the applicable Non-A-P Percentage of the amounts described in subclause
(f)
of clause (i) of the definition of Non-A-P Formula Principal Amount with respect
to the related Collateral Allocation Group for such Distribution Date plus
(y)
the related Senior Prepayment Percentage of any Subsequent Recoveries described
in clause (ii) of the definition of Non-A-P Formula Principal Amount for such
Distribution Date; provided, however, that if a Bankruptcy Loss that is an
Excess Loss is sustained on a Mortgage Loan or the Applicable Fraction thereof
in the related Collateral Allocation Group that is not a Liquidated Mortgage
Loan, the Senior Principal Distribution Amount will be reduced on the related
Distribution Date by the related Senior Percentage of the applicable Non-A-P
Percentage of the principal portion of such Bankruptcy Loss; provided further,
however, on any Distribution Date after the third Senior Termination Date,
the
Senior Principal Distribution Amount for the remaining Senior Certificate Group
will be calculated pursuant to the above formula based on all the Mortgage
Loans, as opposed to the Mortgage Loans or Applicable Fractions thereof in
the
related Collateral Allocation Group and, if such Distribution Date is after
the
third Senior Termination Date, shall be reduced by the amount of the principal
distribution made pursuant to (a) if the Group 1 Senior Certificates are reduced
to zero on such date, Section 5.02(a)(1)(iv)(y), (b) if the Group 2 Senior
Certificates are reduced to zero on such date, Section 5.02(a)(2)(iv)(y), (c)
if
the Group 3 Senior Certificates are reduced to zero on such date, Section
5.02(a)(3)(iv)(y) or (d) if the Group 4 Senior Certificates are reduced to
zero
on such date, Section 5.02(a)(4)(iv)(y).
Senior
Step Down Conditions: With respect to all Mortgage Loans and any
Distribution Date: (i) the outstanding principal balance of all Mortgage Loans
delinquent 60 days or more on such Distribution Date (including any Mortgage
Loans in foreclosure, REO Property and Mortgage Loans the mortgagors of which
are in bankruptcy) (averaged over the preceding six month period), as a
percentage of (a) if such date is on or prior to the third Senior Termination
Date, the Subordinated Percentage for such Collateral Allocation Group of the
aggregate of the applicable Non-A-P Percentage of the aggregate Stated Principal
Balance of the Mortgage Loans or Applicable Fractions thereof in that Collateral
Allocation Group, or (b) if such date is after the third Senior Termination
Date, the aggregate Class Principal Balance of the Subordinated Certificates,
does not equal or exceed 50%, and (ii) cumulative Realized Losses on the
Mortgage Loans in each Loan Group as of such Distribution Date do not exceed:
(a) for the Distribution Date on the fifth anniversary of the first Distribution
Date, 30% of the Original Subordinate Principal Balance, (b) for the
Distribution Date on the sixth anniversary of the first Distribution Date,
35%
of the Original Subordinate Principal Balance, (c) for the Distribution Date
on
the seventh anniversary of the first Distribution Date, 40% of the Original
Subordinate Principal Balance, (d) for the Distribution Date on the eighth
anniversary of the first Distribution Date, 45% of the Original Subordinate
Principal Balance, and (e) for the Distribution Date on the ninth anniversary
of
the first Distribution Date, 50% of the Original Subordinate Principal
Balance.
Senior
Termination Date: For Senior Certificate Group 1, the
Distribution Date on which the aggregate Class Principal Balance of the Group
1
Senior Certificates (other than the Class 1-A-P Certificates) has been reduced
to zero. For Senior Certificate Group 2, the Distribution Date on
which the aggregate Class Principal Balance of the Group 2 Senior Certificates
has been reduced to zero. For Senior Certificate Group 3, the
Distribution Date on which the aggregate Class Principal Balance of the Group
3
Senior Certificates (other than the Class 3-A-P Certificates) has been reduced
to zero. For Senior Certificate Group 4, the Distribution Date on
47
which
the
aggregate Class Principal Balance of the Group 4 Senior Certificates has been
reduced to zero.
Sequential
Portion: Not Applicable.
Sequential
Trigger Event: Not Applicable.
Servicer: Each
Servicer under a Purchase and Servicing Agreement, and its respective successors
and assigns. As of the Closing Date, the Servicers of the Mortgage
Loans shall be GMAC Mortgage, LLC, GreenPoint Mortgage Funding, Inc., IndyMac
Bank, F.S.B., Xxxxxx Xxxxxxx Credit Corporation, Saxon Mortgage Services, Inc.
and Wachovia Mortgage Corporation.
Servicer
Advance: A “Servicer Advance” or “Servicing Advance” as defined
in the applicable Purchase and Servicing Agreement.
Servicing
Criteria: The “servicing criteria” set forth in Item 1122(d) of
Regulation AB, as the same may be amended from time to time.
Servicing
Fee: As to any Distribution Date and each Mortgage Loan, an
amount equal to the product of (a) one-twelfth of the related Servicing Fee
Rate and (b) the Stated Principal Balance of such Mortgage Loan as of the
first day of the related Due Period.
Servicing
Fee Rate: With respect to each Mortgage Loan and any Distribution
Date, the per annum rate specified in the related Purchase and Servicing
Agreement.
Servicing
Function Participant: Any Sub-Servicer, Subcontractor or any
other Person, other than each Servicer, the Master Servicer, the Trustee, the
Securities Administrator and any Custodian, that is performing activities
addressed by the Servicing Criteria.
Servicing
Officer: Any officer of the related Servicer involved in, or
responsible for, the administration and servicing of the related Mortgage Loans
whose name and facsimile signature appear on a list of servicing officers
furnished to the Master Servicer by the related Servicer on the Closing Date
pursuant to the related Purchase and Servicing Agreement, as such list may
from
time to time be amended.
Shift
Percentage: As to any Distribution Date occurring during the five
years beginning on the first Distribution Date, 0%. For any Distribution Date
occurring on or after the fifth anniversary of the first Distribution Date
will
equal 100%.
Similar
Law: As defined in Section 3.03(d) hereof.
Special
Hazard Coverage Termination Date: The point in time at which the
Special Hazard Loss Coverage Amount is reduced to zero.
Special
Hazard Loss: Any Realized Loss suffered by a Mortgaged Property
on account of direct physical loss, as reported by the related Servicer to
the
Master Servicer, but not including (i) any loss of a type covered by a
hazard insurance policy or a flood insurance policy
48
required
to be maintained with respect to such Mortgaged Property to the extent of the
amount of such loss covered thereby, or (ii) any loss caused by or
resulting from:
(a) normal
wear and tear;
(b) fraud,
conversion or other dishonest act on the part of the Trustee, the Master
Servicer or any of their agents or employees (without regard to any portion
of
the loss not covered by any errors and omissions policy);
(c) errors
in design, faulty workmanship or faulty materials, unless the collapse of the
property or a part thereof ensues and then only for the ensuing
loss;
(d) nuclear
or chemical reaction or nuclear radiation or radioactive or chemical
contamination, all whether controlled or uncontrolled, and whether such loss
be
direct or indirect, proximate or remote or be in whole or in part caused by,
contributed to or aggravated by a peril covered by the definition of the term
“Special Hazard Loss;”
(e) hostile
or warlike action in time of peace and war, including action in hindering,
combating or defending against an actual, impending or expected
attack:
1. by
any government or sovereign power, de jure or de facto, or by any authority
maintaining or using military, naval or air forces; or
2. by
military, naval or air forces; or
3. by
an agent of any such government, power, authority or forces;
(f) any
weapon of war employing nuclear fission, fusion or other radioactive force,
whether in time of peace or war; or
(g) insurrection,
rebellion, revolution, civil war, usurped power or action taken by governmental
authority in hindering, combating or defending against such an occurrence,
seizure or destruction under quarantine or customs regulations, confiscation
by
order of any government or public authority or risks of contraband or illegal
transportation or trade.
Special
Hazard Loss Coverage Amount: With respect to the first Distribution Date,
$5,161,790. With respect to any Distribution Date after the first
Distribution Date, the lesser of (a) the greatest of (i) 1% of the
aggregate of the principal balances of the Mortgage Loans, (ii) twice the
principal balance of the largest Mortgage Loan and (iii) the aggregate of
the principal balances of all Mortgage Loans secured by Mortgaged Properties
located in the single California postal zip code area having the highest
aggregate principal balance of any such zip code area and (b) the Special
Hazard Loss Coverage Amount as of the Closing Date less the amount, if any,
of
Special Hazard Losses allocated to the Certificates since the Closing
Date. All principal balances for the purpose of this definition will
be calculated as of the first day of the calendar month preceding the month
of
such Distribution Date after giving effect to Scheduled Payments on the Mortgage
Loans then due, whether or not paid.
49
Special
Hazard Mortgage Loan: A Liquidated Mortgage Loan as to which a
Special Hazard Loss has occurred.
Startup
Day: The day designated as such pursuant to Section 10.01(b)
hereof.
Stated
Principal Balance: As to any Mortgage Loan and Due Date, the
unpaid principal balance of such Mortgage Loan as of such Due Date as specified
in the amortization schedule at the time relating thereto (before any adjustment
to such amortization schedule by reason of any moratorium or similar waiver
or
grace period) after giving effect to any previous partial Principal Prepayments
and Liquidation Proceeds allocable to principal (other than with respect to
any
Liquidated Mortgage Loan) and to the payment of principal due on such Due Date
and irrespective of any delinquency in payment by the related
Mortgagor.
Stepdown
Date: Not Applicable.
Subcontractor: Any
vendor, subcontractor or other Person that is not responsible for the overall
servicing (as “servicing” is commonly understood by participants in the
mortgage-backed securities market) of 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 (including
a
Sub-Servicer of any Servicer), the Securities Administrator, the Master
Servicer, the Trustee or any Custodian, as the case may be.
Subordinated
Certificates: As specified in the Preliminary
Statement.
Subordinated
Interest Distribution Amount: Not Applicable.
Subordinated
Percentage: As to any Distribution Date on or prior to the third
Senior Termination Date and any Collateral Allocation Group, 100% minus the
Senior Percentage for the Senior Certificate Group relating to such Collateral
Allocation Group for such Distribution Date. As to any Distribution
Date after the third Senior Termination Date, 100% minus the Senior Percentage
for such Distribution Date.
Subordinated
Portion: Not Applicable.
Subordinated
Prepayment Percentage: As to any Distribution Date and Loan
Group, 100% minus the Senior Prepayment Percentage for such Distribution
Date.
Subordinated
Principal Distribution Amount: With respect to any Distribution
Date and Collateral Allocation Group, an amount equal to the sum, not less
than
zero, of (i) the Subordinated Percentage of the applicable Non-A-P
Percentage for such Collateral Allocation Group of all amounts described in
subclauses (a) through (d) of clause (i) of the definition of “Non-A-P Formula
Principal Amount” for such Distribution Date, (ii) with respect to the
Applicable Fraction of each Mortgage Loan in that Collateral Allocation Group
that became a Liquidated Mortgage Loan during the calendar month preceding
the
month of such Distribution Date, the applicable Non-A-P Percentage of the amount
of the Liquidation Proceeds allocated to principal received with respect thereto
remaining after application thereof pursuant to clause (ii) of the definition
of
Senior Principal Distribution Amount, up to the Subordinated Percentage for
such
Collateral Allocation Group of the applicable Non-A-P Percentage of the Stated
Principal
50
Balance
of the Applicable Fraction such Mortgage Loan, (iii) the Subordinated Prepayment
Percentage of the applicable Non-A-P Percentage of all amounts described in
subclause (f) of clause (i) of the definition of “Non-A-P Formula Principal
Amount” for such Collateral Allocation Group and Distribution Date, and (iv) the
Subordinated Prepayment Percentage of any Subsequent Recoveries described in
clause (ii) of the definition of “Non-A-P Formula Principal Amount” for such
Collateral Allocation Group and Distribution Date reduced by Class A-P Deferred
Amounts; provided, however, that on any Distribution Date after the third Senior
Termination Date, the Subordinated Principal Distribution Amount will not be
calculated by Collateral Allocation Group but will equal the amount calculated
pursuant to the formula set forth above based on the applicable Subordinated
Percentage or Subordinated Prepayment Percentage, as applicable, for the
Subordinated Certificates for such Distribution Date with respect to all of
the
Mortgage Loans as opposed to only the Applicable Fractions of the Mortgage
Loans
in the related Collateral Allocation Group.
Subsequent
Recoveries: As to any Distribution Date, with respect to a
Liquidated Mortgage Loan that resulted in a Realized Loss in a prior calendar
month, amounts received by the Securities Administrator from the related
Servicer (net of any related expenses permitted to be reimbursed pursuant to
Section 4.02) specifically related to such Liquidated Mortgage
Loan.
Sub-Servicer: Any
Person that (i) is considered to be a Servicing Function Participant, (ii)
services Mortgage Loans on behalf of any Servicer, and (iii) is responsible
for
the performance (whether directly or through sub-servicers or Subcontractors)
of
Servicing functions required to be performed under this Agreement, any related
Servicing Agreement or any sub-servicing agreement that are identified in Item
1122(d) of Regulation AB.
Substitution
Adjustment Amount: As defined in the second paragraph of
Section 2.05(b).
Substitution
Event: Not Applicable.
Supplemental
Interest Trust: Not Applicable.
Swap
Account: Not Applicable.
Swap
Agreement: Not Applicable.
Swap
Counterparty: Not Applicable.
Swap
Payment Allocation: Not Applicable.
Swap
Payment Rate: Not Applicable.
Swap
Termination Date: Not Applicable.
Swap
Termination Payment: Not Applicable.
Targeted
Balance: With respect to any group of Targeted Principal Classes
or Components in the aggregate and any Distribution Date appearing in Schedule
B
hereto, the Aggregate Targeted Balance for such group and Distribution
Date. With respect to any other
51
Targeted
Principal Class or Component and any Distribution Date appearing in Schedule
B
hereto, the applicable amount appearing opposite such Distribution Date for
such
Class or Component.
Tax
Matters Person: The person designated as “tax matters person” in
the manner provided under Treasury regulation § 1.860F-4(d) and temporary
Treasury regulation §301.6231(a)(7)1T. Initially, the Tax Matters
Person shall be the Securities Administrator.
Tax
Matters Person Certificate: The Class A-R Certificate with a
Denomination of $0.01.
Three
Month Rolling Average: With respect to the end of the Due Period
related to any Distribution Date, the rolling 3 month average percentage of
the
aggregate Stated Principal Balance of the Mortgage Loans that are 60 or more
days Delinquent (including Mortgage Loans in foreclosure, REO Property or
discharged in bankruptcy).
Trigger
Event: Not Applicable.
Trust: Xxxxxx
Xxxxxxx Mortgage Loan Trust 2007-12.
Trust
Fund: The corpus of the trust created pursuant to this Agreement
consisting of (i) the Mortgage Loans and all interest and principal received
on
or with respect thereto after the Cut-off Date (other than Scheduled Payments
due on or prior to the Cut-off Date) to the extent not applied in computing
the
Cut-off Date Principal Balance thereof; (ii) all cash, instruments or property
held or required to be held in the Custodial Accounts, the Distribution Account
and the Exchangeable Certificates Distribution Account, and all amounts
deposited therein pursuant to the applicable provisions of this Agreement;
(iii)
property that secured a Mortgage Loan and has been acquired by foreclosure,
deed-in-lieu of foreclosure or otherwise; (iv) the Depositor’s rights assigned
to the Trustee under the Purchase and Servicing Agreements, as modified by
the
Acknowledgements; (v) all insurance policies related to the Mortgage Loans
and
any insurance proceeds; (vi) the pledge, control and guaranty agreements and
the
Limited Purpose Surety Bond relating to the Additional Collateral Mortgage
Loans; and (vii) all proceeds of the conversion, voluntary or involuntary,
of
any of the foregoing.
Trustee: LaSalle
Bank National Association, a national banking association, organized under
the
laws of the United States and any Person succeeding the Trustee hereunder,
or if
any successor trustee or any co-trustee shall be appointed as herein provided,
then such successor trustee and such co-trustee, as the case may
be.
Trustee
Mortgage Files: With respect to each Mortgage Loan, the Mortgage
Documents to be retained in the custody and possession of the Trustee or related
Custodian on behalf of the Trustee identified in Section 2.01(a)
hereof.
Two
Times Test: Not Applicable.
UCC: The
Uniform Commercial Code as enacted in the relevant jurisdiction.
Undercollateralization
Distribution: As defined in Section 5.08 hereof.
52
Undercollateralized
Group: As defined in Section 5.08 hereof.
Underwriter: As
specified in the Preliminary Statement.
Underwriter’s
Exemption: Prohibited Transaction Exemption 2002-41, 67 Fed. Reg.
54487 (2002), as amended (or any successor thereto), or any substantially
similar administrative exemption granted by the U.S. Department of
Labor.
Underwriting
Agreement: The Underwriting Agreement, dated July 26, 2007, among
the Seller, the Depositor and the Underwriter.
Uniform
Commercial Code: The Uniform Commercial Code as in effect in any
applicable jurisdiction from time to time.
Unpaid
Interest Shortfall Amount: Not Applicable.
Unpaid
Realized Loss Amount: Not Applicable.
Unscheduled
Principal Distribution Amount: As to any Distribution Date and a Collateral
Allocation Group, an amount equal to the sum of (1) with respect to each
Mortgage Loan in the related Loan Group that became a Liquidated Mortgage Loan
during the calendar month preceding the month of such Distribution Date, the
Non-A-P Percentage of the Liquidation Proceeds allocable to principal received
with respect to such Mortgage Loan based on the Applicable Fraction thereof,
(2)
the applicable Non-A-P Percentage of the amount described in subclause (f)
of
clause (i) of the definition of Non-A-P Formula Principal Amount for such
Collateral Allocation Group and Distribution Date and (3) the amount described
in clause (ii) of the definition of Non-A-P Formula Principal Amount for such
Collateral Allocation Group and that Distribution Date.
US
Bank Mortgage Loan: Each Mortgage Loan originated by US Bank,
N.A. and listed on the Mortgage Loan Schedule.
US
Bank Purchase Agreement: The Seller’s Purchase, Warranties and
Servicing Agreement listed in Exhibit E hereto between the Seller and US Bank,
N.A.
Voting
Interests: The portion of the voting rights of all the
Certificates that is allocated to any Certificate for purposes of the voting
provisions of this Agreement. At all times during the term of this
Agreement, 1.00% of all Voting Interests shall be allocated to each Class of
Notional Amount Certificates and the Class A-R Certificates. Voting
Interests shall be allocated among all other Classes of Certificates pro rata
based on Class Principal Balances for each Class then
outstanding. Voting Interests shall be allocated among the
Certificates within each such Class in proportion to their Certificate Balances
or Percentage Interests. The Holders of each Class of Exchangeable
Certificates shall be entitled to exercise Voting Interests in direct proportion
to the Voting Interests of the related Class or Classes of Depositable
Certificates.
Weighted
Average Net Mortgage Rate: As to any Distribution Date, the
average of the Net Mortgage Rate of each Mortgage Loan, weighted on the basis
of
its Stated Principal Balance as of the end of the Prepayment Period related
to
the immediately preceding Distribution Date.
53
Wachovia
Originated Mortgage Loan: Each Mortgage Loan originated by
Wachovia Mortgage Corporation and listed on the Mortgage Loan
Schedule.
Wachovia
Purchase Agreement: The Mortgage Loan Purchase and Warranties
Agreement listed in Exhibit E hereto between the Seller and Wachovia Mortgage
Corporation as seller and servicer.
Wachovia
Serviced Mortgage Loan: Each Mortgage Loan serviced by Wachovia
Mortgage Corporation and listed on the Mortgage Loan Schedule.
Wachovia
Servicing Agreement: The Servicing Agreement listed in Exhibit E
hereto between the Seller and Wachovia Mortgage Corporation.
Yield
Supplement Amount: Not Applicable.
54
ARTICLE
II
DECLARATION
OF TRUST;
ISSUANCE
OF CERTIFICATES
Section
2.01. Creation and Declaration of Trust Fund; Conveyance of Mortgage
Loans.
(a) Concurrently
with the execution and delivery of this Agreement, the Depositor does hereby
transfer, assign, set over, deposit with and otherwise convey to the Trustee,
without recourse, subject to Sections 2.02 and 2.05, in trust, all the
right, title and interest of the Depositor in and to the Trust
Fund. Such conveyance includes, without limitation, (i) the
Mortgage Loans, including the right to all payments of principal and interest
received on or with respect to the Mortgage Loans on and after the Cut-off
Date
(other than Scheduled Payments due on or before such date), and all such
payments due after such date but received prior to such date and intended by
the
related Mortgagors to be applied after such date; (ii) all of the
Depositor’s right, title and interest in and to all amounts from time to time
credited to and the proceeds of the Distribution Account, any Custodial Accounts
or any Escrow Account established with respect to the Mortgage Loans;
(iii) all of the rights and obligations of the Depositor as assignee of the
Seller with respect to the Seller’s rights and obligations under the Purchase
and Servicing Agreements pursuant to the Acknowledgements; (iv) all of the
Depositor’s right, title or interest in REO Property and the proceeds thereof;
(v) all of the Depositor’s rights under any Insurance Policies related to
the Mortgage Loans; (vi) $1,000 (which amount has been delivered by the
Depositor to the Securities Administrator to be held in the Distribution Account
until distributed to the Holders of the Class P Certificates pursuant to Section
5.02(a)); and (vii) if applicable, the Depositor’s security interest in any
collateral pledged to secure the Mortgage Loans, including the Mortgaged
Properties and any Additional Collateral relating to the Additional Collateral
Mortgage Loans, including, but not limited to, the pledge, control and guaranty
agreements and the Limited Purpose Surety Bond, to have and to hold, in trust;
and the Trustee declares that, subject to the review provided for in
Section 2.02, it has received and shall hold the Trust Fund, as trustee, in
trust, for the benefit and use of the Holders of the Certificates and for the
purposes and subject to the terms and conditions set forth in this Agreement,
and, concurrently with such receipt, has caused to be executed, authenticated
and delivered to or upon the order of the Depositor, in exchange for the Trust
Fund, Certificates in the authorized denominations evidencing the entire
ownership of the Trust Fund.
The
foregoing sale, transfer, assignment, set-over, deposit and conveyance does
not
and is not intended to result in the 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 therein.
In
connection with such transfer and assignment of the Mortgage Loans, the
Depositor shall cause to be delivered and each Custodian acting on the Trustee’s
behalf will continue to hold the documents or instruments listed below with
respect to each Mortgage Loan (each, a “Trustee Mortgage File”) so
transferred and assigned:
55
(i)
with
respect to each Mortgage Loan, the original Mortgage Note endorsed without
recourse in proper form to the order of “LaSalle Bank National Association, as
Trustee of Xxxxxx Xxxxxxx Mortgage Loan Trust 2007-12, Mortgage Pass-Through
Certificates, without recourse”, or in blank (in each case, with all necessary
intervening endorsements, as applicable);
(ii)
with
respect to each Mortgage Loan (other than a Cooperative Loan) that is not a
MERS
Mortgage Loan, the original Mortgage with evidence of recording thereon, or
if
the original Mortgage has not yet been returned from the recording office,
a
copy of such Mortgage certified by the applicable Originator, title company,
escrow agent or closing attorney to be a true copy of the original of the
Mortgage which has been sent for recording in the appropriate jurisdiction
in
which the Mortgaged Property is located, and in the case of the each MERS
Mortgage Loan, the original Mortgage, noting the presence of the MIN of the
Mortgage Loans and either language indicating that the Mortgage Loan is a MOM
Loan if the Mortgage Loan is a MOM Loan or if the Mortgage Loan was not a MOM
Loan at origination, the original Mortgage and the assignment thereof to MERS,
with evidence of recording indicated thereon;
(iii)
with respect to each Mortgage Loan (other than a Cooperative Loan) that is
not a
MERS Mortgage Loan, the Assignment of Mortgage in form and substance acceptable
for recording in the relevant jurisdiction, such assignment being either (A)
in
blank, without recourse, or (B) endorsed to “LaSalle Bank National Association,
as Trustee of Xxxxxx Xxxxxxx Mortgage Loan Trust 2007-12, Mortgage Pass-Through
Certificates, without recourse”;
(iv)
with
respect to each Mortgage Loan (other than a Cooperative Loan) that is not a
MERS
Mortgage Loan, the originals of all intervening assignments of the Mortgage,
if
any, with evidence of recording thereon, or if the original intervening
assignment has not yet been returned from the recording office, a copy of such
assignment certified by the applicable Originator, title company, escrow agent
or closing attorney to be a true copy of the original of the assignment which
has been sent for recording in the appropriate jurisdiction in which the
Mortgaged Property is located;
(v)
with
respect to each Mortgage Loan (other than a Cooperative Loan), the originals
of
all assumption, modification, consolidation or extension agreements, if any,
with evidence of recording thereon;
(vi)
if
any, with respect to each Mortgage Loan (other than a Cooperative Loan), the
original policy of title insurance (or a true copy thereof) with respect to
any
such Mortgage Loan, or, if such policy has not yet been delivered by the
insurer, the title commitment or title binder to issue same;
(vii)
if
any, with respect to each Mortgage Loan (other than a Cooperative Loan), the
original power of attorney and guaranty agreement with respect to such Mortgage
Loan;
(viii)
[reserved];
(ix)
with
respect to each Mortgage Loan which constitutes a Cooperative Loan:
|
|
(a)
|
the
original of any security agreement or similar document executed in
connection with the Cooperative
Loan;
|
56
|
|
(b)
|
the
original Recognition Agreement and the original Assignment of Recognition
Agreement;
|
|
|
(c)
|
UCC-1
financing statements with recording information thereon from the
appropriate governmental recording offices if necessary to perfect
the
security interest of the Cooperative Loan under the Uniform Commercial
Code in the jurisdiction in which the Cooperative Property is located,
accompanied by UCC-3 financing statements executed in blank for
recordation of the change in the secured party
thereunder;
|
|
|
(d)
|
an
Estoppel Letter and/or Consent;
|
|
|
(e)
|
a
search for (i) federal tax liens, mechanics’ liens, lis pendens, judgments
of record or otherwise against (x) the Cooperative Corporation and
(y) the
seller of the Cooperative Unit, (ii) filings of financing statements
and
(iii) the deed of the cooperative project into the Cooperative
Corporation;
|
|
|
(f)
|
the
guaranty of the Mortgage Note and Cooperative Loan, if
any;
|
|
|
(g)
|
the
original Proprietary Lease and the Assignment of Proprietary Lease
executed by the Mortgagor in blank or if the Proprietary Lease has
been
assigned by the Mortgagor to the Seller, then the Seller must execute
an
assignment of the Assignment of Proprietary Lease in blank;
and
|
|
|
(h)
|
if
any, the original or certified copy of the certificates evidencing
ownership of the Cooperative Shares issued by the Cooperative Corporation
and related assignment of such certificates or an assignment of such
Cooperative Shares, in blank, executed by the Mortgagor with such
signature guaranteed;
|
(x)
[reserved]; and
(xi)
any
other document or instruments required to be delivered under the related
Custodial Agreement.
In
addition, in connection with the assignment of any MERS Mortgage Loan, it is
understood that the related Originator will cause the MERS® System to indicate
that such Mortgage Loans have been assigned by the related Originator to the
Trustee in accordance with this Agreement for the benefit of the
Certificateholders by including (or deleting, in the case of Mortgage Loans
which are repurchased in accordance with this Agreement) in such computer files
the information required by the MERS® System to identify the series of
Certificates issued in connection with such Mortgage Loans. It is
further understood that the related Originator will not, and the Master Servicer
hereby agrees that it will not, alter the information referenced in this
paragraph with respect to any Mortgage Loan during the term of this Agreement
unless and until such Mortgage Loan is repurchased in accordance with the terms
of this Agreement.
57
On
or
prior to the Closing Date, the Depositor shall cause to be delivered to the
Master Servicer, the Trustee and each Custodian an electronic copy of the
Mortgage Loan Schedule in a form acceptable to the Master Servicer, the
Depositor, the Trustee and each Custodian.
(b) As
soon as is practicable after the Closing Date, the Depositor shall cause the
Servicer of any Additional Collateral Mortgage Loan to deliver to the applicable
Custodian the Assignment and Notice of Transfer with respect to each Additional
Collateral Mortgage Loan as well as the assignments of any rights with respect
to each Additional Collateral Mortgage Loan under any Limited Purpose Surety
Bond.
(c) In
instances where a title insurance policy is required to be delivered to the
applicable Custodian on behalf of the Trustee and is not so delivered, the
Depositor will provide a copy of such title insurance policy to the applicable
Custodian on behalf of the Trustee, as promptly as practicable after the
execution and delivery hereof, but in any case within 180 days of the Closing
Date.
(d) For
Mortgage Loans (if any) that have been prepaid in full after the Cut-off Date
and prior to the Closing Date, the Depositor, in lieu of delivering the above
documents, herewith delivers such amount to the Securities Administrator, and
delivers to the Securities Administrator, the Trustee, and the applicable
Custodian, 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 pursuant to
Section 4.01 have been so deposited. All original documents that
are not delivered to the applicable Custodian on behalf of the Trustee shall
be
held by the Master Servicer or the related Servicer in trust for the benefit
of
the Trustee and the Certificateholders.
(e) Neither
the Depositor nor the Trust will acquire or hold any Mortgage Loan(s) that
is
(i) a “High-Cost Home Loan” as defined in the New Jersey Home Ownership Act
effective November 27, 2003; (ii) a “High-Cost Home Loan” as defined in the New
Mexico Home Loan Protection Act effective January 1, 2004; (iii) are “High-Cost
Home Mortgage Loans” as defined in the Massachusetts Predatory Home Loan
Practices Act effective November 7, 2004 or (iv) are “High Cost Home Loans” as
defined in the Indiana Home Loan Practices Act effective January 1,
2005.
Section
2.02. Acceptance of Trust Fund by Trustee; Review of Documentation
for Trust Fund.
(a) The
Trustee, by execution and delivery hereof, acknowledges receipt by it of notice
from each Custodian that each holds the documents identified in the Initial
Custodial Certification in the form annexed hereto as Exhibit L-1 (the
“Initial Custodial Certification”) pertaining to the Mortgage Loans
listed on the Mortgage Loan Schedule.
(b) Nothing
in this Agreement shall be construed to constitute an assumption by the Trust
Fund, the Trustee, any Custodian or the Certificateholders of any unsatisfied
duty, claim or other liability on any Mortgage Loan or to any
Mortgagor.
(c) Each
of the parties hereto acknowledges that (i) each Custodian has delivered to
the
Depositor, the Master Servicer and the Trustee, the Initial Custodial
Certification, in the
58
form
annexed hereto as Exhibit L-1, stating that it has performed the applicable
review of the Mortgage Loans as required herein and in the Custodial Agreements
as applicable on the Closing Date and (ii) thereafter, if applicable, each
Custodian shall perform the applicable review of the Mortgage Loans and deliver
the further certifications (including but not limited to the Final Custodial
Certification) as provided herein and in the Custodial Agreements as
applicable.
With
respect to the MSMCI Mortgage Loans only, not later than 180 days after the
Closing Date, the Trustee shall enforce the related Custodian’s obligation, to
deliver to the Depositor, the Master Servicer and the Trustee a Final Custodial
Certification in the form annexed hereto as Exhibit L-2 (the “Final
Custodial Certification”) under this Agreement or the related Custodial
Agreement as applicable, with any applicable exceptions noted
thereon. To the extent that each Custodian must deliver a Final
Certification, the Trustee shall enforce each such Custodian’s obligation to
make available, upon request of any Certificateholder, a copy of any exceptions
noted on the related Initial Custodial Certification or the related Final
Custodial Certification.
(d) Upon
execution of this Agreement, the Depositor hereby delivers to the Trustee (with
a copy to the Master Servicer) and the Trustee acknowledges receipt of the
Acknowledgements, together with the related Purchase and Servicing
Agreements.
(e) Neither
the Trustee nor any Custodian shall make any representation as to: (i) the
validity, legality, sufficiency, enforceability or genuineness of any of the
documents contained in the Trustee Mortgage File of any of the Mortgage Loans
identified on the Mortgage Loan Schedule, or (ii) the collectability,
insurability, perfection, priority, effectiveness or suitability of any such
Mortgage Loan. Except as specifically required hereunder, neither the
Trustee nor any Custodian shall be responsible to verify the validity,
sufficiency or genuiness of any document in the Trustee Mortgage
File.
Section
2.03. Representations and Warranties of the Depositor.
(a) The
Depositor hereby represents and warrants to the Trustee, for the benefit of
the
Certificateholders, and to the Master Servicer and the Securities Administrator
as of the Closing Date or such other date as is specified, that:
(i) the
Depositor is a corporation duly organized, validly existing and in good standing
under the laws governing its creation and existence and has full corporate
power
and authority to own its property, to carry on its business as presently
conducted, to enter into and perform its obligations under this Agreement,
and
to create the trust pursuant hereto;
(ii) the
execution and delivery by the Depositor of this Agreement have been duly
authorized by all necessary corporate action on the part of the Depositor;
neither the execution and delivery of this Agreement, nor the consummation
of
the transactions herein contemplated, nor compliance with the provisions hereof,
will conflict with or result in a breach of, or constitute a default under,
any
of the provisions of any law, governmental rule, regulation, judgment, decree
or
order binding on the Depositor or its properties or the certificate of
incorporation or bylaws of the Depositor;
59
(iii) the
execution, delivery and performance by the Depositor of this Agreement and
the
consummation of the transactions contemplated hereby do not require the consent
or approval of, the giving of notice to, the registration with, or the taking
of
any other action in respect of, any state, federal or other governmental
authority or agency, except such as has been obtained, given, effected or taken
prior to the date hereof;
(iv) this
Agreement has been duly executed and delivered by the Depositor and, assuming
due authorization, execution and delivery by the Trustee, the Master Servicer
and the Securities Administrator, constitutes a valid and binding obligation
of
the Depositor enforceable against it in accordance with its terms except as
such
enforceability may be subject to (A) applicable bankruptcy and insolvency
laws and other similar laws affecting the enforcement of the rights of creditors
generally and (B) general principles of equity regardless of whether such
enforcement is considered in a proceeding in equity or at law;
(v) there
are no actions, suits or proceedings pending or, to the knowledge of the
Depositor, threatened or likely to be asserted against or affecting the
Depositor, before or by any court, administrative agency, arbitrator or
governmental body (A) with respect to any of the transactions contemplated
by this Agreement or (B) with respect to any other matter which in the
judgment of the Depositor will be determined adversely to the Depositor and
will
if determined adversely to the Depositor materially and adversely affect it
or
its business, assets, operations or condition, financial or otherwise, or
adversely affect its ability to perform its obligations under this
Agreement;
(vi) immediately
prior to the transfer and assignment of the Mortgage Loans to the Trustee,
the
Depositor was the sole owner of record and holder of each Mortgage Loan, and
the
Depositor had good and marketable title thereto, and had full right to transfer
and sell each Mortgage Loan to the Trustee free and clear, subject only to
(1) liens of current real property taxes and assessments not yet due and
payable and, if the related Mortgaged Property is a condominium unit, any lien
for common charges permitted by statute, (2) covenants, conditions and
restrictions, rights of way, easements and other matters of public record as
of
the date of recording of such Mortgage acceptable to mortgage lending
institutions in the area in which the related Mortgaged Property is located
and
specifically referred to in the lender’s title insurance policy or attorney’s
opinion of title and abstract of title delivered to the originator of such
Mortgage Loan, and (3) such other matters to which like properties are
commonly subject which do not, individually or in the aggregate, materially
interfere with the benefits of the security intended to be provided by the
Mortgage, of any encumbrance, equity, participation interest, lien, pledge,
charge, claim or security interest, and had full right and authority, subject
to
no interest or participation of, or agreement with, any other party, to sell
and
assign each Mortgage Loan pursuant to this Agreement;
(vii) This
Agreement creates a valid and continuing security interest (as defined in the
applicable Uniform Commercial Code (the “UCC”), in the Mortgage Loans in favor
of the Trustee, which security interest is prior to all other liens, and is
enforceable as such against creditors of and purchasers from the
Depositor;
60
(viii) The
Mortgage Loans constitute “instruments” within the meaning of the applicable
UCC;
(ix) Other
than the security interest granted to the Trustee pursuant to this Agreement,
the Depositor has not pledged, assigned, sold, granted a security interest
in,
or otherwise conveyed any of the Mortgage Loans. The Depositor has
not authorized the filing of and is not aware of any financing statement against
the Depositor that includes a description of the collateral covering the
Mortgage Loans other than a financing statement relating to the security
interest granted to the Trustee hereunder or that has been
terminated. The Depositor is not aware of any judgment or tax lien
filings against the Depositor;
(x) None
of the Mortgage Loans have any marks or notations indicating that such Mortgage
Loans have been pledged, assigned or otherwise conveyed to any Person other
than
the Trustee; and
(xi) The
Depositor has received all consents and approvals required by the terms of
the
Mortgage Loans to convey the Mortgage Loans hereunder to the
Trustee.
The
foregoing representations made in this Section 2.03 shall survive the
termination of this Agreement and shall not be waived by any party
hereto.
Section
2.04. Representations and Warranties of the Depositor and the Seller
as to the Mortgage Loans.
The
Depositor hereby represents and warrants to the Trustee with respect to the
Mortgage Loans or each Mortgage Loan, as the case may be, as of the date hereof
or such other date set forth herein that as of the Closing Date:
(a) Immediately
prior to the transfer and assignment contemplated herein, the Depositor was
the
sole owner and holder of the Mortgage Loans. The Mortgage Loans were
not assigned or pledged by the Depositor and the Depositor had good and
marketable title thereto, and the Depositor had full right to transfer and
sell
the Mortgage Loans to the Trustee, for the benefit of the Certificateholders,
free and clear of any encumbrance, participation interest, lien, equity, pledge,
claim or security interest and had full right and authority subject to no
interest or participation in, or agreement with any other party to sell or
otherwise transfer the Mortgage Loans.
(b) 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.
(c) As
of the Closing Date, the Depositor has not transferred the Mortgage Loans to
the
Trustee on behalf of the Trust with any intent to hinder, delay or defraud
an of
its creditors.
It
is
understood and agreed that the representations and warranties set forth in
this
Section 2.04 shall survive delivery of the respective Mortgage Files to the
Trustee or each Custodian and
61
shall
inure to the benefit of the Trustee, notwithstanding any restrictive or
qualified endorsement or assignment.
Section
2.05. Representations and Warranties of the Seller; Discovery of
Breach; Repurchase or Substitution of Mortgage Loans.
(a) With
respect to the MSMCI Mortgage Loans the Seller hereby makes the representations
and warranties contained in Section 3.01 of the MSMCI Purchase Agreement to
and
for the benefit of the Depositor, the Trustee and the Trust Fund.
With
respect to the FNBN Mortgage Loans the Seller hereby makes the representations
and warranties contained in Section 9.02 of the FNBN Purchase Agreement (other
than the representation contained in Section 9.02(b) of the FNBN Purchase
Agreement) to and for the benefit of the Depositor, the Trustee and the Trust
Fund. With respect to the FNBN Mortgage Loans the Seller hereby represents
and
warrants to and for the benefit of the Depositor, the Trustee and the Trust
Fund
that all payments due on or prior to the Cut-off Date for each FNBN Mortgage
Loan have been made as of the Closing Date, such FNBN Mortgage Loan is not
delinquent thirty (30) days or more in payment and has not been dishonored;
there are no material defaults under the terms of such FNBN Mortgage Loan;
the
Seller has not advanced funds, or induced, solicited or knowingly received
any
advance of funds from a party other than the owner of the Mortgaged Property
subject to the Mortgage, directly or indirectly, for the payment of any amount
required by any FNBN Mortgage Loan; as to each FNBN Mortgage Loan, there has
been no more than one thirty (30) day delinquency during the immediately
preceding thirty-day period. The Seller agrees to comply with the
provisions of this Section 2.05 in respect of a breach of any of such
representations and warranties.
With
respect to the IndyMac Mortgage Loans the Seller hereby makes the
representations and warranties contained in Section 9.02 of the IndyMac Purchase
Agreement (other than the representation contained in Section 9.02(b) of the
IndyMac Purchase Agreement) to and for the benefit of the Depositor, the Trustee
and the Trust Fund. With respect to the IndyMac Mortgage Loans the Seller hereby
represents and warrants to and for the benefit of the Depositor, the Trustee
and
the Trust Fund that all payments due on or prior to the Cut-off Date for each
IndyMac Mortgage Loan have been made as of the Closing Date, such IndyMac
Mortgage Loan is not delinquent thirty (30) days or more in payment and has
not
been dishonored; there are no material defaults under the terms of such IndyMac
Mortgage Loan; the Seller has not advanced funds, or induced, solicited or
knowingly received any advance of funds from a party other than the owner of
the
Mortgaged Property subject to the Mortgage, directly or indirectly, for the
payment of any amount required by any IndyMac Mortgage Loan; as to each IndyMac
Mortgage Loan, there has been no more than one thirty (30) day delinquency
during the immediately preceding thirty-day period. The Seller agrees
to comply with the provisions of this Section 2.05 in respect of a breach of
any
of such representations and warranties.
With
respect to the Quicken Mortgage Loans the Seller hereby makes the
representations and warranties contained in Section 9.02 of the Quicken Purchase
Agreement (other than the representation contained in Section 9.02(b) of the
Quicken Purchase Agreement) to and for the benefit of the Depositor, the Trustee
and the Trust Fund. With respect to the Quicken Mortgage Loans the Seller hereby
represents and warrants to and for the benefit of the Depositor, the
62
Trustee
and the Trust Fund that all payments due on or prior to the Cut-off Date for
each Quicken Mortgage Loan have been made as of the Closing Date, such Quicken
Mortgage Loan is not delinquent thirty (30) days or more in payment and has
not
been dishonored; there are no material defaults under the terms of such Quicken
Mortgage Loan; the Seller has not advanced funds, or induced, solicited or
knowingly received any advance of funds from a party other than the owner of
the
Mortgaged Property subject to the Mortgage, directly or indirectly, for the
payment of any amount required by any Quicken Mortgage Loan; as to each Quicken
Mortgage Loan, there has been no more than one thirty (30) day delinquency
during the immediately preceding thirty-day period. The Seller agrees
to comply with the provisions of this Section 2.05 in respect of a breach of
any
of such representations and warranties.
With
respect to the Wachovia Serviced Mortgage Loans the Seller hereby makes the
representations and warranties contained in Section 3.02 of the Wachovia
Purchase Agreement (other than the representation contained in Section 3.02(d)
of the Wachovia Purchase Agreement) to and for the benefit of the Depositor,
the
Trustee and the Trust Fund. With respect to the Wachovia Serviced Mortgage
Loans
the Seller hereby represents and warrants to and for the benefit of the
Depositor, the Trustee and the Trust Fund that all payments due on or prior
to
the Cut-off Date for each Wachovia Serviced Mortgage Loan have been made as
of
the Closing Date, such Wachovia Serviced Mortgage Loan is not delinquent thirty
(30) days or more in payment and has not been dishonored; there are no material
defaults under the terms of such Wachovia Serviced Mortgage Loan; the Seller
has
not advanced funds, or induced, solicited or knowingly received any advance
of
funds from a party other than the owner of the Mortgaged Property subject to
the
Mortgage, directly or indirectly, for the payment of any amount required by
any
Wachovia Serviced Mortgage Loan; as to each Wachovia Serviced Mortgage Loan,
there has been no more than one thirty (30) day delinquency during the
immediately preceding thirty-day period. The Seller agrees to comply
with the provisions of this Section 2.05 in respect of a breach of any of such
representations and warranties.
The
Seller hereby represents and warrants to the Trustee with respect to the
Mortgage Loans as of the date hereof or such other date set forth herein that
as
of the Closing Date:
(i) Each
Mortgage Loan at origination complied in all material respects with applicable
predatory and abusive lending laws and consummation of the transactions
contemplated by this Agreement will not involve the violation of any such
laws.
(ii) All
of the Mortgage Loans were originated in compliance with all applicable laws,
including, but not limited to, all applicable anti-predatory and abusive lending
laws.
(iii) None
of the Mortgage Loans is covered by the Home Ownership and Equity Protection
Act
of 1994 (“HOEPA”).
(iv) None
of the Mortgage Loans is a “high cost” loan as defined by applicable predatory
and abusive lending laws.
(v) No
Mortgage Loan is a High Cost Loan or Covered Loan, as applicable, and with
respect to the foregoing, the terms “High Cost Loan” and “Covered Loan” have
63
the
meaning assigned to them in the then current version of Standard & Poor’s
LEVELS®, which is now Version 5.7 Glossary Revised, Appendix E which is attached
hereto as Exhibit Q (the “Glossary”) where (x) a “High Cost Loan” is each loan
identified in the column “Category under applicable anti-predatory lending law”
of the table entitled “Standard & Poor's High Cost Loan Categorization” in
the Glossary as each such loan is defined in the applicable anti-predatory
lending law of the State or jurisdiction specified in such table and (y) a
“Covered Loan” is each loan identified in the column “Category under applicable
anti-predatory lending law” of the table entitled “Standard & Poor’s High
Covered Loan Categorization” in the Glossary as each such loan is defined in the
applicable anti-predatory lending law of the State or jurisdiction specified
in
such table.
(vi) No
Mortgage Loan originated on or after October 1, 2002 through March 6, 2003
is
governed by the Georgia Fair Lending Act.
Upon
discovery by the Depositor, the Seller or the related Originator or receipt
of
written notice of any materially defective document in, or, following the date
of delivery to the Trustee of each Custodian’s certifications required under
this Agreement or the related Custodial Agreement as applicable, that a document
is missing from, a Trustee Mortgage File, or discovery by the Trustee, the
Depositor, the Seller or the related Originator of the breach by such Originator
or Seller of any representation or warranty under the related Purchase and
Servicing Agreement, as modified by the Acknowledgement, in the case of the
Originator, or under this Agreement, in the case of the Seller, in respect
of
any Mortgage Loan which materially adversely affects the value of that Mortgage
Loan or the interest therein of the Certificateholders (a “Defective
Mortgage Loan”) (each of the Depositor, the Seller and the related
Originator hereby agreeing to give written notice thereof to the Trustee and
the
other of such parties), the Trustee, or its designee, shall promptly notify
the
Depositor and the Seller or the related Originator, as applicable, in writing
of
such nonconforming or missing document or breach and request that the Seller
or
related Originator deliver such missing document or cure or cause the cure
of
such defect or breach within a period of time specified in the related Purchase
and Servicing Agreement, and if the Seller or related Originator, as applicable,
does not deliver such missing document or cure such defect or breach in all
material respects during such period, the Trustee, shall enforce the obligations
of the related Originator under the related Purchase and Servicing Agreement,
as
modified by the Acknowledgement, or the Seller under this Agreement, as
applicable, and cause the related Originator or the Seller, as the case may
be,
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 specified
period (subject to Section 2.05(c) below); provided, however,
that, in connection with any such breach that could not reasonably have been
cured within such specified period (unless permitted a greater period of time
to
cure under the related Purchase and Servicing Agreement), subject to Section
2.05(c) below, if the related Originator or the Seller, as applicable, shall
have commenced to cure such breach within such specified period, the related
Originator or the Seller shall be permitted to proceed thereafter diligently
and
expeditiously to cure the same within such additional time as is reasonably
necessary to cure such breach. To the extent that the amount by which
the Purchase Price (as defined in this Agreement) exceeds the repurchase price
payable by the related Originator under the related Purchase and Servicing
Agreement, including any costs and damages that are incurred by the Trust Fund
as a result of any violation of any applicable federal, state, or local
predatory or
64
abusive
lending law arising from or in connection with the origination of any Mortgage
Loan repurchased by the related Originator or the Seller, the payment of such
excess shall be borne by the Seller. The Purchase Price for the
repurchased Mortgage Loan shall be deposited in the related Distribution
Account, and the Trustee, or its designee, upon receipt of written certification
from the Securities Administrator of such deposit, shall release or cause the
related Custodian to release to the related Originator or the Seller, as
applicable, the related Trustee Mortgage File and shall execute and deliver
such
instruments of transfer or assignment, in each case without recourse,
representation or warranties, as either party shall furnish to it and as shall
be necessary to vest in such party any Mortgage Loan released pursuant hereto
and the Trustee, or its designee, shall have no further responsibility with
regard to such Trustee Mortgage File (it being understood that the Trustee
shall
have no responsibility for determining the sufficiency of such assignment for
its intended purpose). If pursuant to the foregoing provisions the
related Originator or the Seller repurchases a Mortgage Loan that is a MERS
Mortgage Loan, the related Servicer shall cause MERS to designate on the MERS®
System the related Originator or the Seller, as applicable, as the beneficial
holder of such Mortgage Loan.
In
lieu
of repurchasing any such Mortgage Loan as provided above, either party may
cause
such Mortgage Loan to be removed from the Trust Fund (in which case it shall
become a Deleted Mortgage Loan) and substitute one or more Replacement Mortgage
Loans in the manner and subject to the limitations set forth in
Section 2.05(b) below. It is understood and agreed that the
obligations of the Originators and the Seller to cure or to repurchase (or
to
substitute for) any related 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
such
party respecting such omission, defect or breach available to the Trustee on
behalf of the Certificateholders.
(b) Any
substitution of Replacement Mortgage Loans for Deleted Mortgage Loans made
pursuant to Section 2.05(a) above must be effected prior to the last
Business Day that is within two years after the Closing Date. As to
any Deleted Mortgage Loan for which the related Originator or the Seller
substitutes a Replacement Mortgage Loan or Loans, such substitution shall be
effected by delivering to the related Custodian, on behalf of the Trustee,
for
such Replacement Mortgage Loan or Loans, the Mortgage Note, the Mortgage, any
related assignment thereof and the Acknowledgement to the Trustee, and such
other documents and agreements, with all necessary endorsements thereon,
together with an Officers’ Certificate stating that each such Replacement
Mortgage Loan satisfies the definition thereof and specifying the Substitution
Adjustment Amount (as described below), if any, in connection with such
substitution. Monthly Payments due with respect to Replacement
Mortgage Loans in the month of substitution shall not be included as part of
the
Trust Fund and shall be retained by the related Originator or the Seller, as
applicable. For the month of substitution, distributions to the
Certificateholders shall reflect the collections and recoveries in respect
of
such Deleted Mortgage in the Due Period preceding the month of substitution
and
the related Originator or the Seller, as applicable, shall thereafter be
entitled to retain all amounts subsequently received in respect of such Deleted
Mortgage Loan. Upon such substitution, such Replacement Mortgage Loan
shall constitute part of the Trust Fund and shall be subject in all respects
to
the terms of this Agreement and the related Purchase and Servicing Agreement,
as
modified by the related Acknowledgement, including all representations and
warranties thereof included in such
65
Purchase
and Servicing Agreement, as modified by the Acknowledgement, in each case as
of
the date of substitution.
For
any
month in which an Originator or the Seller substitutes one or more Replacement
Mortgage Loans for one or more Deleted Mortgage Loans, the related Servicer
shall determine the excess (each, a “Substitution Adjustment Amount”),
if any, by which the aggregate Purchase Price of all such Deleted Mortgage
Loans
exceeds the aggregate Stated Principal Balance of the Replacement Mortgage
Loans
replacing such Deleted Mortgage Loans, together with one month’s interest on
such excess amount at the applicable Net Mortgage Rate. On the date
of such substitution, the related Originator or Seller, as applicable, shall
deliver or cause to be delivered to the related Servicer for deposit in the
related Custodial Account an amount equal to the related Substitution Adjustment
Amount, if any, and each Custodian, on behalf of the Trustee, upon receipt
of
the related Replacement Mortgage Loan or Loans and Request for Release and
certification by such Servicer of such deposit, shall release to the related
Originator or the Seller, as applicable, the related Trustee Mortgage File
or
Files and the Trustee or each Custodian, as applicable, shall execute and
deliver such instruments of transfer or assignment, in each case without
recourse, as the related Originator or Seller shall deliver to it and as shall
be necessary to vest therein any Deleted Mortgage Loan released pursuant
hereto.
In
addition, the related Originator or the Seller, as applicable, shall obtain
at
its own expense and deliver to the Trustee and the Securities Administrator
an
Opinion of Counsel to the effect that such substitution (either specifically
or
as a class of transactions) shall 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.
(c) Upon
discovery by the related Originator, 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 applicable party
shall repurchase or, subject to the limitations set forth in
Section 2.05(b), substitute one or more Replacement 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 2.05(a) above and/or in accordance with this Section
2.05(c). The Trustee shall re-convey to the related Originator or the
Seller, as applicable, 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.
Section
2.06. Grant Clause.
(a) It
is intended that the conveyance of the Depositor’s right, title and interest in
and to property constituting the Trust Fund pursuant to this Agreement shall
constitute, and shall be construed as, a sale of such property and not a grant
of a security interest to secure a loan. However, if such conveyance
is deemed to be in respect of a loan, it is intended that: (1) the rights
and obligations of the parties shall be established pursuant to the terms of
this Agreement; (2) the Depositor hereby grants to the Trustee for the
benefit of the Holders of the Certificates a first priority security interest
in
all of the Depositor’s right, title and interest in, to and under,
66
whether
now owned or hereafter acquired, the Trust Fund and all proceeds of any and
all
property constituting the Trust Fund to secure payment of the Certificates;
and
(3) this Agreement shall constitute a security agreement under applicable
law. If such conveyance is deemed to be in respect of a loan and the
trust created by this Agreement terminates prior to the satisfaction of the
claims of any Person holding any Certificate, the security interest created
hereby shall continue in full force and effect and the Trustee shall be deemed
to be the collateral agent for the benefit of such Person, and all proceeds
shall be distributed as herein provided.
(b) The
Depositor shall, to the extent consistent with this Agreement, take such
reasonable actions as may be necessary to ensure that, if this Agreement were
deemed to create a security interest in the Mortgage Loans and the other
property described above, such security interest would be deemed to be a
perfected security interest of first priority under applicable law and will
be
maintained as such throughout the term of this Agreement. The
Depositor will, at its own expense, make all initial filings on or about the
Closing Date and shall forward a copy of such filing or filings to the
Trustee. Without limiting the generality of the foregoing, the
Depositor shall prepare and forward for filing, or shall cause to be forwarded
for filing, at the expense of the Depositor, all filings necessary to maintain
the effectiveness of any original filings necessary under the relevant UCC
to
perfect the Trustee’s security interest in or lien on the Mortgage Loans,
including without limitation (x) continuation statements, and (y) such
other statements as may be occasioned by (1) any change of name of an
Originator, the Depositor or the Trustee, (2) any change of location of the
place of business or the chief executive office of the Seller or the Depositor,
(3) any transfer of any interest of an Originator or the Depositor in any
Mortgage Loan or (4) any change under the relevant UCC or other applicable
laws. Neither the Originators nor the Depositor shall organize under
the law of any jurisdiction other than the State under which each is organized
as of the Closing Date (whether changing its jurisdiction of organization or
organizing under an additional jurisdiction) without giving 30 days prior
written notice of such action to its immediate and intermediate transferee,
including the Trustee. Before effecting such change, any Originator
or the Depositor proposing to change its jurisdiction of organization shall
prepare and file in the appropriate filing office any financing statements
or
other statements necessary to continue the perfection of the interests of its
immediate and intermediate transferees, including the Trustee, in the Mortgage
Loans. In connection with the transactions contemplated by this
Agreement, each of the Originators and the Depositor authorizes its immediate
or
intermediate transferee (but not the Trustee) to file in any filing office
any
initial financing statements, any amendments to financing statements, any
continuation statements, or any other statements or filings described in this
paragraph (b).
Section
2.07. Depositor’s Option to Purchase Breached Mortgage
Loans.
(a) Subject
to the terms specified in this Agreement, the Depositor has the option, but
is
not obligated, to purchase from the Trust Fund any Breached Mortgage Loan at
the
Repurchase Price; provided that the entity from which the Seller purchased
the
Mortgage Loan has both (a) agreed to purchase the Mortgage Loan from the
Depositor and (b) has represented to the Seller that it has the ability to
purchase such Mortgage Loan from the Depositor, as soon as is practicable
thereafter at the Repurchase Price.
Section
2.08. Release of Mortgage Documents for Servicing.
67
(a) From
time to time and as appropriate for the foreclosure or servicing of any of
the
Mortgage Loans, each Custodian shall, upon receipt in writing, facsimile or
electronic transmission from the Master Servicer or a Servicer of a Request
for
Release release to the Master Servicer or such Servicer the Mortgage Documents
set forth in such Request for Release. All Mortgage Documents
released by each Custodian to the Master Servicer or a Servicer pursuant to
this
Section 2.08 shall be held by the Master Servicer or such Servicer in trust
for
the benefit of the Trust pursuant to the applicable Purchase and Servicing
Agreement. Upon the repurchase of any Mortgage Loan or upon the
payment in full of any Mortgage Loan, and upon receipt by each Custodian of
(i)
the Request for Release (which Request for Release shall include a statement
to
the effect that all amounts payable to the Trust in connection with a repurchase
have been deposited in the related Custodial Account or the Collection Account
or (ii) direction of the Depositor or the Trustee, as applicable, each Custodian
shall promptly release the related Mortgage Documents in accordance with such
Request for Release or direction.
ARTICLE
III
THE
CERTIFICATES
Section
3.01. The Certificates.
(a) The
Certificates shall be issuable in registered form only and shall be securities
governed by Article 8 of the New York Uniform Commercial Code. The
Book-Entry Certificates will be evidenced by one or more certificates,
beneficial ownership of which will be held in the dollar denominations in
Certificate Balance, or Notional Amount, as applicable, or in the Percentage
Interests, specified herein. Each Class of Certificates will be
issued in the minimum denominations and integral multiples thereof of the
initial Certificate Balance (or Notional Amount) specified in the Preliminary
Statement hereto.
(b) The
Certificates shall be executed by manual or facsimile signature on behalf of
the
Trustee by an authorized officer of the Trustee or of the Securities
Administrator on the Trustee’s behalf. Each Certificate shall, on
original issue, be authenticated by the Authenticating Agent upon the order
of
the Depositor upon receipt by the Trustee (or each Custodian) of the Trustee
Mortgage Files described in Section 2.01. No Certificate shall
be entitled to any benefit under this Agreement, or be valid for any purpose,
unless there appears on such Certificate a certificate of authentication
substantially in the form provided for herein, executed by an authorized officer
of the Authenticating Agent, by manual signature, and such certification 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 or on behalf of the Trustee
to the Authenticating Agent for authentication and the Authenticating Agent
shall authenticate and deliver such Certificates as in this Agreement provided
and not otherwise.
(c) The
Class B-4, Class B-5, Class B-6, Class P and Class A-R Certificates offered
and
sold in reliance on the exemption from registration under Rule 144A under
the Act shall be issued initially in definitive, fully registered form without
interest coupons with the
68
applicable
legends set forth in Exhibit A added to the forms of such Certificates
(each, a “Restricted Global Security”).
Section
3.02. Registration.
The
Securities Administrator is hereby appointed, and the Securities Administrator
hereby accepts its appointment as, initial Certificate Registrar in respect
of
the Certificates and shall maintain books for the registration and for the
transfer of Certificates (the “Certificate Register”). The Trustee
may appoint a bank or trust company to act as successor Certificate
Registrar. A registration book shall be maintained for the
Certificates collectively. The Certificate Registrar may resign or be
discharged or removed and a new successor may be appointed in accordance with
the procedures and requirements set forth in Sections 6.06 and 6.07 hereof
with respect to the resignation, discharge or removal of the Securities
Administrator and the appointment of a successor Securities
Administrator. The Certificate Registrar may appoint, by a written
instrument delivered to the Holders and the Master Servicer, any bank or trust
company to act as co-registrar under such conditions as the Certificate
Registrar may prescribe; provided, however, that the
Certificate Registrar shall not be relieved of any of its duties or
responsibilities hereunder by reason of such appointment.
Section
3.03. Transfer and Exchange of Certificates.
(a) A
Certificate (other than Book-Entry Certificates which shall be subject to
Section 3.09 hereof) may be transferred by the Holder thereof only upon
presentation and surrender of such Certificate at the office of the Certificate
Registrar duly endorsed or accompanied by an assignment duly executed by such
Holder or his duly authorized attorney in such form as shall be satisfactory
to
the Certificate Registrar. Upon the transfer of any Certificate in
accordance with the preceding sentence, the Securities Administrator on behalf
of the Trustee shall execute, and the Authenticating Agent shall authenticate
and deliver to the transferee, one or more new Certificates of the same Class
and evidencing, in the aggregate, the same aggregate Certificate Balance (or
Notional Amount) as the Certificate being transferred. No service
charge shall be made to a Certificateholder for any registration of transfer
of
Certificates, 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 registration of transfer of Certificates.
(b) A
Certificate may be exchanged by the Holder thereof for any number of new
Certificates of the same Class, in authorized denominations, representing in
the
aggregate the same Certificate Balance (or Notional Amount) as the Certificate
surrendered, upon surrender of the Certificate to be exchanged at the office
of
the Certificate Registrar duly endorsed or accompanied by a written instrument
of transfer duly executed by such Holder or his duly authorized attorney in
such
form as is satisfactory to the Certificate Registrar. Certificates
delivered upon any such exchange will evidence the same obligations, and will
be
entitled to the same rights and privileges, as the Certificates
surrendered. No service charge shall be made to a Certificateholder
for any exchange of Certificates, 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 exchange of Certificates. Whenever any
Certificates are so surrendered for exchange, the Securities Administrator
on
behalf of the Trustee shall execute, and the
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Authenticating
Agent shall authenticate, date and deliver the Certificates which the
Certificateholder making the exchange is entitled to receive.
(c) By
acceptance of a Restricted Certificate, whether upon original issuance or
subsequent transfer, each Holder of such a Certificate acknowledges the
restrictions on the transfer of such Certificate set forth thereon and agrees
that it will transfer such a Certificate only as provided herein.
The
following restrictions shall apply with respect to the transfer and registration
of transfer of a Restricted Certificate to a transferee that takes delivery
in
the form of a Definitive Certificate:
(i) The
Certificate Registrar shall register the transfer of a Restricted Certificate
if
the requested transfer is (x) to the Depositor or an affiliate (as defined
in Rule 405 under the 0000 Xxx) of the Depositor or (y) being made to
a “qualified institutional buyer” (a “QIB”) as defined in
Rule 144A under the Securities Act of 1933, as amended (the “Act”)
by a transferor that has provided the Certificate Registrar with a certificate
in the form of Exhibit H hereto; and
(ii) The
Certificate Registrar shall register the transfer of a Restricted Certificate
if
the requested transfer is being made to an “accredited investor” under
Rule 501(a)(1), (2), (3) or (7) under the Act, or to any Person all of the
equity owners in which are such accredited investors, by a transferor who
furnishes to the Certificate Registrar a letter of the transferee substantially
in the form of Exhibit I hereto.
(d) No
transfer of an ERISA-Restricted Certificate in the form of a Definitive
Certificate shall be made to any Person or shall be effective unless the
Certificate Registrar, on behalf of the Trustee, has received (A) a
certificate substantially in the form of Exhibit J hereto (or
Exhibit B, in the case of a Residual Certificate) from such transferee or
(B) an Opinion of Counsel satisfactory to the Certificate Registrar and the
Securities Administrator to the effect that the purchase and holding of such
a
Certificate will not constitute or result in any nonexempt prohibited
transactions under Title I of ERISA or Section 4975 of the Code or a
plan subject to any Federal, state or local law (“Similar Law”)
materially similar to the foregoing provisions of ERISA or the Code and will
not
subject the Certificate Registrar, the Trustee, the Master Servicer, the
Depositor or the Securities Administrator to any obligation in addition to
those
undertaken in the Agreement; provided, however, that the
Certificate Registrar will not require such certificate or opinion in the event
that, as a result of a change of law or otherwise, counsel satisfactory to
the
Certificate Registrar has rendered an opinion to the effect that the purchase
and holding of an ERISA-Restricted Certificate by a Plan or a Person that is
purchasing or holding such a Certificate with the assets of a Plan will not
constitute or result in a prohibited transaction under Title I of ERISA or
Section 4975 of the Code and will not subject the Certificate Registrar,
the Trustee, the Master Servicer, the Depositor or the Securities Administrator
to any obligation in addition to those undertaken in this
Agreement. Each Transferee of an ERISA-Restricted Certificate that is
a Book-Entry Certificate shall be deemed to have made the appropriate
representation set forth in paragraph 2 and the representation set forth in
paragraph 3 of Exhibit J. The preparation and delivery of the
certificate and opinions
70
referred
to above shall not be an expense of the Trust Fund, the Certificate Registrar,
the Trustee, the Master Servicer, the Depositor or the Securities
Administrator.
Notwithstanding
the foregoing, no opinion or certificate shall be required for the initial
issuance of the ERISA-Restricted Certificates to the Underwriter. The
Certificate Registrar shall have no obligation to monitor transfers of
Book-Entry Certificates that are ERISA-Restricted Certificates and shall have
no
liability for transfers of such Certificates in violation of the transfer
restrictions. 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 3.03(d) and
neither the Securities Administrator nor the Paying Agent shall have any
liability 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. The
Securities Administrator, on behalf of the Trustee, shall be entitled, but
not
obligated, to recover from any Holder of any ERISA-Restricted Certificate that
was in fact a Plan or a Person acting on behalf of a Plan any payments made
on
such ERISA-Restricted Certificate at and after such time. Any such
payments so recovered by the Securities Administrator, on behalf of the Trustee,
shall be paid and delivered by the Securities Administrator, on behalf of the
Trustee, to the last preceding Holder of such Certificate that is not such
a
Plan or Person acting on behalf of a Plan.
(e) As
a condition of the registration of transfer or exchange of any Certificate,
the
Certificate Registrar may require the certified taxpayer identification number
of the owner of the Certificate and the payment of a sum sufficient to cover
any
tax or other governmental charge imposed in connection therewith;
provided, however, that the Certificate Registrar shall have
no obligation to require such payment or to determine whether or not any such
tax or charge may be applicable. No service charge shall be made to
the Certificateholder for any registration, transfer or exchange of a
Certificate.
(f) Notwithstanding
anything to the contrary contained herein, no Residual Certificate may be owned,
pledged or transferred, directly or indirectly, by or to (i) a Disqualified
Organization or (ii) an individual, corporation or partnership or other
person unless such person (A) is not a Non-U.S. Person or (B) is a Non-U.S.
Person that holds a Residual Certificate in connection with the conduct of
a
trade or business within the United States and has furnished the transferor
and
the Certificate Registrar with an effective Internal Revenue Service
Form W-8ECI or successor form at the time and in the manner required by the
Code (any such person who is not covered by clause (A) or (B) above is
referred to herein as a “Non-permitted Foreign Holder”).
Prior
to
and as a condition of the registration of any transfer, sale or other
disposition of a Residual Certificate, the proposed transferee shall deliver
to
the Certificate Registrar an affidavit in substantially the form attached hereto
as Exhibit B representing and warranting, among other things, that such
transferee is neither a Disqualified Organization, an agent or nominee acting
on
behalf of a Disqualified Organization, nor a Non-permitted Foreign Holder (any
such transferee, a “Permitted Transferee”), and the proposed transferor shall
deliver to the Trustee and the Certificate Registrar an affidavit in
substantially the form attached hereto as Exhibit C. In
addition, the Trustee or the Certificate Registrar may (but shall have no
obligation to) require,
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prior
to
and as a condition of any such transfer, the delivery by the proposed transferee
of an Opinion of Counsel, addressed to the Trustee and the Certificate
Registrar, that such proposed transferee or, if the proposed transferee is
an
agent or nominee, the proposed beneficial owner, is not a Disqualified
Organization, agent or nominee thereof, or a Non-permitted Foreign
Holder. Notwithstanding the registration in the Certificate Register
of any transfer, sale, or other disposition of a Residual Certificate to a
Disqualified Organization, an agent or nominee thereof, or Non-permitted Foreign
Holder, such registration shall be deemed to be of no legal force or effect
whatsoever and such Disqualified Organization, agent or nominee thereof, or
Non-permitted Foreign Holder shall not be deemed to be a Certificateholder
for
any purpose hereunder, including, but not limited to, the receipt of
distributions on such Residual Certificate. The Depositor and the
Certificate Registrar shall be under no liability to any Person for any
registration or transfer of a Residual Certificate to a Disqualified
Organization, agent or nominee thereof or Non-permitted Foreign Holder or for
the Paying Agent making any payments due on such Residual Certificate to the
Holder thereof or for taking any other action with respect to such Holder under
the provisions of the Agreement, so long as the transfer was effected in
accordance with this Section 3.03(f), unless the Certificate Registrar
shall have actual knowledge at the time of such transfer or the time of such
payment or other action that the transferee is a Disqualified Organization,
or
an agent or nominee thereof, or Non-permitted Foreign Holder. The
Certificate Registrar shall be entitled to recover from any Holder of a Residual
Certificate that was a Disqualified Organization, agent or nominee thereof,
or
Non-permitted Foreign Holder at the time it became a Holder or any subsequent
time it became a Disqualified Organization, agent or nominee thereof, or
Non-permitted Foreign Holder, all payments made on such Residual Certificate
at
and after either such times (and all costs and expenses, including but not
limited to attorneys’ fees, incurred in connection therewith). Any
payment (not including any such costs and expenses) so recovered by the
Certificate Registrar shall be paid and delivered to the last preceding Holder
of such Residual Certificate.
If
any
purported transferee shall become a registered Holder of a Residual Certificate
in violation of the provisions of this Section 3.03(f), then upon receipt
of written notice to the Trustee or the Certificate Registrar that the
registration of transfer of such Residual Certificate was not in fact permitted
by this Section 3.03(f), the last preceding Permitted Transferee shall be
restored to all rights as Holder thereof retroactive to the date of such
registration of transfer of such Residual Certificate. The Depositor,
the Certificate Registrar and the Trustee shall be under no liability to any
Person for any registration of transfer of a Residual Certificate that is in
fact not permitted by this Section 3.03(f), or for the Paying Agent making
any payment due on such Certificate to the registered Holder thereof or for
taking any other action with respect to such Holder under the provisions of
this
Agreement so long as the transfer was registered upon receipt of the affidavit
described in the preceding paragraph of this Section 3.03(f).
(g) Each
Holder or Certificate Owner of a Restricted Certificate, ERISA-Restricted
Certificate or Residual Certificate, or an interest therein, by such Holder’s or
Owner’s acceptance thereof, shall be deemed for all purposes to have consented
to the provisions of this section.
Section
3.04. Cancellation of Certificates.
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Any
Certificate surrendered for registration of transfer or exchange shall be
cancelled and retained in accordance with normal retention policies with respect
to cancelled certificates maintained by the Certificate Registrar.
Section
3.05. Replacement of Certificates.
If
(i) any Certificate is mutilated and is surrendered to the Trustee or the
Certificate Registrar or (ii) the Certificate Registrar receives evidence
to its satisfaction of the destruction, loss or theft of any Certificate, and
there is delivered to the Trustee and the Certificate Registrar such security
or
indemnity as may be required by them to save each of them harmless, then, in
the
absence of notice to the Depositor, the Trustee or the Certificate Registrar
that such destroyed, lost or stolen Certificate has been acquired by a protected
purchaser, the Securities Administrator on behalf of the Trustee shall execute
and the Authenticating Agent 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 Certificate Balance. Upon the issuance
of any new Certificate under this Section 3.05, 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 Trustee,
the Depositor or the Certificate Registrar) connected therewith. Any
replacement Certificate issued pursuant to this Section 3.05 shall
constitute complete and indefeasible evidence of ownership in the applicable
Trust Fund, as if originally issued, whether or not the lost, stolen or
destroyed Certificate shall be found at any time.
If
after
the delivery of such new Certificate, a protected purchaser of the original
Certificate in lieu of which such new Certificate was issued presents for
payment such original Certificate, the Depositor, the Certificate Registrar
and
the Trustee or any agent shall be entitled to recover such new Certificate
from
the Person to whom it was delivered or any Person taking therefrom, except
a
protected purchaser, and shall be entitled to recover upon the security or
indemnity provided therefor to the extent of any loss, damage, cost or expenses
incurred by the Depositor, the Certificate Registrar, the Trustee or any agent
in connection therewith.
Section
3.06. Persons Deemed Owners.
Subject
to the provisions of Section 3.09 with respect to Book-Entry Certificates,
the Depositor, the Master Servicer, the Securities Administrator, the Trustee,
the Certificate Registrar, the Paying Agent and any agent of any of them shall
treat the Person in whose name any Certificate is registered upon the books
of
the Certificate Registrar as the owner of such Certificate for the purpose
of
receiving distributions pursuant to Sections 5.01 and 5.02 and for all
other purposes whatsoever, and neither the Depositor, the Master Servicer,
the
Securities Administrator, the Trustee, the Certificate Registrar, the Paying
Agent, nor any agent of any of them shall be affected by notice to the
contrary.
Section
3.07. Temporary Certificates.
(a) Pending
the preparation of definitive Certificates, upon the order of the Depositor,
the
Securities Administrator on behalf of the Trustee shall execute and the
Authenticating Agent shall authenticate and deliver temporary Certificates
that
are printed,
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lithographed,
typewritten, mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Certificates in lieu of which
they
are issued and with such variations as the authorized officers executing such
Certificates may determine, as evidenced by their execution of such
Certificates.
(b) If
temporary Certificates are issued, the Depositor will cause definitive
Certificates to be prepared without unreasonable delay. After the
preparation of definitive Certificates, the temporary Certificates shall be
exchangeable for definitive Certificates upon surrender of the temporary
Certificates at the office or agency of the Certificate Registrar without charge
to the Holder. Upon surrender for cancellation of any one or more
temporary Certificates, the Securities Administrator on behalf of the Trustee
shall execute and the Authenticating Agent shall authenticate and deliver in
exchange therefor a like aggregate Certificate Balance of definitive
Certificates of the same Class in the authorized denominations. Until
so exchanged, the temporary Certificates shall in all respects be entitled
to
the same benefits under this Agreement as definitive Certificates of the same
Class.
Section
3.08. Appointment of Paying Agent.
The
Securities Administrator is hereby appointed as the initial Paying
Agent. The Trustee may appoint a successor Paying Agent (which may be
the Trustee) for the purpose of making distributions to the Certificateholders
hereunder. The Trustee shall cause any Paying Agent, other than the
Securities Administrator, to execute and deliver to the Trustee an instrument
in
which such Paying Agent shall agree with the Trustee that such Paying Agent
will
hold all sums held by it for the payment to the Certificateholders in an
Eligible Account (which shall be the Distribution Account) in trust for the
benefit of the Certificateholders entitled thereto until such sums shall be
paid
to the Certificateholders. All funds remitted by the Securities
Administrator to any such Paying Agent for the purpose of making distributions
shall be paid to the Certificateholders on each Distribution Date and any
amounts not so paid shall be returned on such Distribution Date to the
Securities Administrator. If the Paying Agent is not the Trustee or
the Securities Administrator, the Securities Administrator shall cause to be
remitted to the Paying Agent on or before the Business Day prior to each
Distribution Date, by wire transfer in immediately available funds, the funds
to
be distributed on such Distribution Date. Any Paying Agent shall be
either a bank or trust company or otherwise authorized under law to exercise
corporate trust powers.
Section
3.09. Book-Entry Certificates.
(a) Each
Class of Book-Entry Certificates, upon original issuance, shall be issued in
the
form of one or more typewritten Certificates representing the Book-Entry
Certificates. The Book-Entry Certificates shall initially be
registered on the Certificate Register in the name of the nominee of the
Clearing Agency, and no Certificate Owner will receive a definitive certificate
representing such Certificate Owner’s interest in the Book-Entry Certificates,
except as provided in Section 3.09(c). Unless Definitive
Certificates have been issued to Certificate Owners of Book-Entry Certificates
pursuant to Section 3.09(c):
(i) the
provisions of this Section 3.09 shall be in full force and
effect;
74
(ii) the
Certificate Registrar, the Paying Agent and the Trustee shall deal with the
Clearing Agency for all purposes (including the making of distributions on
the
Book-Entry Certificates) as the authorized representatives of the Certificate
Owners and the Clearing Agency and shall be responsible for crediting the amount
of such distributions to the accounts of such Persons entitled thereto, in
accordance with the Clearing Agency’s normal procedures;
(iii) to
the extent that the provisions of this Section 3.09 conflict with any other
provisions of this Agreement, the provisions of this Section 3.09 shall
control; and
(iv) the
rights of Certificate Owners shall be exercised only through the Clearing Agency
and the Clearing Agency Participants and shall be limited to those established
by law and agreements between such Certificate Owners and the Clearing Agency
and/or the Clearing Agency Participants. Unless and until Definitive
Certificates are issued pursuant to Section 3.09(c), the initial Clearing
Agency will make book-entry transfers among the Clearing Agency Participants
and
receive and transmit distributions of principal of and interest on the
Book-Entry Certificates to such Clearing Agency Participants.
(b) Whenever
notice or other communication to the Certificateholders is required under this
Agreement, unless and until Definitive Certificates shall have been issued
to
Certificate Owners pursuant to Section 3.09(c), the Securities
Administrator shall give all such notices and communications specified herein
to
be given to Holders of the Book-Entry Certificates to the Clearing
Agency.
(c) If
(i) (A) the Clearing Agency or the Depositor advises the Certificate
Registrar in writing that the Clearing Agency is no longer willing or able
to
discharge properly its responsibilities with respect to the Book-Entry
Certificates, and (B) the Depositor is unable to locate a qualified
successor satisfactory to the Depositor and the Certificate Registrar or (ii)
after the occurrence of an Event of Default, Certificate Owners representing
beneficial interests aggregating not less than 50% of the Class Principal
Balance of a Class of Book-Entry Certificates advise the Paying Agent and the
Clearing Agency through the Clearing Agency Participants in writing that the
continuation of a book-entry system through the Clearing Agency is no longer
in
the best interests of the Certificate Owners of a Class of Book-Entry
Certificates, the Certificate Registrar shall notify the Clearing Agency to
effect notification to all Certificate Owners, through the Clearing Agency,
of
the occurrence of any such event and of the availability of Definitive
Certificates to Certificate Owners requesting the same. Upon
surrender to the Certificate Registrar of the Book-Entry Certificates by the
Clearing Agency, accompanied by registration instructions from the Clearing
Agency for registration, the Certificate Registrar shall issue the Definitive
Certificates. Neither the Depositor, the Certificate Registrar nor
the Trustee 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 all
references herein to obligations imposed upon or to be performed by the Clearing
Agency shall be deemed to be imposed upon and performed by the Certificate
Registrar, to the extent applicable, with respect to such Definitive
Certificates and the Certificate Registrar shall recognize the holders of the
Definitive Certificates as Certificateholders
hereunder. Notwithstanding the foregoing, the Certificate Registrar,
upon the instruction of the Depositor,
75
shall
have the right to issue Definitive Certificates on the Closing Date in
connection with credit enhancement programs.
ARTICLE
IV
ADMINISTRATION
OF THE TRUST FUND
Section
4.01. Custodial Accounts; Distribution Account.
(a) On
or prior to the Closing Date, the Master Servicer shall have caused each
Servicer to establish and maintain one or more Custodial Accounts, as provided
in the related Purchase and Servicing Agreement, into which all Scheduled
Payments and unscheduled payments with respect to the related Mortgage Loans,
net of any deductions or reimbursements permitted under the related Purchase
and
Servicing Agreement, shall be deposited. On each Distribution Account
Deposit Date, the Servicers shall remit to the Securities Administrator for
deposit into the Distribution Account, all amounts so required to be deposited
into such account in accordance with the terms of the related Purchase and
Servicing Agreements.
(b) The
Securities Administrator, as Paying Agent for the Trust, shall establish and
maintain an Eligible Account entitled “Distribution Account of Xxxxx Fargo Bank,
N.A., as Securities Administrator for the benefit of Xxxxxx Xxxxxxx Mortgage
Loan Trust 2007-12, Holders of Mortgage Pass-Through
Certificates.” The Securities Administrator shall, promptly upon
receipt from the Servicers on each related Distribution Account Deposit Date,
deposit into the Distribution Account and retain on deposit until the related
Distribution Date the following amounts:
(i) the
aggregate of collections with respect to the Mortgage Loans remitted by the
Servicers from the related Custodial Accounts in accordance with the Purchase
and Servicing Agreements;
(ii) any
amounts required to be deposited by the Master Servicer with respect to the
Mortgage Loans for the related Due Period pursuant to this Agreement, including
the amount of any Advances or Compensating Interest Payments with respect to
the
Mortgage Loans not paid by the Servicers; and
(iii) any
other amounts so required to be deposited in the Distribution Account in the
related Due Period pursuant to this Agreement.
(c) In
the event the Master Servicer or a Servicer has remitted in error to the
Distribution Account any amount not required to be remitted in accordance with
the definition of Available Funds, it may at any time direct the Securities
Administrator to withdraw such amount from the Distribution Account for
repayment to the Master Servicer or Servicer, as applicable, by delivery of
an
Officer’s Certificate to the Securities Administrator and the Trustee which
describes the amount deposited in error.
(d) On
each Distribution Date and Initial Optional Termination Date, the Securities
Administrator, as Paying Agent, shall withdraw from funds available in the
Distribution Account and distribute the Available Funds to the
Certificateholders and any other
76
parties
entitled thereto in the amounts and priorities set forth in
Section 5.02. The Securities Administrator may from time to time
withdraw from the Distribution Account and pay the Master Servicer, the Trustee,
each Custodian, the Securities Administrator or any Servicer any amounts
permitted to be paid or reimbursed to such Person from funds in the Distribution
Account pursuant to this Agreement or any Purchase and Servicing Agreement
or
any Custodial Agreement.
(e) Funds
in the Distribution Account may be invested in Permitted Investments selected
by
and at the written direction of the Securities Administrator, which shall mature
not later than one Business Day prior to the Distribution Date (except that
if
such Permitted Investment is an obligation of the Securities Administrator
or
any of its Affiliates, or is managed or advised by the Securities Administrator
or any Affiliate, then such Permitted Investment shall mature not later than
such applicable Distribution Date) and any such Permitted Investment shall
not
be sold or disposed of prior to its maturity. All such Permitted
Investments shall be made in the name of the Trustee (in its capacity as such)
or its nominee. All income and gain realized from any Permitted Investment
of
amounts on deposit in the Distribution Account shall be for the benefit of
the
Securities Administrator, as additional compensation for its duties hereunder,
and shall be subject to its withdrawal or order from time to time, and shall
not
be part of the Trust Fund; provided, however, that if Xxxxx
Fargo Bank, National Association is no longer the Master Servicer and the
Securities Administrator, any such income and gain shall be used to pay the
successor Master Servicer and the successor Securities Administrator, the Master
Servicer Compensation and the Securities Administrator Compensation,
respectively. The amount of any losses incurred in respect of any
such investments shall be deposited in such Distribution Account by the
Securities Administrator out of its own funds, without any right of
reimbursement therefor, immediately as realized.
Section
4.02. Permitted Withdrawals from the Custodial Accounts and the
Distribution Account.
(a) Each
Servicer may from time to time make withdrawals from its Custodial Account
for
the following purposes:
(i) to
reimburse itself for unreimbursed Advances made by it, such right of
reimbursement pursuant to this subclause (i) being limited to amounts received
on the Mortgage Loan(s) in respect of which any such Advance was
made;
(ii) to
reimburse itself for any Nonrecoverable Advance previously made by
it;
(iii) to
reimburse itself for unreimbursed Servicer Advances, each Servicer’s right to
reimbursement pursuant to this clause (a) with respect to any Mortgage Loan
being limited to amounts received on such Mortgage Loan(s) which represent
late
recoveries of the payments for which such advances were made pursuant to the
related Purchase and Servicing Agreement;
(iv) to
reimburse itself for expenses incurred by it and reimbursable pursuant to the
related Purchase and Servicing Agreement; and
77
(v) to
withdraw any amount deposited in the Custodial Account and not required to
be
deposited therein.
To
the
extent required by the related Purchase and Servicing Agreement each Servicer
shall keep and maintain separate accounting, on a Mortgage Loan by Mortgage
Loan
basis, for the purpose of justifying any withdrawal from its Custodial Account
pursuant to such subclauses (i), (ii), (iii), (iv) and (v). Prior to
making any withdrawal from its Custodial Account pursuant to subclause (ii),
the
related Servicer shall deliver to the Master Servicer an Officer’s Certificate
of a Servicing Officer indicating the amount of any previous Advance determined
by the Servicer to be a Nonrecoverable Advance and identifying the related
Mortgage Loans(s), and their respective portions of such Nonrecoverable
Advance.
(b) The
Securities Administrator shall withdraw funds from the Distribution Account
for
distributions to Certificateholders in the manner specified in this Agreement
(and to withhold from the amounts so withdrawn, the amount of any taxes that
it
is authorized to withhold pursuant to Section 10.01). In addition,
the Securities Administrator may from time to time make withdrawals from the
Distribution Account for the following purposes:
(i) to
pay all costs and expenses described in clause (e) of the definition of
“Available Funds”;
(ii) (x)
for so long as Xxxxx Fargo Bank, National Association is the Master Servicer
and
the Securities Administrator, to pay to the Master Servicer the investment
earnings on the Distribution Account as its compensation for the related
Distribution Date and (y) thereafter, concurrently, to the Master Servicer
and
the Securities Administrator, the Master Servicer Compensation and the
Securities Administrator Compensation, respectively;
(iii) to
withdraw and return to the Master Servicer any amount deposited in the
Distribution Account and not required to be deposited therein; and
(iv) to
clear and terminate the Distribution Account upon termination of the Agreement
pursuant to Section 7.01 hereof.
(v) [Reserved].
Section
4.03. Depositable and Exchangeable Certificates.
(a) On
the Closing Date, there is hereby established a separate trust (the “ES Trust”),
which shall be a Grantor Trust for federal income tax purposes. The
ES Trust shall be maintained by the Securities Administrator, on behalf of
the
Trustee, for the benefit of the Holders of the Certificates. The
assets of the ES Trust shall consist of the uncertificated Master REMIC
Interests, which have been placed in the ES Trust through the efforts of the
Underwriter. The uncertificated Master REMIC Interests in the ES
Trust shall be held by the Securities Administrator, on behalf of the
Trustee. On the Closing Date, the ES Trust shall issue the several
Classes of Certificates. Each Class of Exchangeable Certificates shall be issued
on the Closing Date with the respective Class Principal Balance or Notional
Amount set forth for such Class on Exhibit A heretod. Upon the sale
of the Certificates on the Closing Date, the
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Exchangeable
Certificates shall be placed with the Securities Administrator, on behalf of
the
Trustee, through the efforts of the Underwriter to be held to facilitate the
exchange of Depositable and Exchangeable Certificates on and after the Closing
Date. Among the Depositable and Exchangeable Certificates, the
beneficial interest of the uncertificated Master REMIC Interests shall be
represented by the related Depositable Certificates until such Depositable
Certificates have been exchanged for Exchangeable Certificates, at which time,
such Exchangeable Certificates shall represent those uncertificated Master
REMIC
Interests.
On
or
before the Closing Date, the Securities Administrator shall either (i) open
the
Exchangeable Certificates Distribution Account, (ii) in lieu of maintaining
any
such account or accounts, maintain the Exchangeable Certificates Distribution
Account by means of appropriate entries on its books and records designating
all
amounts credited thereto in respect of the Depositable Certificates and all
investments of any such amounts as being held by it in its capacity as
Securities Administrator for the benefit of the Holders of the Certificates
or
(iii) maintain the Exchangeable Certificates Distribution Account in the form
of
any combination of accounts or book entries described in clauses (i) and (ii)
above. Any manner or manners in which the Exchangeable Certificates
Distribution Account is maintained may at any time be changed without notice
to,
or the approval of Holders of, the Certificates so long as funds held in the
ES
Trust by, or for the account of, the Securities Administrator shall at all
times
be identified. To the extent that the Exchangeable Certificates
Distribution Account is maintained by the Securities Administrator in the manner
provided for in clause (ii) above, all references herein to deposits and
withdrawals from the Exchangeable Certificates Distribution Account shall be
deemed to refer to credits and debits to the related books of the Securities
Administrator. All funds on deposit in the Exchangeable Certificates
Distribution Account shall be held separate and apart from, and shall not be
commingled with, any other moneys, including without limitation, other moneys
held by or on behalf of the Securities Administrator, on behalf of the Trustee
pursuant to this Agreement.
On
each
Distribution Date, the Securities Administrator, on behalf of the Trustee,
as
holder of any surrendered Depositable Certificates, shall deposit in the
Exchangeable Certificates Distribution Account any amounts distributable to
the
surrendered Depositable Certificates pursuant to Section 5.02. For
the avoidance of doubt, if on any Distribution Date no Classes of Depositable
Certificates have been surrendered or if all Classes of Exchangeable
Certificates have been exchanged for Depositable Certificates according to
Section 4.03(e), then no amounts will be deposited in the Exchangeable
Certificates Deposit Account on such Distribution Date.
(b) The
Securities Administrator shall deposit in the Exchangeable Certificates
Distribution Account all distributions in respect of the Depositable
Certificates received by it as Securities Administrator
hereunder. Funds in the Exchangeable Certificates Distribution
Account shall remain uninvested.
(c) On
each Distribution Date, the Securities Administrator, on behalf of the Trustee,
shall withdraw funds on deposit in the Exchangeable Certificates Distribution
Account on deposit therein from distributions to the surrendered Depositable
Certificates for such Distribution Date and shall cause the Paying Agent to
distribute such amount to the Holders of each related Class of Exchangeable
Certificates. Amounts related to interest distributed to the
surrendered Depositable Certificates shall be distributed as interest to the
related Class or Classes
79
of
Exchangeable Certificates pursuant to Section 5.02(a). All
distributions of principal to the Exchangeable Certificates shall be made pro
rata among the Classes of Exchangeable Certificates within each Recombination
Group unless specifically provided for otherwise in Section 5.02
hereof. All distributions that are made with respect to a particular
Class of Exchangeable Certificates shall be made pro rata among all Certificates
of such Class in proportion to their respective Class Principal
Balances.
In
addition, the Securities Administrator, on behalf of the Trustee, may from
time
to time make withdrawals from the Exchangeable Certificates Distribution Account
for the following purposes:
(i) to
withdraw any amount deposited in the Exchangeable Certificates Distribution
Account and not required to be deposited therein; and
(ii) to
clear and terminate the Exchangeable Certificates Distribution Account upon
the
termination of this Agreement.
(d) On
each Distribution Date on which a Class of Exchangeable Certificates shall
be
entitled to receive distributions pursuant to Section 4.03(b), such Class shall
be allocated a proportionate share of the Net Prepayment Interest Shortfalls
and
Relief Act Shortfalls allocable to the Classes of Depositable Certificates
in
the related Recombination Group.
(e) On
each Distribution Date on which a Class of Exchangeable Certificates shall
be
entitled to receive distributions pursuant to Section 4.03(b), such Class shall
be allocated a proportionate share of the Realized Losses allocable to the
Classes of Depositable Certificates in the related Recombination Group unless
specifically provided for otherwise in Section 5.04(b) hereof.
(f) Upon
the presentation and surrender of the Depositable Certificates, the Holder
thereof transfers, assigns, sets over and otherwise conveys to the Securities
Administrator, on behalf of the Trustee, as trustee of the ES Trust, all of
such
Holder’s right, title and interest in and to such Depositable Certificates,
including all payments of interest thereon received after the month of the
exchange.
At
the
request of the Holder of a Class or Classes of Depositable Certificates, and
upon the surrender of such Depositable Certificates, the Securities
Administrator, on behalf of the Trustee, shall deliver such Exchangeable
Certificates as set forth in such Recombination Group in the respective
Denominations determined based on the proportion that the initial Class
Principal Balance or initial Notional Amounts of such Exchangeable Certificates
bear to the initial Class Principal Balances of the Depositable Certificates,
as
set forth in Schedule C, which shall represent in the aggregate, the entire
beneficial ownership of the Master REMIC Interests related to such surrendered
Certificates. In addition, at the request of the Holder of a Class or
Classes of Exchangeable Certificates, and upon the surrender of such
Exchangeable Certificates, the Securities Administrator, on behalf of the
Trustee, shall exchange such Exchangeable Certificates for another Class or
Classes of Exchangeable Certificates or the related surrendered Depositable
Certificates, as set forth in Schedule C. There shall be no
limitation on the number of exchanges authorized pursuant to this Section
4.03.
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Exchangeable
Certificates shall be exchangeable on the books of DTC for Depositable
Certificates, and Depositable Certificates shall be exchangeable on the books
of
DTC for Exchangeable Certificates, on and after the Closing Date, by notice
to
the Securities Administrator substantially in the form of Exhibit S-1 (exchange
of Depositable Certificates for Exchangeable Certificates) or Exhibit S-2
(exchange of Exchangeable Certificates for Depositable Certificates) hereto,
as
applicable or, under the terms and conditions set forth herein.
In
order
to effect an exchange of Certificates, the Certificateholder shall notify the
Securities Administrator in writing or by e-mail at
xxxxxxxxxxxxxxx@xxxxxxxxxx.xxx no later than two Business Days before the
proposed exchange date. The exchange date with respect to the
Certificates may be any Business Day from and including the 25th calendar
day of
the month to and including the second to last Business Day of that month subject
to the Securities Administrator’s approval. The notice must be on the
Certificateholder’s letterhead, carry a medallion stamp guarantee and set forth
the following information: the CUSIP number of each Certificates to be exchanged
and each Certificate to be received; outstanding Class Principal Balance or
Notional Amount, as applicable, and the Original Class Principal Balance or
Notional Amount, as applicable, of the Certificate to be exchanged, the
Certificateholder’s DTC participant number; and the proposed exchange
date. After receiving the notice, the Securities Administrator shall
e-mail the Certificateholder with wire payment instructions relating to the
exchange fee. A notice becomes irrevocable on the second Business Day
before the proposed exchange date. Notwithstanding any other
provision herein set forth, a fee of $5,000 shall be payable to the Securities
Administrator in connection with each exchange.
The
Securities Administrator shall make the first distribution on an Exchangeable
Certificate or an Depositable Certificate received in an exchange transaction
on
the Distribution Date in the month following the month of the exchange to the
Certificateholder of record as of the close of business on the last day of
the
calendar month of the exchange.
Section
4.04. [Reserved].
Section
4.05. Reports to Trustee and Certificateholders.
On
each
Distribution Date, the Securities Administrator shall have prepared and shall
make available to the Trustee, the Depositor, the Rating Agencies and each
Certificateholder a written report setting forth the following information
(on
the basis of Mortgage Loan level information obtained from the Master Servicer
and the Servicers):
(a) the
amount of the distributions, separately identified, with respect to each Class
of Certificates;
(b) the
amount of the distributions set forth in the clause (a) allocable to
principal, separately identifying the aggregate amount of any Principal
Prepayments, liquidation proceeds or other unscheduled recoveries of principal
included in that amount;
(c) the
amount of the distributions set forth in the clause (a) allocable to
interest and how it was calculated;
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(d) the
amount of any unpaid Class Interest Shortfall, both distributed and remaining
unpaid, and the related accrued interest thereon, with respect to each Class
of
Certificates;
(e) the
Class Principal Balance or Notional Amount of each Class of Certificates after
giving effect to the distribution of principal on that Distribution
Date;
(f) in
the aggregate and with respect to each Loan Group, the aggregate Stated
Principal Balance of the Mortgage Loans at the end of the related Prepayment
Period, and the Weighted Average Net Mortgage Rate and the Mortgage Pool at
the
beginning of the related Due Period and the weighted average remaining term
to
maturity of each Loan Group and the Mortgage Pool;
(g) the
Senior Percentage and the Subordinated Percentage for each Loan Group and for
each Aggregate Loan Group for the following Distribution Date;
(h) the
Senior Prepayment Percentage and Subordinate Prepayment Percentage for each
Loan
Group for the following Distribution Date;
(i) the
amount of the Servicing Fee paid to or retained by the Master Servicer and
by
each Servicer, respectively;
(j) the
amount of Monthly Advances for the related Due Period;
(k) the
number and aggregate Stated Principal Balance of the Mortgage Loans that were
(A) Delinquent using the MBA Method (exclusive of Mortgage Loans in
foreclosure) (1) 30 to 59 days, (2) 60 to 89 days and (3) 90 or
more days, (B) in foreclosure and Delinquent (1) 30 to 59 days,
(2) 60 to 89 days and (3) 90 or more days and (C) in bankruptcy
as of the close of business on the last day of the calendar month preceding
that
Distribution Date;
(l) the
total number and principal balance of any REO properties as of the close of
business on the last day of the preceding Due Period;
(m) the
Pool Factor in effect for each Loan Group for that Distribution Date, and the
product of (x) the Pool Factor in effect for each Loan Group for that
Distribution Date and (y) the total amount of principal received in respect
of
the Mortgage Loans in each Loan Group, separately identifying (i) the amount
received in respect of scheduled and unscheduled payments on the Mortgage Loans
in that Loan Group and (ii) all Liquidation Proceeds and Subsequent Recoveries
received on the Mortgage Loans in that Loan Group;
(n) the
total amount of principal received in respect of the Mortgage Loans, separately
identifying (i) the amount received in respect of scheduled and unscheduled
payments on the Mortgage Loans and (ii) all Liquidation Proceeds and Subsequent
Recoveries;
(o) the
amount of Realized Losses incurred during the preceding calendar
month;
(p) the
cumulative amount of Realized Losses incurred since the Closing
Date;
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(q) the
Realized Losses, if any, allocated to each Class of Certificates on that
Distribution Date;
(r) the
Class Principal Balance or Notional Amount of each Class of Certificates after
giving effect to the distribution of principal on the Distribution
Date;
(s) the
Special Hazard Loss Coverage Amount, the Fraud Loss Coverage Amount and the
Bankruptcy Loss Coverage Amount, in each case as of the related Determination
Date;
(t) the
Pass-Through Rate for each Class of Certificates for that Distribution
Date;
(u) the
total amount of Prepayment Penalties collected and due to the Trust Fund, as
reported by the Servicers;
(v) the
amount of any Transfer Payment Received paid to an Undercollateralized Group
or
Transfer Payment Made by an Overcollateralized Group pursuant to Section 5.08
hereof; and the amount received by the Securities Administrator pursuant to
each
Corridor Contract from the Corridor Contract Counterparty with respect to that
Distribution Date;
(w) the
applicable Record Date(s) for such Distribution Date;
(x) with
respect to each Class of Certificates, if the distribution to the Holders of
such Class of Certificates is less than the full amount that would be
distributable to such Holders if there were sufficient funds available therefor,
the amount of the shortfall and the allocation thereof as between principal
and
interest;
(y) with
respect to each Class of Certificates, the amount of any Subsequent Recoveries
for such Distribution Date;
(z) exchanges
that took place since the last Distribution Date;
(aa) the
designations of the Exchangeable Classes that were exchanged for;
(bb) the
balances of the outstanding Exchangeable Certificates, including Notional
Amounts;
(cc) the
Pass-Through Rates on the outstanding Classes of Exchangeable
Certificates;
(dd) interest
and principal paid to, and losses allocated, to the outstanding Class of
Exchangeable Certificates; and
(ee) if
no exchanges have occurred.
The
Securities Administrator shall make such reports available each month via its
website at xxxx://xxx.xxxxxxx.xxx. Assistance in using the website
may be obtained by calling the Securities Administrator’s customer service desk
at (000) 000-0000. Certificateholders and other
83
parties
that are unable to use the website are entitled to have a paper copy mailed
to
them via first class mail by contacting the Securities Administrator and
indicating such. In preparing or furnishing the foregoing reports,
the Securities Administrator shall be entitled to rely conclusively on the
accuracy of the information or data regarding the Mortgage Loans and the related
REO Properties that has been provided to the Securities Administrator by the
Master Servicer and the Servicers, and neither the Trustee nor the Securities
Administrator shall be obligated to verify, recompute, reconcile or recalculate
any such information or data.
Upon
the
reasonable advance written request of any Certificateholder that is a savings
and loan, bank or insurance company, which request, if received by the Trustee
or any agent thereof, shall be promptly forwarded to the Securities
Administrator, the Securities Administrator shall provide, or cause to be
provided, (or, to the extent that such information or documentation is not
required to be provided by a Servicer under the applicable Purchase and
Servicing Agreement, shall use reasonable efforts to obtain such information
and
documentation from such Servicer, and provide) to such Certificateholders such
reports and access to information and documentation regarding the Mortgage
Loans
as such Certificateholders may reasonably deem necessary to comply with
applicable regulations of the Office of Thrift Supervision or its successor
or
other regulatory authorities with respect to an investment in the Certificates;
provided, however, that the Securities Administrator shall be
entitled to be reimbursed by such Certificateholders for the Securities
Administrator’s actual expenses incurred in providing such reports and
access.
ARTICLE
V
DISTRIBUTIONS
TO HOLDERS OF CERTIFICATES
Section
5.01. Distributions Generally.
(a) Subject
to Section 7.01 respecting the final distribution on the Certificates, on
each Distribution Date the Securities Administrator or the Paying Agent shall
make distributions in accordance with this Article V. Such
distributions shall be made by check mailed to each Certificateholder’s address
as it appears on the Certificate Register of the Certificate Registrar or,
upon
written request made to the Securities Administrator at least five Business
Days
prior to the related Record Date by any Certificateholder owning an aggregate
initial Certificate Balance of at least $1,000,000, or in the case of a Class
of
Notional Amount Certificates or Residual Certificate, a Percentage Interest
of
not less than 100%, by wire transfer in immediately available funds to an
account specified in the request and at the expense of such Certificateholder;
provided, however, that the final distribution in respect of
any Certificate shall be made only upon presentation and surrender of such
Certificate at the Certificate Registrar’s Corporate Trust Office;
provided, further, that the foregoing provisions shall not
apply to any Class of Certificates as long as such Certificate remains a
Book-Entry Certificate in which case all payments made shall be made through
the
Clearing Agency and its Clearing Agency Participants. Notwithstanding
the reduction of the Class Principal Balance of any Class of Certificates to
zero, such Class will be outstanding hereunder (solely for the purpose of
receiving distributions and not for any other purpose) until the termination
of
the respective obligations and responsibilities of the Depositor, the Master
Servicer, the Securities Administrator and the Trustee hereunder in accordance
with Article VII. Wire transfers will be made at the expense of
84
the
Holder requesting such wire transfer by deducting a wire transfer fee from
the
related distribution. Notwithstanding such final payment of principal
of any of the Certificates, each Residual Certificate will remain outstanding
until the termination of each REMIC and the payment in full of all other amounts
due with respect to the Residual Certificates and at such time such final
payment in retirement of any Residual Certificate will be made only upon
presentation and surrender of such Certificate at the Certificate Registrar’s
Corporate Trust Office. If any payment required to be made on the
Certificates is to be made on a day that is not a Business Day, then such
payment will be made on the next succeeding Business Day.
(b) All
distributions or allocations made with respect to the Certificateholders within
each Class on each Distribution Date shall be allocated among the outstanding
Certificates in such Class equally in proportion to their respective initial
Class Principal Balances or initial Notional Amounts (or Percentage
Interests).
Section
5.02. Priorities of Distribution.
(a) (1) With
respect to the Available Funds for Collateral Allocation Group 1 on each
Distribution Date, the Securities Administrator shall withdraw such Available
Funds from the funds available therefor in the Distribution Account and apply
such funds to distributions on the specified Classes of Group 1 Senior
Certificates in the following order and priority and, in each case, to the
extent of such Available Funds remaining:
(i) [Reserved];
(ii) concurrently,
to each interest-bearing Class of Group 1 Senior Certificates, an amount
allocable to interest equal to the related Class Optimal Interest
Distribution Amount, any shortfall being allocated among such Classes in
proportion to the amount of the Class Optimal Interest Distribution Amount
that would have been distributed in the absence of such shortfall; provided
that
prior to an Accrual Termination Date, the related Accrual Amount shall be
distributed as provided in Section 5.02(a)(1)(iii);
(iii) [Reserved];
(iv) to
each Class of Group 1 Senior Certificates, concurrently as
follows:
(x) to
the Class 1-A-P Certificates, an amount allocable to the related A-P Formula
Principal Amount, up to the outstanding Class Principal Balance thereof;
and
(y) on
each Distribution Date prior to the Senior Credit Support Depletion Date the
related Non-A-P Formula Principal Amount up to the amount of the Senior
Principal Distribution Amount for Collateral Allocation Group 1 for such
Distribution Date, will be distributed to the Class 1-A-1 Certificates, until
its Class Principal Balance is reduced to zero; and
(v) to
the Class 1-A-P Certificates, in an amount up to the related Class A-P Deferred
Amount, from amounts otherwise distributable (without regard to this Section
85
5.02(a)(1)(v))
sequentially, to the Class B-6, Class B-5, Class B-4, Class B-3, Class B-2,
and
Class B-1 Certificates, in that order, pursuant to Section 5.02(a)(6)
hereof.
(2) With
respect to Available Funds for Collateral Allocation Group 2, on each
Distribution Date, the Securities Administrator shall withdraw the Available
Funds from the funds available therefor in the Distribution Account and apply
such funds to distributions on the specified Classes of Group 2 Certificates
in
the following order and priority and, in each case, to the extent of Available
Funds remaining:
(i) [Reserved];
(ii) concurrently,
to each interest-bearing Class of Group 2 Senior Certificates, an amount
allocable to interest equal to the related Class Optimal Interest
Distribution Amount, any shortfall being allocated among such Classes in
proportion to the amount of the Class Optimal Interest Distribution Amount
that would have been distributed in the absence of such shortfall; provided
that
prior to an Accrual Termination Date, the related Accrual Amount shall be
distributed as provided in Section 5.02(a)(2)(iii);
(iii) [Reserved];
and
(iv) to
each Class of Group 2 Senior Certificates, concurrently as
follows:
(x) [Reserved];
and
(y) on
each Distribution Date prior to the Senior Credit Support Depletion Date the
related Non-A-P Formula Principal Amount up to the amount of the Senior
Principal Distribution Amount for Collateral Allocation Group 2 for such
Distribution Date, will be distributed to the Class 2-A-1 Certificates until
its
Class Principal Balance is reduced to zero; and
(v) [Reserved];
(3) With
respect to Available Funds for Collateral Allocation Group 3, on each
Distribution Date, the Securities Administrator shall withdraw the Available
Funds from the funds available therefor in the Distribution Account and apply
such funds to distributions on the specified Classes of Group 3 Certificates
in
the following order and priority and, in each case, to the extent of Available
Funds remaining:
(i) [Reserved];
(ii) concurrently,
to each interest-bearing Class of Group 3 Senior Certificates, an amount
allocable to interest equal to the related Class Optimal Interest
Distribution Amount, any shortfall being allocated among such Classes in
proportion to the amount of the Class Optimal Interest Distribution Amount
that would have been distributed in the absence of such shortfall; provided
that
prior to an Accrual Termination Date, the related Accrual Amount shall be
distributed as provided in Section 5.02(a)(3)(iii);
86
(iii) the
Class 3-A-5 Accrual Amount, Class 3-A-8 Accrual Amount and Class 3-A-18 Accrual
Amount shall be distributed in accordance with the Class 3-A-5 Accretion
Direction Rule, Class 3-A-8 Accretion Direction Rule and Class 3-A-18 Accretion
Direction Rule, respectively;
(iv) to
each Class of Group 3 Senior Certificates, concurrently as follows:
(x) to
the Class 3-A-P Certificates, an amount allocable to the related A-P Formula
Principal Amount, up to the outstanding Class Principal Balance thereof;
and
(y) on
each Distribution Date prior to the Senior Credit Support Depletion Date the
related Non-A-P Formula Principal Amount up to the amount of the Senior
Principal Distribution Amount for Collateral Allocation Group 3 for such
Distribution Date, will be distributed to the Group 3 Senior Certificates,
sequentially, in the following order of priority:
I. to
the Class A-R Certificates, until its Class Principal Balance is reduced to
zero; and
II. concurrently,
to the remaining Classes of Group 3 Senior Certificates as follows:
1. 39.0392455159%
to the Class 3-A-1, Class 3-A-2, Class 3-A-3, Class 3-A-4, Class 3-A-5, Class
3-A-6, Class 3-A-7 and Class 3-A-8 Certificates, sequentially, in the following
order of priority:
a. concurrently,
to the Class 3-A-1 and Class 3-A-2 Certificates, the Class 3-A-1 and Class
3-A-2
Priority Amount, pro rata, until their respective Class Principal Balances
are
reduced to zero;
b. to
the Class 3-A-3 Certificates, in an amount up to the amount necessary to reduce
its Class Principal Balance to its Planned Balance for that Distribution
Date;
c. concurrently,
(x) 0.0000000000% to the Class 3-A-6 Certificates, until its Class Principal
Balance is reduced to zero, and (y) 96.0000000000% to the Class 3-A-4 and Class
3-A-5 Certificates, sequentially, in the following order of
priority:
(i) to
the Class 3-A-4 Certificates, in an amount up to the amount necessary to reduce
its Class Principal Balance to its Targeted Balance for that Distribution
Date;
(ii) to
the Class 3-A-5 Certificates, until its Class Principal Balance is reduced
to
zero; and
87
(iii) to
the Class 3-A-4 Certificates, without regard to its Targeted Balance for that
Distribution Date, until its Class Principal Balance is reduced to
zero;
d. to
the Class 3-A-3 Certificates, without regard to its Planned Balance for that
Distribution Date, until its Class Principal Balance is reduced to
zero;
e. sequentially,
to the Class 3-A-7 and Class 3-A-8 Certificates, in that order, until their
respective Class Principal Balances are reduced to zero; and
f. concurrently,
to the Class 3-A-1 and Class 3-A-2 Certificates, pro rata, without regard to
the
Class 3-A-1 and Class 3-A-2 Priority Amount, until their respective Class
Principal Balances are reduced to zero;
2. 58.7659507658%
to the Class 3-A-11, Class 3-A-12, Class 3-A-13, Class 3-A-16, Class 3-A-17
and
Class 3-A-18 Certificates, sequentially, in the following order of
priority:
a. to
the Class 3-A-11 Certificates, the Class 3-A-11 Priority Amount, until its
Class
Principal Balance is reduced to zero;
b. to
the Class 3-A-12 Certificates, in an amount up to $1,000 on each Distribution
Date, until its Class Principal Balance is reduced to zero;
c. to
the Class 3-A-13 Certificates, in an amount up to $887,000 on each Distribution
Date, until its Class Principal Balance is reduced to zero;
d. sequentially,
to the Class 3-A-12, Class 3-A-13, Class 3-A-16, Class 3-A-17 and Class 3-A-18
Certificates, in that order, until their respective Class Principal Balances
are
reduced to zero; and
e. to
the Class 3-A-11 Certificates, without regard to the Class 3-A-11 Priority
Amount, until its Class Principal Balance is reduced to zero; and
3. 2.0000000000%
to the Class 3-A-10 Certificates, until its Class Principal Balance is reduced
to zero; and
(v) to
the Class 3-A-P Certificates, in an amount up to the related Class A-P Deferred
Amount, from amounts otherwise distributable (without regard to this Section
5.02(a)(3)(v)) sequentially, to the Class B-6, Class B-5, Class B-4, Class
B-3,
Class B-2, and Class B-1 Certificates, in that order, pursuant to Section
5.02(a)(6) hereof.
(4) With
respect to Available Funds for Collateral Allocation Group 4, on each
Distribution Date, the Securities Administrator shall withdraw the Available
Funds from the funds available therefor in the Distribution Account and apply
such funds to distributions on the specified Classes of Group 4 Certificates
in
the following order and priority and, in each case, to the extent of Available
Funds remaining:
88
(i) [Reserved];
(ii) concurrently,
to each interest-bearing Class of Group 4 Senior Certificates, an amount
allocable to interest equal to the related Class Optimal Interest
Distribution Amount, any shortfall being allocated among such Classes in
proportion to the amount of the Class Optimal Interest Distribution Amount
that would have been distributed in the absence of such shortfall; provided
that
prior to an Accrual Termination Date, the related Accrual Amount shall be
distributed as provided in Section 5.02(a)(4)(iii);
(iii) [Reserved];
(iv) to
each Class of Group 4 Senior Certificates, concurrently as follows:
(x) [Reserved];
and
(y) on
each Distribution Date prior to the Senior Credit Support Depletion Date the
related Non-A-P Formula Principal Amount up to the amount of the Senior
Principal Distribution Amount for Collateral Allocation Group 4 for such
Distribution Date, will be distributed to the Class 4-A-1 Certificates, until
its Class Principal Balance is reduced to zero; and
(v) [Reserved];
(5) On
each Distribution Date, after making the distributions described in Section
5.02(a)(1), Section 5.02(a)(2), Section 5.02(a)(3) and Section 5.02(a)(4) above,
Available Funds from each Collateral Allocation Group remaining after making
the
distributions described in Section 5.02(a)(1), Section 5.02(a)(2), Section
5.02(a)(3) and Section 5.02(a)(4) will be distributed to the Senior Certificates
to the extent provided in Section 5.08 hereof.
(6) On
each Distribution Date, Available Funds from all of the Collateral Allocation
Groups remaining after making the distributions described in Section 5.02(a)(1),
Section 5.02(a)(2), Section 5.02(a)(3), Section 5.02(a)(4) and Section
5.02(a)(5) above, will be distributed to the Subordinated Certificates, the
Class P Certificates and the Class A-R Certificates in the following order
and
priority and, in each case, to the extent of such funds remaining:
(A) to
the Class B-1 Certificates, an amount allocable to interest equal to the
Class Optimal Interest Distribution Amount for such Class for such Distribution
Date;
(B) to
the Class B-1 Certificates, an amount allocable to principal equal to its
Pro Rata Share for such Distribution Date until the Class Principal Balance
thereof is reduced to zero;
(C) to
the Class B-2 Certificates, an amount allocable to interest equal to the
Class Optimal Interest Distribution Amount for such Class for such Distribution
Date;
89
(D) to
the Class B-2 Certificates, an amount allocable to principal equal to its
Pro Rata Share for such Distribution Date until the Class Principal Balance
thereof is reduced to zero;
(E) to
the Class B-3 Certificates, an amount allocable to interest equal to the
amount of the Class Optimal Interest Distribution Amount for such Class for
such
Distribution Date;
(F) to
the Class B-3 Certificates, an amount allocable to principal equal to its
Pro Rata Share for such Distribution Date until the Class Principal Balance
thereof is reduced to zero;
(G) to
the Class B-4 Certificates, an amount allocable to interest equal to the
amount of the Class Optimal Interest Distribution Amount for such Class for
such
Distribution Date;
(H) to
the Class B-4 Certificates, an amount allocable to principal equal to its
Pro Rata Share for such Distribution Date until the Class Principal Balance
thereof is reduced to zero;
(I) to
the Class B-5 Certificates, an amount allocable to interest equal to the
Class Optimal Interest Distribution Amount for such Class for such Distribution
Date;
(J) to
the Class B-5 Certificates, an amount allocable to principal equal to its
Pro Rata Share for such Distribution Date until the Class Principal Balance
thereof is reduced to zero;
(K) to
the Class B-6 Certificates, an amount allocable to interest equal to the
Class Optimal Interest Distribution Amount for such Class for such Distribution
Date; and
(L) to
the Class B-6 Certificates, an amount allocable to principal equal to its
Pro Rata Share for such Distribution Date until the Class Principal Balance
thereof is reduced to zero;
(M) [Reserved];
and
(N) to
the Class A-R Certificates, any remaining funds in the Trust Fund;
provided, that such amounts shall not include the $1,000 held in trust for
the
Class P or Class P-2 Certificates.
On
each
Distribution Date, all amounts representing Prepayment Penalties on the Mortgage
Loans received by the Securities Administrator with respect to the related
Prepayment Period will be distributed to the holders of the Class
P Certificates. On the Distribution Date in January 2011,
the $1,000 held in trust for the Class P Certificates will be distributed to
the
holders of the Class P Certificates.
90
On
any
Distribution Date, amounts distributed in respect of Class A-P Deferred Amounts
will not reduce the Class Principal Balance of the related Class of Class A-P
Certificates.
On
any
Distribution Date, to the extent the Amount Available for Senior Principal
related to a Collateral Allocation Group is insufficient to make the full
distribution required to be made pursuant to subclause (iv)(x) above for such
Collateral Allocation Group, (A) the amount distributable on the related Class
of Class A-P Certificates in respect of principal pursuant to such subclause
(iv)(x) shall be equal to the product of (1) the Amount Available for Senior
Principal for that Collateral Allocation Group and Distribution Date and (2)
a
fraction, the numerator of which is the A-P Formula Principal Amount for that
Collateral Allocation Group and Distribution Date and the denominator of which
is the sum of the A-P Formula Principal Amount and the Senior Principal
Distribution Amount for that Collateral Allocation Group and Distribution Date
and (B) the amount distributable on the Senior Certificates, other than the
related Class of Class A-P Certificates, in respect of
principal pursuant to clause (iv)(y) shall be equal to the product of
(1) the Amount Available for Senior Principal for that Collateral Allocation
Group and Distribution Date and (2) a fraction, the numerator of which is the
Senior Principal Distribution Amount for that Collateral Allocation Group and
Distribution Date and the denominator of which is the sum of the Senior
Principal Distribution Amount and the A-P Formula Principal Amount for that
Collateral Allocation Group and Distribution Date.
(b) On
each Distribution Date with respect to each Class or Component of Accrual
Certificates, the Accrual Amount for such Class or Component for such
Distribution Date shall not (except as provided in the second to last sentence
in this paragraph) be distributed as interest with respect to such Class or
Component of Accrual Certificates, but shall instead be added to the related
Class Principal Balance of such Class on the related Distribution
Date. With respect to any Distribution Date on which principal
payments on any Class or Component of Accrual Certificates are distributed
pursuant to Section 5.02(a)(1)(iv)(y), Section 5.02(a)(2)(iv)(y), Section
5.02(a)(3)(iv)(y) and Section 5.02(a)(4)(iv)(y), as applicable, the related
Accrual Amount shall be deemed to have been added on such Distribution Date
to
the related Class Principal Balance or Component Balance (and included in the
amount distributable on the related Class or Classes or Component of
Accretion Directed Certificates pursuant to Section 5.02(a)(1)(iii), Section
5.02(a)(2)(iii), Section 5.02(a)(3)(iii) and Section 5.02(a)(4)(iii), as
applicable, for such Distribution Date) and the related distribution thereon
shall be deemed to have been applied concurrently towards the reduction of
all
or a portion of the amount so added and, to the extent of any excess, towards
the reduction of the Class Principal Balance or Component Balance of such
Class or Component of Accrual Certificates immediately prior to such
Distribution Date.
(c) On
each Distribution Date on or after the Senior Credit Support Depletion Date,
notwithstanding the allocations and priorities set forth in Section
5.02(a)(3)(iv)(y), the portion of Available Funds available to be distributed
as
principal of the Group 3 Senior Certificates (other than the Class 3-A-P
Certificates) shall be distributed concurrently, as principal, on such Classes,
pro rata, on the basis of their respective Class Principal Balances, until
the
Class Principal Balances thereof are reduced to zero.
(d) On
each Distribution Date, the amount referred to in clause (i) of the definition
of Class Optimal Interest Distribution Amount for each Class of
Certificates for such
91
Distribution
Date shall be reduced for each Class of Senior Certificates of a Senior
Certificate Group and each Class of Subordinated Certificates by (i) the related
Class’ pro rata share of Net Prepayment Interest Shortfalls for such
Collateral Allocation Group based (x) with respect to a Class of Senior
Certificates, on the related Class Optimal Interest Distribution Amount and
(y)
with respect to a Class of Subordinated Certificates on or prior to the third
Senior Termination Date on the Assumed Interest Amount and on or after such
Senior Termination Date, the related Class’ Class Optimal Interest
Distribution Amount for such Distribution Date, without taking into account
such
Net Prepayment Interest Shortfalls and (ii) the related Class’ Allocable Share
of (A) after the Special Hazard Coverage Termination Date, with respect to
the
Applicable Fraction of each Mortgage Loan in the related Collateral Allocation
Group (or, after the Senior Credit Support Depletion Date, any Mortgage Loan)
that became a Special Hazard Mortgage Loan during the calendar month preceding
the month of such Distribution Date, the excess of one month’s interest at the
related Net Mortgage Rate on the Applicable Fraction of the Stated Principal
Balance of such Mortgage Loan as of the first day of the related Due Period
in
such month over the amount of Liquidation Proceeds applied as interest on the
Applicable Fraction of such Mortgage Loan with respect to such month, (B) after
the Bankruptcy Coverage Termination Date, with respect to each Mortgage Loan
that became subject to a Bankruptcy Loss during the calendar month preceding
the
month of such Distribution Date, the interest portion of the related Debt
Service Reduction or Deficient Valuation allocable to the Applicable Fraction
of
such Mortgage Loan, (C) each Relief Act Reduction for the Applicable Fractions
of the Mortgage Loans in the related Collateral Allocation Group (or, after
the
Senior Credit Support Depletion Date, any Mortgage Loan) incurred during the
calendar month preceding the month of such Distribution Date and (D) after
the
Fraud Loss Coverage Termination Date, with respect to the Applicable Fraction
of
each Mortgage Loan in the related Collateral Allocation Group (or, after the
Senior Credit Support Depletion Date, any Mortgage Loan) that became a Fraud
Loan during the calendar month preceding the month of such Distribution Date,
the excess of one month’s interest at the related Net Mortgage Rate on the
Applicable Fraction of the Stated Principal Balance of such Mortgage Loan as
of
the first day of the related Due Period in such month over the amount of
Liquidation Proceeds applied as interest on the Applicable Fraction of such
Mortgage Loan with respect to such month.
(e) Notwithstanding
the priority and allocation contained in Section 5.02(a)(6), if, on any
Distribution Date, with respect to any Class of Subordinated Certificates
(other than the Class of Subordinated Certificates then outstanding with the
highest priority of distribution), the sum of the related
Class Subordination Percentages of such Class and of all Classes of
Subordinated Certificates which have a higher numerical Class designation
than such Class (the “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 Prepayments otherwise
distributable to the Restricted Classes shall be distributed to the outstanding
Classes of Subordinated Certificates having lower numerical
Class designations than such Class, pro rata, based on their respective
Class Principal Balances immediately prior to such Distribution Date and shall
be distributed in the sequential order provided in Section
5.02(a)(6). Notwithstanding anything in this Agreement to the
contrary, the Class of Subordinated Certificates then outstanding with the
highest distribution priority shall not be a Restricted Class.
92
(f) If
the amount of a Realized Loss on an Mortgage Loan has been reduced by
application of Subsequent Recoveries with respect to a Liquidated Mortgage
Loan,
the Applicable Fraction of the amount of such Subsequent Recoveries will be
applied sequentially, in the order of payment priority, to increase the Class
Principal Balance of each Class of Certificates to which Realized Losses have
been allocated, but in each case by not more than the amount of Realized Losses
previously allocated to that Class of Certificates pursuant to Section
5.04. Holders of such Certificates will not be entitled to any
payment in respect of the Class Optimal Interest Distribution Amount on the
amount of such increases for any Interest Accrual Period preceding the
Distribution Date on which such increase occurs. Any such increases
shall be applied pro rata to the Certificate Balance of each Certificate of
such
Class.
Section
5.03. [Reserved].
Section
5.04. Allocation of Losses.
(a) On
or prior to each Distribution Date, the Securities Administrator shall aggregate
the information provided by each Servicer with respect to the total amount
of
Realized Losses, including Excess Losses, experienced on the Mortgage Loans
for
the related Distribution Date.
(b) Realized
Losses with respect to the Mortgage Loans in any Loan Group on any Distribution
Date shall be allocated as follows:
(i) the
applicable A-P Percentage of any Realized Loss, including any Excess Loss,
on an
Mortgage Loan, based upon the related Applicable Fraction, in a Collateral
Allocation Group shall be allocated to the related Class of Class A-P
Certificates, until the Class Principal Balance thereof is reduced to zero;
and
(ii) (A)
the applicable Non-A-P Percentage of any Realized Loss (other than an Excess
Loss) shall be allocated first to the Subordinated Certificates in reverse
order
of their respective numerical Class designations (beginning with the Class
of
Subordinated Certificates then outstanding with the highest numerical Class
designation) until the respective Class Principal Balance of each such Class
is
reduced to zero, and second to the Senior Certificates (other than the Class
A-P
Certificates or the Notional Amount Certificates, as applicable), pro rata
on
the basis of their respective Class Principal Balances, in the case of any
Class
of Accrual Certificates or Accrual Component, on the basis of the lesser of
their Class Principal Balance or Component Balance, as applicable, and their
initial Class Principal Balance or Component Balance, as applicable, in each
case immediately prior to the related Distribution Date until the respective
Class Principal Balance of each such Class is reduced to zero, (1) the
applicable Non-A-P Percentage of any Realized Losses on the Collateral
Allocation Group 1 Mortgage Loans that would otherwise be allocated to the
Class
1-A-2 Certificates will instead be allocated to the Class 1-A-3 Certificates,
until its Class Principal Balance is reduced to zero, (2) the applicable Non-A-P
Percentage of any Realized Losses on the Collateral Allocation Group 2 Mortgage
Loans that would otherwise be allocated to the Class 2-A-2 Certificates will
instead be allocated to the Class 2-A-3 Certificates, until its Class Principal
Balance is reduced to zero, (3) the applicable Non-A-P Percentage of any
Realized Losses on the Collateral Allocation
93
Group
3
Mortgage Loans that would otherwise be allocated to (x) the Class 3-A-1, Class
3-A-3, Class 3-A-6, Class 3-A-7 or Class 3-A-8 Certificates (including any
Classes of Exchangeable Certificates for which these Classes of Certificates
can
be deposited in exchange) will instead be allocated to the Class 3-A-2
Certificates, until its Class Principal Balance is reduced to zero, and (y)
the
Class 3-A-11, Class 3-A-12, Class 3-A-13, Class 3-A-16, Class 3-A-17 or Class
3-A-18 Certificates (including any Classes of Exchangeable Certificates for
which these Classes of Certificates can be deposited in exchange) will instead
be allocated to the Class 3-A-10 Certificates, until its Class Principal Balance
is reduced to zero, and (4) the applicable Non-A-P Percentage of any Realized
Losses on the Collateral Allocation Group 4 Mortgage Loans that would otherwise
be allocated to the Class 4-A-3 Certificates will instead be allocated to the
Class 4-A-4 Certificates, until its Class Principal Balance is reduced to
zero.
(iii) (B) the
applicable Non-A-P Percentage of any Excess Losses on the Mortgage Loans, based
upon the related Applicable Fraction, in a Collateral Allocation Group shall
be
allocated to the Classes of Certificates of the related Senior Certificate
Group
(other than the Class A-P Certificates or the Notional Amount Certificates,
as
applicable) and the Subordinated Certificates then outstanding, pro rata, on
the
basis of, with respect to such Senior Certificates, their respective Class
Principal Balances, or in the case of any Class of Accrual Certificates or
Accrual Component, on the basis of the lesser of their respective Class
Principal Balance and their respective initial Class Principal Balance or their
respective Component Balance or their respective initial Component Balance,
as
the case may be, in each case immediately prior to the related Distribution
Date
and, with respect to each Class of Subordinated Certificates, the applicable
Assumed Balance for each such Class relating to the Collateral Allocation Group
in which such Realized Loss occurs; provided, however, on any Distribution
Date
after the third Senior Termination Date for an Senior Certificate Group, such
Excess Losses on the Applicable Fractions of the Mortgage Loans in the related
Collateral Allocation Group will be allocated to the Subordinated Certificates
on the basis of their respective Class Principal Balances; and provided further
that after the Senior Credit Support Depletion Date, such Excess Losses shall
be
allocated pro rata to all Classes and Components of Senior Certificates (other
than the Class A-P Certificates or the Notional Amount Certificates, as
applicable) regardless of Senior Certificate Group on the basis of their
respective initial Class Principal Balances or Component Balances, as
applicable, or in the case of any or in the case of any Class of Accrual
Certificates or Accrual Component, on the basis of the lesser of their
respective Class Principal Balance and their respective initial Class Principal
Balance or their respective Component Balance or their respective initial
Component Balance, as the case may be, in each case immediately prior to the
related Distribution Date.
(c) The
Class Principal Balance of the Class of Subordinated Certificates then
outstanding with the highest numerical Class designation shall be reduced on
each Distribution Date by the sum of (i) the amount of any payments on each
Class of Class A-P Certificates in respect of related Class A-P Deferred Amounts
and (ii) the amount, if any, by which the aggregate of the Class Principal
Balances of all outstanding Classes of Certificates (after giving effect to
the
distribution of principal and the allocation of Realized Losses and Class A-P
94
Deferred
Amounts on such Distribution Date) exceeds the aggregate Stated Principal
Balance of the Mortgage Loans for the following Distribution Date.
(d) 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 5.04(b) above
shall be allocated among the Certificates of such Class in proportion to their
respective Certificate Balances.
(e) Any
allocation of Realized Losses to a Certificate or to any Component or any
reduction in the Certificate Balance of a Certificate, pursuant to Section
5.04(b) above shall be accomplished by reducing the Certificate Balance or
Component Balance thereof, as applicable, immediately following the
distributions made on the related Distribution Date in accordance with the
definition of “Certificate Balance” or “Component Balance,” as the case may
be. All Realized Losses or Excess Losses allocated to a Class of
Component Certificates will be allocated, pro rata, to the related
Components.
(f) For
the avoidance of doubt, no Realized Losses on the Mortgage Loans in any Loan
Group shall be allocated to the Class P Certificates.
Section
5.05. Advances by the Master Servicer.
If
any
Servicer fails to remit any Advance required to be made under the applicable
Purchase and Servicing Agreement, the Master Servicer shall itself make, or
shall cause the successor Servicer to make, such Advance. If the
Master Servicer determines that an Advance is required, it shall on the Business
Day preceding the related Distribution Date immediately following such
Determination Date remit to the Securities Administrator from its own funds
(or
funds advanced by the applicable Servicer) for deposit in the Distribution
Account immediately available funds in an amount equal to such
Advance. The Master Servicer and each Servicer shall be entitled to
be reimbursed for all Advances made by it. Notwithstanding anything to the
contrary herein, in the event the Master Servicer determines in its reasonable
judgment that an Advance is non-recoverable, the Master Servicer shall be under
no obligation to make such Advance. If the Master Servicer determines
that an Advance is non-recoverable, it shall, on or prior to the related
Distribution Date, deliver an Officer’s Certificate to the Trustee and the
Securities Administrator to such effect. Neither the Master Servicer
nor any Servicer shall be under any obligation to make an Advance with respect
to the principal portion of any Balloon Loan that is delinquent on its maturity
date; provided that each Servicer’s rights and obligations under the
applicable Purchase and Servicing Agreement shall in no way be contravened
by
this Section 5.05.
Section
5.06. Compensating Interest Payments.
The
amount of compensation payable to the Securities Administrator in respect of
the
Mortgage Loans and any Distribution Date shall be reduced (but not below zero)
by the amount of any aggregate Compensating Interest Payment from the Servicers
for such Distribution Date, but only to the extent that Prepayment Interest
Shortfalls relating to such Distribution Date are required to be paid by the
Servicers pursuant to the Purchase and Servicing Agreements, as
95
amended
by the Acknowledgements, but are not actually paid by the
Servicer. Such amount shall not be treated as an Advance and shall
not be reimbursable.
Section
5.07. [Reserved].
Section
5.08. Cross-Collateralization; Adjustments to Available
Funds.
(a) On
each Distribution Date after the first Senior Termination Date but prior to
the
earlier of the Senior Credit Support Depletion Date and the third Senior
Termination Date, the Securities Administrator shall distribute the principal
portion of Available Funds on the Applicable Fractions of the Mortgage Loans
relating to the Senior Certificates that will have been paid in full to the
holders of the Senior Certificates of the other Certificate Groups.
(b) If
on any Distribution Date the aggregate Class Principal Balance of the Senior
Certificates of a Senior Certificate Group (other than any related Class of
Class A-P Certificates or Component thereof) after giving effect to
distributions to be made on that Distribution Date, is greater than the Non-A-P
Pool Balance for that Collateral Allocation Group (any such group, an
“Undercollateralized Group”), all amounts otherwise distributable as
principal to the Subordinated Certificates (or, following the Senior Credit
Support Depletion Date, the amounts described in the following sentence) will
be
distributed as principal to the Senior Certificates of that Undercollateralized
Group (other than any related Class of Class A-P Certificates or Component
thereof) until the aggregate Class Principal Balance of the Senior Certificate
Group (other than any related Class of Class A-P Certificates or Component
thereof) of the Undercollateralized Group equals the Non-A-P Pool Balance for
that Collateral Allocation Group (such distribution, an
“Undercollateralization Distribution”). If a Senior Certificate Group
(other than any related Class of Class A-P Certificates or Component thereof)
constitutes an Undercollateralized Group on any Distribution Date following
the
Senior Credit Support Depletion Date, Undercollateralization Distributions
will
be made from the excess of Available Funds for the other Collateral Allocation
Groups remaining after all required amounts for that Distribution Date have
been
distributed to those Senior Certificate Groups (other than any related Class
of
Class A-P Certificates or Component thereof). If more than one
Undercollateralized Group on any Distribution Date is entitled to an
Undercollateralization Distribution, such Undercollateralization Distribution
will be allocated among the Undercollateralized Groups, pro rata, based upon
the
amount by which the aggregate Class Principal Balance of each Class of Senior
Certificates in such Senior Certificate Group (other than any related Class
of
Class A-P Certificates or Component thereof) exceeds the sum of the Non-A-P
Balances for the related Undercollateralized Group. If more than one Senior
Certificate Group on any Distribution Date is required to make an
Undercollateralization Distribution to an Undercollateralized Group, the payment
of such Undercollateralization Distributions will be allocated among such Senior
Certificate Groups (other than any related Class of Class A-P
Certificates or Component thereof), pro rata, based upon the aggregate excess
of
Available Funds for the Senior Certificate Groups other than the
Undercollateralized Group remaining after all required amounts for that
Distribution Date have been distributed to those Senior
Certificates.
On
each
Distribution Date after the first Senior Termination Date but prior to the
earlier of the Senior Credit Support Depletion Date and the third Senior
Termination Date, the Non-A-P Formula Principal Amount for the Collateral
Allocation Group relating to the Senior Certificate Group that has been paid
in
full, will be distributed to the other Senior Certificate
96
Groups
(other than any related Class of Class A-P Certificates or Component thereof),
so that each remaining Senior Certificate Group receives its pro rata portion
thereof. If principal from one Collateral Allocation Group is
distributed to the Senior Certificate Groups (other than any related Class
of
Class A-P Certificates or Component thereof) that are not related to that
Collateral Allocation Group according to this paragraph, the Subordinated
Certificates will not receive that principal as a distribution.
Section
5.09. Determination of Pass-Through Rates for LIBOR
Certificates.
(a) On
each Interest Determination Date after the initial Interest Determination Date
and for so long as any LIBOR Certificates (including for this purpose any
Exchangeable Certificates with a Class Principal Balance or Notional Amount,
as
applicable, that is greater than zero) are outstanding, the Securities
Administrator will determine LIBOR on the basis of the British Bankers’
Association (“BBA”) “Interest Settlement Rate” for one-month deposits in U.S.
dollars as found on LIBOR01 as of 11:00 a.m. London time on each related LIBOR
Determination Date (or on such other page as may replace that page on that
service for the purpose of displaying comparable rates or prices).
(b) If
on any Interest Determination Date, LIBOR cannot be determined as provided
in
paragraph (a) of this Section 5.09, the Securities Administrator shall either
(i) request each Reference Bank to inform the Securities Administrator of the
quotation offered by its principal London office for making one-month United
States dollar deposits in leading banks in the London interbank market, as
of
11:00 a.m. (London time) on such Interest Determination Date or (ii) in lieu
of
making any such request, rely on such Reference Bank quotations that appear
at
such time on the Reuters Screen LIBO Page (as defined in the International
Swap
Dealers Association Inc. Code of Standard Wording, Assumptions and Provisions
for Swaps, 1986 Edition), to the extent available. LIBOR for the next
related Interest Accrual Period will be established by the Securities
Administrator on each interest Determination Date as follows:
(i) If
on any Interest Determination Date two or more Reference Banks provide such
offered quotations, LIBOR for the next applicable Interest Accrual Period shall
be the arithmetic mean of such offered quotations (rounding such arithmetic
mean
upwards if necessary to the nearest whole multiple of 1/32%).
(ii) If
on any Interest Determination Date only one or none of the Reference Banks
provides such offered quotations, LIBOR for the next Interest Accrual Period
shall be whichever is the higher of (i) LIBOR as determined on the previous
related Interest Determination Date or (ii) the Reserve Interest
Rate. The “Reserve Interest Rate” shall be the rate per annum which
the Securities Administrator determines to be either (i) the arithmetic mean
(rounded upwards if necessary to the nearest whole multiple of 1/32%) of the
one-month United States dollar lending rates that New York City banks selected
by the Securities Administrator are quoting, on the relevant Interest
Determination Date, to the principal London offices of at least two of the
Reference Banks to which such quotations are, in the opinion of the Securities
Administrator, being so made, or (ii) in the event that the Securities
Administrator can determine no such arithmetic mean, the lowest one-month United
States dollar lending rate which New York City banks selected by the
97
Securities
Administrator are quoting on such Interest Determination Date to leading
European banks.
(iii) If
on any Interest Determination Date the Securities Administrator is required
but
is unable to determine the Reserve Interest Rate in the manner provided in
paragraph (b) above, LIBOR for the related Classes of Certificates shall be
LIBOR as determined on the preceding applicable Interest Determination Date
or
(B) in the case of the first Interest Determination Date, LIBOR shall be
5.32%.
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 Interest Determination Date. The
Securities Administrator initially shall designate the Reference
Banks. Each “Reference Bank” shall be a leading bank engaged in
transactions in Eurodollar deposits in the international Eurocurrency market,
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. If any such Reference Bank should be unwilling or unable to
act as such or if the Master Servicer should terminate its appointment as
Reference Bank, the Securities Administrator shall promptly appoint or cause
to
be appointed another Reference Bank. 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.
(c) The
Pass-Through Rate for each Class of LIBOR Certificates for each Interest Accrual
Period shall be determined by the Securities Administrator on each related
Interest Determination Date so long as such Classes of LIBOR Certificates are
outstanding on the basis of LIBOR and the respective formulae appearing in
footnotes corresponding to the LIBOR Certificates in the table relating to
the
LIBOR Certificates in the Preliminary Statement.
(d) In
determining LIBOR, any Pass-Through Rate for the LIBOR Certificates, any
Interest Settlement Rate, or any Reserve Interest Rate, the Securities
Administrator may conclusively rely and shall be protected in relying upon
the
offered quotations (whether written, oral or on the Dow Xxxxx Markets) from
the
BBA designated banks, the Reference Banks or the New York City banks as to
LIBOR, the Interest Settlement Rate or the Reserve Interest Rate, as
appropriate, in effect from time to time. The Securities
Administrator shall not have any liability or responsibility to any Person
for
(i) the selection of New York City banks for purposes of determining any Reserve
Interest Rate or (ii) its inability, following a good-faith reasonable effort,
to obtain such quotations from, the BBA designated banks, the Reference Banks
or
the New York City banks or to determine such arithmetic mean, all as provided
for in this Section 5.09.
(e) The
establishment of LIBOR and each Pass-Through Rate for the LIBOR Certificates
by
the Securities Administrator shall (in the absence of manifest error) be final,
conclusive and binding upon each Holder of a Certificate and the Securities
Administrator.
98
ARTICLE
VI
CONCERNING
THE TRUSTEE AND
THE
SECURITIES ADMINISTRATOR; EVENTS OF DEFAULT
Section
6.01. Duties of Trustee and the Securities
Administrator.
(a) The
Trustee, except during the continuance of an Event of Default, and the
Securities Administrator undertakes to perform such duties and only such duties
as are specifically set forth in this Agreement. Any permissive right
of the Trustee or the Securities Administrator provided for in this Agreement
shall not be construed as a duty of the Trustee or the Securities
Administrator. If an Event of Default has occurred and has not
otherwise been cured or waived, the Trustee or the Securities Administrator
shall exercise such of the rights and powers vested in it by this Agreement
and
use the same degree of care and skill in their exercise as a prudent Person
would exercise or use under the circumstances in the conduct of such Person’s
own affairs, unless the Trustee is acting as master servicer, in which case
it
shall use the same degree of care and skill (in its capacity as successor Master
Servicer) as a master servicer hereunder.
(b) Each
of the Trustee and the Securities Administrator, upon receipt of all
resolutions, certificates, statements, opinions, reports, documents, orders
or
other instruments furnished to the Trustee or the Securities Administrator
which
are specifically required to be furnished pursuant to any provision of this
Agreement, shall examine them to determine whether they are in the form required
by this Agreement; provided, however, that neither the Trustee
nor the Securities Administrator shall be responsible for the accuracy or
content of any such resolution, certificate, statement, opinion, report,
document, order or other instrument furnished by the Master Servicer or any
Servicer to the Trustee or the Securities Administrator pursuant to this
Agreement, and shall not be required to recalculate or verify any numerical
information furnished to the Trustee or the Securities Administrator pursuant
to
this Agreement. Subject to the immediately preceding sentence, if any
such resolution, certificate, statement, opinion, report, document, order or
other instrument is found not to conform to the form required by this Agreement
in a material manner the Securities Administrator shall take such action as
it
deems appropriate to cause the instrument to be corrected, and if the instrument
is not corrected to the Securities Administrator ’s satisfaction, the Securities
Administrator will 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.
(c) Neither
the Trustee nor the Securities Administrator shall have any liability arising
out of or in connection with this Agreement, except for its respective
negligence or willful misconduct. Notwithstanding anything in this
Agreement to the contrary, neither the Trustee nor the Securities Administrator
shall be liable for special, indirect or consequential losses or damages of
any
kind whatsoever (including, but not limited to, lost profits). 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:
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(i) The
Trustee shall not be personally liable with respect to any action taken,
suffered or omitted to be taken by it in good faith in accordance with the
direction of Holders of Certificates, as provided in Section 6.18
hereof;
(ii) For
all purposes under this Agreement, the Trustee shall not be deemed to have
notice of any Event of Default unless a Responsible Officer of the Trustee
has
actual knowledge thereof or unless written notice of any event which is in
fact
such a default is received by the Trustee at the Corporate Trust Office of
the
Trustee, and such notice references the Holders of the Certificates and this
Agreement;
(iii) For
all purposes under this Agreement, the Securities Administrator shall not be
deemed to have notice of any Event of Default (other than resulting from a
failure by the Master Servicer (i) to remit funds (or to make Advances) or
(ii)
to furnish information to the Securities Administrator when required to do
so)
unless a Responsible Officer of the Securities Administrator has actual
knowledge thereof or unless written notice of any event which is in fact such
a
default is received by the Securities Administrator at the address provided
in
Section 11.07, and such notice references the Holders of the Certificates
and this Agreement;
(iv) No
provision of this Agreement shall require the Trustee or the Securities
Administrator to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or indemnity reasonably satisfactory
to
it against such risk or liability is not reasonably 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;
(v) Neither
the Trustee nor the Securities Administrator shall be responsible for any act
or
omission of each other or the Master Servicer, the Depositor, the Seller, any
Servicer or any Custodian.
(d) The
Trustee shall have no duty hereunder with respect to any complaint, claim,
demand, notice or other document it may receive or which may be alleged to
have
been delivered to or served upon it by the parties as a consequence of the
assignment of any Mortgage Loan hereunder; provided, however,
that the Trustee shall promptly remit to the Master Servicer, upon receipt
any
such complaint, claim, demand, notice or other document (i) which is
delivered to the Corporate Trust Office of the Trustee, (ii) of which a
Responsible Officer has actual knowledge, and (iii) which contains
information sufficient to permit the Trustee to make a determination that the
real property to which such document relates is a Mortgaged Property related
to
a Mortgage Loan.
(e) 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 direction of the Certificateholders of any Class holding
Certificates which evidence, as to such Class, Percentage Interests aggregating
not less than 25% as to the time, method and
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place
of
conducting any proceeding for any remedy available to the Trustee or the
Securities Administrator or exercising any trust or power conferred upon the
Trustee or the Securities Administrator, as applicable, under this Agreement
or
the Acknowledgements.
(f) Neither
the Trustee nor the Securities Administrator shall be required to perform
services under this Agreement or the Purchase and Servicing Agreements, or
to
expend or risk its own funds or otherwise incur financial liability for the
performance of any of its duties hereunder or the exercise of any of its rights
or powers if there is reasonable ground for believing that the timely payment
of
its fees and expenses or the repayment of such funds or indemnity reasonably
satisfactory to it against such risk or liability is not reasonably assured
to
it, and none of the provisions contained in this Agreement shall in any event
require the Trustee or the Securities Administrator, as applicable, to perform,
or be responsible for the manner of performance of, any of the obligations
of
the Master Servicer or any Servicer under this Agreement or any Purchase and
Servicing 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.
(g) The
Trustee shall not be held liable by reason of any insufficiency in the
Distribution Account resulting from any investment loss on any Permitted
Investment included therein (except to the extent that the Trustee is the
obligor and has defaulted thereon).
(h) Neither
the Trustee nor, except as otherwise provided herein, the Securities
Administrator shall have any duty (A) to see to any recording, filing, or
depositing of this Agreement or any agreement referred to herein or any
financing statement or continuation statement evidencing a security interest,
or
to see to the maintenance of any such recording or filing or depositing or
to
any rerecording, refiling or redepositing of any thereof, (B) to see to any
insurance, (C) to see to the payment or discharge of any tax, assessment,
or other governmental charge or any lien or encumbrance of any kind owing with
respect to, assessed or levied against, any part of the Trust Fund other than
from funds available in the Distribution Account, or (D) to confirm or
verify the contents of any reports or certificates of the Master Servicer or
any
Servicer delivered to the Trustee or the Securities Administrator pursuant
to
this Agreement believed by the Trustee or the Securities Administrator, as
applicable, to be genuine and to have been signed or presented by the proper
party or parties.
(i) Neither
the Securities Administrator nor the Trustee shall be liable in its individual
capacity for an error of judgment made in good faith by a Responsible Officer
or
other officers of the Trustee or the Securities Administrator, as applicable,
unless it shall be proved that the Trustee or the Securities Administrator,
as
applicable, was negligent in ascertaining the pertinent facts.
(j) Notwithstanding
anything in this Agreement to the contrary, neither the Securities Administrator
nor the Trustee shall be liable for special, indirect or consequential losses
or
damages of any kind whatsoever (including, but not limited to, lost profits),
even if the Trustee or the Securities Administrator, as applicable, has been
advised of the likelihood of such loss or damage and regardless of the form
of
action.
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(k) Neither
the Securities Administrator nor the Trustee shall be responsible for the acts
or omissions of the other, it being understood that this Agreement shall not
be
construed to render them agents of one another, or of any Servicer.
Section
6.02. Certain Matters Affecting the Trustee and the Securities
Administrator.
Except
as
otherwise provided in Section 6.01:
(i) Each
of the Trustee and the Securities Administrator may request, and may rely and
shall be protected in acting or refraining from acting upon any resolution,
Officer’s Certificate, certificate of auditors or any other certificate,
statement, instrument, opinion, report, notice, request, consent, order,
approval, bond or other paper or document believed by it to be genuine and
to
have been signed or presented by the proper party or parties;
(ii) Each
of the Trustee and the Securities Administrator may consult with counsel and
any
advice of its counsel or 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 personally liable for
any
action taken, suffered or omitted by it in good faith and reasonably believed
by
it to be authorized or within the discretion or rights or powers conferred
upon
it by this Agreement;
(iv) Unless
an Event of Default shall have occurred and be continuing, neither the Trustee
nor the Securities Administrator 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 document, unless requested in writing to do so by the Holders
of
at least a majority in Class Principal Balance (or Percentage Interest) of
each
Class of Certificates; provided, however, that, if the payment
within a reasonable time to the Trustee or the Securities Administrator, as
applicable, 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 indemnity reasonably satisfactory to it against such expense or
liability or payment of such estimated expenses from the Certificateholders
as a
condition to proceeding. The reasonable expense thereof shall be paid
by the party requesting such investigation and if not reimbursed by the
requesting party shall be reimbursed to the Trustee or the Securities
Administrator, as applicable, by the Trust Fund;
(v) Each
of 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, custodians or attorneys, which agents, custodians or attorneys
shall have any and all of the rights, powers, duties and obligations of the
Trustee and the Securities
102
Administrator
conferred on them by such appointment, provided that each of the Trustee and
the
Securities Administrator shall continue to be responsible for its duties and
obligations hereunder to the extent provided herein, and provided further that
neither the Trustee nor the Securities Administrator shall be responsible for
any misconduct or negligence on the part of any such agent or attorney appointed
with due care by the Trustee or the Securities Administrator, as
applicable;
(vi) Neither
the Trustee nor the Securities Administrator shall be under any obligation
to
exercise any of the trusts or powers vested in it by this Agreement or the
Acknowledgements or to institute, conduct or defend any litigation hereunder
or
in relation hereto, in each case 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, as applicable, security or indemnity reasonably satisfactory
to
it against the costs, expenses and liabilities which may be incurred therein
or
thereby;
(vii) The
right of the Trustee and 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
(viii) Neither
the Trustee nor the Securities Administrator shall be required to give any
bond
or surety in respect of the execution of the Trust Fund created hereby or the
powers granted hereunder.
Section
6.03. Trustee and Securities Administrator Not Liable for
Certificates.
The
Trustee and the Securities Administrator make no representations as to the
validity or sufficiency of this Agreement, any Purchase and Servicing Agreement
or Acknowledgement or of the Certificates (other than, in the case of the
Securities Administrator, the certificate of authentication on the Certificates)
or of any Mortgage Loan, or related document save that the Trustee and the
Securities Administrator represent that, assuming due execution and delivery
by
the other parties hereto, this Agreement has been duly authorized, executed
and
delivered by it and constitutes its valid and binding obligation, enforceable
against it in accordance with its terms except that such enforceability may
be
subject to (A) applicable bankruptcy and insolvency laws and other similar
laws affecting the enforcement of the rights of creditors generally, and
(B) general principles of equity regardless of whether such enforcement is
considered in a proceeding in equity or at law. The Trustee and the
Securities Administrator shall not be accountable for the use or application
by
the Depositor of funds paid to the Depositor in consideration of the assignment
of the Mortgage Loans to the Trust Fund by the Depositor or for the use or
application of any funds deposited into the Distribution Account or any other
fund or account maintained with respect to the Certificates. The
Trustee and the Securities Administrator shall not be responsible for the
legality or validity of this Agreement or any other document or agreement
described in this Section 6.03 or the validity, priority, perfection or
sufficiency of the security for the Certificates issued or intended to be issued
hereunder. Neither the Trustee nor, except as otherwise provided
herein, the Securities Administrator shall have any responsibility for filing
any financing or continuation statement in
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any
public office at any time or to otherwise perfect or maintain the perfection
of
any security interest or lien granted to it hereunder or to record this
Agreement.
Section
6.04. Trustee and the Securities Administrator May Own
Certificates.
The
Trustee and the Securities Administrator and any Affiliate or agent of either
of
them in its individual or any other capacity may become the owner or pledgee
of
Certificates and may transact banking and trust business with the other parties
hereto and their Affiliates with the same rights it would have if it were not
Trustee, Securities Administrator or such agent.
Section
6.05. Eligibility Requirements for Trustee.
The
Trustee hereunder shall at all times be (i) an institution whose accounts
are insured by the FDIC, (ii) a corporation or national banking
association, organized and doing business under the laws of any State or the
United States of America, authorized under such laws to exercise corporate
trust
powers, having a combined capital and surplus of not less than $50,000,000
and
subject to supervision or examination by federal or state authority and
(iii) not an Affiliate of the Master Servicer or any
Servicer. If such corporation or national banking association
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then, for
the
purposes of this Section, the combined capital and surplus of such corporation
or national banking association shall be deemed to be its combined capital
and
surplus as set forth in its most recent report of condition so
published. In case at any time the Trustee shall cease to be eligible
in accordance with provisions of this Section, the Trustee shall resign
immediately in the manner and with the effect specified in
Section 6.06.
Section
6.06. Resignation and Removal of Trustee and the Securities
Administrator.
(a) The
Trustee may at any time resign and be discharged from the trust hereby created
by giving written notice thereof to the Securities Administrator, the Depositor
and the Master Servicer. Upon receiving such notice of resignation,
the Depositor will promptly appoint a successor trustee, by written instrument,
one copy of which instrument shall be delivered to the resigning Trustee, one
copy to the successor trustee, one copy to the Securities Administrator and
one
copy to the Master Servicer. If no successor trustee shall have been
so appointed and shall have accepted appointment within 30 days after the giving
of such notice of resignation, the resigning Trustee may petition any court
of
competent jurisdiction for the appointment of a successor trustee.
At
least
15 calendar days prior to the effective date of such resignation, the Trustee
shall provide (x) written notice to the Depositor and the Master Servicer of
any
successor pursuant to this Section (other than a successor appointed by the
Depositor in accordance with the preceding paragraph) and (y) in writing and
in
form and substance reasonably satisfactory to the Depositor, all information
reasonably requested by the Depositor in order to comply with its reporting
obligation under Item 6.02 of Form 8-K with respect to the resignation of the
Trustee.
(b) If
at any time (i) the Trustee shall cease to be eligible in accordance with
the provisions of Section 6.05 and shall fail to resign after written
request therefor by the Depositor, (ii) the Trustee shall become incapable
of acting, or shall be adjudged a bankrupt or insolvent, or
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a
receiver of the Trustee of its property shall be appointed, or any public
officer shall take charge or control of the Trustee or of either of their
property or affairs for the purpose of rehabilitation, conservation or
liquidation, (iii) (A) a tax is imposed or threatened with respect to the
Trust Fund by any state in which the Trustee or the Trust Fund held by the
Trustee is located due to the location of the Trustee, (B) the imposition of
such tax would be avoided by the appointment of a different trustee and (C)
the
Trustee fails to indemnify the Trust Fund against such tax (iv) the
continued use of the Trustee would result in a downgrading of the rating by
any
Rating Agency of any Class of Certificates with a rating, or (v) the Trustee
fails to comply with its obligations under the penultimate paragraph of Section
6.14(a), in the preceding paragraph or Article XII and such failure is not
remedied within the lesser of 10 calendar days or such period in which the
applicable Exchange Act Report can be filed timely (without taking into account
any extensions), then, in the case of clauses (i) through (iv), the Depositor
shall remove the Trustee and the Depositor shall appoint a successor trustee,
acceptable to the Master Servicer by written instrument, one copy of which
instrument shall be delivered to the Trustee so removed, one copy to the
successor trustee, one copy to the Securities Administrator and one copy to
the
Master Servicer.
(c) The
Holders of more than 50% of the Class Principal Balance (or Percentage Interest)
of each Class of Certificates may at any time upon 30 days’ written notice to
the Trustee and to the Depositor remove the Trustee by such written instrument,
signed by such Holders or their attorney-in-fact duly authorized, one copy
of
which instrument shall be delivered to the Depositor, one copy to the Trustee,
one copy to the Securities Administrator and one copy to the Master Servicer;
the Depositor shall thereupon appoint a successor trustee in accordance with
this Section.
(d) Any
resignation or removal of the Trustee and appointment of a successor trustee
pursuant to any of the provisions of this Section shall become effective upon
acceptance of appointment by the successor trustee, as provided in
Section 6.07. If no successor trustee shall have been so
appointed and shall have accepted appointment within 30 days after such notice
of dismissal, the Trustee who received such notice of dismissal may petition
any
court of competent jurisdiction for the appointment of a successor
trustee.
(e) The
Securities Administrator shall not resign except in accordance with the
provisions of Sections 9.06 and 9.07 hereof, to the same extent that the Master
Servicer is entitled to resign or assign or delegate, as applicable, its duties
hereunder.
(f) If
at any time the Securities Administrator shall cease to be eligible in
accordance with the provisions of Section 9.10 hereof and shall fail to resign
after written request thereto by the Depositor, or if at any time the Securities
Administrator shall become incapable of acting, or shall be adjudged as bankrupt
or insolvent, or a receiver of the Securities Administrator or of its property
shall be appointed, or any public officer shall take charge or control of the
Securities Administrator or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation, or a tax is imposed with respect
to
the Trust Fund by any state in which the Securities Administrator or the Trust
Fund is located and the imposition of such tax would be avoided by the
appointment of a different Securities Administrator, then the Depositor or
the
Trustee may remove the Securities Administrator and appoint a successor
securities administrator by written instrument, in triplicate, one copy of
which
instrument shall
105
be
delivered to the Securities Administrator so removed, one copy of which shall
be
delivered to the Master Servicer and one copy to the successor securities
administrator.
(g) If
no successor securities administrator shall have been appointed and shall have
accepted appointment within 60 days after Xxxxx Fargo Bank, N.A., as Securities
Administrator, ceases to be the securities administrator pursuant to this
Section 6.06, then the Trustee (as successor Securities Administrator) shall
perform the duties of the Securities Administrator pursuant to this
Agreement. The Trustee shall notify the Rating Agencies of any change
of the Securities Administrator. In such event, the Trustee shall
assume all of the rights and obligations of the Securities Administrator
hereunder arising thereafter except that the Trustee shall not be (i) liable
for
losses of the predecessor Securities Administrator or any acts or omissions
of
the predecessor Securities Administrator hereunder, (ii) deemed to have made
any
representations and warranties of the Securities Administrator made herein
and
(iii) subject to the same resignation limitations as set forth in Section 9.06
hereof; provided, however, that the Trustee (as successor
securities administrator) shall not resign until a successor securities
administrator has accepted appointment pursuant to Section 6.07
hereof. 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 until such time as the Trustee may be required to
act
as successor Securities Administrator pursuant to this Section 6.06 and
thereupon only for the acts or omissions of the Trustee as successor Securities
Administrator. If the Trustee is unwilling, or unable, to act as
successor Securities Administrator, then, in such event, the Trustee may
appoint, or petition a court of competent jurisdiction to appoint a successor
Securities Administrator meeting the criteria set forth in Section 9.10
hereof. Such successor Securities Administrator shall be entitled to
the Securities Administrator Compensation.
(h) The
Trustee as successor securities administrator shall be entitled to be reimbursed
for all reasonable costs and expenses associated with the transfer of the duties
of the Securities Administrator by the predecessor Securities Administrator,
including, without limitation, any costs or expenses associated with the
complete transfer of all securities administrator data and the completion,
correction or manipulation of such securities administrator data as may be
required by the Trustee as successor securities administrator to correct any
errors or insufficiencies in such securities administrator data or otherwise
to
enable the Trustee or successor securities administrator to perform the duties
of the Securities Administrator properly and effectively; provided,
however, that the predecessor Securities Administrator shall not be
obligated to make any such reimbursements if such Securities Administrator
was
terminated or removed without cause or if such termination or removal was a
result of the imposition of any tax on the Trust Estate by any state in which
the Securities Administrator or the Trust Fund is located. If such
costs are not paid by the predecessor Securities Administrator, the Trustee
shall pay such costs from the Trust Fund.
(i) The
Trustee, as successor Securities Administrator, as compensation for its
activities hereunder as successor Securities Administrator, shall be entitled
to
retain or withdraw from the Distribution Account an amount equal to the
Securities Administrator Compensation.
(j) The
Holders of Certificates entitled to at least 51% of the Voting Rights may at
any
time remove the Securities Administrator and appoint a successor securities
administrator by written instrument or instruments, in triplicate, signed by
such Holders or their attorneys-in-
106
fact
duly
authorized, one complete set of which instruments shall be delivered by the
successor Securities Administrator to the Trustee, one complete set to the
Securities Administrator so removed and one complete set to the successor so
appointed. Notice of any removal of the Securities Administrator
shall be given to each Rating Agency by the successor securities
administrator.
(k) Any
resignation or removal of the Securities Administrator and appointment of a
successor securities administrator pursuant to any of the provisions of this
Section 6.06 or Section 9.06 shall become effective upon acceptance by the
successor securities administrator of appointment as provided in Section 6.07
hereof.
(l) If
the Securities Administrator and the Master Servicer are the same Person, any
removal of the Master Servicer pursuant to an Event of Default shall also result
in the removal of the Securities Administrator and require the appointment
of a
successor pursuant to this Section and Section 6.07.
(m) The
Securities Administrator shall cooperate with the Trustee and any successor
securities administrator in effecting the termination of the Securities
Administrator’s responsibilities and rights hereunder, providing to the Trustee
and successor securities administrator all documents and records in electronic
or other form reasonably requested by it to enable it to assume the Securities
Administrator’s functions hereunder and for the transfer to the Trustee or
successor Securities Administrator of all amounts in the Distribution Account
or
any other account or fund maintained by the Securities Administrator with
respect to the Trust Fund. Neither the Trustee nor the Master
Servicer, as applicable, nor any other successor, as applicable, shall be deemed
to be in default hereunder by reason of any failure to make, or any delay in
making, any distribution hereunder or any portion thereof caused by (i) the
failure of the predecessor Securities Administrator to deliver, or any delay
in
delivering, cash, documents or records to it, (ii) the failure of the
predecessor Securities Administrator to cooperate as required by this Agreement,
(iii) the failure of the predecessor Securities Administrator to deliver
the related Mortgage Loan data as required by this Agreement or
(iv) restrictions imposed by any regulatory authority having jurisdiction
over the predecessor Securities Administrator. No successor
securities administrator shall be deemed to be in default hereunder by reason
of
any failure to make, or any delay in making, any distribution hereunder or
any
portion thereof caused by (i) the failure of the Master Servicer to
deliver, or any delay in delivering cash, documents or records to it related
to
such distribution, or (ii) the failure of Trustee or the Master Servicer to
cooperate as required by this Agreement.
Section
6.07. Successor Trustee and Successor Securities
Administrator.
(a) Any
successor trustee or successor securities administrator appointed as provided
in
Section 6.06 shall execute, acknowledge and deliver to the Depositor 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, as applicable, 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
107
securities
administrator, as applicable, herein. The predecessor trustee or
predecessor securities administrator, as applicable, shall deliver to the
successor trustee or successor securities administrator, as applicable, all
Trustee Mortgage Files and documents and statements related to each Trustee
Mortgage File held by it hereunder, and shall duly assign, transfer, deliver
and
pay over to the successor trustee the entire Trust Fund, together with all
necessary instruments of transfer and assignment or other documents properly
executed necessary to effect such transfer and such of the records or copies
thereof maintained by the predecessor trustee in the administration hereof
as
may be requested by the successor trustee and shall thereupon be discharged
from
all duties and responsibilities under this Agreement. In addition,
the Depositor and the predecessor trustee or predecessor securities
administrator, as applicable, shall execute and deliver such other instruments
and do such other things as may reasonably be required to more fully and
certainly vest and confirm in the successor trustee or successor securities
administrator, as applicable, all such rights, powers, duties and
obligations.
(b) No
successor trustee shall accept appointment as provided in this Section unless
at
the time of such appointment such successor trustee shall be eligible under
the
provisions of Section 6.05 and has provided to the Depositor in writing and
in form and substance reasonably satisfactory to the Depositor, all information
reasonably requested by the Depositor in order to comply with its reporting
obligation under Item 6.02 of Form 8-K with respect to a replacement
Trustee.
(c) Upon
acceptance of appointment by a successor trustee or successor securities
administrator, as applicable, as provided in this Section, the Master Servicer
shall mail notice of the succession of such trustee or securities administrator,
as applicable, hereunder to all Holders of Certificates at their addresses
as
shown in the Certificate Register and to any Rating Agency. The costs
of such mailing shall be borne by the Master Servicer.
(d) [reserved].
(e) Any
successor trustee or successor securities administrator appointed as provided
in
Section 6.06 shall also be the successor trustee or successor securities
administrator, as applicable, with respect to the ES Trust.
Section
6.08. Merger or Consolidation of Trustee or the Securities
Administrator.
Any
Person into which the Trustee or Securities Administrator may be merged or
with
which it may be consolidated, or any Person resulting from any merger,
conversion or consolidation to which the Trustee or Securities Administrator
shall be a party, or any Persons succeeding to the business of the Trustee
or
Securities Administrator, shall be the successor to the Trustee or Securities
Administrator hereunder, without the execution or filing of any paper or any
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding, provided that, in the case of the Trustee, such Person
shall be eligible under the provisions of Section 6.05.
At
least
15 calendar days prior to the effective date of any succession by merger or
consolidation of the Trustee or the Securities Administrator, the Trustee or
the
Securities Administrator, as applicable, shall provide (x) written notice to
the
Depositor of any successor
108
pursuant
to this Section and (y) in writing and in form and substance reasonably
satisfactory to the Depositor, all information reasonably requested by the
Depositor in order to comply with its reporting obligation under Item 6.02
of
Form 8-K with respect to a replacement Trustee or Securities Administrator,
as
applicable.
Section
6.09. Appointment of Co-Trustee, Separate Trustee or
Custodian.
(a) Notwithstanding
any other provisions hereof, at any time, the Trustee, the Depositor or the
Certificateholders evidencing more than 50% of the Class Principal Balance
(or
Percentage Interest) of every Class of Certificates shall have the power from
time to time to appoint one or more Persons, approved by the Trustee, to act
either as co-trustees jointly with the Trustee, or as separate trustees, or
as
custodians, for the purpose of holding title to, foreclosing or otherwise taking
action with respect to any Mortgage Loan outside the state where the Trustee
has
its principal place of business where such separate trustee or co-trustee is
necessary or advisable (or the Trustee has been advised by the Master Servicer
that such separate trustee or co-trustee is necessary or advisable) under the
laws of any state in which a property securing a Mortgage Loan is located or
for
the purpose of otherwise conforming to any legal requirement, restriction or
condition in any state in which a property securing a Mortgage Loan is located
or in any state in which any portion of the Trust Fund is
located. The separate Trustees, co-trustees, or custodians so
appointed shall be trustees or custodians for the benefit of all the
Certificateholders and shall have such powers, rights and remedies as shall
be
specified in the instrument of appointment; provided, however,
that no such appointment shall, or shall be deemed to, constitute the appointee
an agent of the Trustee. The obligation of the Master Servicer to
make Advances pursuant to Section 5.05 hereof shall not be affected or
assigned by the appointment of a co-trustee.
(b) Every
separate trustee, co-trustee, and custodian shall, to the extent permitted
by
law, be appointed and act subject to the following provisions and
conditions:
(i) all
powers, duties, obligations and rights conferred upon the Trustee in respect
of
the receipt, custody and payment of moneys shall be exercised solely by the
Trustee;
(ii) all
other rights, powers, duties and obligations conferred or imposed upon the
Trustee shall be conferred or imposed upon and exercised or performed by the
Trustee and such separate trustee, co-trustee, or custodian jointly, except
to
the extent that under any law of any jurisdiction in which any particular act
or
acts are to be performed the Trustee shall be incompetent or unqualified to
perform such act or acts, in which event such rights, powers, duties and
obligations, including the holding of title to the Trust Fund or any portion
thereof in any such jurisdiction, shall be exercised and performed by such
separate trustee, co-trustee, or custodian;
(iii) no
trustee or custodian hereunder shall be personally liable by reason of any
act
or omission of any other trustee or custodian hereunder; and
(iv) the
Trustee may at any time, by an instrument in writing executed by it, with the
concurrence of the Depositor, accept the resignation of or remove any separate
109
trustee,
co-trustee or custodian, so appointed by it or them, if such resignation or
removal does not violate the other terms of this Agreement.
(c) Any
notice, request or other writing given to the Trustee shall be deemed to have
been given to each of the then separate trustees and co-trustees, as effectively
as if given to each of them. Every instrument appointing any separate
trustee, co-trustee or custodian shall refer to this Agreement and the
conditions of this Article VI. Each separate trustee and co-trustee,
upon its acceptance of the trusts conferred, shall be vested with the estates
or
property specified in its instrument of appointment, either jointly with the
Trustee or separately, as may be provided therein, subject to all the provisions
of this Agreement, specifically including every provision of this Agreement
relating to the conduct of, affecting the liability of, or affording protection
to, the Trustee. Every such instrument shall be filed with the
Trustee and a copy given to the Master Servicer.
(d) Any
separate trustee, co-trustee or custodian may, at any time, constitute the
Trustee its agent or attorney-in-fact with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee,
co-trustee or custodian shall die, become incapable of acting, resign or be
removed, all of its estates, properties, rights, remedies and trusts shall
vest
in and be exercised by the Trustee, to the extent permitted by law, without
the
appointment of a new or successor trustee.
(e) No
separate trustee, co-trustee or custodian hereunder shall be required to meet
the terms of eligibility as a successor trustee under Section 6.05
hereunder and no notice to the Certificateholders of the appointment shall
be
required under Section 6.07 hereof.
(f) The
Securities Administrator on behalf of the Trustee agrees to instruct the
co-trustees, if any, to the extent necessary to fulfill the Trustee’s
obligations hereunder.
(g) The
Trust shall pay the reasonable compensation of the co-trustees (which
compensation shall not reduce any compensation payable to the Trustee under
such
Section).
Section
6.10. Authenticating Agents.
(a) The
Trustee may appoint one or more Authenticating Agents which shall be authorized
to act on behalf of the Trustee in authenticating Certificates. The
Securities Administrator is hereby appointed as initial Authenticating Agent,
and the Securities Administrator accepts such appointment. Wherever
reference is made in this Agreement to the authentication of Certificates by
the
Trustee or the Trustee’s certificate of authentication, such reference shall be
deemed to include authentication on behalf of the Trustee by an Authenticating
Agent and a certificate of authentication executed on behalf of the Trustee
by
an Authenticating Agent. Each Authenticating Agent must be a
corporation organized and doing business under the laws of the United States
of
America or of any state, having a combined capital and surplus of at least
$15,000,000, authorized under such laws to do a trust business and subject
to
supervision or examination by federal or state authorities.
(b) Any
Person into which any Authenticating Agent may be merged or converted or with
which it may be consolidated, or any Person resulting from any merger,
conversion or
110
consolidation
to which any Authenticating Agent shall be a party, or any Person succeeding
to
the corporate agency business of any Authenticating Agent, shall continue to
be
the Authenticating Agent without the execution or filing of any paper or any
further act on the part of the Trustee or the Authenticating Agent.
(c) Any
Authenticating Agent may at any time resign by giving at least 30 days’ advance
written notice of resignation to the Trustee and the Depositor. The
Trustee may at any time terminate the agency of any Authenticating Agent by
giving written notice of termination to such Authenticating Agent and the
Depositor. Upon receiving a notice of resignation or upon such a
termination, or in case at any time any Authenticating Agent shall cease to
be
eligible in accordance with the provisions of this Section 6.10, the
Trustee may appoint a successor authenticating agent, shall give written notice
of such appointment to the Depositor and shall mail notice of such appointment
to all Holders of Certificates. Any successor authenticating agent
upon acceptance of its appointment hereunder shall become vested with all the
rights, powers, duties and responsibilities of its predecessor hereunder, with
like effect as if originally named as Authenticating Agent. No
successor authenticating agent shall be appointed unless eligible under the
provisions of this Section 6.10. No Authenticating Agent shall
have responsibility or liability for any action taken by it as such at the
direction of the Trustee.
Section
6.11. Indemnification of the Trustee and the Securities
Administrator.
The
Trustee (in its individual capacity and in its representative capacity as
Trustee hereunder) and the Securities Administrator and their respective
directors, officers, employees and agents shall be entitled to indemnification
from the Trust Fund for any loss, liability or expense (including the reasonable
compensation and the expenses and disbursements of its agents or counsel),
incurred without negligence or willful misconduct on their part, arising out
of,
or in connection with, the acceptance or administration of the trusts created
hereunder or under the Purchase and Servicing Agreements, the Acknowledgements
or the Custodial Agreements, or in connection with the performance of their
duties hereunder or thereunder including the costs and expenses of defending
themselves against any claim in connection with the exercise or performance
of
any of their powers or duties hereunder or thereunder, provided
that:
(i) with
respect to any such claim, the Trustee or the Securities Administrator, as
applicable, shall have given the Depositor written notice thereof promptly
after
the Trustee, the Securities Administrator, as applicable, shall have knowledge
thereof;
(ii) while
maintaining control over its own defense, the Trustee or the Securities
Administrator, as applicable, shall cooperate and consult fully with the
Depositor in preparing such defense; and
(iii) notwithstanding
anything to the contrary in this Section 6.11, the Trust Fund shall not be
liable for settlement of any such claim by the Trustee or the Securities
Administrator, as applicable, entered into without the prior consent of the
Depositor, which consent shall not be unreasonably withheld.
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The
provisions of this Section 6.11 shall survive any termination of this
Agreement and the resignation or removal of the Trustee or the Securities
Administrator or Custodian, as applicable, and shall be construed to include,
but not be limited to any loss, liability or expense under any environmental
law.
Section
6.12. Fees and Expenses of the Master Servicer, Securities
Administrator, the Trustee and each Custodian.
(a) For
so long as Xxxxx Fargo Bank, National Association is the Master Servicer and
the
Securities Administrator, the Securities Administrator shall be entitled to
be
paid by the Master Servicer reasonable compensation for the Securities
Administrator’s services hereunder in an amount to be agreed upon between the
Master Servicer and the Securities Administrator. Should Xxxxx Fargo Bank,
National Association no longer be both the Master Servicer and the Securities
Administrator, the Securities Administrator shall be entitled to receive the
Securities Administrator Compensation payable pursuant to Section 4.02(b)(ii)
hereof. The Securities Administrator shall be entitled to all
disbursements and advancements incurred or made by the Securities Administrator
in accordance with this Agreement (including fees and expenses of its counsel
and all persons not regularly in its employment), except any such expenses
arising from its negligence, bad faith or willful misconduct.
(b) As
compensation for its services hereunder, the Trustee and each Custodian shall
each be entitled to receive a fee (which, in the case of the Trustee, shall
not
be limited by any provision of law in regard to the compensation of a trustee
of
an express trust) which shall be paid by the Master Servicer pursuant to a
separate agreement between the Trustee, the related Custodian and the Master
Servicer. Any expenses incurred by the Trustee or any Custodian shall
be reimbursed in accordance with Section 6.11. Notwithstanding
any provision in any Custodial Agreement to the contrary, the parties hereto
acknowledge and agree that (i) the Master Servicer shall only be obligated
to
pay to each Custodian the fee agreed to by each Custodian and the Master
Servicer in the separate fee agreement referred to above, and (ii) except as
may
be expressly set forth therein with respect to the Master Servicer, in no event
shall the Master Servicer have any responsibility or liability for the payment
of any other fees or any expenses or other amounts, if any, that may be payable
to each Custodian under this Agreement or the related Custodial Agreement,
all
of which shall be payable in accordance with the terms and conditions herein
or
under the related Custodial Agreement.
Section
6.13. Collection of Monies.
Except
as
otherwise expressly provided in this Agreement, the Securities Administrator
on
behalf of the Trustee may demand payment or delivery of, and shall receive
and
collect, all money and other property payable to or receivable by the Securities
Administrator on behalf of the Trustee pursuant to this
Agreement. The Securities Administrator on behalf of the Trustee
shall hold all such money and property received by it as part of the Trust
Fund
and shall distribute it as provided in this Agreement.
Section
6.14. Events of Default; Trustee To Act; Appointment of
Successor.
112
(a) The
occurrence of any one or more of the following events shall constitute an
“Event of Default” with respect to the Master Servicer:
(i) Any
failure by the Master Servicer to furnish the Securities Administrator the
Mortgage Loan data on the Mortgage Loans sufficient to prepare the reports
described in Section 4.05 which continues unremedied for a period of one
Business Day after the date upon which written notice of such failure shall
have
been given to the Master Servicer by the Trustee or the Securities Administrator
or to the Master Servicer, the Securities Administrator and the Trustee by
the
Holders of not less than 25% of the Class Principal Balance or Percentage
Interest of each Class of Certificates affected thereby; or
(ii) Any
failure on the part of the Master Servicer duly to observe or perform in any
material respect any other of the covenants or agreements (other than those
referred to in (vii) and (ix) below) on the part of the Master Servicer
contained in this Agreement (including any obligation to enforce any Purchase
and Servicing Agreement) or any representation or warranty of the Master
Servicer shall prove to be untrue in any material respect, which failure or
breach continues unremedied for a period of 60 days after the date 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 the Securities
Administrator, or to the Master Servicer, the Securities Administrator and
the
Trustee by the Holders of more than 50% of the Aggregate Voting Interests of
the
Certificates; provided that the sixty-day cure period shall not apply so long
as
the Depositor is required to file Exchange Act Reports with respect to the
Trust
Fund, the failure to comply with the requirements set forth in Section 9.11,
Section 9.05 and Section 9.06 (with respect to notice and information to be
provided to the Depositor) or Article XII, for which the grace period shall
not
exceed the lesser of 10 calendar days or such period in which the applicable
Exchange Act Report can be filed timely (without taking into account any
extensions); or
(iii) A
decree or order of a court or agency or supervisory authority having
jurisdiction for the appointment of a conservator or receiver or liquidator
in
any 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 or unstayed for a period of 60 days or
any
Rating Agency reduces or withdraws or threatens to reduce or withdraw the rating
of the Certificates because of the financial condition or loan servicing
capability of such Master Servicer; or
(iv) The
Master Servicer shall consent to the appointment of a conservator or receiver
or
liquidator in any insolvency, readjustment of debt, marshalling of assets and
liabilities, voluntary liquidation or similar proceedings of or relating to
the
Master Servicer or of or relating to all or substantially all of its property;
or
(v) The
Master Servicer shall admit in writing its inability to pay its debts generally
as they become due, file a petition to take advantage of any applicable
113
insolvency
or reorganization statute, make an assignment for the benefit of its creditors
or voluntarily suspend payment of its obligations; or
(vi) The
Master Servicer shall be dissolved, or shall dispose of all or substantially
all
of its assets, or consolidate with or merge into another entity or shall permit
another entity to consolidate or merge into it, such that the resulting entity
does not meet the criteria for a successor servicer as specified in
Section 9.05 hereof; or
(vii) If
a representation or warranty set forth in Section 9.03 hereof shall prove
to be incorrect as of the time made in any respect that materially and adversely
affects the interests of the Certificateholders, and the circumstance or
condition in respect of which such representation or warranty was incorrect
shall not have been eliminated or cured within 90 days after the date on which
written notice of such incorrect representation or warranty shall have been
given to the Master Servicer by the Trustee or the Securities Administrator,
or
to the Master Servicer, the Securities Administrator and the Trustee by the
Holders of more than 50% of the Aggregate Voting Interests of the Certificates;
or
(viii) A
sale or pledge of any of the rights of the Master Servicer hereunder or an
assignment of this Agreement by the Master Servicer or a delegation of the
rights or duties of the Master Servicer hereunder shall have occurred in any
manner not otherwise permitted hereunder and without the prior written consent
of the Trustee and Certificateholders holding more than 50% of the Aggregate
Voting Interests of the Certificates; or
(ix) After
receipt of notice from the Trustee or the Securities Administrator, any failure
of the Master Servicer to make any Advances required to be made by it hereunder;
or
(x) (a)
Any failure by the Master Servicer to deposit in the Distribution Account or
remit to the Securities Administrator any payment required to be made by the
Master Servicer under the terms of this Agreement (other than an Advance
required pursuant to Section 5.05 hereof), which failure shall continue
unremedied for three Business Days after the date upon which written notice
of
such failure shall have been given to the Master Servicer by the Securities
Administrator, Trustee or the Depositor or to the Master Servicer and the
Trustee by the Holders of Certificates having not less than 25% of the Voting
Rights evidenced by the Certificates or (b) any failure by the Master Servicer
to deposit in the Distribution Account or remit to the Securities Administrator
any Advance required to be made by the Master Servicer under Section 5.05
hereof, which failure shall continue unremedied for one Business Day after
the
date upon which written notice of such failure shall have been given to the
Master Servicer by the Securities Administrator, Trustee or the Depositor or
to
the Master Servicer and the Trustee by the Holders of Certificates having not
less than 25% of the Voting Rights evidenced by the Certificates;
or
(xi) If
the Master Servicer and the Securities Administrator are the same Person, any
removal of the Securities Administrator pursuant to Section 6.06.
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If
an
Event of Default described in clauses (i) through (ix) or (xi) of this Section
shall occur with respect to the Master Servicer, then, in each and every case,
subject to applicable law, so long as any such Event of Default shall not have
been remedied within any period of time prescribed by this Section, the Trustee,
by notice in writing to the Master Servicer may, and, if so directed by
(a) Certificateholders evidencing more than 50% of the Class Principal Balance
of each Class of Certificates or (b) the Depositor, in the case of a failure
related to a filing obligation triggered by a Reportable Event; the Trustee
shall by notice in writing to the Master Servicer (with a copy to each Rating
Agency and the Depositor), terminate all of the respective rights and
obligations of the Master Servicer hereunder and in and to the Mortgage Loans
and the proceeds thereof. Subject to Section 6.01(c)(ii), if an Event
of Default described in clause (x) of this Section shall occur with respect
to
the Master Servicer, then, in each and every case, subject to applicable law,
so
long as any such Event of Default shall not have been remedied within any period
of time prescribed by this Section, the Trustee shall by notice in
writing to the Master Servicer terminate all of the respective rights and
obligations of the Master Servicer hereunder and in and to the Mortgage Loans
and the proceeds thereof. On or after the receipt by the Master
Servicer of such written notice, all authority and power of the Master Servicer,
and with respect to the Master Servicer only in its capacity as Master Servicer
under this Agreement, whether with respect to the Mortgage Loans or otherwise,
shall pass to and be vested in the Trustee; and the Trustee is hereby authorized
and empowered to execute and deliver, on behalf of the defaulting Master
Servicer as attorney-in-fact or otherwise, any and all documents and other
instruments, and to do or accomplish all other acts or things necessary or
appropriate to effect the purposes of such notice of termination, whether to
complete the transfer and endorsement or assignment of the affected Mortgage
Loans and related documents or otherwise. The defaulting Master
Servicer agrees to cooperate with the Trustee and the Securities Administrator
in effecting the termination of the defaulting Master Servicer’s
responsibilities and rights hereunder as Master Servicer which includes, without
limitation, notifying the Servicers of the assignment of the master servicing
function and providing the Trustee or its designee all documents and records
in
electronic or other form reasonably requested by it to enable the Trustee or
its
designee to assume the defaulting Master Servicer’s functions hereunder and the
transfer to the Trustee for administration by it of all amounts which shall
at
the time be or should have been deposited by the defaulting Master Servicer
in
the Distribution Account, any related Custodial Account and any other account
or
fund maintained with respect to the Certificates or thereafter received with
respect to the affected Mortgage Loans. The Master Servicer being
terminated shall bear all costs of the transfer of the master servicing to
the
successor master servicer, including but not limited to those of the Trustee
or
Securities Administrator reasonably allocable to specific employees and
overhead, legal fees and expenses, accounting and financial consulting fees
and
expenses, and costs of amending the Agreement, if necessary. If such
costs are not paid by the terminated Master Servicer, the Trustee shall pay
such
costs from the Trust Fund.
Notwithstanding
the termination of its activities as Master Servicer, any terminated Master
Servicer shall continue to be entitled to reimbursement under this Agreement
to
the extent such reimbursement relates to the period prior to such Master
Servicer’s termination.
The
Securities Administrator and the Master Servicer shall promptly notify the
Responsible Officers of the Trustee and the Depositor of the occurrence and
continuance of an Event of Default. If any Event of Default shall
occur, the Trustee, upon a Responsible Officer of the Trustee becoming aware
of
the occurrence thereof, shall promptly notify each Rating Agency
115
of
the
nature and extent of such Event of Default. The Securities
Administrator shall immediately give written notice to the Master Servicer
upon
the failure of the Master Servicer to make Advances as required under this
Agreement with a copy to the Trustee.
Upon
the
occurrence of an Event of Default, the Trustee shall provide the Depositor
in
writing and in form and substance reasonably satisfactory to the Depositor,
all
information reasonably requested by the Depositor in order to comply with its
reporting obligation under Item 6.02 of Form 8-K with respect to a successor
master servicer in the event the Trustee should succeed to the duties of the
Master Servicer as set forth herein.
In
order
to comply with applicable Form 8-K reporting requirements under Regulation
AB,
at least 15 calendar days prior to the effective date of such appointment,
(x)
the Trustee shall provide written notice to the Depositor of such successor
pursuant to this Section 6.14 and (y) such successor Master Servicer shall
provide to the Depositor in writing and in form and substance reasonably
satisfactory to the Depositor, all information reasonably requested by the
Depositor in order to comply with its reporting obligation under Item 6.02
of
Form 8-K with respect to a replacement master servicer.
(b) On
and after the time the Master Servicer receives a notice of termination from
the
Trustee or the Securities Administrator, as applicable, pursuant to
Section 6.14(a) or the Trustee or the Securities Administrator, as
applicable, receives the resignation of the Master Servicer evidenced by an
Opinion of Counsel pursuant to Section 9.06, the Trustee, unless another
master servicer shall have been appointed, shall be the successor in all
respects to the Master Servicer, in its capacity as such under this Agreement
and the transactions set forth or provided for herein and shall have all the
rights and powers and be subject to all the responsibilities, duties and
liabilities relating thereto and arising thereafter placed on the Master
Servicer, hereunder, including the obligation to make Advances;
provided, however, that any failure to perform such duties or
responsibilities caused by the failure of the Master Servicer to provide
information required by this Agreement shall not be considered a default by
the
Trustee or the Securities Administrator, as applicable, hereunder. In
addition, neither the Trustee nor the Securities Administrator, as applicable,
shall have any responsibility for any act or omission of the Master Servicer
prior to the issuance of any notice of termination. The Trustee shall
have no liability relating to the representations and warranties of the Master
Servicer set forth in Section 9.03. In the capacity as such
successor, the Trustee shall have the same limitations on liability herein
granted to the Master Servicer. As compensation for being the
successor master servicer, the Trustee shall be entitled to receive all
compensation payable to the Master Servicer under this Agreement. Any
successor to the Master Servicer hereunder also may assume the obligations
of
the Securities Administrator hereunder as successor in such capacity shall
be
entitled to the compensation payable to the Securities Administrator pursuant
to
Section 4.02 hereof from and after the date of such assumption.
(c) Notwithstanding
the above, the Trustee may, if it shall be unwilling to continue to so act,
or
shall, if it is unable to so act, petition a court of competent jurisdiction
to
appoint, or appoint on its own behalf any established housing and home finance
institution servicer, master servicer, servicing or mortgage servicing
institution having a net worth of not less than $15,000,000 and meeting such
other standards for a successor master servicer, as are set forth in this
Agreement, as the successor to such Master Servicer in the assumption of all
of
the
116
respective
responsibilities, duties or liabilities of a master servicer, like the Master
Servicer. Any entity designated by the Trustee, may be an Affiliate
of the Trustee; provided, however, that, unless such Affiliate
meets the net worth requirements and other standards set forth herein for a
successor master servicer, the Trustee, in its individual capacity shall agree,
at the time of such designation, to be and remain liable to the Trust Fund
for
such Affiliate’s actions and omissions in performing its duties
hereunder. In connection with such appointment and assumption, the
Trustee may make such arrangements for the compensation of such successor out
of
payments on the Mortgage Loans as it and such successor shall agree;
provided, however, that no such compensation shall be in
excess of that permitted to the Master Servicer hereunder. The
Trustee and such successor shall take such actions, consistent with this
Agreement, as shall be necessary to effectuate any such succession and may
make
other arrangements with respect to the master servicing to be conducted
hereunder which are not inconsistent herewith. The Master Servicer
shall cooperate with the Trustee and any successor master servicer in effecting
the termination of the Master Servicer’s responsibilities and rights hereunder
including, without limitation, notifying the Servicers of the assignment of
the
master servicing functions and providing the Trustee and successor master
servicer all documents and records in electronic or other form reasonably
requested by it to enable it to assume the Master Servicer’s functions hereunder
and the transfer to the Trustee or such successor all amounts which shall at
the
time be or should have been deposited by the Master Servicer in the Distribution
Account, any Custodial Account, or any other account or fund maintained with
respect to the Certificates or thereafter be received with respect to the
Mortgage Loans. Neither the Trustee nor the Securities Administrator,
as applicable, nor any other successor, as applicable, shall be deemed to be
in
default hereunder by reason of any failure to make, or any delay in making,
any
distribution hereunder or any portion thereof caused by (i) the failure of
the Master Servicer to deliver, or any delay in delivering, cash, documents
or
records to it, (ii) the failure of the Master Servicer to cooperate as
required by this Agreement, (iii) the failure of the Master Servicer to
deliver the related Mortgage Loan data as required by this Agreement or
(iv) restrictions imposed by any regulatory authority having jurisdiction
over the Master Servicer. No successor master servicer shall be
deemed to be in default hereunder by reason of any failure to make, or any
delay
in making, any distribution hereunder or any portion thereof caused by
(i) the failure of the Securities Administrator to deliver, or any delay in
delivering cash, documents or records to it related to such distribution, or
(ii) the failure of Trustee or the Securities Administrator to cooperate as
required by this Agreement.
Section
6.15. Additional Remedies of Trustee Upon Event of
Default.
During
the continuance of any Event of Default, so long as such Event of Default shall
not have been remedied, the Trustee, in addition to the rights specified in
Section 6.14, shall have the right, in its own name and as trustee of the
Trust Fund, to take all actions now or hereafter existing at law, in equity
or
by statute to enforce its rights and remedies and to protect the interests,
and
enforce the rights and remedies, of the Certificateholders (including the
institution and prosecution of all judicial, administrative and other
proceedings and the filings of proofs of claim and debt in connection
therewith). Except as otherwise expressly provided in this Agreement,
no remedy provided for by this Agreement shall be exclusive of any other remedy,
and each and every remedy shall be cumulative and in addition to any other
remedy, and no delay or omission to exercise any right or remedy shall impair
any such right or remedy or shall be deemed to be a waiver of any Event of
Default.
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Section
6.16. Waiver of Defaults.
More
than
50% of the Aggregate Voting Interests of the Certificateholders may waive any
default or Event of Default by the Master Servicer in the performance of its
obligations hereunder, except that a default in the making of any required
deposit to the Distribution Account that would result in a failure of the
Securities Administrator or the Paying Agent to make any required payment of
principal of or interest on the Certificates may only be waived with the consent
of 100% of the affected Certificateholders. Upon any such waiver of a
past default, such default shall cease to exist, and any Event of Default
arising therefrom shall be deemed to have been remedied for every purpose of
this Agreement. No such waiver shall extend to any subsequent or
other default or impair any right consequent thereon except to the extent
expressly so waived.
Section
6.17. Notification to Holders.
Upon
termination of the Master Servicer or appointment of a successor to the Master
Servicer, in each case as provided herein, the Trustee shall promptly mail
notice thereof by first class mail to the Securities Administrator and the
Certificateholders at their respective addresses appearing on the Certificate
Register. The Trustee shall also, within 45 days after the occurrence
of any Event of Default known to the Trustee, give written notice thereof to
the
Securities Administrator and the Certificateholders, unless such Event of
Default shall have been cured or waived prior to the issuance of such notice
and
within such 45-day period.
Section
6.18. Directions by Certificateholders and Duties of Trustee During
Event of Default.
Subject
to the provisions of Section 8.01 hereof, during the continuance of any
Event of Default, Holders of Certificates evidencing not less than 25% of the
Class Principal Balance (or Percentage Interest) of each Class of Certificates
affected thereby may direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust
or
power conferred upon the Trustee, under this Agreement; provided,
however, that the Trustee shall be under no obligation to pursue any such
remedy, or to exercise any of the trusts or powers vested in it by this
Agreement (including, without limitation, (i) the conducting or defending
of any administrative action or litigation hereunder or in relation hereto
and
(ii) the terminating of the Master Servicer or any successor master
servicer from its rights and duties as master servicer hereunder) at the
request, order or direction of any of the Certificateholders, unless such
Certificateholders shall have offered to the Trustee security or indemnity
reasonably satisfactory to it against the cost, expenses and liabilities which
may be incurred therein or thereby; and, provided further, that,
subject to the provisions of Section 8.01, the Trustee shall have the right
to decline to follow any such direction if the Trustee, in accordance with
an
Opinion of Counsel, determines that the action or proceeding so directed may
not
lawfully be taken or if the Trustee in good faith determines that the action
or
proceeding so directed would involve it in personal liability for which it
is
not indemnified to its satisfaction.
Section
6.19. Action Upon Certain Failures of the Master Servicer and Upon
Event of Default.
118
In
the
event that a Responsible Officer of the Trustee shall have actual knowledge
or
written notice of any action or inaction of the Master Servicer that would
become an Event of Default upon the Master Servicer’s failure to remedy the same
after notice, the Trustee shall give notice thereof to the Master
Servicer.
Section
6.20. Preparation of Tax Returns and Other Reports.
(a) The
Securities Administrator shall prepare or cause to be prepared on behalf of
the
Trust Fund, based upon information calculated in accordance with this Agreement
pursuant to instructions given by the Depositor, and the Securities
Administrator shall file federal tax returns, all in accordance with Article
X
hereof. If the Securities Administrator is notified in writing that a
state tax return or other return is required, then, at the sole expense of
the
Trust Fund, the Securities Administrator shall prepare and file such state
income tax returns and such other returns as may be required by applicable
law
relating to the Trust Fund, and, if required by state law, shall file any other
documents to the extent required by applicable state tax law (to the extent
such
documents are in the Securities Administrator’s possession). The
Securities Administrator shall forward copies to the Depositor of all such
returns and Form 1099 supplemental tax information and such other
information within the control of the Securities Administrator as the Depositor
may reasonably request in writing, and shall forward to each Certificateholder
such forms and furnish such information within the control of the Securities
Administrator as are required by the Code and the REMIC Provisions to be
furnished to them, and will prepare and forward to Certificateholders
Form 1099 (supplemental tax information) (or otherwise furnish information
within the control of the Securities Administrator) to the extent required
by
applicable law. The Master Servicer will indemnify the Securities
Administrator and the Trustee for any liability of or assessment against the
Securities Administrator or the Trustee, as applicable, resulting from any
error
in any of such tax or information returns directly resulting from errors in
the
information provided by such Master Servicer except to the extent that such
information was provided in reasonable reliance upon information from any
Servicer.
(b) The
Securities Administrator shall prepare and file with the Internal Revenue
Service (“IRS”), on behalf of the Trust Fund and each REMIC created hereunder,
an application for an employer identification number on IRS Form SS-4 or by
any other acceptable method. The Securities Administrator shall also
file a Form 8811 as required. The Securities Administrator, upon
receipt from the IRS of the Notice of Taxpayer Identification Number Assigned,
shall upon request promptly forward a copy of such notice to the Trustee and
the
Depositor. The Securities Administrator shall furnish any other
information that is required by the Code and regulations thereunder to be made
available to the Certificateholders. The Master Servicer agrees that
it shall cause each Servicer to, provide the Securities Administrator with
such
information related to the Mortgage Loans in the possession of such Servicer,
as
may reasonably be required for the Securities Administrator to prepare such
reports.
Section
6.21. Certain Matters Regarding any Custodian Appointed
Hereunder.
(a) Each
Custodian shall maintain continuous custody of all items constituting the
Trustee Mortgage Files in secure facilities in accordance with customary
standards for such custody and shall reflect in its records the interest of
the
Trustee for the benefit of the
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Certificateholders
therein. Each Mortgage Note (and Assignment of Mortgage) shall be
maintained in fire resistant facilities.
(b) With
respect to the documents constituting each Trustee Mortgage File relating to
a
Mortgage Loan listed on the Mortgage Loan Schedule, each Custodian shall (i)
act
exclusively as each Custodian for the Trustee, (ii) hold all documents
constituting such Trustee Mortgage File received by it for the exclusive use
and
benefit of the Trust, and (iii) make disposition thereof only in accordance
with
the terms of this Agreement.
(c) In
the event that (i) the Trustee, a Servicer, the Securities Administrator, the
Master Servicer or each Custodian shall be served by a third party with any
type
of levy, attachment, writ or court order with respect to any Trustee Mortgage
File or any document included within a Trustee Mortgage File or (ii) a third
party shall institute any court proceeding by which any Trustee Mortgage File
or
a document included within a Trustee Mortgage File shall be required to be
delivered otherwise than in accordance with the provisions of this Agreement,
the party receiving such service shall promptly deliver or cause to be delivered
to the other parties to this Agreement copies of all court papers, orders,
documents and other materials concerning such proceedings. Each
Custodian shall, to the extent permitted by law, continue to hold and maintain
all the Trustee Mortgage Files that are the subject of such proceedings pending
a final, nonappealable order of a court of competent jurisdiction permitting
or
directing disposition thereof. Upon final determination of such
court, each Custodian shall dispose of such Trustee Mortgage File or any
document included within such Trustee Mortgage File as directed by the Trustee
which shall give a direction consistent with such
determination. Expenses and fees (including reasonable attorney’s
fees) of each Custodian incurred as a result of such proceedings shall be borne
by the Trust Fund.
(d) Each
Custodian shall provide access to the Mortgage Loan Documents in its possession
regarding the related Mortgage Loans and REO Property and the servicing thereof
to the Trustee, the Master Servicer, the Securities Administrator, the related
Servicer, 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 each
Custodian. Each Custodian shall allow representatives of the above
entities to photocopy any of the records and documentation and shall provide
equipment for that purpose at the expense of the person requesting such
access.
(e) Each
Custodian shall have no duties or responsibilities except those that are
specifically set forth herein, or as subsequently agreed in writing by the
parties hereto, and no implied covenants or obligations shall be read into
this
Agreement against each Custodian.
(f) Each
Custodian shall have no responsibility nor duty with respect to any Trustee
Mortgage Files while not in its possession.
(g) Each
Custodian shall be under no obligation to make any investigation into the facts
or matters stated in any resolution, exhibit, request, representation, opinion,
certificate, statement, acknowledgement, consent, order or document in the
Trustee Mortgage File.
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(h) If
the Trustee and a Custodian are the same Person, any removal or resignation
of
that Person in either capacity shall also result in the removal of the Person
in
its other capacity.
(i) In
the event that each Custodian fails to produce a Mortgage Note, Assignment
of
Mortgage or any other document related to a Mortgage Loan that was in its
possession pursuant to Section 2.01 within five (5) Business Days after required
or requested by the Depositor, the Trustee, the Master Servicer or the related
Servicer, and provided, that (i) Custodian previously delivered to the Trustee
an Initial Certification or a Final Certification with respect to such document;
(ii) such document is not outstanding pursuant to a Request for Release; and
(iii) such document was held by each Custodian on behalf of the Trustee (a
“Custodial Delivery Failure”), then each Custodian shall (a) with
respect to any missing Mortgage Note, promptly deliver to the Depositor, the
Trustee, the Master Servicer or the Servicer upon request, a Lost Note Affidavit
in the form of Exhibit R annexed hereto and (b) with respect to any missing
document related to such Mortgage Loan including but not limited to, a missing
Mortgage Note, indemnify the Depositor, Trustee, the Master Servicer or the
Servicer in accordance with the succeeding paragraph of this Section
6.21(i).
Each
Custodian appointed hereunder agrees to indemnify and hold the Depositor, the
Trustee, the Master Servicer and the Servicer and their respective employees,
officers, directors and agents harmless against any and all direct liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements, including reasonable attorney’s fees, that may be
imposed on, incurred by, or asserted against it or them in any way relating
to
or arising out of such Custodial Delivery Failure. The foregoing
indemnification shall survive any termination or assignment of this Agreement
or
the removal or resignation of each Custodian hereunder.
For
the
avoidance of doubt, if the entity serving as Trustee is also serving as a
Custodian, such entity in its capacity as Custodian shall have the same rights,
protections and indemnities as are afforded to the Trustee hereunder provided
that such Custodian shall not be indemnified by the Trust Fund for any
liability, obligation, loss, damage, penalty, action, judgment, suit, cost,
expense or disbursement imposed on, incurred by or asserted against each
Custodian because of the breach by each Custodian of its obligations hereunder,
which breach was caused by negligence, lack of good faith or willful misconduct
on the part of each Custodian or any of its directors, officers, agents or
employees.
Section
6.22. WHFIT Regulation Compliance.
(a) The
Securities Administrator shall treat the ES Trust as a WHMT. The
Securities Administrator will report to the Holders of the Certificates (other
than the Class A-R Certificates), as the beneficial owners of the ES Trust,
as
required under the WHFIT Regulations to the extent such information as is
reasonably necessary to enable Securities Administrator to do so is provided
to
Securities Administrator on a timely basis. The Securities
Administrator will not be liable for any tax reporting penalties that may arise
under the WHFIT Regulations as a result of the incorrect determination of the
status of the ES Trust as a WHFIT or failing to identify whether or not the
ES
Trust is a WHFIT.
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(b) The
Securities Administrator, in its discretion, will report required WHFIT
information to the beneficial owner of the ES Trust using either the cash or
accrual method and will specify the method used by it, except to the extent
the
WHFIT Regulations specifically require a different method. The
Securities Administrator will be under no obligation to determine whether any
Certificateholder uses the cash or accrual method. The Securities
Administrator will make available WHFIT information to Certificateholders on
its
website. In addition, except for posting such information on its
website, the Securities Administrator will not be responsible or liable for
providing subsequently amended, revised or updated information to any
Certificateholder, unless requested by that Certificateholder.
(c) The
Securities Administrator shall not be liable for failure to meet the reporting
requirements of the WHFIT Regulations nor for any penalties thereunder if such
failure is due to: (i) the lack of reasonably necessary information being
provided to Securities Administrator, (ii) incomplete, inaccurate or untimely
information being provided to Securities Administrator, or (iii) the inability
of the Securities Administrator, after good faith efforts, to alter its existing
information reporting systems to capture information neceesary to fully comply
with the WHFIT Regulations for the 2007 calendar year. Absent receipt
of information from the owner of a Class of Certificates (other than the Class
A-R Certificates) representing, in whole or in part, beneficial ownership of
an
interest in a WHFIT, or the Depositor regarding any sale of securities,
including the price, amount of proceeds and date of sale, the Securities
Administrator will assume there is no secondary market trading of WHFIT
interests.
(d) To
the extent required by the WHFIT Regulations, the Securities Administrator
will
publish on an appropriate website or otherwise make available the CUSIPs for
the
certificates that represent ownership of a WHFIT. The Securities
Administrator will use its best efforts to keep the information accurate and
updated to the extent CUSIPs have been received. The Securities
Administrator will not be liable for investor reporting delays that result
from
the receipt of inaccurate or untimely CUSIP information.
(e) The
Securities Administrator shall be entitled to additional reasonable compensation
for changes in reporting required in respect of the WHFIT Regulations that
arise
as a result of a change in the WHFIT Regulations or a change in interpretation
of the WHFIT Regulations by the IRS or the Depositor or their counsel, if such
change requires, in the Securities Administrator’s reasonable discretion, a
material increase in its reporting obligations in respect of the ES
Trust.
ARTICLE
VII
PURCHASE
OF MORTGAGE LOANS AND
TERMINATION
OF THE TRUST FUND
Section
7.01. Purchase of Mortgage Loans; Termination of Trust Fund Upon
Purchase or Liquidation of All Mortgage Loans.
(a) The
respective obligations and responsibilities of the Trustee, the Securities
Administrator and the Master Servicer created hereby (other than the obligation
of the Securities Administrator to make payments to the Certificateholders
as
set forth in Section 7.02), shall
122
terminate
on the earliest of (i) the final payment or other liquidation of the last
Mortgage Loan remaining in the Trust Fund and the disposition of all REO
Property, (ii) the sale of the property held by the Trust Fund in
accordance with Section 7.01(c) and (iii) the Latest Possible Maturity
Date; provided, however, that in no event shall the Trust Fund
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. Any termination of the Trust Fund shall be carried out in
such a manner so that the termination of each REMIC included therein shall
qualify as a “qualified liquidation” under the REMIC Provisions.
(b) [Reserved].
(c) On
any Distribution Date occurring on or after the Initial Optional Purchase Date,
the Master Servicer has the option to cause the Trust Fund to adopt a plan
of
complete liquidation of the Mortgage Loans pursuant to Sections 7.02 and
7.03 hereof to sell all of the property related thereto. If the
Master Servicer elects to exercise such option, it shall no later than 30 days
prior to the Distribution Date selected for purchase of the Mortgage Loans
and
all other assets of the Trust Fund related to the Certificates (the “Purchase
Date”) deliver written notice to the Trustee and the Securities Administrator
and either (a) deposit in the Distribution Account the Redemption Price or
(b) state in such notice that the Redemption Price shall be deposited in
the Distribution Account not later than 10:00 a.m., New York City time, on
the
Purchase Date. Upon exercise of such option, the property of the
Trust Fund shall be sold to the Master Servicer at a price equal to the
Redemption Price.
(d) The
Depositor, the Master Servicer, each Servicer, the Securities Administrator,
the
Trustee and each Custodian shall be reimbursed from the Redemption Price for
any
Advances, Servicer Advances, accrued and unpaid Servicing Fees or other amounts
with respect to the Mortgage Loans and any related assets being purchased
pursuant to Section 7.01(c) above that are reimbursable to such parties (and
such other amounts which, if not related to the Mortgage Loans and other assets
of the Trust Fund not being purchased, that are then due and owing to any such
Person) under this Agreement and the related Purchase and Servicing Agreement
or
the related Custodial Agreement.
Section
7.02. Procedure Upon Termination of Trust Fund.
(a) Notice
of any termination pursuant to the provisions of Section 7.01, specifying
the Distribution Date upon which the final distribution shall be made or the
purchase of the Trust’s assets will occur, shall be given promptly by the
Securities Administrator by first class mail to Certificateholders mailed in
the
case of a redemption of the Certificates, no later than (i) the first day of
the
month in which the Distribution Date selected for redemption of the Certificates
shall occur or (ii) upon (x) the sale of all of the property of the Trust
Fund by the Securities Administrator or in the case of a sale of assets of
the
Trust Fund, or (y) upon the final payment or other liquidation of the last
Mortgage Loan or REO Property in the Trust Fund. Such notice shall
specify (A) the Initial Optional Purchase Date, Distribution Date upon
which final distribution on the Certificates of all amounts required to be
distributed to Certificateholders pursuant to Section 5.02 will be made
upon presentation and surrender of the Certificates at the Certificate
Registrar’s Corporate Trust Office, and (B) that the Record Date otherwise
applicable
123
to
such
Distribution Date is not applicable, distribution being made only upon
presentation and surrender of the Certificates at the office or agency of the
Securities Administrator therein specified. The Securities
Administrator shall give such notice to the Trustee, 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
Securities Administrator shall terminate, the Distribution Account and any
other
account or fund maintained with respect to the Certificates, subject to the
Securities Administrator’s obligation hereunder to hold all amounts payable to
Certificateholders in trust without interest pending such payment.
(b) In
the event that all of the Holders do not surrender their Certificates for
cancellation within three months after the time specified in the above-mentioned
written notice, the Securities Administrator shall give a second written notice
to the remaining Certificateholders to surrender their Certificates for
cancellation and receive the final distribution with respect
thereto. If within one year after the second notice any Certificates
shall not have been surrendered for cancellation, the Securities Administrator
may take appropriate steps to contact the remaining Certificateholders
concerning surrender of such Certificates, and the cost thereof shall be paid
out of the amounts distributable to such Holders. If within two years
after the second notice any Certificates shall not have been surrendered for
cancellation, the Securities Administrator shall deliver any remaining funds
being held by it to the Holder of the Class A-R Certificates and the Holder
of
the Class A-R Certificates shall, subject to applicable state law relating
to
escheatment, hold all amounts distributable to such Holders for the benefit
of
such Holders. No interest shall accrue on any amount held by the
Securities Administrator and not distributed to a Certificateholder due to
such
Certificateholder’s failure to surrender its Certificate(s) for payment of the
final distribution thereon in accordance with this Section. The
foregoing provisions are intended to distribute to each Class of Certificates
any accrued and unpaid interest and/or principal to which they are entitled
based on their Pass-Through Rates and Class Certificate Balances or Notional
Amounts set forth in the Preliminary Statement upon liquidation of the Trust
Fund.
(c) Any
reasonable expenses incurred by the Securities Administrator in connection
with
any purchase or termination or liquidation of the Trust Fund shall be reimbursed
from proceeds received from the liquidation of the Trust Fund.
Section
7.03. Additional Trust Fund Termination Requirements.
(a) Any
termination of the Trust Fund shall be effected in accordance with the following
additional requirements, unless the Master Servicer, exercising its option
to
purchase all of the Mortgage Loans pursuant to Section 7.01(c), delivers to
the Trustee and the Securities Administrator, an Opinion of Counsel (at the
Master Servicer’s expense), addressed to the Trustee and the Securities
Administrator to the effect that the failure of the Trust Fund to comply with
the requirements of this Section 7.03 will not result in an Adverse REMIC
Event:
(i) Within
89 days prior to the time of the making of the final payment on the
Certificates, upon notification by the Master Servicer that it intends to
exercise its option to cause the termination of the Trust Fund, the Securities
Administrator on behalf of the
124
Trustee
shall adopt a plan of complete liquidation of the Trust Fund on behalf of each
REMIC, meeting the requirements of a qualified liquidation under the REMIC
Provisions;
(ii) Any
sale of the assets of the Trust Fund pursuant to Section 7.01 shall be a
sale for cash and shall occur at or after the time of adoption of such a plan
of
complete liquidation and prior to the time of making of the final payment on
the
Certificates;
(iii) On
the date specified for final payment of the Certificates, the Securities
Administrator shall make final distributions of principal and interest on the
Certificates in accordance with Section 5.02 and, after payment of, or
provision for any outstanding expenses, distribute or credit, or cause to be
distributed or credited, to the Holders of the Residual Certificates all cash
on
hand after such final payment (other than cash retained to meet claims), and
the
Trust Fund (and each REMIC) shall terminate at that time; and
(iv) In
no event may the final payment on the Certificates or the final distribution
or
credit to the Holders of the Residual Certificates be made after the 89th day
from the date on which the plan of complete liquidation is adopted.
(b) By
its acceptance of a Residual Certificate, each Holder thereof hereby agrees
to
accept the plan of complete liquidation adopted by the Securities Administrator
on behalf of the Trustee under this Section and to take such other action in
connection therewith as may be reasonably requested by the Trustee, the
Securities Administrator or any Servicer.
ARTICLE
VIII
RIGHTS
OF
CERTIFICATEHOLDERS
Section
8.01. Limitation on Rights of Holders.
(a) The
death or incapacity of any Certificateholder shall not operate to terminate
this
Agreement or this Trust Fund, nor entitle such Certificateholder’s legal
representatives or heirs to claim an accounting or take any action or proceeding
in any court for a partition or winding up of this Trust Fund, nor otherwise
affect the rights, obligations and liabilities of the parties hereto or any
of
them. Except as otherwise expressly provided herein, no
Certificateholder, solely by virtue of its status as a Certificateholder, shall
have any right to vote or in any manner otherwise control the Master Servicer
or
the operation and management of the Trust Fund, or the obligations of the
parties hereto, nor shall anything herein set forth, or contained in the terms
of the Certificates, be construed so as to constitute the Certificateholders
from time to time as partners or members of an association, nor shall any
Certificateholder be under any liability to any third person by reason of any
action taken by the parties to this Agreement pursuant to any provision
hereof.
(b) No
Certificateholder, solely by virtue of its status as Certificateholder, shall
have any right by virtue or by availing of any provision of this Agreement
to
institute any suit, action or proceeding in equity or at law upon or under
or
with respect to this Agreement, unless such Holder previously shall have given
to the Trustee a written notice of an Event of Default and of the continuance
thereof, as hereinbefore provided, and unless also the Holders of Certificates
evidencing not less than 25% of the Class Principal Amount or Class Notional
125
Amount
(or Percentage Interest) of Certificates of each Class affected thereby shall
have made written request upon the Trustee to institute such action, suit or
proceeding in its own name as Trustee hereunder and shall have offered to the
Trustee such reasonable indemnity as it may require against the cost, expenses
and liabilities to be incurred therein or thereby, and the Trustee, for sixty
days after its receipt of such notice, request and offer of indemnity, shall
have neglected or refused to institute any such action, suit or proceeding
and
no direction inconsistent with such written request has been given such Trustee
during such sixty-day period by such Certificateholders; it being understood
and
intended, and being expressly covenanted by each Certificateholder with every
other Certificateholder, the Securities Administrator and the Trustee, that
no
one or more Holders of Certificates shall have any right in any manner whatever
by virtue or by availing of any provision of this Agreement to affect, disturb
or prejudice the rights of the Holders of any other of such Certificates, or
to
obtain or seek to obtain priority over or preference to any other such Holder,
or to enforce any right under this Agreement, except in the manner herein
provided and for the benefit of all Certificateholders. For the
protection and enforcement of the provisions of this Section, each and every
Certificateholder and the Trustee shall be entitled to such relief as can be
given either at law or in equity.
Section
8.02. Access to List of Holders.
(a) If
the Trustee is not acting as Certificate Registrar, the Certificate Registrar
will furnish or cause to be furnished to the Trustee, within fifteen days after
receipt by the Certificate Registrar of a request by the Trustee in writing,
a
list, in such form as the Trustee may reasonably require, of the names and
addresses of the Certificateholders of each Class as of the most recent Record
Date.
(b) If
three or more Holders or Certificate Owners (hereinafter referred to as
“Applicants”) apply in writing to the Certificate Registrar, and such
application states that the Applicants desire to communicate with other Holders
with respect to their rights under this Agreement or under the Certificates
and
is accompanied by a copy of the communication which such Applicants propose
to
transmit, then the Certificate Registrar shall, within five Business Days after
the receipt of such application, afford such Applicants reasonable access during
the normal business hours of the Certificate Registrar to the most recent list
of Certificateholders held by the Certificate Registrar or shall, as an
alternative, send, at the Applicants’ expense, the written communication
proffered by the Applicants to all Certificateholders at their addresses as
they
appear in the Certificate Register.
(c) Every
Holder or Certificate Owner, if the Holder is a Clearing Agency, by receiving
and holding a Certificate, agrees with the Depositor, the Master Servicer,
the
Securities Administrator, the Certificate Registrar and the Trustee that none
of
the Depositor, the Master Servicer, the Securities Administrator, the
Certificate Registrar nor the Trustee shall be held accountable by reason of
the
disclosure of any such information as to the names and addresses of the
Certificateholders hereunder, regardless of the source from which such
information was derived.
Section
8.03. Acts of Holders of Certificates.
126
(a) Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Agreement to be given or taken by Holders or Certificate
Owners, if the Holder is a Clearing Agency, may be embodied in and evidenced
by
one or more instruments of substantially similar tenor signed by such Holders
in
person or by agent duly appointed in writing; and, except as herein otherwise
expressly provided, such action shall become effective when such instrument
or
instruments are delivered to the Trustee and the Securities Administrator and,
where expressly required herein, to the Master Servicer. Such
instrument or instruments (as the action embodies therein and evidenced thereby)
are herein sometimes referred to as an “Act” of the Holders signing such
instrument or instruments. Proof of execution of any such instrument
or of a writing appointing any such agents shall be sufficient for any purpose
of this Agreement and conclusive in favor of the Trustee, the Securities
Administrator and the Master Servicer, if made in the manner provided in this
Section. Each of the Trustee, the Securities Administrator and the
Master Servicer shall promptly notify the others of receipt of any such
instrument by it, and shall promptly forward a copy of such instrument to the
others.
(b) The
fact and date of the execution by any Person of any such instrument or writing
may be proved by the affidavit of a witness of such execution or by the
certificate of any notary public or other officer authorized by law to take
acknowledgments or deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Whenever such
execution is by an officer of a corporation or a member of a partnership on
behalf of such corporation or partnership, such certificate or affidavit shall
also constitute sufficient proof of his authority. The fact and date
of the execution of any such instrument or writing, or the authority of the
individual executing the same, may also be proved in any other manner which
the
Trustee deems sufficient.
(c) The
ownership of Certificates (whether or not such Certificates shall be overdue
and
notwithstanding any notation of ownership or other writing thereon made by
anyone other than the Trustee) shall be proved by the Certificate Register,
and
none of the Trustee, the Securities Administrator, the Master Servicer or the
Depositor shall be affected by any notice to the contrary.
(d) Any
request, demand, authorization, direction, notice, consent, waiver or other
action by the Holder of any Certificate shall bind every future Holder of the
same Certificate and the Holder of every Certificate issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof,
in
respect of anything done, omitted or suffered to be done by the Trustee or
the
Master Servicer in reliance thereon, whether or not notation of such action
is
made upon such Certificate.
ARTICLE
IX
ADMINISTRATION
AND SERVICING OF MORTGAGE LOANS
BY
THE
MASTER SERVICER
Section
9.01. Duties of the Master Servicer; Enforcement of Servicers’ and
Master Servicer’s Obligations.
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(a) The
Master Servicer, on behalf of the Trustee, the Depositor and the
Certificateholders shall monitor the performance of the Servicers under the
Purchase and Servicing Agreements, and shall use its reasonable good faith
efforts to cause the Servicers duly and punctually to perform all of their
respective duties and obligations thereunder. Upon the occurrence of
a default of which a Responsible Officer of the Master Servicer has actual
knowledge under a Purchase and Servicing Agreement, the Master Servicer shall
promptly notify the Trustee thereof, and shall specify in such notice the
action, if any, the Master Servicer is taking in respect of such
default. So long as any such default shall be continuing, the Master
Servicer may, and shall if it determines such action to be in the best interests
of Certificateholders, (i) terminate all of the rights and powers of such
Servicer pursuant to the applicable provisions of the related Purchase and
Servicing Agreement; (ii) exercise any rights it may have to enforce the
related Purchase and Servicing Agreement against such Servicer; and/or
(iii) waive any such default under the related Purchase and Servicing
Agreement or take any other action with respect to such default as is permitted
thereunder. Notwithstanding anything to the contrary in this
Agreement, with respect to any Additional Collateral Mortgage Loan, the Master
Servicer will have no duty or obligation to supervise, monitor or oversee the
activities of the related Servicer under any Purchase and Servicing Agreement
with respect to any Additional Collateral or under any agreement relating to
the
pledge of, or the perfection of a pledge or security interest in, any Additional
Collateral except upon the occurrence of the following events (i) in the case
of
a final liquidation of any Mortgaged Property secured by Additional Collateral,
the Master Servicer shall enforce the obligation of the Servicer under the
related Servicing Agreement to liquidate such Additional Collateral as required
by such Servicing Agreement, and (ii) if the Master Servicer assumes the
obligations of such Servicer as successor Servicer under the related Servicing
Agreement pursuant to this Section 9.01, as successor Servicer, it shall be
bound to service and administer the Additional Collateral in accordance with
the
provisions of such Servicing Agreement.
(b) Upon
any termination by the Master Servicer of a Servicer’s rights and powers
pursuant to its Purchase and Servicing Agreement, the rights and powers of
such
Servicer with respect to the related Mortgage Loans shall vest in the Master
Servicer and the Master Servicer shall be the successor in all respects to
such
Servicer in its capacity as Servicer with respect to such Mortgage Loans under
the related Purchase and Servicing Agreement, unless or until the Master
Servicer shall have appointed (and the Trustee shall have acknowledged), with
the consent of the Rating Agencies and in accordance with the applicable
provisions of the related Purchase and Servicing Agreement, a new Xxxxxx Xxx-
or
FHLMC-approved Person to serve as successor to the Servicer;
provided, however, that it is understood and agreed 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 a successor servicer
(including the Master Servicer). With such letter from the Rating
Agencies, the Master Servicer may elect to continue to serve as successor
servicer under the Purchase and Servicing Agreement. Upon appointment
of a successor servicer, as authorized under this Section 9.01(b), unless
the successor servicer shall have assumed the obligations of the terminated
Servicer under such Purchase and Servicing Agreement, the Master Servicer and
such successor servicer shall enter into a servicing agreement in a form
substantially similar to the affected Purchase and Servicing Agreement, and
the
Trustee shall acknowledge such servicing agreement. In connection
with any such appointment, the Master Servicer may make such arrangements for
the compensation of such successor servicer as it and such successor servicer
shall agree, but in no event shall such
128
compensation
of any successor servicer (including the Master Servicer) be in excess of that
payable to the Servicer under the affected Purchase and Servicing
Agreement.
The
Master Servicer shall pay the costs of such enforcement (including the
termination of a Servicer, the appointment of a successor servicer or the
transfer and assumption of the servicing by the Master Servicer) at its own
expense and shall be reimbursed therefor initially (i) by the terminated
Servicer, (ii) from a general recovery resulting from such enforcement only
to the extent, if any, that such recovery exceeds all amounts due in respect
of
the related Mortgage Loans, (iii) from a specific recovery of costs,
expenses or attorney’s fees against the party against whom such enforcement is
directed, or (iv) to the extent that such amounts described in (i)-(iii)
above are insufficient to reimburse the Master Servicer for such costs of
enforcement, from the Trust Fund, as provided in Section 9.04.
If
the
Master Servicer assumes the servicing with respect to any of the Mortgage Loans,
it will not assume liability for the representations and warranties of any
Servicer it replaces or for the errors or omissions of such
Servicer.
If
the
Seller is the owner of the servicing rights and the Seller chooses to terminate
that Servicer with or without cause and sell those servicing rights to a
successor servicer, then the Depositor shall (i) cause the Seller to give
reasonable prior written notice to the Master Servicer, and (ii) obtain a letter
from the Rating Agencies indicating that the appointment of the proposed
successor servicer will not result in a downgrade or withdrawal of the rating
of
any of the Certificates, and a New Xxxxxx Mae- or FHLMC-approved Person
reasonably acceptable to the Master Servicer shall be chosen by the Seller
and
appointed as successor servicer with the acknowledgment of the Master Servicer
and the Trustee; provided, however, that the Seller shall not
be required to get a no-downgrade letter from the Rating Agencies if: (i) the
Rating Agencies received prior written notice of the transfer of the servicing
rights and the name of the successor Servicer, (ii) such successor Servicer
has
a servicing rating in the highest category of Fitch or Xxxxx’x to the extent
that Fitch or Xxxxx’x, respectively, is a Rating Agency, and such successor
Servicer has a servicer evaluation ranking in one of the two highest categories
of S&P to the extent that S&P is a Rating Agency, and (iii) such
successor Servicer shall service the related Mortgage Loans under either the
Purchase and Servicing Agreement together with the related Assignment Agreement
under which such Mortgage Loans are currently being serviced or under another
Servicing Agreement together with a related Assignment Agreement that have
already been reviewed and approved by the Rating Agencies. The
Depositor shall cause the costs of such transfer including any costs of such
transfer (including any costs of the Master Servicer) to be borne by the
Seller.
At
least
15 calendar days prior to the effective date of such termination, (x) the
Depositor shall provide written notice to the Master Servicer and all
information reasonably requested by the Depositor in order to comply with its
reporting obligation under Item 6.02 of Form 8-K with respect to a replacement
servicer.
(c) Upon
any termination of a Servicer’s rights and powers pursuant to its Purchase and
Servicing Agreement, the Master Servicer shall promptly notify the Trustee
and
the Rating Agencies, specifying in such notice that the Master Servicer or
any
successor servicer, as the case may be, has succeeded such Servicer under the
related Purchase and Servicing
129
Agreement
or under any other servicing agreement reasonably satisfactory to the Master
Servicer and the Rating Agencies, which notice shall also specify the name
and
address of any such successor servicer.
(d) The
Depositor shall not consent to the assignment by any Servicer of such Servicer’s
rights and obligations under the related Purchase and Servicing Agreement
without the prior written consent of the Master Servicer, which consent shall
not be unreasonably withheld.
(e) The
Trustee shall execute and deliver, at the written request of the Master Servicer
or any Servicer, and furnish to the Master Servicer and any Servicer, at the
expense of the requesting party, a power of attorney in the standard form
provided by the Trustee to take title to the Mortgaged Properties after
foreclosure in the name of and on behalf of the Trustee in its capacity as
Trustee hereunder and for the purposes described herein to the extent necessary
or desirable to enable the Master Servicer or any Servicer to perform its
respective duties. The Trustee shall not be liable for the actions of
the Master Servicer or any Servicer under such powers of attorney.
Section
9.02. Assumption of Master Servicing by Trustee.
(a) In
the event the Master Servicer shall for any reason no longer be the Master
Servicer (including by reason of any Event of Default by the Master Servicer
under this Agreement), the Trustee shall thereupon assume all of the rights
and
obligations of such Master Servicer hereunder and under each Purchase and
Servicing Agreement entered into with respect to the Mortgage Loans or shall
appoint or petition a court to appoint a Xxxxxx-Xxx or FHLMC-approved servicer
as successor servicer that is acceptable to the Depositor and the Rating
Agencies. The Trustee, as successor master servicer, its designee or
any successor master servicer appointed by the Trustee shall be deemed to have
assumed all of the Master Servicer’s interest herein and therein to the same
extent as if such Purchase and Servicing Agreements had been assigned to the
assuming party, except that the Master Servicer shall not thereby be relieved
of
any liability or obligations of the Master Servicer under such Purchase and
Servicing Agreement accruing prior to its replacement as Master Servicer, and
shall be liable to the Trustee, and hereby agrees to indemnify and hold harmless
the Trustee (in its individual corporate capacity and as Trustee hereunder)
from
and against all costs, damages, expenses and liabilities (including reasonable
attorneys’ fees) incurred by the Trustee as a result of such liability or
obligations of the Master Servicer and in connection with the Trustee’s
assumption (but not its performance, except to the extent that costs or
liability of the Trustee are created or increased as a result of negligent
or
wrongful acts or omissions of the Master Servicer prior to its replacement
as
Master Servicer) of the Master Servicer’s obligations, duties or
responsibilities thereunder. To the extent that the costs and
expenses of the Trustee described in this Section are not timely reimbursed
by
the Master Servicer, the Trustee shall be entitled to reimbursement from the
Distribution Account and the Master Servicer is hereby obligated to reimburse
the Trust promptly for such amounts by deposit thereof in the Distribution
Account.
(b) The
Master Servicer that has been terminated shall, upon request of the Trustee
but
at the expense of such Master Servicer, deliver to the assuming party all
documents and records relating to each Purchase and Servicing Agreement, this
Agreement and the related
130
Mortgage
Loans
and
an accounting of amounts collected and held by it and otherwise use its best
efforts to effect the orderly and efficient transfer of each Purchase and
Servicing Agreement and this Agreement to the assuming party.
Section
9.03. Representations and Warranties of the Master
Servicer.
The
Master Servicer hereby represents and warrants to the Depositor, the Securities
Administrator and the Trustee, for the benefit of the Certificateholders, as
of
the Closing Date that:
(i) it
is validly existing and in good standing under the laws of the United States
of
America as a national banking association, and as Master Servicer has full
power
and authority to transact any and all business contemplated by this Agreement
and to execute, deliver and comply with its obligations under the terms of
this
Agreement, the execution, delivery and performance of which have been duly
authorized by all necessary corporate action on the part of the Master
Servicer;
(ii) the
execution and delivery of this Agreement by the Master Servicer and its
performance and compliance with the terms of this Agreement will not
(A) violate the Master Servicer’s charter or bylaws, (B) violate any
law or regulation or any administrative decree or order to which it is subject
or (C) constitute a default (or an event which, with notice or lapse of
time, or both, would constitute a default) under, or result in the breach of,
any material contract, agreement or other instrument to which the Master
Servicer is a party or by which it is bound or to which any of its assets are
subject, which violation, default or breach would materially and adversely
affect the Master Servicer’s ability to perform its obligations under this
Agreement;
(iii) this
Agreement constitutes, assuming due authorization, execution and delivery hereof
by the other respective parties hereto, a legal, valid and binding obligation
of
the Master Servicer, enforceable against it in accordance with the terms hereof,
except as such enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium and other laws affecting the enforcement of
creditors’ rights in general, and by general equity principles (regardless of
whether such enforcement is considered in a proceeding in equity or at
law);
(iv) the
Master Servicer is not in default with respect to any order or decree of any
court or any order or regulation of any federal, state, municipal or
governmental agency to the extent that any such default would materially and
adversely affect its performance hereunder;
(v) the
Master Servicer is not a party to or bound by any agreement or instrument or
subject to any charter provision, bylaw or any other corporate restriction
or
any judgment, order, writ, injunction, decree, law or regulation that may
materially and adversely affect its ability as Master Servicer to perform its
obligations under this Agreement or that requires the consent of any third
person to the execution of this Agreement or the performance by the Master
Servicer of its obligations under this Agreement;
131
(vi) no
litigation is pending or, to the best of the Master Servicer’s knowledge,
threatened against the Master Servicer which would prohibit its entering into
this Agreement or performing its obligations under this Agreement;
(vii) the
Master Servicer, or an affiliate thereof the primary business of which is the
servicing of conventional residential mortgage loans, is a Xxxxxx Mae- or
FHLMC-approved seller/servicer;
(viii) no
consent, approval, authorization or order of any court or governmental agency
or
body is required for the execution, delivery and performance by the Master
Servicer of or compliance by the Master Servicer with this Agreement or the
consummation of the transactions contemplated by this Agreement, except for
such
consents, approvals, authorizations and orders (if any) as have been obtained;
and
(ix) the
consummation of the transactions contemplated by this Agreement are in the
ordinary course of business of the Master Servicer.
It
is
understood and agreed that the representations and warranties set forth in
this
Section shall survive the execution and delivery of this
Agreement. The Master Servicer shall indemnify the Depositor, the
Securities Administrator and the Trustee and hold them harmless against any
loss, damages, penalties, fines, forfeitures, 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 material
breach of the Master Servicer’s representations and warranties contained in this
Section 9.03. It is understood and agreed that the enforcement
of the obligation of the Master Servicer set forth in this Section to indemnify
the Depositor, the Securities Administrator and the Trustee as provided in
this
Section constitutes the sole remedy (other than as set forth in
Section 6.14) of the Depositor, the Securities Administrator and the
Trustee, respecting a breach of the foregoing representations and
warranties. Such indemnification shall survive any termination of the
Master Servicer as Master Servicer hereunder, the resignation or removal of
the
Trustee and any termination of this Agreement.
Any
cause
of action against the Master Servicer relating to or arising out of the breach
of any representations and warranties made in this Section shall accrue upon
discovery of such breach by either the Depositor, the Master Servicer or the
Trustee or notice thereof by any one of such parties to the other
parties.
Section
9.04. Compensation to the Master Servicer.
The
Master Servicer shall be compensated for its duties hereunder pursuant to
Section 4.02(b) hereof. The Master Servicer shall either retain or
withdraw from the Distribution Account (i) amounts necessary to reimburse
itself for any previously unreimbursed Advances, Servicer Advances and
Nonrecoverable Advances with respect to the Mortgage Loans in accordance with
the definition of “Available Funds” and (ii) amounts representing
assumption fees, late payment charges or other ancillary income not included
in
the definition of “Available Funds” and which are not required to be remitted by
the Servicers to the Securities Administrator or deposited by the Securities
Administrator into the Distribution Account and (iii) any amounts to which
the
Master Servicer is entitled pursuant to 4.01(e) hereof. The Master
Servicer shall be
132
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.
In
addition, the Master Servicer shall be entitled to reimbursement from the
Distribution Account for all reasonable expenses, disbursements and advances
incurred or made by the Master Servicer in connection with the performance
of
its duties hereunder and under the Purchase and Servicing Agreements, as
modified by the Acknowledgements (including the reasonable compensation and
the
expenses and disbursements of its agents and counsel), to the extent not
otherwise reimbursed pursuant to this Agreement, except any such expense,
disbursement or advance as may be attributable to its willful misfeasance,
bad
faith or negligence.
The
Master Servicer and any director, officer, employee or agent of the Master
Servicer shall be indemnified by the Trust and held harmless thereby against
any
loss, liability or expense (including reasonable legal fees and disbursements
of
counsel) incurred on their part that may be sustained in connection with,
arising out of, or related to, any claim or legal action (including any pending
or threatened claim or legal action) relating to this Agreement, the Purchase
and Servicing Agreements or the Certificates, other than any loss, liability
or
expense resulting from the Master Servicer’s failure to perform its duties
hereunder or thereunder or incurred by reason of the Master Servicer’s
negligence, willful misfeasance or bad faith.
Section
9.05. Merger or Consolidation.
Any
Person into which the Master Servicer may be merged or consolidated, or any
Person resulting from any merger, conversion, other change in form or
consolidation to which the Master Servicer shall be a party, or any Person
succeeding to the business of the Master Servicer shall be the successor to
the
Master Servicer hereunder, without the execution or filing of any paper or
any
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding; provided, however, that the
successor or resulting Person to the Master Servicer shall be a Person that
shall be qualified and approved to service mortgage loans for Xxxxxx Xxx or
FHLMC and shall have a net worth of not less than $15,000,000.
As
a
condition to the effectiveness of any merger or consolidation, at least 15
calendar days prior to the effective date of any merger or consolidation of
the
Master Servicer, the Master Servicer shall provide (x) written notice to the
Depositor of any successor pursuant to this Section and (y) in writing and
in
form and substance reasonably satisfactory to the Depositor, all information
reasonably requested by the Depositor in order to comply with its reporting
obligation under Item 6.02 of Form 8-K with respect to a replacement Master
Servicer.
Section
9.06. Resignation of Master Servicer and Securities
Administrator.
Except
as
otherwise provided in Sections 9.05, 9.07 and 9.10 hereof, neither the
Master Servicer nor the Securities Administrator shall resign from the
obligations and duties hereby imposed on it unless the duties of the Master
Servicer or the Securities Administrator, as applicable, hereunder are no longer
permissible under applicable law or are in material conflict by reason of
applicable law with any other activities carried on by it and cannot be
cured. Any such determination permitting the resignation of the
Master Servicer or the Securities
133
Administrator
shall be evidenced by an Opinion of Counsel that shall be Independent to such
effect delivered to the Trustee. No resignation of the Master
Servicer or the Securities Administrator shall become effective until the
Trustee shall have assumed, or a successor master servicer or successor
securities administrator, as applicable, shall have been appointed pursuant
to
Section 6.07 or 9.02, as applicable, and until such successor shall have
assumed, such Master Servicer’s or Securities Administrator’s responsibilities
and obligations under this Agreement. Notice of any such resignation
shall be given promptly by the Master Servicer or the Securities Administrator,
as applicable, to the Depositor and the Trustee.
If,
at
any time, the Master Servicer resigns under this Section 9.06, or transfers
or assigns its rights and obligations under Section 9.07, or is removed as
Master Servicer pursuant to Section 6.14, then at such time Xxxxx Fargo
Bank, National Association (or any successor thereto) also shall resign or
be
removed, as applicable, as Securities Administrator, Paying Agent,
Authenticating Agent and Certificate Registrar under this
Agreement. In such event, the obligations of the Master Servicer and
the Securities Administrator shall be assumed by the Trustee as successor or
by
such other successor master servicer and/or securities administrator, as
applicable, appointed by the Trustee (subject to the provisions of Sections
6.07
and 9.02(a)).
As
a
condition to the effectiveness of any such resignation, at least 15 calendar
days prior to the effective date of such resignation, the Master Servicer shall
provide (x) written notice to the Depositor of any successor pursuant to this
Section and (y) in writing and in form and substance reasonably satisfactory
to
the Depositor, all information reasonably requested by the Depositor in order
to
comply with its reporting obligation under Item 6.02 of Form 8-K with respect
to
the resignation of the Master Servicer.
Section
9.07. Assignment or Delegation of Duties by the Master Servicer and
Securities Administrator.
Except
as
expressly provided herein, neither the Master Servicer nor the Securities
Administrator shall assign or transfer any of their respective rights, benefits
or privileges hereunder to any other Person, or delegate to or subcontract
with,
or authorize or appoint any other Person to perform any of the respective
duties, covenants or obligations to be performed by the Master Servicer or
Securities Administrator, as applicable, hereunder; provided,
however, that the Master Servicer and the Securities Administrator shall
each have the right with the prior written consent of the Trustee and the
Depositor (which consent shall not be unreasonably withheld), and upon delivery
to the Trustee and the Depositor of a letter from each Rating Agency to the
effect that such action shall not result in a downgrading of the Certificates,
to delegate or assign to or subcontract with or authorize or appoint any
qualified Person to perform and carry out any of the respective duties,
covenants or obligations to be performed and carried out by the Master Servicer
or the Securities Administrator, as applicable, hereunder. Notice of
such permitted assignment shall be given promptly by the Master Servicer or
the
Securities Administrator, as applicable, to the Depositor and the
Trustee. If, pursuant to any provision hereof, the respective duties
of the Master Servicer or the Securities Administrator are transferred to a
successor master servicer or successor securities administrator, as applicable,
the entire amount of the compensation payable to the Master Servicer or
Securities Administrator pursuant hereto shall thereafter be payable to such
successor master servicer or successor
134
securities
administrator. Such successor Master Servicer shall also pay the fees
of the Trustee, as provided herein.
Section
9.08. Limitation on Liability of the Master Servicer and
Others.
(a) Neither
the Master Servicer nor any of the directors, officers, employees or agents
of
the Master Servicer shall be under any liability to the Trustee or the
Certificateholders for any action taken or for refraining from the taking of
any
action in good faith pursuant to this Agreement, or for errors in judgment;
provided, however, that this provision shall not protect the
Master Servicer or any such person against any liability that would otherwise
be
imposed by reason of willful misfeasance, bad faith or negligence in its
performance of its duties or by reason of reckless disregard for its obligations
and duties under this Agreement. 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. The Master
Servicer shall be under no obligation to appear in, prosecute or defend any
legal action that is not incidental to its duties to master service the Mortgage
Loans in accordance with this Agreement and that in its opinion may involve
it
in any expenses or liability; provided, however, that the
Master Servicer may in its sole discretion undertake any such action that it
may
deem necessary or desirable in respect to this Agreement and the rights and
duties of the parties hereto and the interests of 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.
The
Master Servicer shall not be liable for any acts or omissions of the Servicers
except to the extent that damages or expenses are incurred as a result of such
act or omissions and such damages and expenses would not have been incurred
but
for the negligence, willful misfeasance, bad faith or recklessness of the Master
Servicer in supervising, monitoring and overseeing the obligations of the
Servicers in this Agreement and the Purchase and Servicing
Agreements.
Section
9.09. Indemnification; Third-Party Claims.
The
Master Servicer agrees to indemnify the Depositor, the Securities Administrator
and the Trustee, and hold them harmless against any and all claims, losses,
penalties, fines, forfeitures, legal fees and related costs, judgments, and
any
other costs, liability, fees and expenses that the Depositor, the Securities
Administrator or the Trustee may sustain as a result of the Master Servicer’s
willful misfeasance, bad faith or negligence in the performance of its duties
hereunder or by reason of its reckless disregard for its obligations and duties
under this Agreement, the Acknowledgements and the related Purchase and
Servicing Agreements. The Depositor, the Securities Administrator and
the Trustee shall immediately notify the Master Servicer if a claim is made
by a
third party with respect to this Agreement or the Mortgage Loans entitling
the
Depositor, the Securities Administrator or the Trustee to indemnification under
this Section 9.09, whereupon the Master Servicer shall assume the defense
of any such claim and pay all expenses in connection therewith, including
counsel fees, and promptly pay, discharge and satisfy any judgment or decree
which may be entered against it or them in respect of such claim.
Section
9.10. Eligibility Requirements for Securities
Administrator.
135
The
Securities Administrator hereunder shall at all times be a corporation or
association organized and doing business under the laws the United States of
America or any state thereof, authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus of at least $50,000,000,
subject to supervision or examination by federal or state authority and with
a
credit rating of at least investment grade or at least “A/F1” by Fitch if Fitch
is a Rating Agency. If such corporation or association publishes
reports of condition at least annually, pursuant to law or to the requirements
of the aforesaid supervising or examining authority, then for the purposes
of
this Section 9.10 the combined capital and surplus of such corporation or
association shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. In case at any
time the Securities Administrator shall cease to be eligible in accordance
with
the provisions of this Section 9.10, the Securities Administrator shall resign
immediately in the manner and with the effect specified in Section 6.06
hereof. The entity serving as Securities Administrator may have
normal banking and trust relationships with the Depositor, the Seller, the
Master Servicer, any Custodian or the Trustee and their respective
affiliates.
The
Securities Administrator (i) may not be an Originator, Master Servicer,
Servicer, the Depositor or an affiliate of the Depositor unless the Securities
Administrator is in an institutional trust department, (ii) must be authorized
to exercise corporate trust powers under the laws of its jurisdiction of
organization, and (iii) must be rated at least “A/F1” by Fitch, if Fitch is a
Rating Agency, or the equivalent rating by S&P or Xxxxx'x (or such rating
acceptable to Fitch pursuant to a written confirmation). If at any
time the Securities Administrator shall cease to be eligible in accordance
with
the provisions of this Section 9.10, the Securities Administrator shall resign
in the manner and with the effect specified in Section 6.06
hereof. If no successor Securities Administrator shall have been
appointed and shall have accepted appointment within 60 days after the
Securities Administrator ceases to be the Securities Administrator pursuant
to
this Section 9.10, then the Trustee shall become the successor Securities
Administrator and shall, in accordance with Article VI hereof and in such
capacity, perform the duties of the Securities Administrator pursuant to this
Agreement. The Trustee shall notify the Rating Agencies of any change
of Securities Administrator.
Section
9.11. Annual Statement as to Compliance.
The
Master Servicer and the Securities Administrator shall deliver (and the Master
Servicer and Securities Administrator shall cause any Additional Servicer
engaged by it to deliver) or otherwise make available to the Depositor and
the
Securities Administrator on or before March 15 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 an Additional Servicer, has been made under
such officer’s supervision, (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 an Additional
Servicer, 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 and (C) in the case of the Master Servicer, to the best of such
officer’s knowledge, each Servicer has fulfilled all its obligations under its
Servicing Agreement in all material respects throughout such year, or, if
136
there
has
been a failure to fulfill any such obligation in any material respect specifying
each such failure known to such officer and the nature and status
thereof.
The
Master Servicer shall enforce any obligation of the Servicers, to the extent
set
forth in the related Servicing Agreement, to deliver to the Master Servicer
and
to the Depositor an annual statement of compliance and all reports and other
information required from the Servicers under Reg AB within the time frame
set
forth in, and in such form and substance as may be required pursuant to, the
related Servicing Agreement. The Master Servicer shall include such annual
statements of compliance with its own annual statement of compliance to be
submitted to the Securities Administrator pursuant to this Section.
ARTICLE
X
REMIC
ADMINISTRATION
Section
10.01. REMIC Administration.
(a) REMIC
elections as set forth in the Preliminary Statement shall be made on Forms
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 and residual interest in each REMIC
shall be as designated in the Preliminary Statement.
(b) The
Closing Date is hereby designated as the “Startup Day” of each REMIC within the
meaning of section 860G(a)(9) of the Code. The latest possible
maturity date for purposes of Treasury Regulation 1.860G-1(a)(4) will be
the Latest Possible Maturity Date.
(c) The
Securities Administrator shall represent the Trust Fund in any administrative
or
judicial proceeding relating to an examination or audit by any governmental
taxing authority with respect thereto. The Securities Administrator
shall pay any and all tax related expenses (not including taxes) of each REMIC,
including but not limited to any professional fees or expenses related to audits
or any administrative or judicial proceedings with respect to such REMIC that
involve the Internal Revenue Service or state tax authorities, but only to
the
extent that (i) such expenses are ordinary or routine expenses, including
expenses of a routine audit but not expenses of litigation (except as described
in (ii)); or (ii) such expenses or liabilities (including taxes and
penalties) are attributable to the negligence or willful misconduct of the
Securities Administrator in fulfilling its duties hereunder (including its
duties as tax return preparer). The Securities Administrator shall be
entitled to reimbursement of expenses to the extent provided in clause (i)
above from the Distribution Account, provided, however, the
Securities Administrator shall not be entitled to reimbursement for expenses
incurred in connection with the preparation of tax returns and other reports
as
required by Section 6.20 and this Section.
(d) The
Securities Administrator shall prepare, the Trustee shall sign and the
Securities Administrator shall file all of each REMIC’s federal and appropriate
state tax and information returns as such REMIC’s direct
representative. The expenses of preparing and filing such returns
shall be borne by the Securities Administrator. In preparing such
returns, the Securities Administrator shall, with respect to each REMIC other
than the Master REMIC:
137
(i) treat
the accrual period for interests in such REMIC as the calendar month;
(ii) account for distributions made from each REMIC other than the Master
REMIC as made on the first day of each succeeding calendar month;
(iii) account for income under the all-OID method at the weighted average
of the Net Mortgage Rates; (iv) use the aggregation method provided in
Treasury Regulation section 1.1275-2(c); and (v) account for
income and expenses related to each REMIC other than the Master REMIC in the
manner resulting in the lowest amount of excess inclusion income possible
accruing to the Holder of the residual interest in each such REMIC.
(e) The
Securities Administrator or its designee shall perform on behalf of each REMIC
all reporting and other tax compliance duties that are the responsibility of
such REMIC under the Code, the REMIC Provisions, or other compliance guidance
issued by the Internal Revenue Service or any state or local taxing
authority. Among its other duties, if required by the Code, the REMIC
Provisions, or other such guidance, the Securities Administrator shall provide,
upon receipt of additional reasonable compensation, (i) to the Treasury or
other governmental authority such information as is necessary for the
application of any tax relating to the transfer of a Residual Certificate to
any
disqualified person or organization pursuant to Treasury
Regulation 1.860E-2(a)(5) and any person designated in
Section 860E(e)(3) of the Code and (ii) to the Certificateholders and
the Trustee such information or reports as are required by the Code or REMIC
Provisions.
(f) To
the extent within their control, the Trustee, the Securities Administrator,
the
Master Servicer and the Holders of Certificates shall take any action or cause
any REMIC to take any action necessary to maintain the status of any REMIC
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, the Master Servicer, nor the Holder of any Residual Certificate
shall knowingly take any action, cause any REMIC 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, the Securities Administrator and the Master Servicer
have received an Opinion of Counsel (at the expense of the party seeking to
take
such action) to the effect that the contemplated action will not endanger such
status or result in the imposition of such a tax. In addition, prior
to taking any action with respect to any REMIC or the assets therein, or causing
any REMIC to take any action, which is not expressly permitted under the terms
of this Agreement, any Holder of a Residual Certificate will consult with the
Trustee, the Securities Administrator, the Master Servicer or their respective
designees, in writing, with respect to whether such action could cause an
Adverse REMIC Event to occur with respect to any REMIC, and no such Person
shall
take any such action or cause any REMIC to take any such action as to which
the
Trustee, the Securities Administrator or the Master Servicer has advised it
in
writing that an Adverse REMIC Event could occur; provided,
however, that if no Adverse REMIC Event would occur but such action could
result in the imposition of additional taxes on the Residual Certificateholders,
no such Person shall take any such action, or cause any REMIC to take any such
action without the written consent of the Residual
Certificateholders.
(g) Each
Holder of a Residual Certificate shall pay when due any and all taxes imposed
on
the related REMIC by federal or state governmental authorities. To
the extent that such taxes are not paid by a Residual Certificateholder, the
Paying Agent shall pay any
138
remaining
REMIC taxes out of current or future amounts otherwise distributable to the
Holder of the Residual Certificate in any such REMIC or, if no such amounts
are
available, (A) out of other amounts held in the Distribution Account, and shall
reduce amounts otherwise payable to holders of regular interests in any such
REMIC or (B) to the extent that any such taxes are imposed on the REMIC as
a
result of the breach of any representation, warranty or covenant of the Master
Servicer, the Securities Administrator or any Servicer, then the Master
Servicer, the Securities Administrator, or that Servicer, as applicable, shall
pay when due any and all such taxes.
(h) The
Securities Administrator shall, for federal income tax purposes, maintain books
and records with respect to each REMIC on a calendar year and on an accrual
basis.
(i) No
additional contributions of assets shall be made to any REMIC, except as
expressly provided in this Agreement.
(j) Neither
the Securities Administrator nor the Master Servicer shall enter into any
arrangement by which any REMIC will receive a fee or other compensation for
services.
(k) [reserved].
(l) The
Class A-R Holder shall act as “tax matters person” with respect to each
REMIC created hereunder and the Securities Administrator shall act as agent
for
the Class A-R Holder in such roles, unless and until another party is so
designated by the Class A-R Holder.
(m) [reserved].
(n) [reserved].
(o) It
is intended that the ES Trust be considered a “grantor trust” under the
Code. Based upon such characterization, within a reasonable period of
time after the end of each calendar year but not later than the latest date
permitted by law, the Securities Administrator shall mail to each person who
so
requests in writing and who at anytime during such calendar year shall have
been
a Certificateholder the necessary information under applicable law for
preparation of such Holder’s federal and state income tax returns unless
substantially similar information has been previously provided to such
Certificateholder.
For
federal income tax purposes, the grantor trust created hereunder shall have
a
calendar year taxable year. The Securities Administrator shall
prepare or cause to be prepared and shall file or cause to be filed with the
Internal Revenue Service and applicable state or local tax authorities, income
tax information returns for each taxable year with respect to the grantor
trust.
Section
10.02. Prohibited Transactions and Activities.
Neither
the Depositor, the Master Servicer nor 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 each REMIC pursuant to Article VII of
this Agreement, (iv) a substitution pursuant to Article II of this
Agreement or (v) a repurchase of Mortgage Loans pursuant to Article II of
this Agreement, nor acquire any assets for any REMIC, nor sell or dispose of
any
investments in the Distribution
139
Account
for gain, nor accept any contributions to any REMIC after the Closing Date,
unless it has received an Opinion of Counsel (at the expense of the party
causing such sale, disposition, substitution or acceptance) that such
disposition, acquisition, substitution, or acceptance will not result in an
Adverse REMIC Event, (b) affect the distribution of interest or principal
on the Certificates or (c) result in the encumbrance of the assets
transferred or assigned to the Trust Fund (except pursuant to the provisions
of
this Agreement).
The
Master Servicer with respect to the Mortgage Loans shall not consent to any
modification of any such Mortgage Loan for which the consent of the Master
Servicer is required under the applicable Purchase and Servicing Agreement
under
which such Mortgage Loan is serviced, that would (i) increase the interest
rate
in respect of such Mortgage, defer for a period in excess of six months or
forgive the payment of any principal or interest, reduce the outstanding
principal amount (except for actual payments of principal), increase the
Servicing Fee on such Mortgage Loan or extend the final maturity date on such
Mortgage Loan, or (ii) result in a substitution or release of collateral or
in
the provision of additional collateral for the Mortgage Loan, unless the
applicable Mortgage Loan is in default or default is reasonably foreseeable
in
respect of such Mortgage Loan, or the Master Servicer has received an Opinion
of
Counsel (at the expense of the party requesting consent for such modification)
that such modification will not result in an Adverse REMIC Event.
Section
10.03. Indemnification with Respect to Prohibited Transactions or
Loss of REMIC Status.
Upon
the
occurrence of an Adverse REMIC Event due to the negligent performance by the
Securities Administrator of its duties and obligations set forth herein, the
Securities Administrator shall indemnify the Certificateholders of the related
Residual Certificate against any and all losses, claims, damages, liabilities
or
expenses (“Losses”) resulting from such negligence; provided,
however, that the Securities Administrator shall not be liable for any such
Losses attributable to the action or inaction of the Depositor, the Trustee
or
the Holder of the Residual Certificate, nor for any such Losses resulting from
misinformation provided by any of the foregoing parties on which the Securities
Administrator has relied. Notwithstanding the foregoing, however, in
no event shall the Securities Administrator have any liability (1) for any
action or omission that is taken in accordance with and in compliance with
the
express terms of, or which is expressly permitted by the terms of, this
Agreement or under any Purchase and Servicing Agreements or under any
Acknowledgement, (2) for any Losses other than arising out of malfeasance,
willful misconduct or negligent performance by the Service Administrator of
its
duties and obligations set forth herein, and (3) for any special or
consequential damages to Certificateholders of the related Residual Certificate
(in addition to payment of principal and interest on the
Certificates).
Section
10.04. REO Property.
(a) Notwithstanding
any other provision of this Agreement, the Master Servicer, acting on behalf
of
the Trustee hereunder, shall not, except to the extent provided in the
applicable Purchase and Servicing Agreement, knowingly permit any Servicer
to,
rent, lease, or otherwise earn income on behalf of any REMIC with respect to
any
REO Property which might cause an Adverse REMIC Event unless the applicable
Servicer has provided to the Trustee and
140
the
Securities Administrator an Opinion of Counsel concluding that, under the REMIC
Provisions, such action would not adversely affect the status of any REMIC
as a
REMIC and any income generated for any REMIC by the REO Property would not
result in an Adverse REMIC Event.
(b) The
Depositor shall cause the applicable Servicer (to the extent provided in its
Purchase and Servicing Agreement) to make reasonable efforts to sell any REO
Property for its fair market value. In any event, however, the
Depositor shall, or shall cause the applicable Servicer (to the extent provided
in its Purchase and Servicing Agreement) to, dispose of any REO Property within
three years of its acquisition by the Trust Fund unless the Depositor or the
applicable Servicer (on behalf of the Trust Fund) has received a grant of
extension from the Internal Revenue Service to the effect that, under the REMIC
Provisions and any relevant proposed legislation and under applicable state
law,
the REMIC may hold REO Property for a longer period without causing an Adverse
REMIC Event. If such an extension has been received, then the
Depositor, acting on behalf of the Trustee hereunder, shall, or shall cause
the
applicable Servicer to, continue to attempt to sell the REO Property for its
fair market value for such period longer than three years as such extension
permits (the “Extended Period”). If such an extension has not been
received and the Depositor or the applicable Servicer, acting on behalf of
the
Trust Fund hereunder, is unable to sell the REO Property within 33 months after
its acquisition by the Trust Fund or if such an extension, has been received
and
the Depositor or the applicable Servicer is unable to sell the REO Property
within the period ending three months before the close of the Extended Period,
the Depositor shall cause the applicable Servicer, before the end of the three
year period or the Extended Period, as applicable, to (i) purchase such REO
Property at a price equal to the REO Property’s fair market value or
(ii) auction the REO Property to the highest bidder (which may be the
applicable Servicer) in an auction reasonably designed to produce a fair price
prior to the expiration of the three-year period or the Extended Period, as
the
case may be.
Section
10.05. Fidelity.
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 and
trustees.
ARTICLE
XI
MISCELLANEOUS
PROVISIONS
Section
11.01. Binding Nature of Agreement; Assignment.
This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and permitted assigns.
Section
11.02. Entire Agreement.
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This
Agreement contains the entire agreement and understanding among the parties
hereto with respect to the subject matter hereof, and supersedes all prior
and
contemporaneous agreements, understandings, inducements and conditions, express
or implied, oral or written, of any nature whatsoever with respect to the
subject matter hereof. The express terms hereof control and supersede
any course of performance and/or usage of the trade inconsistent with any of
the
terms hereof.
Section
11.03. Amendment.
(a) This
Agreement (other than the provisions of Article XII hereof) may be amended
from
time to time by the Depositor, the Master Servicer, the Securities
Administrator, and the Trustee, without notice to or the consent of any of
the
Holders, (i) to cure any ambiguity or mistake, (ii) to cause the
provisions herein to conform to or be consistent with or in furtherance of
the
statements made with respect to the Certificates, the Trust Fund or this
Agreement in any Offering Document, or to correct or supplement any provision
herein which may be inconsistent with any other provisions herein or with the
provisions of any Purchase and Servicing Agreement, (iii) to make any other
provisions with respect to matters or questions arising under this Agreement
or
(iv) to add, delete, or amend any provisions to the extent necessary or
desirable to comply with any requirements imposed by the Code and the REMIC
Provisions. No such amendment effected pursuant to the preceding
sentence shall, as evidenced by an Opinion of Counsel, result in an Adverse
REMIC Event, nor shall such amendment effected pursuant to clause (iii) of
such sentence adversely affect in any material respect the interests of any
Holder. Prior to entering into any amendment without the consent of
Holders pursuant to this paragraph, the Trustee shall be provided with an
Opinion of Counsel (at the expense of the party requesting such amendment)
to
the effect that such amendment is permitted under this Section. Any
such amendment shall be deemed not to adversely affect in any material respect
any Holder, if the Trustee receives written confirmation from each Rating Agency
that such amendment will not cause such Rating Agency to reduce the then current
rating assigned to the Certificates.
(b) This
Agreement (other than the provisions of Article XII hereof) may also be amended
from time to time by the Depositor, the Master Servicer, the Securities
Administrator and the Trustee, with the consent of the Holders of not less
than
66-2/3% of the Class Principal Balance (or Percentage Interest) of each Class
of
Certificates affected thereby 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; provided,
however, that no such amendment shall be made unless the Trustee receives
an Opinion of Counsel, at the expense of the party requesting the change, that
such change will not cause an Adverse REMIC Event; and provided further, that
no
such amendment may (i) reduce in any manner the amount of, or delay the timing
of, payments received on Mortgage Loans which are required to be distributed
on
any Certificate, without the consent of the Holder of such Certificate or (ii)
reduce the aforesaid percentages of Class Principal Balance or Class Notional
Amount (or Percentage Interest) of Certificates of each Class, the Holders
of
which are required to consent to any such amendment without the consent of
the
Holders of 100% of the Class Principal Balance or Class Notional Amount (or
Percentage Interest) of each Class of Certificates affected
thereby. For purposes of this paragraph, references to “Holder” or
“Holders” shall be deemed to include, in the case of any Class of Book-Entry
Certificates, the related Certificate Owners.
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(c) In
the event the parties to this Agreement desire to further clarify or amend
any
provision of Article XII hereof, this Agreement shall be amended to reflect
the
new agreement between the parties covering matters in Article XII, which
amendment shall not require any Opinion of Counsel or Rating Agency
confirmations or the consent of any Certificateholder.
(d) Promptly
after the execution of any such amendment, the Securities Administrator shall
furnish written notification of the substance of such amendment to each Holder,
the Depositor and the Rating Agencies.
(e) It
shall not be necessary for the consent of Holders under this Section 11.03
to approve the particular form of any proposed amendment, but it shall be
sufficient if such consent shall approve the substance thereof. The
manner of obtaining such consents and of evidencing the authorization of the
execution thereof by Holders shall be subject to such reasonable regulations
as
the Trustee may prescribe.
Section
11.04. Voting Rights.
Except
to
the extent that the consent of all affected Certificateholders is required
pursuant to this Agreement, with respect to any provision of this Agreement
requiring the consent of Certificateholders representing specified percentages
of aggregate outstanding Certificate Balance or Class Notional Amount (or
Percentage Interest), Certificates owned by the Depositor, the Master Servicer,
the Securities Administrator, the Trustee, any Servicer or any Affiliates
thereof are not to be counted so long as such Certificates are owned by the
Depositor, the Master Servicer, the Securities Administrator, the Trustee,
any
Servicer or any Affiliate thereof.
In
the
event that there shall be any matter arising under this Agreement that requires
the vote of the Holders of Certificates outstanding hereunder, the Securities
Administrator, on behalf of the Trustee, as the holder of the related
Uncertificated Master REMIC Interests shall vote such Uncertificated Master
REMIC Interests in such amounts and proportions as shall reflect instructions
received from Holders of any Outstanding Exchangeable REMIC Certificates and
Outstanding Exchangeable Certificates corresponding to such Uncertificated
Master REMIC Interest.
Section
11.05. Provision of Information.
(a) For
so long as any of the Certificates of any Class are “restricted securities”
within the meaning of Rule 144(a)(3) under the Act, each of the Depositor,
the Master Servicer, the Securities Administrator and the Trustee (upon
instruction from the Depositor) agree to cooperate with each other to provide
to
any Certificateholders and to any prospective purchaser of Certificates
designated by such holder, upon the request of such holder or prospective
purchaser, any information required to be provided to such holder or prospective
purchaser to satisfy the condition set forth in Rule 144A(d)(4) under the
Act. Any reasonable, out-of-pocket expenses incurred by the Trustee,
the Master Servicer or the Securities Administrator in providing such
information shall be reimbursed by the Depositor.
(b) The
Securities Administrator shall provide to any person to whom a Prospectus was
delivered, upon the request of such person specifying the document or
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documents
requested, a copy (excluding exhibits) of any report on Form 8-K or
Form 10-K filed with the Securities and Exchange Commission pursuant to
Section 6.20(b). Any reasonable out-of-pocket expenses incurred
by the Securities Administrator in providing copies of such documents shall
be
reimbursed by the Depositor.
Section
11.06. Governing Law.
(a) THIS
AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL
BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS WITHOUT REGARD TO CONFLICT OF LAWS
PRINCIPLES APPLIED IN NEW YORK (OTHER THAN SECTION 5-1401 OF THE NEW YORK
GENERAL OBLIGATIONS LAW).
Section
11.07. Notices.
All
requests, demands, notices, authorizations, directions, consents, waivers and
communications hereunder shall be in writing and shall be deemed to have been
duly given when received by (a) in the case of the Depositor, Xxxxxx
Xxxxxxx Capital I Inc., 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, telephone
number (000) 000-0000, Attention: Xxxxxx Xxxxxxx Mortgage Loan Trust
2007-12, (b) in the case of the Seller, Xxxxxx Xxxxxxx Mortgage Capital
Holdings LLC, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx Xxxxxxx
Mortgage Loan Trust 2007-12, (c) in the case of the Master Servicer or the
Securities Administrator, Xxxxx Fargo Bank, National Association, X.X. Xxx
00,
Xxxxxxxx, Xxxxxxxx 00000 (or, for overnight deliveries, 0000 Xxx Xxxxxxxxx
Xxxx,
Xxxxxxxx, Xxxxxxxx 00000), telecopy number (000) 000-0000, Attention:
Xxxxxx Xxxxxxx Mortgage Loan Trust 2007-12, (d) with respect to the Trustee
or the Certificate Registrar, its respective Corporate Trust Office and (e)
in
the case of the Rating Agencies, the address specified therefor in the
definition corresponding to the name of such Rating Agency, or as to each party
such other address as may hereafter be furnished by such party to the other
parties in writing. All demands, notices and communications to a
party hereunder shall be in writing and shall be deemed to have been duly given
when delivered to such party at the relevant address, facsimile number or
electronic mail address set forth above or at such other address, facsimile
number or electronic mail address as such party may designate from time to
time
by written notice in accordance with this Section 11.07.
Section
11.08. Severability of Provisions.
If
any
one or more of the covenants, agreements, provisions or terms of this Agreement
shall be for any reason whatsoever held invalid, then such covenants,
agreements, provisions or terms shall be deemed severable from the remaining
covenants, agreements, provisions or terms of this Agreement and shall in no
way
affect the validity or enforceability of the other provisions of this Agreement
or of the Certificates or the rights of the Holders thereof.
Section
11.09. Indulgences; No Waivers.
Neither
the failure nor any delay on the part of a party to exercise any right, remedy,
power or privilege under this Agreement shall operate as a waiver thereof,
nor
shall any single or
144
partial
exercise of any right, remedy, power or privilege preclude any other or further
exercise of the same or of any other right, remedy, power or privilege, nor
shall any waiver of any right, remedy, power or privilege with respect to any
occurrence be construed as a waiver of such right, remedy, power or privilege
with respect to any other occurrence. No waiver shall be effective
unless it is in writing and is signed by the party asserted to have granted
such
waiver.
Section
11.10. Headings Not To Affect Interpretation.
The
headings contained in this Agreement are for convenience of reference only,
and
they shall not be used in the interpretation hereof.
Section
11.11. Benefits of Agreement.
Nothing
in this Agreement or in the Certificates, express or implied, shall give to
any
Person, other than the parties to this Agreement and their successors hereunder
and the Holders of the Certificates, any benefit or any legal or equitable
right, power, remedy or claim under this Agreement, except to the extent
specified in Section 11.15.
Section
11.12. Special Notices to the Rating Agencies.
(a) The
Depositor shall give prompt notice to the Rating Agencies of the occurrence
of
any of the following events of which it has notice:
(i) any
amendment to this Agreement pursuant to Section 11.03;
(ii) any
assignment by the Master Servicer of its rights hereunder or delegation of
its
duties hereunder;
(iii) the
occurrence of any Event of Default described in Section 6.14;
(iv) any
notice of termination given to the Master Servicer pursuant to Section 6.14
and any resignation of the Master Servicer hereunder;
(v) the
appointment of any successor to any Master Servicer pursuant to
Section 6.14;
(vi) the
making of a final payment pursuant to Section 7.02; and
(vii) any
termination of the rights and obligations of any Servicer under the applicable
Purchase and Servicing Agreement.
(b) All
notices to the Rating Agencies provided for this Section shall be in writing
and
sent by first class mail, telecopy or overnight courier, to the address
specified therefor in the definition corresponding to the name of such Rating
Agency.
(c) The
Securities Administrator shall provide or make available to the Rating Agencies
reports prepared pursuant to Section 4.05. In addition, the
Securities Administrator shall, at the expense of the Trust Fund, make available
to each Rating Agency such information
145
as
such
Rating Agency may reasonably request regarding the Certificates or the Trust
Fund, to the extent that such information is reasonably available to the
Securities Administrator.
(d) The
Depositor hereby represents to S&P that, to the Depositor’s knowledge, the
information provided to such Rating Agency, including the loan level detail,
is
true and correct according to such Rating Agency’s requirements.
Section
11.13. Conflicts.
To
the
extent that the terms of this Agreement conflict with the terms of any Purchase
and Servicing Agreement, the related Purchase and Servicing Agreement shall
govern.
Section
11.14. Counterparts.
This
Agreement may be executed in one or more counterparts, each of which shall
be
deemed to be an original, and all of which together shall constitute one and
the
same instrument.
Section
11.15. No Petitions.
The
Trustee and the Master Servicer (not in its individual corporate capacity,
but
solely as Master Servicer hereunder), by entering into this Agreement, hereby
covenant and agree that they shall not at any time institute against the
Depositor, or join in any institution against the Depositor of, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or other
proceedings under any United States federal or state bankruptcy or similar
law
in connection with any obligations relating to this Agreement or any of the
documents entered into by the Depositor in connection with the transactions
contemplated by this Agreement, except that the Trustee shall not be prohibited
from filing a proof of claim in any such proceeding.
Section
11.16. Indemnification by Trust.
Pursuant
to the Purchase and Servicing Agreements, each of the Originators and Servicers
shall be indemnified by the Trust to the extent specified in the related
Purchase and Servicing Agreement.
Pursuant
to this Agreement or the Custodial Agreements as applicable, each of the
Custodians shall be indemnified by the Trust to the extent specified in this
Agreement or the related Custodial Agreement as applicable.
ARTICLE
XII
EXCHANGE
ACT REPORTING
Section
12.01. Filing Obligations.
(a) The
Master Servicer, the Securities Administrator, the Trustee and each Custodian
shall reasonably cooperate with the Depositor in connection with the
satisfaction of the Depositor’s reporting requirements under the Exchange Act
with respect to the Trust Fund.
146
In
addition to the information specified below, if so requested by the Depositor
for the purpose of satisfying its reporting obligation under the Exchange Act,
the Master Servicer, the Securities Administrator, the Trustee and each
Custodian shall (and the Master Servicer shall cause each Servicer, to the
extent required by the related Servicing Agreement, to) provide the Depositor
with (a) such information which is available to such Person without unreasonable
effort or expense and within such timeframe as may be reasonably requested
by
the Depositor to comply with the Depositor’s reporting obligations under the
Exchange Act and (b) to the extent such Person is a party (and the Depositor
is
not a party) to any agreement or amendment required to be filed, copies of
such
agreement or amendment in XXXXX-compatible form. Each of the Master
Servicer (and the Master Servicer shall cause any Servicer to notify promptly,
to the extent required by the related Servicing Agreement), the Securities
Administrator, each Custodian and the Trustee shall promptly notify the
Depositor and the Master Servicer (if the notifying party is not the Master
Servicer), but in no event later than two (2) Business Days after its
occurrence, of any Reportable Event either (i) with respect to itself or any
Affiliate of it or (ii) with respect to any Reporting Party, to the extent
that
it has received notice thereof.
(b) On
or prior to January 30 of the first year in which the Securities Administrator
is able to do so under applicable law, the Securities Administrator shall
prepare and file a Form 15 relating to the automatic suspension of reporting
in
respect of the Trust under the Exchange Act.
(c) In
the event that the Securities Administrator is unable to file timely with the
Commission all or any required portion of any Form 8-K, Form 10-D or Form 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 immediately notify the Depositor. In the case of
Form 10-D and Form 10-K, the parties to this Agreement will (and the Master
Servicer shall cause each Servicer to cooperate) prepare and file a Form 12b-25
and a Form 10-DA and Form 10-KA as applicable, pursuant to Rule 12b-25 of the
Exchange Act. In the case of Form 8-K, the Securities Administrator
will, upon receipt of all required Form 8-K Disclosure Information shall include
such disclosure information in the next Form 10-D unless directed by the
Depositor to file a Form 8-K with such Form 8-K Disclosure
Information. In the event that any previously filed Form 8-K, Form
10-D or Form 10-K needs to be amended, and such amendment includes any
Additional Form 10-D Disclosure, any Additional Form 10-K Disclosure or any
Form
8-K Disclosure Information or an amendment to any such disclosure, the
Securities Administrator will notify the Depositor and each Servicer affected
by
such amendment (unless such amendment is solely for the purpose of restating
the
monthly statement referred to in Section 4.05 hereof) and such parties will
cooperate to prepare any necessary Form 8-KA, Form 10-DA or Form
10-KA. Any Form 15, Form 12b-25 or any amendment to a Form 8-K or a
Form 10-D shall be signed by a duly authorized representative of the Master
Servicer. Any amendment to a Form 10-K 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 its
duties under this Article XII related to the timely preparation and filing
of a
Form 15, Form 12b-25 or any amendment to a Form 8-K, Form 10-D or Form 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
147
and/or
timely file any such Form 15, Form 12b-25 or any amendments to a Form 8-K,
Form
10-D or Form 10-K, where such failure results from the Securities
Administrator’s inability or failure to obtain or receive, on a timely basis,
any information from any other party hereto needed to prepare, arrange for
execution or file such Form 15, Form 12b-25 or any amendments to Form 8-K,
Form
10-D or Form 10-K, not resulting from their own respective negligence, bad
faith
or willful misconduct.
(d) All
items under this Article XII to be reviewed by the Depositor should be forwarded
electronically to xxxxxxxxxxxxxx@xxxxxxxxxxxxx.xxx. In
addition, for purposes of this Article XII, if the Securities Administrator
or
the Master Servicer is required to provide any information or documentation
to
such other party, for so long as Xxxxx Fargo Bank, National Association is
both
Securities Administrator and Master Servicer, that delivery will be
automatically deemed to have been made.
(e) Each
of Form 10-D and Form 10-K requires the registrant to indicate (by checking
“yes” or “no”) that it “(1) has filed all reports required to be filed by
Section 13 or 15(d) of the Exchange Act during the preceding 12 months (or
for
such shorter period that the registrant was required to file such reports),
and
(2) has been subject to such filing requirements for the past 90
days.” The Depositor shall notify the Securities Administration in
writing, no later than the fifth calendar day after the related Distribution
Date with respect to the filing of a report on Form 10-D and no later than
March
15th with
respect to the filing of a report on Form 10-K, if the answer to the questions
should be “no.” In the absence of such notification by the Depositor
to the Securities Administrator, the Securities Administrator shall be entitled
to assume that the answer to the questions on Form 10-D and Form 10-K should
be
“yes”. The Securities Administrator shall be entitled to
rely on such representations in preparing, executing and/or filing any such
report.
Section
12.02. Form 10-D Reporting.
(a) No
later than 5:00 p.m., New York time, on the 15th calendar
day after
each Distribution Date (subject to permitted extensions under the Exchange
Act),
the Securities Administrator shall prepare and file on behalf of the Trust
any
Form 10-D required by the Exchange Act, in form and substance as required by
the
Exchange Act. The Securities Administrator shall file each Form 10-D
with a copy of the related Monthly Statement attached thereto. Any
disclosure in addition to the Monthly Statement that is required to be included
on Form 10-D (“Additional Form 10-D Disclosure”) shall be prepared and filed by
the Securities Administrator pursuant to the following paragraph and the
Securities Administrator will have no duty or liability for any failure
hereunder to determine any Additional Form 10-D Disclosure, except as set forth
in the next paragraph.
(b) In
accordance with the respective reporting obligations set forth on Exhibit N-1
hereto, within 5 calendar days after the related Distribution Date, the Master
Servicer and any other Reporting Party shall be required to provide to the
Securities Administrator and the Depositor in XXXXX-compatible form, or in
such
other form as otherwise agreed upon by the Securities Administrator and such
party, the form and substance of any Additional Form 10-D Disclosure, if
applicable, together with an Additional Disclosure Notification in the form
of
Exhibit P attached hereto (an “Additional Disclosure
Notification”). The Securities
148
Administrator
shall notify the Depositor of any Additional Form 10-D Disclosure with respect
to itself or any of its Affiliates and any other Additional Form 10-D Disclosure
received by it. Within one (1) Business Day of such notification, the Depositor
will approve or disapprove, as the case may be, the inclusion of the Additional
Form 10-D Disclosure on Form 10-D. The Depositor will be responsible
for any reasonable additional fees and expenses assessed or incurred by the
Securities Administrator in connection with including any Additional Form 10-D
Disclosure on Form 10-D pursuant to this paragraph.
(c) After
preparing the Form 10-D, and no later than the close of business on the 11th calendar
day after
the Distribution Date, the Securities Administrator shall forward electronically
a draft copy of the Form 10-D to the Master Servicer and to the Depositor for
review. No later than the 13th calendar
day after
the Distribution Date, the Depositor shall notify the Securities Administrator
in writing (which may be provided electronically) of any changes to or approve
the filing of such Form 10-D. In the absence of receipt of any
written changes or approval, or if the Depositor does not request a copy of
a
Form 10-D, the Securities Administrator shall be entitled to assume that such
Form 10-D is in final form and the Securities Administrator may proceed with
the
execution and filing of the Form 10-D. A duly authorized
representative of the Master Servicer shall sign the Form 10-D and return an
electronic or fax copy of such signed Form 10-D (with an original executed
hard
copy to follow by overnight mail) to the Securities Administrator. If
a Form 10-D cannot be filed on time or if a previously filed Form 10-D needs
to
be amended, the Securities Administrator will follow the procedures set forth
in
Section 12.01(c) hereof. 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
prepared and filed by the Securities Administrator. The signing party
at the Master Servicer can be contacted by e-mail at
xxx.xxx.xxxxxxxxxxxxx@xxxxxxxxxx.xxx or by facsimile (000)
000-0000. Each party to this Agreement acknowledges that the
performance by the Securities Administrator and the Master Servicer of its
duties under this Section 12.02 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
12.02. 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 10-D, where such failure results from the Securities Administrator’s
inability or failure to obtain or receive, on a timely basis, any information
from any other party hereto (other than an Affiliate thereof) needed to prepare,
arrange for execution or file such Form 10-D, not resulting from their
respective negligence, bad faith or willful misconduct.
Section
12.03. Form 8-K Reporting.
(a) As
directed by the Depositor, within four (4) Business Days after the occurrence
of
an event requiring disclosure on Form 8-K (each such event, a “Reportable
Event”), the Securities Administrator shall prepare and file on behalf of the
Trust any Form 8-K, as required by the Exchange Act, provided that the Depositor
shall file the initial Form 8-K (operative agreements) in connection with the
issuance of the Certificates. Any disclosure or information related
to a Reportable Event or that is otherwise required to be included on Form
8-K
(“Form 8-K Disclosure Information”) shall be prepared by the Securities
Administrator pursuant to the following paragraph and the Securities
Administrator will have no duty or
149
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.
(b) In
accordance with the respective reporting obligations set forth on Exhibit N-3
hereto, no later than the close of business on the second Business Day
immediately following the occurrence of a Reportable Event, each of the
Securities Administrator, each Custodian, the Trustee, the Master Servicer
and
the Depositor shall be required to provide to the Securities Administrator
and
the Depositor, as applicable, in XXXXX-compatible form, or in such other form
as
otherwise agreed upon by the Securities Administrator and such party, the form
and substance of any Additional Form 8-K Disclosure, if applicable, together
with an Additional Disclosure Notification. The Securities
Administrator shall notify the Depositor of any Form 8-K Disclosure Information
with respect to itself or any of its Affiliates and any other Form 8-K
Disclosure Information received by it. The Depositor will approve or
disapprove, as the case may be, the inclusion of the Form 8-K Disclosure
Information on Form 8-K. The Depositor will be responsible for any
reasonable additional fees and expenses assessed or incurred by the Securities
Administrator in connection with including any Form 8-K Disclosure Information
on Form 8-K pursuant to this paragraph.
(c) After
preparing the Form 8-K, the Securities Administrator shall forward
electronically a draft copy of the Form 8-K to the Depositor and the Master
Servicer for review no later than 12:00 p.m., New York time, on the third
Business Day following the Reportable Event. The Depositor shall
notify the Securities Administrator in writing (which may be provided
electronically) of any changes to or approval of such Form 8-K no later than
the
close of business on the third Business Day following the Reportable
Event. 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. By 12:00 p.m., New York time, on the
fourth Business Day after the occurrence of the Reportable Event, a duly
authorized representative of the Master Servicer shall sign the Form 8-K, then
return an electronic or fax copy of such signed Form 8-K (with an original
executed hard copy to follow by overnight mail) to the Securities
Administrator. If a Form 8-K cannot be filed on time or if a
previously filed Form 8-K needs to be amended, the Securities Administrator
will
follow the procedures set forth in Section 12.01(c). With respect to
each Form 8-K prepared and filed by the Securities Administrator, 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
thereof. The parties to this Agreement acknowledge that the
performance by the Master Servicer and the Securities Administrator of its
duties under this Section 12.03 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
12.03. 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 obtain or receive, on a timely basis, any information
from any other party hereto (other than an Affiliate thereof) needed to prepare,
arrange for execution or file such Form 8-K, not resulting from their respective
negligence, bad faith or willful misconduct.
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Section
12.04. Form 10-K Reporting.
(a) Within
90 days (including the 90th day) after the end of each fiscal year of the Trust
or such earlier date as may be required by the Exchange Act (the “10-K Filing
Deadline”), commencing in March 2008 and continuing until the Trust has been
deregistered with the Commission, the Securities Administrator shall prepare
and
file on behalf of the Trust a Form 10-K, in form and substance as required
by
the Exchange Act. Each such Form 10-K shall include the following
items, in each case to the extent they have been delivered to the Securities
Administrator within the applicable time frames set forth in this Agreement
and
the related Servicing Agreement, (i) an annual compliance statement for each
Servicer, each Additional Servicer, the Master Servicer, each Custodian and
the
Securities Administrator (each such party and each Custodian, a “Reporting
Servicer”) as described under Section 9.11, (ii)(A) the annual reports on
assessment of compliance with servicing criteria for each Reporting Servicer,
as
described under Section 12.06, and (B) if each Reporting Servicer’s report on
assessment of compliance with servicing criteria described under Section 12.06
identifies any material instance of noncompliance, disclosure identifying such
instance of noncompliance, or if each Reporting Servicer’s report on assessment
of compliance with servicing criteria described under Section 12.06 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 12.06, and (B) if any registered public
accounting firm attestation report described under Section 12.06 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 12.05. 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
determined and prepared by and at the direction of 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.
(b) In
accordance with the respective reporting obligations set forth on Exhibit N-2
hereto, no later than March 15 of each year that the Trust is subject to the
Exchange Act reporting requirements, commencing in 2008 and continuing until
the
Trust has been deregistered with the Commission, the Master Servicer and any
other Reporting Party shall be required to provide to the Securities
Administrator and the Depositor, in XXXXX-compatible form, or in such other
form
as otherwise agreed upon by the Securities Administrator and such party, the
form and substance of any Additional Form 10-K Disclosure, if applicable,
together with an Additional Disclosure Notification. The Securities
Administrator shall notify the Depositor of any Additional Form 10-K Disclosure
with respect to itself or any of its Affiliates and any other Additional Form
10-K Disclosure received by it. Within one (1) Business Day of such
notification, the Depositor will approve or disapprove, as the case may be,
the
inclusion of the Additional Form 10-K Disclosure on Form 10-K. The
Depositor will be responsible for any reasonable additional fees and expenses
assessed or incurred by the Securities Administrator in connection with
including any Additional Form 10-K Disclosure on Form 10-K pursuant to this
paragraph.
151
(c) After
preparing the Form 10-K, the Securities Administrator shall forward
electronically a draft copy of the Form 10-K to the Master Servicer and, upon
request, to the Depositor for review. No later than the earlier of:
(x) three (3) Business Days following the receipt by the Depositor and (y)
March
25th, the Depositor and the Master Servicer shall notify the Securities
Administrator in writing (which may be provided electronically) of any changes
to or approve the filing of such Form 10-K. In the absence of receipt
of any written changes or approval, or if the Depositor does not request a
copy
of a Form 10-K, the Securities Administrator shall be entitled to assume that
such Form 10-K is in final form and the Securities Administrator may proceed
with the execution and filing of the Form 10-K. A senior officer of
the Master Servicer in charge of the master servicing function shall sign the
Form 10-K and return an electronic or fax copy of such signed Form 10-K (with
an
original executed hard copy to follow by overnight mail) to the Securities
Administrator. If a Form 10-K cannot be filed on time or if a
previously filed Form 10-K needs to be amended, the Securities Administrator
will follow the procedures set forth in Section 12.01(c). 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 prepared and 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 12.04 related to the timely preparation, execution
and
filing of Form 10-K is contingent upon such parties (and any Additional Servicer
or Servicing Function Participant) strictly observing all applicable deadlines
in the performance of their duties under this Section 12.04, Section 9.11
Section 12.05 and Section 12.06. 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-K, where such failure results from the Master
Servicer’s or the Securities Administrator’s inability or failure to obtain or
receive, on a timely basis, any information from any other party hereto needed
to prepare, arrange for execution or file such Form 10-K, not resulting from
their own respective negligence, bad faith or willful misconduct.
Section
12.05. 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 senior officer of
the Master Servicer in charge of the master servicing function shall sign the
Xxxxxxxx-Xxxxx Certification and shall serve as the Certifying Person on behalf
of the Trust.
The
respective parties hereto agree to cooperate with all reasonable requests made
by any Person involved in the preparation and/or filing a Form 10-K on behalf
of
the Trust (each a “Certifying Person”) and each Person
from whom the Trust must obtain a Xxxxxxxx-Xxxxx Certification (each a
“Certification Party”) in connection with such
Person’s attempt to conduct any due diligence that such Person reasonably
believes to be appropriate in order to allow it to deliver any Xxxxxxxx-Xxxxx
Certification or portion thereof with respect to the Trust Fund.
Section
12.06. Reports on Assessment of Compliance and
Attestation.
(a) By
March 15 of each year (such date includes the expiration of any applicable
grace
period), commencing in March 2008, the Master Servicer, the Securities
Administrator,
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each
Custodian (for so long as a Form 10-K will be filed on behalf of the Trust
for
the preceding calendar year) and each other Reporting Party, each at its own
expense, shall furnish or otherwise make available, and each such party shall
cause any Servicing Function Participant engaged by it to furnish, each at
its
own expense, to the Securities Administrator and the Depositor, a report on
an
assessment of compliance with the Relevant Servicing Criteria that contains
(A)
a statement by such party of its responsibility for assessing compliance with
the Relevant Servicing Criteria, (B) a statement that such party used the
Relevant Servicing Criteria 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 12.04, including, if there has been any material
instance of noncompliance with the Relevant Servicing Criteria, a discussion
of
each such failure and the nature and status thereof, and (D) a statement that
a
registered public accounting firm has issued an attestation report on such
party’s assessment of compliance with the Relevant Servicing Criteria as of and
for such period.
No
later
than the end of each fiscal year for the Trust for which a 10-K is required
to
be filed, the Master Servicer and each Custodian shall each forward to the
Securities Administrator 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;
however if the Master Servicer and the Securities Administrator are the same
entity, then the Master Servicer is not required to forward to the Securities
Administrator its 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 12.04. When the Master Servicer and the
Securities Administrator (or any Servicing Function Participant engaged by
them)
submit their assessments to the Securities Administrator, such parties will
also
at such time include the assessment (and attestation pursuant to Section
12.06(b) of each Servicing Function Participant engaged by it.
Promptly
after receipt of each such report on assessment of compliance, (i) the Depositor
shall review each such report and, if applicable, consult with the Master
Servicer, the Securities Administrator, each 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
O
and on any similar exhibit set forth in each Servicing Agreement in respect
of
each Servicer and notify the Depositor of any exceptions.
(b) By
March 15 of each year, commencing in March 2008, the Master Servicer, the
Securities Administrator, each Custodian (for so long as a Form 10-K will be
filed in respect of the Trust for the preceding calendar year) and each other
Reporting Party, each at its own expense, shall cause, and each such party
shall
cause any Servicing Function Participant engaged by it to cause, each at its
own
expense, a registered public accounting firm (which may also render other
services to the Master Servicer, the Trustee, each 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 representation
153
regarding
certain matters from the management of such party, which includes an assertion
that such party has complied with the Relevant Servicing Criteria, and (ii)
on
the basis of an examination conducted by such firm in accordance with standards
for attestation engagements issued or adopted by the PCAOB, it is expressing
an
opinion as to whether such party’s compliance with the Relevant Servicing
Criteria was fairly stated in all material respects, or it cannot express an
overall opinion regarding such party’s assessment of compliance with the
Relevant Servicing Criteria. In the event that an overall opinion
cannot be expressed, such registered public accounting firm shall state in
such
report why it was unable to express such an opinion. Such report must
be available for general use and not contain restricted use
language.
Promptly
after receipt of such report from the Master Servicer, the Securities
Administrator, each Custodian or any Servicing Function Participant engaged
by
such parties, (i) the Depositor shall review the report and, if applicable,
consult with such parties as to the nature of any defaults by such parties,
in
the fulfillment of any of each such party’s obligations hereunder or under any
other applicable agreement, and (ii) the Securities Administrator shall confirm
that each assessment submitted pursuant to Section 12.06(a) is coupled with
an
attestation meeting the requirements of this Section 12.06(b) and notify the
Depositor of any exceptions.
Section
12.07. Use of Subcontractors.
(a) The
Master Servicer shall cause any Subcontractor used by the Master Servicer for
the benefit of the Depositor to comply with the provisions of Section 9.11
and
this Article XII to the same extent as if such Subcontractor were the Master
Servicer (except with respect to the Master Servicer’s duties with respect to
preparing and filing any Exchange Act Reports or as the Certifying
Person). The Master Servicer shall be responsible for obtaining from
each Subcontractor and delivering to the Depositor any servicer compliance
statement required to be delivered by such Subcontractor under Section 9.11,
any
assessment of compliance and attestation required to be delivered by such
Subcontractor under Section 12.07 and any certification required to be delivered
to the Certifying Person under Section 12.05 as and when required to be
delivered. As a condition to the succession to any Subcontractor as
subservicer under this Agreement by any Person (i) into which such Subcontractor
may be merged or consolidated, or (ii) which may be appointed as a successor
to
any Subcontractor, the Master Servicer shall provide to the Depositor, at least
15 calendar days prior to the effective date of such succession or appointment,
(x) written notice to the Depositor of such succession or appointment and (y)
in
writing and in form and substance reasonably satisfactory to the Depositor,
all
information reasonably requested by the Depositor in order to comply with its
reporting obligation under Item 6.02 of Form 8-K.
(b) It
shall not be necessary for the Master Servicer or the Trustee to seek the
consent of the Depositor or any other party hereto to the utilization of any
Subcontractor. The Master Servicer or the Trustee, as applicable,
shall promptly upon request provide to the Depositor (or any designee of the
Depositor, such as the Master Servicer or administrator) a written description
(in form and substance satisfactory to the Depositor) of the role and function
of each Subcontractor utilized by such Person, specifying (i) the identity
of
each such Subcontractor, (ii) which (if any) of such Subcontractors are
“participating in the servicing function” within the meaning of Item 1122 of
Regulation AB, and (iii) which elements of the
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Servicing
Criteria will be addressed in assessments of compliance provided by each
Subcontractor identified pursuant to clause (ii) of this paragraph.
As
a
condition to the utilization of any Subcontractor determined to be a Reporting
Subcontractor, the Master Servicer or the Trustee, as applicable, shall cause
any such Subcontractor used by such Person for the benefit of the Depositor
to
comply with the provisions of Sections 12.07 and 12.09 of this Agreement to
the
same extent as if such Subcontractor were the Master Servicer (except with
respect to the Master Servicer’s duties with respect to preparing and filing any
Exchange Act Reports or as the Certifying Person) or the Trustee, as
applicable. The Master Servicer or the Trustee, as applicable, shall
be responsible for obtaining from each Subcontractor and delivering to the
Depositor and the Master Servicer, any assessment of compliance and attestation
required to be delivered by such Subcontractor under Section 12.07, in each
case
as and when required to be delivered.
Section
12.08. Indemnification by the Master Servicer and the Securities
Administrator.
(a) The
Master Servicer and the Securities Administrator (each, an “Indemnifying
Party”), shall, severally and not jointly, indemnify the Depositor and the
Seller for the preparation, execution or filing of any report required to be
filed with the Commission with respect to the Trust Fund, or for execution
of a
certification pursuant to Rule 13a-14(d) or Rule 15d-14(d) under the Exchange
Act with respect to the Trust Fund; and the respective present and former
directors, officers, employees and agents of each of the foregoing and shall
hold each of them harmless from and against any losses, damages, penalties,
fines, forfeitures, legal fees and expenses and related costs, judgments, and
any other costs, fees and expenses that any of them may sustain arising out
of
or based upon:
(i) any
untrue statement of a material fact contained or alleged to be contained in
or
the omission or alleged omission to state a material fact required to be stated
therein or necessary in order to make the statements therein, in the light
of
the circumstances under which they were made, not misleading in (A) any
compliance certificate delivered by it, or by any Servicing Function Participant
engaged by it, pursuant to this Agreement, (B) any assessment or attestation
delivered by or on behalf of it, or by any Servicing Function Participant
engaged by it, pursuant to this Agreement, or (C) any Additional Form 10-D
Disclosure, Additional Form 10-K Disclosure or Form 8-K Disclosure Information
concerning the Securities Administrator or the Master Servicer and provided
by
either of them;
(ii) any
failure by the Indemnifying Party to perform its obligations when and as
required under this Article XII; or
(iii) any
negligence, bad faith or willful misconduct by the Indemnifying
Party.
In
the
case of any failure of performance described in clause (a)(ii) of this Section,
the Indemnifying Party shall promptly reimburse the Seller or the Depositor,
as
applicable, and each Person responsible for the preparation, execution or filing
of any report required to be filed with the Commission with respect to such
Securitization Transaction, or for execution of a certification pursuant to
Rule
13a-14(d) or Rule 15d-14(d) under the Exchange Act with respect
155
to
the
Trust, for all costs reasonably incurred by each such party in order to obtain
the information, report, certification, accountants’ letter or other material
not delivered as required by the Indemnifying Party or any Subservicer or
Subcontractor of the Indemnifying Party.
(b) i)
Any failure by the Indemnifying Party or any Subservicer or any Subcontractor
of
the Indemnifying Party to deliver any information, report, certification or
accountants’ letter when and as required under this Article XII, including
(except as provided below) any failure by the Indemnifying Party to identify
pursuant to Section 12.07 any Subcontractor “participating in the servicing
function” within the meaning of Item 1122 of Regulation AB, which continues
unremedied for ten calendar days after the date on which such information,
report, certification or accountants’ letter was required to be delivered shall
constitute an Event of Default with respect to the Indemnifying Party under
this
Agreement, and shall entitle the Seller or Depositor, as applicable, in its
sole
discretion to terminate the rights and obligations of the Indemnifying Party
under this Agreement without payment (notwithstanding anything in this Agreement
to the contrary) of any compensation to the Indemnifying Party; provided that
to
the extent that any provision of this Agreement and/or any applicable
Reconstitution Agreement expressly provides for the survival of certain rights
or obligations following termination of the Master Servicer as servicer, such
provision shall be given effect.
Neither
the Seller nor any Depositor shall be entitled to terminate the rights and
obligations of an Indemnifying Party pursuant to this subparagraph (b)(ii)
if a
failure of the Master Servicer to identify a Subcontractor “participating in the
servicing function” within the meaning of Item 1122 of Regulation AB was
attributable solely to the role or functions of such Subcontractor with respect
to mortgage loans other than the Mortgage Loans.
(ii) The
Indemnifying Party shall promptly reimburse the Seller and any Depositor for
all
reasonable expenses incurred by them, in connection with the termination of
the
Indemnifying Party and the transfer of their duties to a
successor. The provisions of this paragraph shall not limit whatever
rights the Seller or the Depositor may have under other provisions of this
Agreement or otherwise, whether in equity or at law, such as an action for
damages, specific performance or injunctive relief.
Section
12.09. Indemnification by each Custodian.
(a) If
the entity serving as Trustee is also serving as a Custodian, such entity in
its
capacity as Custodian shall indemnify the Depositor, each affiliate of the
Depositor, the Master Servicer and each Person who controls any of such parties
(within the meaning of Section 15 of the Securities Act and Section 20 of the
Exchange Act); and the respective directors, officers, and employees of each
of
the foregoing (each, an “Indemnified Party”), and shall hold each of them
harmless from and against any losses, damages, penalties, fines, forfeitures,
legal fees and expenses and related costs, judgments, and any other costs,
fees
and expenses that any of them may sustain directly relating to:
(i) (A) any
untrue statement of a material fact contained or alleged to be contained in
any
information, compliance assessment or other material it is required to provide
or cause to be provided under this Article XII (collectively, the “Custodian
Information”), or (B) the omission or alleged omission to state in each
Custodian
156
Information
a material fact required to be stated therein or necessary in order to make
the
statements therein, in the light of the circumstances under which they were
made, not misleading; or
(ii) any
failure to deliver or cause to be delivered any information, report,
certification, accountants’ attestation or other material when and as required
under this Article XII.
If
the
indemnification provided for herein is unavailable or insufficient to hold
harmless an Indemnified Party, then each Custodian agrees that it shall
contribute to the amount paid or payable by such Indemnified Party as a result
of any claims, losses, damages or liabilities incurred by such Indemnified
Party
in such proportion as is appropriate to reflect the relative fault of such
Indemnified Party on the one hand and each Custodian on the other.
(b) In
the case of any failure of performance described in clause (a) of this Section
12.09, each Custodian shall promptly reimburse the Indemnified Party responsible
for the preparation, execution or filing of any report required to be filed
with
the Commission with respect to such Securitization Transaction, or for execution
of a certification pursuant to Rule 13a-14(d) or Rule 15d-14(d) under the
Exchange Act with respect to the Trust, for all costs reasonably incurred by
each such party in order to obtain the information, report, certification,
accountants’ letter or other material not delivered as required.
(c) This
indemnification shall survive the termination of this Agreement or the
termination of any party to this Agreement.
157
IN
WITNESS WHEREOF, the parties hereto have caused their names to be signed hereto
by their respective officers hereunto duly authorized as of the day and year
first above written.
|
XXXXXX XXXXXXX
CAPITAL
I INC.,
as
Depositor
|
|||
|
|
By:
|
||
| Name: | |||
| Title: | |||
|
LASALLE
BANK NATIONAL ASSOCIATION,
as
Trustee and as Custodian
|
|||
|
|
By:
|
||
| Name: | |||
| Title: | |||
|
|
By:
|
||
| Name: | |||
| Title: | |||
|
XXXXX
FARGO BANK, NATIONAL ASSOCIATION,
as
Master Servicer
|
|||
|
|
By:
|
||
| Name: | |||
| Title: | |||
|
XXXXX
FARGO BANK, NATIONAL ASSOCIATION,
as
Securities Administrator
|
|||
|
|
By:
|
||
| Name: | |||
| Title: | |||
Solely
for purposes of Section 2.05
accepted
and agreed to by:
XXXXXX
XXXXXXX MORTGAGE CAPITAL HOLDINGS LLC
|
By:
|
|
|
Name:
|
|
|
Title:
|
EXHIBIT
A
FORMS
OF
CERTIFICATES
A-1
EXHIBIT
B
FORM
OF
RESIDUAL CERTIFICATE TRANSFER AFFIDAVIT (TRANSFEREE)
|
STATE
OF
|
)
|
|
) ss.:
|
|
|
COUNTY
OF
|
)
|
[NAME
OF
OFFICER], _________________ being first duly sworn, deposes and
says:
|
|
1.
|
That
he [she] is [title of officer] ________________________ of [name
of
Purchaser] _________________________________________ (the “Purchaser”), a
_______________________ [description of type of entity] duly organized
and
existing under the laws of the [State of __________] [United States],
on
behalf of which he [she] makes this
affidavit.
|
|
|
2.
|
That
the Purchaser’s Taxpayer Identification Number is
[ ].
|
|
|
3.
|
That
the Purchaser is not a “disqualified organization” within the meaning of
Section 860E(e)(5) of the Internal Revenue Code of 1986, as amended
(the “Code”) and will not be a “disqualified organization” as of [date of
transfer], and that the Purchaser is not acquiring a Residual Certificate
(as defined in the Agreement) for the account of, or as agent (including
a
broker, nominee, or other middleman) for, any person or entity from
which
it has not received an affidavit substantially in the form of this
affidavit. For these purposes, a “disqualified organization”
means the United States, any state or political subdivision thereof,
any
foreign government, any international organization, any agency or
instrumentality of any of the foregoing (other than an instrumentality
if
all of its activities are subject to tax and a majority of its board
of
directors is not selected by such governmental entity), any cooperative
organization furnishing electric energy or providing telephone service
to
persons in rural areas as described in Code Section 1381(a)(2)(C),
any “electing large partnership” within the meaning of Section 775 of
the Code, or any organization (other than a farmers’ cooperative described
in Code Section 521) that is exempt from federal income tax unless
such organization is subject to the tax on unrelated business income
imposed by Code Section 511.
|
|
|
4.
|
That
the Purchaser either (x) is not, and on __________________ [date of
transfer] will not be, an employee benefit plan or other retirement
arrangement subject to Section 406 of the Employee Retirement Income
Security Act of 1974, as amended (“ERISA”), or Section 4975 of the
Code (“Code”), (collectively, a “Plan”) or a person acting on behalf of
any such Plan or investing the assets of any such Plan to acquire
a
Residual Certificate; (y) is an insurance company that is purchasing
the Certificate with funds contained in an “insurance company general
account” as defined in Section V(e) of Prohibited Transaction Class
Exemption (“PTCE”) 95-60 and the purchase and holding of the Certificate
satisfy the requirements for exemptive relief under Sections I and
III of
XXXX
|
X-0
|
|
|
95-60;
or (z) herewith delivers to the Certificate Registrar an opinion of
counsel satisfactory to the Certificate Registrar and the Securities
Administrator and upon which the Certificate Registrar, the Trustee,
the
Master Servicer, the Depositor and Securities Administrator shall
be
entitled to rely, to the effect that the purchase or holding of
such
Residual Certificate by the Investor will not result in any non-exempt
prohibited transactions under Title I of ERISA or Section 4975
of the Code and will not subject the Certificate Registrar, the
Trustee,
the Depositor, the Master Servicer or the Securities Administrator
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 Trust Fund or any of the above
parties.
|
|
|
5.
|
That
the Purchaser hereby acknowledges that under the terms of the Pooling
and
Servicing Agreement, dated as of July 1, 2007 (the “Agreement”), by and
among Xxxxxx Xxxxxxx Capital I Inc., as Depositor, Xxxxx Fargo Bank,
National Association, as Master Servicer and as Administrator and
LaSalle
Bank National Association, as Trustee with respect to Xxxxxx Xxxxxxx
Mortgage Loan Trust 2007-12, Mortgage Pass-Through Certificates,
no
transfer of the Residual Certificates shall be permitted to be made
to any
person unless the Certificate Registrar has received a certificate
from
such transferee containing the representations in paragraphs 3 and 4
hereof.
|
|
|
6.
|
That
the Purchaser does not hold REMIC residual securities as nominee
to
facilitate the clearance and settlement of such securities through
electronic book-entry changes in accounts of participating organizations
(such entity, a “Book-Entry
Nominee”).
|
|
|
7.
|
That
the Purchaser does not have the intention to impede the assessment
or
collection of any federal, state or local taxes legally required
to be
paid with respect to such Residual
Certificate.
|
|
|
8.
|
That
the Purchaser will not transfer a Residual Certificate to any person
or
entity (i) as to which the Purchaser has actual knowledge that the
requirements set forth in paragraph 3, paragraph 6 or
paragraph 10 hereof are not satisfied or that the Purchaser has
reason to believe does not satisfy the requirements set forth in
paragraph 7 hereof, and (ii) without obtaining from the
prospective Purchaser an affidavit substantially in this form and
providing to the Certificate Registrar a written statement substantially
in the form of Exhibit C to the
Agreement.
|
|
|
9.
|
That
the Purchaser understands that, as the holder of a Residual Certificate,
the Purchaser may incur tax liabilities in excess of any cash flows
generated by the interest and that it intends to pay taxes associated
with
holding such Residual Certificate as they become
due.
|
|
|
10.
|
That
the Purchaser (i) is not a Non-U.S. Person or (ii) is a Non-U.S.
Person that holds a Residual Certificate in connection with the conduct
of
a trade or business within the United States and has furnished the
transferor the Certificate
Registrar
|
B-2
|
|
|
with
an effective Internal Revenue Service Form W-8ECI (Certificate of
Foreign Person’s Claim for Exemption From Withholding on Income
Effectively Connected With the Conduct of a Trade or Business in
the
United States) or successor form at the time and in the manner
required by
the Code or (iii) is a Non-U.S. Person that has delivered to the
transferor, the Trustee and the Certificate Registrar an opinion
of a
nationally recognized tax counsel to the effect that the transfer
of such
Residual Certificate to it is in accordance with the requirements
of the
Code and the regulations promulgated thereunder and that such transfer
of
a Residual Certificate will not be disregarded for federal income
tax
purposes. “Non-U.S. Person” means an individual, corporation,
partnership or other person other than (i) a citizen or resident of
the United States; (ii) a corporation, partnership or other entity
created or organized in or under the laws of the United States
or any
state thereof, including for this purpose, the District of Columbia;
(iii) an estate that is subject to U.S. federal income tax regardless
of the source of its income; (iv) a trust if a court within the
United States is able to exercise primary supervision over the
administration of the trust and one or more United States trustees
have
authority to control all substantial decisions of the trust; and,
(v) to the extent provided in Treasury regulations, certain trusts
in
existence on August 20, 1996 that are treated as United States
persons
prior to such date and elect to continue to be treated as United
States
persons.
|
|
|
11.
|
The
Purchaser will not cause income from the Residual Certificate to
be
attributable to a foreign permanent establishment or fixed base of
the
Purchaser or another U.S. taxpayer.
|
|
|
12.
|
That
the Purchaser agrees to such amendments of the Pooling and Servicing
Agreement as may be required to further effectuate the restrictions
on
transfer of any Residual Certificate to such a “disqualified
organization,” an agent thereof, a Book-Entry Nominee, or a person that
does not satisfy the requirements of paragraph 7 and
paragraph 10 hereof.
|
|
|
13.
|
That
the Purchaser consents to the designation of the Securities Administrator
to act as agent for the “tax matters person” of each REMIC created by the
Trust Fund pursuant to the Pooling and Servicing
Agreement.
|
B-3
IN
WITNESS WHEREOF, the Purchaser has caused this instrument to be executed on
its
behalf, pursuant to authority of its Board of Directors, by its [title of
officer] this _____ day of __________ 20__.
| [name of Purchaser] | |||
|
|
By:
|
||
| Name: | |||
| Title: | |||
Personally
appeared before me the above-named [name of officer] ________________, known
or
proved to me to be the same person who executed the foregoing instrument and
to
be the [title of officer] _________________ of the Purchaser, and acknowledged
to me that he [she] executed the same as his [her] free act and deed and the
free act and deed of the Purchaser.
Subscribed
and sworn before me this _____ day of __________ 20__.
NOTARY
PUBLIC
____________________________
COUNTY
OF
________________
STATE
OF
__________________
My
commission expires the _____ day of __________ 20__.
B-4
EXHIBIT
C
FORM
OF
RESIDUAL CERTIFICATE TRANSFER AFFIDAVIT (TRANSFEROR)
|
|
____________________________
Date
|
|
Re:
|
Xxxxxx
Xxxxxxx Mortgage Loan Trust 2007-12
|
|
|
Mortgage
Pass-Through Certificates
|
_______________________
(the “Transferor”) has reviewed the attached affidavit of
_____________________________ (the “Transferee”), and has no actual knowledge
that such affidavit is not true and has no reason to believe that the
information contained in paragraph 7 thereof is not true, and has no reason
to believe that the Transferee has the intention to impede the assessment or
collection of any federal, state or local taxes legally required to be paid
with
respect to a Residual Certificate. In addition, the Transferor has
conducted a reasonable investigation at the time of the transfer and found
that
the Transferee had historically paid its debts as they came due and found no
significant evidence to indicate that the Transferee will not continue to pay
its debts as they become due.
Very
truly
yours,
__________________________________________
Name:
Title:
X-0
XXXXXXX
X
XXXXXXXX
X-0
EXHIBIT
E
LIST
OF
PURCHASE AND SERVICING AGREEMENTS
1. Second
Amended and Restated Master Mortgage Loan Purchase and Warranties Agreement,
dated as of April 1, 2006, between First National Bank of Nevada, as seller
and
Xxxxxx Xxxxxxx Mortgage Capital Holdings LLC, successor-in-interest to Xxxxxx
Xxxxxxx Mortgage Capital Inc., as purchaser.
2. First
Amended and Restated Servicing Agreement, dated as of January 1, 2006, between
GMAC Mortgage, LLC, as servicer and Xxxxxx Xxxxxxx Mortgage Capital Holdings
LLC, successor-in-interest to Xxxxxx Xxxxxxx Mortgage Capital Inc., as
purchaser.
3. Fifth
Amended and Restated Mortgage Loan Sale And Servicing Agreement, dated as
of June 1, 2006, between GreenPoint Mortgage Funding, Inc., as seller and
servicer, and Xxxxxx Xxxxxxx Mortgage Capital Holdings LLC,
successor-in-interest to Xxxxxx Xxxxxxx Mortgage Capital Inc., as
purchaser.
4. Mortgage
Loan Purchase and Warranties Agreement, dated as of September 1, 2006, between
Xxxxxx Xxxxxxx Mortgage Capital Holdings LLC, successor-in-interest to Xxxxxx
Xxxxxxx Mortgage Capital Inc., as purchaser, and IndyMac Bank, F.S.B., as
seller.
5. Third
Amended And Restated Master Mortgage Loan Purchase Agreement, dated as of
November 1, 2005 and an Amended and Restated Master Servicing Agreement, dated
as of February 1, 2004, between Xxxxxx Xxxxxxx Credit Corporation, as seller
and
servicer and Xxxxxx Xxxxxxx Mortgage Capital Holdings LLC, successor-in-interest
to Xxxxxx Xxxxxxx Mortgage Capital Inc., as purchaser.
6. Second
Amended and Restated Mortgage Loan Purchase and Warranties Servicing Agreement,
dated as of June 1, 2006, between Xxxxxx Xxxxxxx Mortgage Capital Holdings
LLC,
successor-in-interest to Xxxxxx Xxxxxxx Mortgage Capital Inc., as purchaser,
and
Quicken Loans, Inc., as seller.
7. Servicing
Agreement, dated as of July 1, 2007, between Xxxxxx Xxxxxxx Mortgage Capital
Holdings LLC and Saxon Mortgage Services, Inc.
8. Fifth
Amended and Restated Mortgage Loan Purchase And Warranties Agreement, dated
as
of April 1, 2007, between US Bank, N.A. as seller and Xxxxxx Xxxxxxx Mortgage
Capital Holdings LLC, successor-in-interest to Xxxxxx Xxxxxxx Mortgage Capital
Inc., as purchaser.
9. Seller’s
Purchase, Warranties and Servicing Agreement, dated as of September 1, 2004
as
amended by that certain First Amended and Restated Seller’s Purchase, Warranties
and Servicing Agreement, dated as of June 1, 2006, each as supplemented by
the
Amended and Restated Regulation AB Compliance Addendum, dated as of April 17,
2006, each between Wachovia Mortgage Corporation, as seller and servicer and
Xxxxxx Xxxxxxx Mortgage Capital Holdings LLC, successor-in-interest to Xxxxxx
Xxxxxxx Mortgage Capital Inc., as purchaser.
E-1
EXHIBIT
F
LIST
OF
CUSTODIAL AGREEMENTS
**
xxxxx
fargo custody agreement goes here
F-1
EXHIBIT
G
ASSIGNMENT
AND NOTICE OF TRANSFER WITH RESPECT TO ADDITIONAL COLLATERAL MORTGAGE
LOANS
[On
File]
G-1
EXHIBIT
H
FORM
OF
RULE 144A TRANSFER CERTIFICATE
|
Re:
|
Xxxxxx
Xxxxxxx Mortgage Loan Trust
2007-12,
|
|
|
Mortgage
Pass-Through Certificates
|
Reference
is hereby made to the Pooling and Servicing Agreement, dated as of July 1,
2007
(the “Pooling and Servicing Agreement”), by and among Xxxxxx Xxxxxxx Capital I
Inc., as Depositor, Xxxxx Fargo Bank, National Association, as Master Servicer
and as Securities Administrator, LaSalle Bank National Association, as Trustee
and Custodian. Capitalized terms used but not defined herein shall
have the meanings given to them in the Pooling and Servicing
Agreement.
This
letter relates to $__________ initial Certificate Balance of Class _____
Certificates which are held in the form of Definitive Certificates registered
in
the name of ______________ (the “Transferor”). The Transferor has requested a
transfer of such Definitive Certificates for Definitive Certificates of such
Class registered in the name of [insert name of transferee].
In
connection with such request, and in respect of such Certificates, the
Transferor hereby certifies that such Certificates are being transferred in
accordance with (i) the transfer restrictions set forth in the Pooling and
Servicing Agreement and the Certificates and (ii) Rule 144A under the
Securities Act to a purchaser that the Transferor reasonably believes is a
“qualified institutional buyer” within the meaning of Rule 144A purchasing
for its own account or for the account of a “qualified institutional buyer,”
which purchaser is aware that the sale to it is being made in reliance upon
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 applicable jurisdiction.
This
certificate and the statements contained herein are made for your benefit and
the benefit of the Underwriter, the Certificate Registrar and the
Depositor.
| [Name of Transferor] | |||
|
|
By:
|
||
| Name: | |||
| Title: | |||
Dated:
___________, ____
H-1
EXHIBIT
I
FORM
OF
PURCHASER’S LETTER FOR
INSTITUTIONAL
ACCREDITED INVESTOR
|
|
Date
|
Dear
Sirs:
In
connection with our proposed purchase of $______________ principal amount of
Xxxxxx Xxxxxxx Mortgage Loan Trust 2007-12, Mortgage Pass-Through Certificates
(the “Privately Offered Certificates”) of Xxxxxx Xxxxxxx Capital I Inc. (the
“Depositor”), we confirm that:
|
(1)
|
We
understand that the Privately Offered Certificates have not been,
and will
not be, registered under the Securities Act of 1933, as amended (the
“Securities Act”), and may not be sold except as permitted in the
following sentence. We agree, on our own behalf and on behalf of
any
accounts for which we are acting as hereinafter stated, that if we
should
sell any Privately Offered Certificates within two years of the later
of
the date of original issuance of the Privately Offered Certificates
or the
last day on which such Privately Offered Certificates are owned by
the
Depositor or any affiliate of the Depositor we will do so only (A) to
the Depositor, (B) to “qualified institutional buyers” (within the
meaning of Rule 144A under the Securities Act) in accordance with
Rule 144A under the Securities Act (“QIBs”), (C) pursuant to the
exemption from registration provided by Rule 144 under the Securities
Act, or (D) to an institutional “accredited investor” within the
meaning of Rule 501(a)(1), (2), (3) or (7) of Regulation D under
the Securities Act that is not a QIB (an “Institutional Accredited
Investor”) which, prior to such transfer, delivers to the Certificate
Registrar under the Pooling and Servicing Agreement, dated as of
July 1,
2007 (the “Pooling and Servicing Agreement”), by and among Xxxxxx Xxxxxxx
Capital I Inc., as Depositor, Xxxxx Fargo Bank, National Association,
as
Master Servicer and as Securities Administrator, and LaSalle Bank
National
Association, as Trustee and Custodian, a signed letter in the form
of this
letter; and we further agree, in the capacities stated above, to
provide
to any person purchasing any of the Privately Offered Certificates
from us
a notice advising such purchaser that resales of the Privately Offered
Certificates are restricted as stated
herein.
|
|
(2)
|
We
understand that, in connection with any proposed resale of any Privately
Offered Certificates to an Institutional Accredited Investor, we
will be
required to furnish to the Certificate Registrar a certification
from such
transferee in the form hereof to confirm that the proposed sale is
being
made pursuant to an exemption from, or in a transaction not subject
to,
the registration requirements of the Securities Act. We further understand
that the Privately Offered Certificates purchased by us will bear
a legend
to the foregoing effect.
|
|
(3)
|
We
are acquiring the Privately Offered Certificates for investment purposes
and not with a view to, or for offer or sale in connection with,
any
distribution in violation of the Securities Act. We have such knowledge
and experience in financial and business matters
|
I-1
|
|
matters
as to be capable of evaluating the merits and risks of our investment
in
the Privately Offered Certificates, and we and any account for
which we
are acting are each able to bear the economic risk of such
investment.
|
|
(4)
|
We
are an Institutional Accredited Investor and we are acquiring the
Privately Offered Certificates purchased by us for our own account
or for
one or more accounts (each of which is an Institutional Accredited
Investor) as to each of which we exercise sole investment
discretion.
|
|
(5)
|
We
have received such information as we deem necessary in order to make
our
investment decision.
|
|
(6)
|
If
we are acquiring ERISA-Restricted Certificates, we understand that
in
accordance with ERISA, the Code and the Exemption, no Plan and no
person
acting on behalf of such a Plan may acquire such Certificate except
in
accordance with Section 3.03(d) of the Pooling and Servicing
Agreement.
|
Terms
used in this letter which are not otherwise defined herein have the respective
meanings assigned thereto in the Pooling and Servicing Agreement.
I-2
You
and
the Certificate Registrar 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 proceeding or official inquiry with respect
to the matters covered hereby.
|
Very
truly yours,
|
||||
| [Purchaser] | ||||
| By: | ||||
| Name: | ||||
| Title: | ||||
I-3
EXHIBIT
J
FORM
OF
ERISA TRANSFER AFFIDAVIT
|
STATE
OF NEW YORK
|
)
|
|
) ss.:
|
|
|
COUNTY
OF NEW YORK
|
)
|
The
undersigned, being first duly sworn, deposes and says as follows:
1. The
undersigned is the ______________________ of ______________ (the “Investor”), a
[corporation duly organized] and existing under the laws of __________, on
behalf of which he makes this affidavit.
2. The
Investor either (x) is not, and on ___________ [date of transfer] will not
be, an employee benefit plan or other plan or arrangement subject to
Section 406 of the Employee Retirement Income Security Act of 1974, as
amended (“ERISA”), or Section 4975 of the Internal Revenue Code of 1986, as
amended (the “Code”), (collectively, a “Plan”) or a person acting on behalf of
any such Plan or investing the assets of any such Plan; (y) if the
Certificate has been the subject of an ERISA-Qualifying Underwriting, is an
insurance company that is purchasing the Certificate with funds contained in
an
“insurance company general account” as defined in Section V(e) of
Prohibited Transaction Class Exemption (“PTCE”) 95-60 and the purchase and
holding of the Certificate satisfy the requirements for exemptive relief under
Sections I and III of PTCE 95-60; or (z) herewith delivers to the
Certificate Registrar an opinion of counsel satisfactory to the Certificate
Registrar and the Securities Administrator and upon which the Certificate
Registrar, the Trustee, the Master Servicer, the Depositor and the Securities
Administrator shall be entitled to rely, to the effect that the purchase and
holding of such Certificate by the Investor will not constitute or result in
any
non-exempt prohibited transactions under Title I of ERISA or
Section 4975 of the Code and will not subject the Certificate Registrar,
the Trustee, the Master Servicer, the Depositor or the Securities Administrator
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 Trust Fund or the above parties.
3. The
Investor hereby acknowledges that under the terms of the Pooling and Servicing
Agreement, dated as of July 1, 2007 (the “Pooling and Servicing Agreement”), by
and among Xxxxxx Xxxxxxx Capital I Inc., as Depositor, Xxxxx Fargo Bank,
National Association, as Master Servicer and as Securities Administrator, and
LaSalle Bank National Association, as Trustee and Custodian, no transfer of
the
ERISA-Restricted Certificates shall be permitted to be made to any person unless
the Certificate Registrar has received a certificate from such transferee in
the
form hereof.
J-1
IN
WITNESS WHEREOF, the Investor has caused this instrument to be executed on
its
behalf, pursuant to proper authority, by its duly authorized officer, duly
attested, this ____ day of _______________ 20___.
| [Investor] | |||
|
|
By:
|
||
| Name | |||
| Title | |||
ATTEST:
|
STATE
OF
|
)
|
|
) ss.:
|
|
|
COUNTY
OF
|
)
|
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 Investor, and acknowledged that he executed the
same
as his free act and deed and the free act and deed of the Investor.
Subscribed
and sworn before me this _____ day of _________ 20___.
|
NOTARY
PUBLIC
My
commission expires the
_____
day of __________ 20___.
|
|||
J-2
EXHIBIT
K
FORM
OF
LETTER OF REPRESENTATIONS
WITH
THE
DEPOSITORY TRUST COMPANY
[On
File
with Securities Administrator]
K-1
EXHIBIT
L-1
FORM
OF
INITIAL CUSTODIAL CERTIFICATION
June
__,
2007
Xxxxxx
Xxxxxxx Capital I Inc.
0000
Xxxxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Xxxxxx
Xxxxxxx & Co. Incorporated
0000
Xxxxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Xxxxx
Fargo Bank, National Association
0000
Xxx
Xxxxxxxxx Xxxx
Xxxxxxxx,
Xxxxxxxx 00000
LaSalle
Bank National Association, as Trustee
000
Xxxxx
XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx,
Xxxxxxxx 00000
Attention:
Global Securities and Trust Services – MSM 2007-12
|
|
Re:
|
Pooling
and Servicing Agreement (“Pooling and
Servicing Agreement”) relating to
Xxxxxx Xxxxxxx Mortgage Loan Trust 2007-12, Mortgage Pass-Through
Certificates, Series 2007-12
|
Ladies
and Gentlemen:
In
accordance with and subject to the provisions of Section 2.02 of the Pooling
and
Servicing Agreement, the undersigned, as Custodian, hereby certifies that,
except for the exceptions noted on the schedule attached hereto, (a) all
documents required to be delivered to each Custodian pursuant to Sections
2.01(a)(i) through (iv) and (ix)(b), (c) (solely to the extent of the UCC-1),
(g) and (h), and if delivered to it, the documents identified in Section
2.01(a)(v) through (vii) and (ix)(c) (solely to the extent of the UCC-3) and
(f)
of the Pooling and Servicing Agreement are in its possession, (b) such documents
have been reviewed by it and have not been mutilated, damaged, defaced, torn
or
otherwise physically altered, and such documents relate to such Mortgage Loan,
(c) 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
and (d) each Mortgage Note has been endorsed and each assignment of Mortgage
has
been delivered as provided in Section 2.01 of the Pooling and Servicing
Agreement. Each Custodian has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically mentioned
above. Each Custodian makes no representations as to: (i)
the validity, legality, sufficiency, enforceability or genuineness of any of
the
documents delivered in accordance with Section 2.01 of the Pooling and Servicing
Agreement or any of the Mortgage
L-1-1
Loans
identified in the Mortgage Loan Schedule, or (ii) the collectibility,
insurability, effectiveness or suitability of any such Mortgage
Loan.
Each
Custodian acknowledges receipt of notice that the Depositor has granted to
the
Trustee for the benefit of the Certificateholders a security interest in all
of
the Depositor’s right, title and interest in and to the Mortgage
Loans.
L-1-2
Capitalized
terms used herein without definition shall have the meaning assigned to them
in
the Pooling and Servicing Agreement.
[LASALLE
BANK
NATIONAL ASSOCIATION]
as
Custodian
[XXXXX
FARGO BANK,
NATIONAL ASSOCIATION]
as
Custodian
By: ___________________________________________
Authorized
Representative
X-0-0
XXXXXXX
X-0
FORM
OF
FINAL CUSTODIAL CERTIFICATION
June
__,
2007
Xxxxxx
Xxxxxxx Capital I Inc.
0000
Xxxxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Xxxxxx
Xxxxxxx & Co. Incorporated
0000
Xxxxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Xxxxx
Fargo Bank, National Association
0000
Xxx
Xxxxxxxxx Xxxx
Xxxxxxxx,
Xxxxxxxx 2104
LaSalle
Bank National Association, as Trustee
000
Xxxxx
XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx,
Xxxxxxxx 00000
Attention:
Global Securities and Trust Services – MSM 2007-12
|
|
Re:
|
Pooling
and Servicing Agreement (“Pooling and
Servicing Agreement”) relating to
Xxxxxx Xxxxxxx Mortgage Loan Trust 2007-12, Mortgage Pass-Through
Certificates, Series 2007-12
|
Ladies
and Gentlemen:
In
accordance with and subject to the provisions of Section 2.02 of the Pooling
and
Servicing Agreement, the undersigned, as Custodian, hereby certifies that,
except for the exceptions noted on the schedule attached hereto, (a) all
documents required to be delivered to each Custodian pursuant to Sections
2.01(a)(i) through (iv) and (ix)(b), (c) (solely to the extent of the UCC-1),
(g) and (h), and if delivered to it, the documents identified in Section
2.01(a)(v) through (vii) and (ix)(c) (solely to the extent of the UCC-3) and
(f)
of the Pooling and Servicing Agreement are in its possession, (b) such documents
have been reviewed by it and have not been mutilated, damaged, defaced, torn
or
otherwise physically altered, and such documents relate to such Mortgage Loan,
(c) based on its examination and only as to the foregoing documents, these
documents with respect to each Mortgage Loan accurately reflect the information
contained in the Mortgage Note and Mortgage and (d) each Mortgage Note has
been
endorsed and each assignment of Mortgage has been delivered as provided in
Section 2.01 of the Pooling and Servicing Agreement. Each Custodian has made
no
independent examination of any documents contained in each Mortgage File beyond
the review specifically mentioned above. Each Custodian makes no
representations as to: (i) the validity, legality, sufficiency,
enforceability or genuineness of any of the documents delivered in accordance
with Section 2.01 of the Pooling and Servicing Agreement or any of the Mortgage
Loans identified in the Mortgage Loan
L-2-1
Schedule,
or (ii) the collectibility, insurability, effectiveness or suitability of any
such Mortgage Loan.
Each
Custodian acknowledges receipt of notice that the Depositor has granted to
the
Trustee for the benefit of the Certificateholders a security interest in all
of
the Depositor’s right, title and interest in and to the Mortgage
Loans.
L-2-2
Capitalized
terms used herein without definition shall have the meaning assigned to them
in
the Pooling and Servicing Agreement.
[LASALLE
BANK
NATIONAL ASSOCIATION]
as
Custodian
[XXXXX
FARGO BANK,
NATIONAL ASSOCIATION]
as
Custodian
By: ___________________________________________
Authorized
Representative
L-2-3
EXHIBIT
M
REQUEST
FOR RELEASE OF DOCUMENTS
[Name
and
Address of Custodian]
|
|
Re:
|
Pooling
and Servicing Agreement (“Pooling and Servicing
Agreement”) and Custodial Agreement relating to
Xxxxxx Xxxxxxx Mortgage Loan Trust 2007-12, Mortgage Pass-Through
Certificates, Series 2007-12
|
In
connection with the administration of the Mortgage Loans in the Trust created
by
the above-captioned Pooling and Servicing Agreement and that are held by you
as
Custodian pursuant to the Pooling and Servicing Agreement or the Custodial
Agreement, we request the release, and hereby acknowledge receipt, of the
Mortgage File for the Mortgage Loan described below, for the reason
indicated.
Mortgage
Loan Number:
Mortgagor
Name, Address & Zip Code:
Reason
for Requesting Documents (check one):
__________ 1. Mortgage
Paid in Full
__________ 2. Foreclosure
__________ 3. Substitution
__________ 4. Other
Liquidation (Repurchases, etc.)
__________ 5. Nonliquidation
Reason: ______________________
Address
to which Custodian should
Deliver
the Mortgage File:
_____________________________________________
_____________________________________________
_____________________________________________
By:_______________________________________
(authorized
signer)
Issuer:_____________________________________
|
Address:
|
_____________________________________ |
| _____________________________________ |
M-1
|
Date:
|
_____________________________________ |
Custodian
---------------
[insert
name of appropriate Custodian]
Please
acknowledge the execution of the above request by your signature and date
below:
____________________________________
Signature
_____________________
Date
Documents
returned to Custodian:
____________________________________
Signature
_____________________
Date
M-2
EXHIBIT
N-1
Additional
Form 10-D Disclosure
|
ADDITIONAL
FORM 10-D DISCLOSURE
|
|
|
Item
on Form 10-D
|
Responsible
Party
|
|
Item
1: Distribution and Pool Performance Information
|
|
|
Information
included in the Monthly Statement to Certificateholders
|
Servicer,
Master Servicer and Securities Administrator
|
|
Any
information required by 1121 which is NOT included on the Monthly
Statement to Certificateholders
|
Depositor
|
|
Item
2: Legal Proceedings
Any
legal proceeding pending against the following entities or their
respective property, that is material to Certificateholders, including
any
proceedings known to be contemplated by governmental
authorities:
|
|
|
▪
Issuing Entity (Trust Fund)
|
Trustee,
Master Servicer, Securities Administrator and Depositor
|
|
▪
Sponsor (Seller)
|
Seller
(if a party to the Pooling 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
|
|
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.
|
(i)
Depositor (with respect to the Closing Date) and (ii) Master
Servicer
|
N-1-1
|
ADDITIONAL
FORM 10-D DISCLOSURE
|
|
|
Item
on Form 10-D
|
Responsible
Party
|
|
Pricing
information can be omitted if securities were not
registered.
|
|
|
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 and Trustee
(to
the extent Trustee has knowledge)
|
|
Item
5: Submission of Matters to a Vote of Security
Holders
Information
from Item 4 of Part II of Form 10-Q
|
Securities
Administrator and
Trustee
(to
the extent trustee has knowledge)
|
|
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
|
|
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
|
Any
responsible party for the
applicable
|
N-1-2
|
ADDITIONAL
FORM 10-D DISCLOSURE
|
|
|
Item
on Form 10-D
|
Responsible
Party
|
|
Disclose
any information required to be reported on Form 8-K during the period
covered by the Form 10-D but not reported
|
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
|
N-1-3
EXHIBIT
N-2
Additional
Form 10-K Disclosure
|
ADDITIONAL
FORM 10-K DISCLOSURE
|
|
|
Item
on Form 10-K
|
Responsible
Party
|
|
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
responsible party for disclosure items on Form 8-K
|
|
Item
15: Exhibits, Financial Statement
Schedules
|
(i)
As to agreements, Securities Administrator/Depositor and (ii) as
to
financial statements, Reporting Parties (as to
themselves)
|
|
Reg
AB Item 1112(b): Significant Obligors of Pool
Assets
|
|
|
Significant
Obligor Financial Information*
|
Depositor
|
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Item.
|
|
|
Reg
AB Item 1114(b)(2): Credit Enhancement Provider Financial
Information
|
|
|
▪
Determining applicable disclosure threshold
|
Depositor
|
|
▪
Requesting required financial information (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
|
|
N-2-1
|
ADDITIONAL
FORM 10-K DISCLOSURE
|
|
|
Item
on Form 10-K
|
Responsible
Party
|
| Any legal proceeding pending against the following entities or their respective property, that is material to Certificateholders, including any proceedings known to be contemplated by governmental authorities: | |
|
▪
Issuing Entity (Trust Fund)
|
Trustee,
Master Servicer, Securities Administrator and Depositor
|
|
▪
Sponsor (Seller)
|
Seller
(if a party to the Pooling 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)
|
|
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)
|
N-2-2
|
ADDITIONAL
FORM 10-K DISCLOSURE
|
|
|
Item
on Form 10-K
|
Responsible
Party
|
|
▪
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
|
|
▪
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
|
N-2-3
EXHIBIT
N-3
Form
8-K
Disclosure Information
|
FORM
8-K DISCLOSURE INFORMATION
|
|
|
Item
on Form 8-K
|
Responsible
Party
|
|
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 (with respect to any agreement entered into by such
party)
|
|
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 (with respect to any agreement entered into by such
party)
|
|
Item
1.03- Bankruptcy or Receivership
Disclosure
is required regarding the bankruptcy or receivership, with respect
to any
of the following:
|
|
|
▪
Sponsor (Seller)
|
Depositor/Sponsor
(Seller)
|
|
▪
Depositor
|
Depositor
|
|
▪
Master Servicer
|
Master
Servicer
|
|
▪
Affiliated Servicer
|
Servicer
|
|
▪
Other Servicer servicing 20% or more of the pool assets at the time
of the
report
|
Servicer
|
|
▪
Other material servicers
|
Servicer
|
|
▪
Trustee
|
Trustee
|
|
▪
Securities Administrator
|
Securities
Administrator
|
|
▪
Significant Obligor
|
Depositor
|
|
▪
Credit Enhancer (10% or more)
|
Depositor
|
|
▪
Derivative Counterparty
|
Depositor
|
|
▪
Custodian
|
Custodian
|
N-3-1
|
FORM
8-K DISCLOSURE INFORMATION
|
|
|
Item
on Form 8-K
|
Responsible
Party
|
|
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.
|
Master
Servicer/Securities Administrator/ Depositor (with respect to any
agreement to which neither the Master Servicer nor the Securities
Administrator is a party)
|
|
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
|
|
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”.
|
Securities
Administrator and Depositor
|
|
Item
6.01- ABS Informational and Computational Material
|
Depositor
|
|
Item
6.02- Change of Servicer or Trustee
Requires
disclosure of any removal, replacement, substitution or addition
of any
master servicer, affiliated servicer, other servicer servicing 10%
or more
of pool assets at time of report, other material servicers or
trustee.
|
Master
Servicer/Securities Administrator/
Servicer/Depositor/Trustee
(as to itself)/successor 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.
|
successor
trustee
|
|
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
|
Depositor/Securities
Administrator/Trustee (to the extent action is required by the Trustee
in
connection with any amendment or modification
therewith)
|
N-3-2
|
FORM
8-K DISCLOSURE INFORMATION
|
|
|
Item
on Form 8-K
|
Responsible
Party
|
| credit enhancements as well as derivatives. | |
|
Reg
AB disclosure about any new enhancement provider is also
required.
|
Depositor
|
|
Item
6.04- Failure to Make a Required Distribution
|
Securities
Administrator/Trustee (to the extent the Trustee has knowledge
thereof)/Depositor (to the extent the Depositor has knowledge
thereof)
|
|
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
|
N-3-3
EXHIBIT
O
[FORM
OF]
SERVICING
CRITERIA TO BE ADDRESSED IN
ASSESSMENT
OF COMPLIANCE STATEMENT
The
assessment of compliance to be delivered by each party listed below shall
address, at a minimum, the criteria identified as below as “Applicable Servicing
Criteria”:
|
Servicing
Criteria
|
Applicable
Servicing Criteria/
Responsible
Party
|
|
|
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.
|
S,
MS, SA
|
|
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.
|
S,
MS, SA
|
|
1122(d)(1)(iii)
|
Any
requirements in the transaction agreements to maintain a back-up
servicer
for the mortgage loans are maintained.
|
N/A
|
|
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.
|
S,
MS, SA
|
|
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.
|
S,
MS, SA
|
|
1122(d)(2)(ii)
|
Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made
only by authorized personnel.
|
S,
MS, SA
|
|
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.
|
S,
MS
|
O-1
|
Servicing
Criteria
|
Applicable
Servicing Criteria/
Responsible
Party
|
|
|
Reference
|
Criteria
|
|
|
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.
|
S,
MS, SA
|
|
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.
|
S,
MS, SA
|
|
1122(d)(2)(vi)
|
Unissued
checks are safeguarded so as to prevent unauthorized
access.
|
S,
MS, SA
|
|
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.
|
S,
MS, SA
|
|
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.
|
S,
MS, SA
|
|
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.
|
S,
MS, SA
|
O-2
|
Servicing
Criteria
|
Applicable
Servicing Criteria/
Responsible
Party
|
|
|
Reference
|
Criteria
|
|
|
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.
|
S,
MS, SA
|
|
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.
|
S,
MS, SA
|
|
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.
|
S,
C
|
|
1122(d)(4)(ii)
|
Mortgage
loan and related documents are safeguarded as required by the transaction
agreements.
|
S,
C
|
|
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.
|
S
|
|
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.
|
S
|
|
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.
|
S
|
|
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.
|
S
|
|
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.
|
S
|
|
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
|
S
|
O-3
|
Servicing
Criteria
|
Applicable
Servicing Criteria/
Responsible
Party
|
|
|
Reference
|
Criteria
|
|
| 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.
|
S
|
|
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.
|
S
|
|
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.
|
S
|
|
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.
|
S
|
|
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.
|
S
|
|
1122(d)(4)(xiv)
|
Delinquencies,
charge-offs and uncollectible accounts are recognized and recorded
in
accordance with the transaction agreements.
|
S,
MS
|
|
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.
|
SA
|
O-4
|
[NAME
OF REPORTING PARTY]
|
|||
|
Date:
|
|||
|
|
By:
|
|
|
| Name: | |||
| Title: | |||
Key:
S
= each
Servicer
MS
=
Master Servicer
SA
=
Securities Administrator
C
=
Custodian
O-5
EXHIBIT
P
Additional
Disclosure Notification
Xxxxx
Fargo Bank, N.A. as Securities Administrator
0000
Xxx
Xxxxxxxxx Xxxx
Xxxxxxxx,
Xxxxxxxx 00000
Fax:
(000) 000-0000
E-mail: xxx.xxx.xxxxxxxxxxxxx@xxxxxxxxxx.xxx
[insert
name and address of Depositor]
Attn: Corporate
Trust Services - MSM 2007-12-SEC REPORT PROCESSING
RE: **Additional
Form [ ] Disclosure**Required
Ladies
and Gentlemen:
In
accordance with Section [12.02(b)][12.03(b)][12.04(b)] of the Pooling and
Servicing Agreement, dated as of [ ] [ ], 2007, among
[ ], as [ ], [ ], as [ ],
[ ], as [ ] and [ ], as
[ ]. 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: | |||
P-1
EXHIBIT
Q
GLOSSARY
of TERMS for STANDARD & POOR’S LEVELS® VERSION 5.7 FILE FORMAT
APPENDIX E
– Standard & Poor’s Predatory Lending Categories
Standard
& Poor’s has categorized loans governed by anti-predatory lending laws in
the Jurisdictions listed below into three categories based upon a combination
of
factors that include (a) the risk exposure associated with the assignee
liability and (b) the tests and thresholds set forth in those laws. Note that
certain loans classified by the relevant statute as Covered are included in
Standard & Poor’s High Cost Loan Category because they included thresholds
and tests that are typical of what is generally considered High Cost by the
industry.
|
Standard
& Poor’s High Cost Loan Categorization
|
||
|
State/Jurisdiction
|
Name
of Anti-Predatory Lending Law/Effective Date
|
Category
under Applicable Anti-Predatory Lending Law
|
|
Arkansas
|
Arkansas
Home Loan Protection Act, Ark. Code Xxx. §§ 00-00-000 etseq.
.
Effective
July 16, 2003
|
High
Cost Home Loan
|
|
Cleveland
Heights, OH
|
Ordinance
No. 72-2003 (PSH), Mun. Code §§ 757.01 etseq.
Effective
June 2, 2003
|
Covered
Loan
|
|
Colorado
|
Consumer
Equity Protection, Colo. Stat. Xxx. §§ 5-3.5-101 etseq.
Effective
for covered loans offered or entered into on or after January 1,
2003.
Other provisions of the Act took effect on June 7, 2002
|
Covered
Loan
|
|
Connecticut
|
Connecticut
Abusive Home Loan Lending Practices Act, Conn. Gen. Stat. §§ 36a-746
etseq.
Effective
October 1, 2001
|
High
Cost Home Loan
|
|
District
of Columbia
|
Home
Loan Protection Act, D.C. Code §§ 26-1151.01 etseq.
Effective
for loans closed on or after January 28, 2003
|
Covered
Loan
|
|
Florida
|
Fair
Lending Act, Fla. Stat. Xxx. §§ 494.0078 etseq.
|
High
Cost Home Loan
|
Q-1
|
Standard
& Poor’s High Cost Loan Categorization
|
||
|
State/Jurisdiction
|
Name
of Anti-Predatory Lending Law/Effective Date
|
Category
under Applicable Anti-Predatory Lending
Law
|
|
Effective
October 2, 2002
|
||
|
Georgia
(Oct. 1, 2002 – Mar. 6, 2003)
|
Georgia
Fair Lending Act, Ga. Code Xxx. §§ 7-6A-1 etseq.
Effective
October 1, 2002 – March 6, 2003
|
High
Cost Home Loan
|
|
Georgia
as amended (Mar. 7, 2003 – current)
|
Georgia
Fair Lending Act, Ga. Code Xxx. §§ 7-6A-1 etseq.
Effective
for loans closed on or after March 7, 2003
|
High
Cost Home Loan
|
|
HOEPA
Section 32
|
Home
Ownership and Equity Protection Act of 1994, 15 U.S.C. § 1639, 12 C.F.R.
§§ 226.32 and 226.34
Effective
October 1, 1995, amendments October 1, 2002
|
High
Cost Loan
|
|
Illinois
|
High
Risk Home Loan Act, Ill. Comp. Stat. tit. 815, §§ 137/5 etseq.
Effective
January 1, 2004 (prior to this date, regulations under Residential
Mortgage License Act effective from May 14, 2001)
|
High
Risk Home Loan
|
|
Kansas
|
Consumer
Credit Code, Kan. Stat. Xxx. §§ 16a-1-101 etseq.
Sections
16a-1-301 and 16a-3-207 became effective April 14, 1999; Section
16a-3-308a became effective July 1, 1999
|
High
Loan to Value Consumer Loan (id. § 16a-3-207) and;
|
|
High
APR Consumer Loan (id. § 16a-3-308a)
|
||
|
Kentucky
|
2003
KY H.B. 287 – High Cost Home Loan Act, Ky. Rev. Stat. §§ 360.100 etseq.
Effective
June 24, 2003
|
High
Cost Home Loan
|
|
Maine
|
Truth
in Lending, Me. Rev. Stat. tit. 9-A, §§ 8-101 etseq.
Effective
September 29, 1995 and as amended from time to time
|
High
Rate High Fee Mortgage
|
Q-2
|
Standard
& Poor’s High Cost Loan Categorization
|
||
|
State/Jurisdiction
|
Name
of Anti-Predatory Lending Law/Effective Date
|
Category
under Applicable Anti-Predatory Lending
Law
|
|
Massachusetts
|
Part
40 and Part 32, 209 C.M.R. §§ 32.00 etseq. and 209 C.M.R.
§§ 40.01 etseq.
Effective
March 22, 2001 and amended from time to time
|
High
Cost Home Loan
|
|
Nevada
|
Assembly
Xxxx No. 284, Nev. Rev. Stat. §§ 598D.010 etseq.
Effective
October 1, 2003
|
Home
Loan
|
|
New
Jersey
|
New
Jersey Home Ownership Security Act of 2002, N.J. Rev. Stat. §§ 46:10B-22
etseq.
Effective
for loans closed on or after November 27, 2003
|
High
Cost Home Loan
|
|
New
Mexico
|
Home
Loan Protection Act, N.M. Rev. Stat. §§ 58-21A-1 etseq.
Effective
as of January 1, 2004; Revised as of February 26, 2004
|
High
Cost Home Loan
|
|
New
York
|
N.Y.
Banking Law Article 6-l
Effective
for applications made on or after April 1, 2003
|
High
Cost Home Loan
|
|
North
Carolina
|
Restrictions
and Limitations on High Cost Home Loans, N.C. Gen. Stat. §§ 24-1.1E
etseq.
Effective
July 1, 2000; amended October 1, 2003 (adding open-end lines of
credit)
|
High
Cost Home Loan
|
|
Ohio
|
H.B.
386 (codified in various sections of the Ohio Code), Ohio Rev. Code
Xxx.
§§ 1349.25 etseq.
Effective
May 24, 2002
|
Covered
Loan
|
|
Oklahoma
|
Consumer
Credit Code (codified in various sections of Title 14A)
Effective
July 1, 2000; amended effective January 1, 2004
|
Subsection
10 Mortgage
|
Q-3
|
Standard
& Poor’s High Cost Loan Categorization
|
||
|
State/Jurisdiction
|
Name
of Anti-Predatory Lending Law/Effective Date
|
Category
under Applicable Anti-Predatory Lending
Law
|
|
South
Carolina
|
South
Carolina High Cost and Consumer Home Loans Act, S.C. Code Xxx. §§ 37-23-10
etseq.
Effective
for loans taken on or after January 1, 2004
|
High
Cost Home Loan
|
|
West
Virginia
|
West
Virginia Residential Mortgage Lender, Broker and Servicer Act, W.
Va. Code
Xxx. §§ 31-17-1 etseq.
Effective
June 5, 2002
|
West
Virginia Mortgage Loan Act Loan
|
Standard
& Poor’s Covered Loan Categorization
|
State/Jurisdiction
|
Name
of Anti-Predatory Lending Law/Effective Date
|
Category
under Applicable Anti-Predatory Lending Law
|
|
Georgia
(Oct. 1, 2002 – Mar. 6, 2003)
|
Georgia
Fair Lending Act, Ga. Code Xxx. §§ 7-6A-1 etseq.
Effective
October 1, 2002 – March 6, 2003
|
Covered
Loan
|
|
New
Jersey
|
New
Jersey Home Ownership Security Act of 2002, N.J. Rev. Stat. §§ 46:10B-22
etseq.
Effective
November 27, 2003 – July 5, 2004
|
Covered
Home Loan
|
|
Standard
& Poor’s Home Loan Categorization
|
||
|
State/Jurisdiction
|
Name
of Anti-Predatory Lending Law/Effective Date
|
Category
under Applicable Anti-Predatory Lending Law
|
|
Georgia
(Oct. 1, 2002 – Mar. 6, 2003)
|
Georgia
Fair Lending Act, Ga. Code Xxx. §§ 7-6A-1 etseq.
Effective
October 1, 2002 – March 6, 2003
|
Home
Loan
|
Q-4
|
Standard
& Poor’s Home Loan Categorization
|
||
|
State/Jurisdiction
|
Name
of Anti-Predatory Lending Law/Effective Date
|
Category
under Applicable Anti-Predatory Lending
Law
|
|
New
Jersey
|
New
Jersey Home Ownership Security Act of 2002, N.J. Rev. Stat. §§ 46:10B-22
etseq.
Effective
for loans closed on or after November 27, 2003
|
Home
Loan
|
|
New
Mexico
|
Home
Loan Protection Act, N.M. Rev. Stat. §§ 58-21A-1 etseq.
Effective
as of January 1, 2004; Revised as of February 26, 2004
|
Home
Loan
|
|
North
Carolina
|
Restrictions
and Limitations on High Cost Home Loans, N.C. Gen. Stat. §§ 24-1.1E
etseq.
Effective
July 1, 2000; amended October 1, 2003 (adding open-end lines of
credit)
|
Consumer
Home Loan
|
|
South
Carolina
|
South
Carolina High Cost and Consumer Home Loans Act, S.C. Code Xxx. §§ 37-23-10
etseq.
Effective
for loans taken on or after January 1, 2004
|
Consumer
Home Loan
|
Q-5
EXHIBIT
R
FORM
OF
LOST NOTE AFFIDAVIT – LA SALLE AS CUSTODIAN
I,
as
_________________________ (title) of ________ (the “Custodian”), am authorized
to make this Lost Note Affidavit on behalf of __________. In
connection with the administration of the Mortgage Loans held by _______________
as Custodian on behalf of ____________ (“____”) or the Trust of such mortgage
loans, as the case may be (the “Investor”), I (hereinafter called “Deponent”),
being duly sworn, depose and say that:
Custodian’s
address is:
[CUSTODIAN’S
Address]
Custodian
previously delivered to the Investor a signed Trust Receipt with respect to
the
Mortgage Note referred to below;
Such
Mortgage Note was endorsed or sold to the Investor by _________________________
pursuant to the terms and provisions of a ____________________ Agreement dated
and effective as of _________ ______, ____;
Such
Mortgage Note is not outstanding pursuant to a Request for Release of
Documents;
Such
Mortgage Note (hereinafter called the “Original”) has been lost;
Deponent
has made or has caused to be made diligent search for Original and has been
unable to find or recover same;
Each
Custodian was each Custodian of the Original at the time of loss;
and
Deponent
agrees that, if the Original should ever come into Custodian’s possession,
custody or power, Custodian will immediately and without consideration surrender
Original to the Investor.
Attached
hereto is a true and correct copy of the (i) Mortgage Note, endorsed in blank
by
the Mortgagee, and (ii) [Mortgage][Deed of Trust] with evidence of recording
thereon which secures the Mortgage Note.
Deponent
hereby agrees that each Custodian shall indemnify and hold harmless the
Purchaser, the Trust, the Servicer of the related Mortgage Loan and their
respective employees, officers, directors and agents against any loss, liability
or damage, including reasonable attorney’s fees, resulting from the
unavailability of the Mortgage Note, including but not limited to any loss,
liability or damage arising from (i) any false statement contained in this
Lost
Note Affidavit, (ii) any claim of any party that it has already purchased a
mortgage loan evidenced by the lost Mortgage Note or any interest in such
mortgage loan, (iii) any claim of any borrower with respect to the existence
of
terms of a Mortgage Loan evidenced by the lost Mortgage Note, (iv) the issuance
of new instrument in lieu thereof and (v) any claim whether or not based upon
or
arising from honoring or refusing to honor the Original when presented by anyone
(items (i)
R-1
through
(iv) above are hereinafter referred to as the “Losses”) and (b) if required by
any Rating Agency in connection with placing such lost Mortgage Note into a
securitization transaction, shall obtain a surety bond from an insurer
acceptable to the applicable Rating Agency in an amount acceptable to such
Rating Agency to cover any Losses with respect to such lost Mortgage
Note.
Capitalized
terms used herein but not defined herein have the meanings given them in the
Pooling and Servicing Agreement, dated as of July 1, 2007, between Xxxxxx
Xxxxxxx Mortgage Capital Holdings LLC and each Custodian.
This
Lost
Note Affidavit is intended to be relied on by the Investor, its successors,
and
assigns and _______________________ represents and warrants that it has the
authority to perform its obligations under this Lost Note
Affidavit.
IN
WITNESS WHEREOF, each Custodian has caused this instrument to be executed on
its
behalf, pursuant to authority of its Board of Directors, by its [title of
officer] this _____ day of __________ 20__.
| [LA SALLE BANK NATIONAL ASSOCIATION] | |||
|
|
By:
|
||
| Name: | |||
| Title: | |||
On
this
_________ day of _______________________, ____, before me appeared
____________________________________________, to me personally known, who being
duly sworn did say that she/he is the ______________________________ of
______________________, and that said Lost Note Affidavit was signed and sealed
on behalf of such corporation and said _____________________________
acknowledged this instrument to be the free act and deed of said
corporation.
Subscribed
and sworn before me this _____ day of __________ 20__.
NOTARY
PUBLIC
____________________________
COUNTY
OF
________________
STATE
OF
__________________
My
commission expires the _____ day of __________ 20__.
Signature
R-2
Typed
Name
R-3
EXHIBIT
S-1
FORM
OF EXCHANGE LETTER
(Depositable
Certificates for Exchangeable Certificates)
___,
20__
Xxxxx
Fargo Bank, N.A.
Xxxxx
Xxxxxx xxx Xxxxxxxxx Xxxxxx,
Xxxxxxxxxxx,
Xxxxxxxxx 00000
Attention:
MSM 2007-12
|
Re:
|
Xxxxxx
Xxxxxxx Mortgage Loan Trust 2007-12,
Mortgage
Pass-Through Certificates, Series
2007-12
|
Ladies
and Gentlemen:
Pursuant
to the terms of that certain Pooling and Servicing Agreement, dated as of July
1, 2007 (the “Pooling and Servicing Agreement”), by and among Xxxxxx
Xxxxxxx Capital I Inc., as Depositor, Xxxxx Fargo Bank, National Association,
as
Master Servicer and as Securities Administrator, LaSalle Bank National
Association, as Trustee and Custodian, we hereby present and surrender the
Depositable Certificates specified on Schedule I attached hereto (the
“Depositable Certificates”) and transfer, assign, set over and otherwise
convey to the Securities Administrator, all of our right, title and interest
in
and to the Depositable Certificates, including all payments of interest thereon
received after [date], in exchange for the Exchangeable Certificates specified
on Schedule I attached hereto (the “Exchangeable
Certificates”).
We
agree
that upon such exchange the portions of the Depositable Certificates designated
for exchange shall be deemed cancelled and replaced by the Exchangeable
Certificates issued in exchange therefor. We confirm that we have paid a fee
to
the Securities Administrator in connection with such exchange equal to
$5,000.
S-1-1
Sincerely,
By: ____________________________________
Name:
Title:
S-1-2
Acknowledged
by:
XXXXX
FARGO BANK, N.A.,
as
Securities Administrator
By: ______________________________
Name:
Title:
X-0-0
XXXXXXX
X-0
FORM
OF EXCHANGE LETTER
(Exchangeable
Certificates for Depositable Certificates)
___,
20__
Xxxxx
Fargo Bank, N.A.
Xxxxx
Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx,
Xxxxxxxxx 00000
Attention:
MSM 2007-12
|
Re:
|
Xxxxxx
Xxxxxxx Mortgage Loan Trust 2007-12,
Mortgage
Pass-Through Certificates, Series
2007-12
|
Pursuant
to the terms of that certain Pooling and Servicing Agreement, dated as of July
1, 2007 (the “Pooling and Servicing Agreement”), by and among Xxxxxx
Xxxxxxx Capital I Inc., as Depositor, Xxxxx Fargo Bank, National Association,
as
Master Servicer and as Securities Administrator, LaSalle Bank National
Association, as Trustee and Custodian, we hereby present and surrender the
Exchangeable Certificates specified on Schedule I attached hereto (the
“Exchangeable Certificates”) and transfer, assign, set over and otherwise
convey to the Securities Administrator, all of our right, title and interest
in
and to the Exchangeable Certificates, including all payments of interest thereon
received after [date], in exchange for the Depositable Certificates specified
on
Schedule I attached hereto (the “Depositable
Certificates”).
We
agree
that upon such exchange the portions of the Exchangeable Certificates designated
for exchange shall be deemed cancelled and replaced by the Depositable
Certificates issued in exchange therefor. We confirm that we have paid a fee
to
the Securities Administrator in connection with such exchange equal to
$5,000.
S-2-1
Sincerely,
By: ____________________________________
Name:
Title:
S-2-2
Acknowledged
by:
XXXXX
FARGO BANK, N.A.,
as
Securities Administrator
By: ______________________________
Name:
Title:
S-2-3
SCHEDULE
A
MORTGAGE
LOAN SCHEDULE
[On
File
with the Trustee and the Securities Administrator]
SCH.
A-1
SCHEDULE
B
PRINCIPAL
BALANCES SCHEDULE
[Attached
to Prospectus Supplement]
SCH.
B-1
SCHEDULE
C
AVAILABLE
EXCHANGES OF DEPOSITABLE CERTIFICATES FOR EXCHANGEABLE
CERTIFICATES(1)(2)
|
Classes
of Depositable Certificates
|
Related
Classes of Exchangeable Certificates
|
|||||||
|
Class
or Classes of Depositable Certificates
|
Original
Certificate Balance or Notional Amount
|
Class
or Classes of Exchangeable Certificates
|
|
Original
Certificate Balance or Notional Amount
|
Pass-Through
Rate(3)
|
|||
|
Recombination
1
|
||||||||
|
Class
1-A-1
|
$22,270,000
|
Class
1-A-2
|
$21,468,000
|
5.50000%
|
||||
|
Class
1-A-3
|
$802,000
|
5.50000%
|
||||||
|
Recombination
2
|
||||||||
|
Class
2-A-1
|
$23,171,000
|
Class
2-A-2
|
$22,336,000
|
6.00000%
|
||||
|
Class
2-A-3
|
$835,000
|
6.00000%
|
||||||
|
Recombination
3
|
||||||||
|
Class
3-A-7
|
$17,822,000
|
Class
3-A-9
|
$24,650,000
|
6.00000%
|
||||
|
Class
3-A-8
|
$6,828,000
|
|||||||
|
Recombination
4
|
||||||||
|
Class
3-A-12
|
$61,708,000
|
Class
3-A-14
|
$154,270,000
|
6.00000%
|
||||
|
Class
3-A-13
|
$92,562,000
|
|||||||
|
Recombination
5
|
||||||||
|
Class
3-A-14(5)
|
$154,270,000
|
Class
3-A-15
|
$168,009,000
|
6.00000%
|
||||
|
Class
3-A-16
|
$13,739,000
|
|||||||
|
Recombination
6
|
||||||||
|
Class
3-A-16
|
$13,739,000
|
Class
3-A-19
|
$38,291,000
|
6.00000%
|
||||
|
Class
3-A-20(5)
|
$24,552,000
|
|||||||
|
Recombination
7
|
||||||||
|
Class
3-A-17
|
$17,752,000
|
Class
3-A-20
|
$24,552,000
|
6.00000%
|
||||
|
Class
3-A-18
|
$6,800,000
|
|||||||
|
Recombination
8
|
||||||||
|
Class
3-A-9(5)
|
$24,650,000
|
Class
3-A-21
|
$49,202,000
|
6.00000%
|
||||
|
Class
3-A-20(5)
|
$24,552,000
|
|||||||
|
Recombination
9
|
||||||||
|
Class
3-A-11
|
$24,531,000
|
Class
3-A-22
|
$217,092,000
|
6.00000%
|
||||
|
Class
3-A-14(5)
|
$154,270,000
|
|||||||
|
Class
3-A-19(5)
|
$38,291,000
|
|||||||
|
Recombination
10
|
||||||||
|
Class
3-A-22(5)
|
$217,092,000
|
Class
3-A-23
|
$186,078,857
|
Floating
Rate
|
||||
|
Class
3-A-24
|
$186,078,857(4)
|
Inverse
Floating Rate
|
||||||
|
Class
3-A-25
|
$31,013,143
|
Principal
Only
|
||||||
|
Recombination
11
|
||||||||
|
Class
3-A-22(5)
|
$217,092,000
|
Class
3-A-27
|
$186,078,857
|
Floating
Rate
|
||||
|
Class
3-A-28
|
$186,078,857(4)
|
Inverse
Floating Rate
|
||||||
SCH.
C-1
|
Classes
of Depositable Certificates
|
Related
Classes of Exchangeable Certificates
|
|||||||
|
Class
or Classes of Depositable Certificates
|
Original
Certificate Balance or Notional Amount
|
Class
or Classes of Exchangeable Certificates
|
|
Original
Certificate Balance or Notional Amount
|
Pass-Through
Rate(3)
|
|||
|
Class
3-A-25
|
$31,013,143
|
Principal
Only
|
||||||
|
Recombination
12
|
||||||||
|
Class
3-A-22(5)
|
$217,092,000
|
Class
3-A-30
|
$186,078,857
|
Floating
Rate
|
||||
|
Class
3-A-31
|
$186,078,857(4)
|
Inverse
Floating Rate
|
||||||
|
Class
3-A-25
|
$31,013,143
|
Principal
Only
|
||||||
|
Recombination
13
|
||||||||
|
Class
3-A-22(5)
|
$217,092,000
|
Class
3-A-33
|
$173,673,600
|
Floating
Rate
|
||||
|
Class
3-A-34
|
$173,673,600(4)
|
Inverse
Floating Rate
|
||||||
|
Class
3-A-35
|
$43,418,400
|
Principal
Only
|
||||||
|
Recombination
14
|
||||||||
|
Class
3-A-22(5)
|
$217,092,000
|
Class
3-A-23
|
$186,078,857
|
Floating
Rate
|
||||
|
Class
3-A-26
|
$31,013,143
|
Inverse
Floating Rate
|
||||||
|
Recombination
15
|
||||||||
|
Class
3-A-22(5)
|
$217,092,000
|
Class
3-A-27
|
$186,078,857
|
Floating
Rate
|
||||
|
Class
3-A-29
|
$31,013,143
|
Inverse
Floating Rate
|
||||||
|
Recombination
16
|
||||||||
|
Class
3-A-22(5)
|
$217,092,000
|
Class
3-A-30
|
$186,078,857
|
Floating
Rate
|
||||
|
Class
3-A-32
|
$31,013,143
|
Inverse
Floating Rate
|
||||||
|
Recombination
17
|
||||||||
|
Class
3-A-22(5)
|
$217,092,000
|
Class
3-A-33
|
$173,673,600
|
Floating
Rate
|
||||
|
Class
3-A-36
|
$43,418,400
|
Inverse
Floating Rate
|
||||||
|
Recombination
18
|
||||||||
|
Class
3-A-22(5)
|
$217,092,000
|
Class
3-A-37
|
$217,092,000
|
5.75000%
|
||||
|
Class
3-A-38
|
$9,045,500(4)
|
6.00000%
|
||||||
|
Recombination
19
|
||||||||
|
Class
3-A-22(5)
|
$217,092,000
|
Class
3-A-39
|
$217,092,000
|
5.50000%
|
||||
|
Class
3-A-40
|
$18,091,000(4)
|
6.00000%
|
||||||
|
Recombination
20
|
||||||||
|
Class
3-A-22(5)
|
$217,092,000
|
Class
3-A-41
|
$108,546,000
|
5.75000%
|
||||
|
Class
3-A-42
|
$108,546,000
|
6.25000%
|
||||||
|
Recombination
21
|
||||||||
|
Class
4-A-1
|
$76,936,000
|
Class
4-A-3
|
$73,859,000
|
Floating
Rate
|
||||
|
Class
4-A-4
|
$3,077,000
|
Floating
Rate
|
||||||
|
Class
4-A-5
|
$3,077,000(4)
|
Toggle
|
||||||
|
Recombination
22
|
||||||||
|
Class
3-A-22(5)
|
$217,092,000
|
Class
3-A-23
|
$43,418,400
|
Floating
Rate
|
||||
|
Class
3-A-24
|
$43,418,400(4)
|
Inverse
Floating Rate
|
||||||
|
Class
3-A-37
|
$173,673,600
|
5.75000%
|
||||||
|
Recombination
23
|
||||||||
SCH.
C-2
|
Classes
of Depositable Certificates
|
Related
Classes of Exchangeable Certificates
|
|||||||
|
Class
or Classes of Depositable Certificates
|
Original
Certificate Balance or Notional Amount
|
Class
or Classes of Exchangeable Certificates
|
|
Original
Certificate Balance or Notional Amount
|
Pass-Through
Rate(3)
|
|||
|
Class
3-A-22(5)
|
$217,092,000
|
Class
3-A-27
|
$43,418,400
|
Floating
Rate
|
||||
|
Class
3-A-28
|
$43,418,400(4)
|
Inverse
Floating Rate
|
||||||
|
Class
3-A-37
|
$173,673,600
|
5.75000%
|
||||||
|
Recombination
24
|
||||||||
|
Class
3-A-22(5)
|
$217,092,000
|
Class
3-A-30
|
$43,418,400
|
Floating
Rate
|
||||
|
Class
3-A-31
|
$43,418,400(4)
|
Inverse
Floating Rate
|
||||||
|
Class
3-A-37
|
$173,673,600
|
5.75000%
|
||||||
|
Recombination
25
|
||||||||
|
Class
3-A-22(5)
|
$217,092,000
|
Class
3-A-33
|
$31,013,142
|
Floating
Rate
|
||||
|
Class
3-A-34
|
$31,013,142(4)
|
Inverse
Floating Rate
|
||||||
|
Class
3-A-37
|
$186,078,857
|
5.75000%
|
||||||
|
Recombination
26
|
||||||||
|
Class
3-A-22(5)
|
$217,092,000
|
Class
3-A-23
|
$72,364,000
|
Floating
Rate
|
||||
|
Class
3-A-24
|
$72,364,000(4)
|
Inverse
Floating Rate
|
||||||
|
Class
3-A-39
|
$144,728,000
|
5.50000%
|
||||||
|
Recombination
27
|
||||||||
|
Class
3-A-22(5)
|
$217,092,000
|
Class
3-A-27
|
$72,364,000
|
Floating
Rate
|
||||
|
Class
3-A-28
|
$72,364,000(4)
|
Inverse
Floating Rate
|
||||||
|
Class
3-A-39
|
$144,728,000
|
5.50000%
|
||||||
|
Recombination
28
|
||||||||
|
Class
3-A-22(5)
|
$217,092,000
|
Class
3-A-30
|
$72,364,000
|
Floating
Rate
|
||||
|
Class
3-A-31
|
$72,364,000(4)
|
Inverse
Floating Rate
|
||||||
|
Class
3-A-39
|
$144,728,000
|
5.50000%
|
||||||
|
Recombination
29
|
||||||||
|
Class
3-A-22(5)
|
$217,092,000
|
Class
3-A-33
|
$54,273,000
|
Floating
Rate
|
||||
|
Class
3-A-34
|
$54,273,000(4)
|
Inverse
Floating Rate
|
||||||
|
Class
3-A-39
|
$162,819,000
|
5.50000%
|
||||||
______________
|
(1)
|
Depositable
Certificates and Exchangeable Certificates may be exchanged only
in the
proportions shown in this Schedule C. In any exchange, the
relative proportions of the Depositable Certificates to be delivered
(or,
if applicable, received) in such exchange will equal the proportions
reflected by the outstanding Class Principal Balances or Notional
Amounts
of the related Depositable Certificates at the time of
exchange.
|
|
(2)
|
If,
as a result of a proposed exchange, a Certificateholder would hold
a
Depositable Certificate or Exchangeable Certificate of a Class in
an
amount less than the applicable minimum denomination for that class,
the
certificateholder will be unable to effect the proposed exchange.
See
“Description of the Certificates— Book-Entry Certificates; Denominations”
in this prospectus supplement.
|
|
(3)
|
The
pass-through rate for each Class of Exchangable Certificates will
be
subject to the related Net WAC Pass-Through Rate. For a description
of the
Pass-Through Rates for these Classes of Certificates please see the
table
on page [15] of this Agreement.
|
|
(4)
|
The
Class 3-A-24, Class 3-A-28, Class 3-A-31, Class 3-A-34, Class 3-A-38,
Class 3-A-40 and Class 4-A-5 Certificates are interest only Notional
Amount Certificates.
|
|
(5)
|
Although
listed in this chart as a “Depositable Certificate” this Class of
Certificates is actually an “Exchangeable Certificate” but is presented as
a Depositable Certificate for this Recombination for your ease of
review. In order to affect the exchange presented in this
Recombination, you will need to own either this Class of Certificates
or
the Depositable Certificates related thereto (as identified elsewhere
in
this chart) in the proportion set forth in the Recombination in which
this
Class of Certificates is created.
|
SCH.
C-3
