STRUCTURED ASSET SECURITIES CORPORATION, as Depositor, AURORA LOAN SERVICES LLC, as Master Servicer, and WELLS FARGO BANK, N.A., as Trustee TRUST AGREEMENT Dated as of January 1, 2007 LEHMAN MORTGAGE TRUST MORTGAGE PASS-THROUGH CERTIFICATES SERIES 2007-1
EXECUTION
STRUCTURED
ASSET SECURITIES CORPORATION, as Depositor,
AURORA
LOAN SERVICES LLC, as Master Servicer,
and
XXXXX
FARGO BANK, N.A.,
as
Trustee
___________________________
Dated
as
of January 1, 2007
___________________________
XXXXXX
MORTGAGE TRUST
MORTGAGE
PASS-THROUGH CERTIFICATES
SERIES
2007-1
TABLE
OF
CONTENTS
| Page | |
|
ARTICLE
I DEFINITIONS
|
8
|
|
Section
1.01. Definitions.
|
8
|
|
Section
1.02. Calculations Respecting Mortgage Loans.
|
44
|
|
ARTICLE
II DECLARATION OF TRUST; ISSUANCE OF CERTIFICATES
|
45
|
|
Section
2.01. Creation and Declaration of Trust Fund; Conveyance of Mortgage
Loans.
|
45
|
|
Section
2.02. Acceptance of Trust Fund by Trustee: Review of Documentation
for
Trust Fund.
|
49
|
|
Section
2.03. Representations and Warranties of the Depositor.
|
50
|
|
Section
2.04. Discovery of Breach.
|
52
|
|
Section
2.05. Repurchase, Purchase or Substitution of Mortgage
Loans.
|
53
|
|
Section
2.06. Grant Clause.
|
54
|
|
ARTICLE
III THE CERTIFICATES
|
55
|
|
Section
3.01. The Certificates.
|
55
|
|
Section
3.02. Registration.
|
57
|
|
Section
3.03. Transfer and Exchange of Certificates.
|
57
|
|
Section
3.04. Cancellation of Certificates.
|
63
|
|
Section
3.05. Replacement of Certificates.
|
63
|
|
Section
3.06. Persons Deemed Owners.
|
63
|
|
Section
3.07. Temporary Certificates.
|
64
|
|
Section
3.08. Appointment of Paying Agent.
|
64
|
|
Section
3.09. Book-Entry Certificates.
|
66
|
|
Section
3.10. Deposit of Underlying REMIC Certificates under the Exchange
Trust
Agreement.
|
67
|
|
ARTICLE
IV ADMINISTRATION OF THE TRUST FUND
|
67
|
|
Section
4.01. Collection Account.
|
67
|
|
Section
4.02. Application of Funds in the Collection Account.
|
69
|
|
Section
4.03. Reports to Certificateholders.
|
71
|
|
Section
4.04. Certificate Account.
|
75
|
|
ARTICLE
V DISTRIBUTIONS TO HOLDERS OF CERTIFICATES
|
76
|
|
Section
5.01. Distributions Generally.
|
76
|
|
Section
5.02. Distributions from the Certificate Account.
|
77
|
|
Section
5.03. Allocation of Realized Losses.
|
84
|
|
Section
5.04. Advances by the Master Servicer and the Trustee.
|
86
|
|
Section
5.05. Compensating Interest Payments.
|
87
|
|
ARTICLE
VI CONCERNING THE TRUSTEE; EVENTS OF DEFAULT
|
87
|
|
Section
6.01. Duties of Trustee.
|
87
|
|
Section
6.02. Certain Matters Affecting the Trustee.
|
90
|
|
Section
6.03. Trustee Not Liable for Certificates.
|
91
|
i
|
Section
6.04. Trustee May Own Certificates.
|
92
|
|
Section
6.05. Eligibility Requirements for Trustee .
|
92
|
|
Section
6.06. Resignation and Removal of Trustee.
|
92
|
|
Section
6.07. Successor Trustee.
|
93
|
|
Section
6.08. Merger or Consolidation of Trustee.
|
94
|
|
Section
6.09. Appointment of Co-Trustee, Separate Trustee or
Custodian.
|
94
|
|
Section
6.10. Authenticating Agents.
|
96
|
|
Section
6.11. Indemnification of Trustee.
|
97
|
|
Section
6.12. Fees and Expenses of Trustee and Custodian.
|
98
|
|
Section
6.13. Collection of Monies.
|
98
|
|
Section
6.14. Events of Default; Trustee To Act; Appointment of
Successor.
|
98
|
|
Section
6.15. Additional Remedies of Trustee Upon Event of
Default.
|
103
|
|
Section
6.16. Waiver of Defaults.
|
103
|
|
Section
6.17. Notification to Holders.
|
103
|
|
Section
6.18. Directions by Certificateholders and Duties of Trustee During
Event
of Default.
|
104
|
|
Section
6.19. Action Upon Certain Failures of the Master Servicer and Upon
Event
of Default.
|
104
|
|
Section
6.20. Preparation of Tax Returns and Other Reports.
|
104
|
|
Section
6.21. [Reserved]
|
111
|
|
Section
6.22. No Merger.
|
112
|
|
Section
6.23. Indemnification by the Trustee and Paying Agent.
|
112
|
|
Section
6.24. Compliance with Regulation AB.
|
112
|
|
ARTICLE
VII PURCHASE AND TERMINATION OF THE TRUST FUND
|
112
|
|
Section
7.01. Termination of Trust Fund Upon Repurchase or Liquidation
of All
Mortgage Loans.
|
112
|
|
Section
7.02. Procedure Upon Termination of Trust Fund.
|
114
|
|
Section
7.03. Additional Requirements for any Trust Fund Termination Events
or
Purchase of the Lower Tier REMIC 1 Uncertificated Regular
Interests.
|
116
|
|
Section
7.04. Charged-off Loans and Released Mortgage Loans.
|
117
|
|
ARTICLE
VIII RIGHTS OF CERTIFICATEHOLDERS
|
117
|
|
Section
8.01. Limitation on Rights of Holders.
|
117
|
|
Section
8.02. Access to List of Holders.
|
118
|
|
Section
8.03. Acts of Holders of Certificates.
|
119
|
|
ARTICLE
IX ADMINISTRATION AND SERVICING OF MORTGAGE LOANS BY THE MASTER
SERVICER
|
120
|
|
Section
9.01. Duties of the Master Servicer.
|
120
|
|
Section
9.02. Master Servicer Fidelity Bond and Master Servicer Errors
and
Omissions Insurance Policy.
|
120
|
|
Section
9.03. Master Servicer’s Financial Statements and Related
Information.
|
121
|
|
Section
9.04. Power to Act; Procedures.
|
121
|
|
Section
9.05. Servicing Agreements Between the Master Servicer and Servicers;
Enforcement of Servicers’ Obligations.
|
123
|
ii
|
Section
9.06. Collection of Taxes, Assessments and Similar Items.
|
124
|
|
Section
9.07. Termination of Servicing Agreements; Successor
Servicers.
|
125
|
|
Section
9.08. Master Servicer Liable for Enforcement.
|
126
|
|
Section
9.09. No Contractual Relationship Between Servicers and Trustee
or
Depositor.
|
126
|
|
Section
9.10. Assumption of Servicing Agreement by Trustee.
|
126
|
|
Section
9.11. “Due-on-Sale” Clauses; Assumption Agreements.
|
127
|
|
Section
9.12. Release of Mortgage Files.
|
127
|
|
Section
9.13. Documents, Records and Funds in Possession of Master Servicer
To Be
Held for Trustee.
|
128
|
|
Section
9.14. Representations and Warranties of the Master
Servicer.
|
130
|
|
Section
9.15. Closing Certificate and Opinion.
|
132
|
|
Section
9.16. Standard Hazard and Flood Insurance Policies.
|
132
|
|
Section
9.17. Presentment of Claims and Collection of Proceeds.
|
133
|
|
Section
9.18. Maintenance of the Primary Mortgage Insurance
Policies.
|
133
|
|
Section
9.19. Trustee To Retain Possession of Certain Insurance Policies
and
Documents.
|
134
|
|
Section
9.20. Realization Upon Defaulted Mortgage Loans.
|
134
|
|
Section
9.21. Compensation to the Master Servicer.
|
134
|
|
Section
9.22. REO Property.
|
135
|
|
Section
9.23. Notices to the Depositor and the Trustee
|
136
|
|
Section
9.24. Reports to the Trustee.
|
136
|
|
Section
9.25. Assessment of Compliance and Attestation Reports.
|
137
|
|
Section
9.26. Annual Statement of Compliance with Applicable Servicing
Criteria.
|
138
|
|
Section
9.27. Merger or Consolidation.
|
139
|
|
Section
9.28. Resignation of Master Servicer.
|
139
|
|
Section
9.29. Assignment or Delegation of Duties by the Master
Servicer.
|
140
|
|
Section
9.30. Limitation on Liability of the Master Servicer and
Others.
|
140
|
|
Section
9.31. Indemnification; Third-Party Claims.
|
141
|
|
Section
9.32. Special Servicing of Delinquent Mortgage Loans.
|
142
|
|
ARTICLE
X REMIC ADMINISTRATION
|
142
|
|
Section
10.01. REMIC Administration.
|
142
|
|
Section
10.02. Prohibited Transactions and Activities.
|
145
|
|
Section
10.03. Indemnification with Respect to Certain Taxes and Loss of
REMIC
Status.
|
145
|
|
Section
10.04. REO Property.
|
145
|
|
ARTICLE
XI MISCELLANEOUS PROVISIONS
|
146
|
|
Section
11.01. Binding Nature of Agreement; Assignment.
|
146
|
|
Section
11.02. Entire Agreement.
|
146
|
|
Section
11.03. Amendment.
|
147
|
|
Section
11.04. Voting Rights.
|
148
|
|
Section
11.05. Provision of Information.
|
149
|
|
Section
11.06. Governing Law.
|
149
|
|
Section
11.07. Notices.
|
149
|
iii
|
Section
11.08. Severability of Provisions.
|
150
|
|
Section
11.09. Indulgences; No Waivers.
|
150
|
|
Section
11.10. Headings Not To Affect Interpretation.
|
150
|
|
Section
11.11. Benefits of Agreement.
|
150
|
|
Section
11.12. Special Notices to the Rating Agencies.
|
150
|
|
Section
11.13. Counterparts.
|
151
|
|
Section
11.14. Transfer of Servicing.
|
151
|
Exhibits
|
Exhibit
A
|
Forms
of Certificates
|
|
Exhibit
B-1
|
Form
of Initial Certification
|
|
Exhibit
B-2
|
Form
of Interim Certification
|
|
Exhibit
B-3
|
Form
of Final Certification
|
|
Exhibit
B-4
|
Form
of Endorsement
|
|
Exhibit
C
|
Request
for Release of Documents and Receipt
|
|
Exhibit
D-l
|
Form
of Residual Certificate Transfer Affidavit (Transferee)
|
|
Exhibit
D-2
|
Form
of Residual Certificate Transfer Affidavit (Transferor)
|
|
Exhibit
E
|
List
of Servicing Agreements
|
|
Exhibit
F
|
Form
of Rule 144A Transfer Certificate
|
|
Exhibit
G
|
Form
of Purchaser’s Letter for Institutional Accredited
Investors
|
|
Exhibit
H
|
Form
of ERISA Transfer Affidavit
|
|
Exhibit
I
|
Transaction
Parties
|
|
Exhibit
J
|
[Reserved]
|
|
Exhibit
K
|
Custodial
Agreements
|
|
Exhibit
L-1
|
Additional
Form 10-D Disclosure
|
|
Exhibit
L-2
|
Additional
Form 10-K Disclosure
|
|
Exhibit
L-3
|
Additional
Form 8-K Disclosure
|
|
Exhibit
L-4
|
Additional
Disclosure Notification
|
|
Exhibit
M
|
Monthly
Electronic Data Transmission
|
|
Exhibit
N-1
|
Form
of Transfer Certificate for Transfer from Restricted Global Security
to
Regulation S Global Security pursuant to Section
3.03(h)(B)
|
|
Exhibit
N-2
|
Form
of Transfer Certificate for Transfer from Regulation S Global Security
to
Restricted Global Security pursuant to Section
3.03(h)(C)
|
|
Exhibit
O
|
Senior
Principal Priorities
|
|
Exhibit
P
|
Form
Certification to be Provided to Depositor and/or Master Servicer
by the
Trustee
|
|
Exhibit
Q
|
Relevant
Servicing Criteria to be Addressed in Report on Assessment of
Compliance
|
|
Exhibit
R
|
Form
of Exchange Trust Agreement (including Available Combination
Schedule)
|
|
Exhibit
S
|
Class
Table
|
|
Exhibit
T
|
Applicable
Fractions Table
|
|
Exhibit
U
|
[Reserved]
|
|
Exhibit
V
|
Monthly
Electronic Data
Transmission
|
iv
Mortgage
Loan Schedules
|
Schedule
A
|
All
Mortgage Loans
|
|
Schedule
B
|
First
Payment Default Mortgage Loans
|
v
This
TRUST AGREEMENT dated as of January 1, 2007 (the “Agreement”), is by and among
STRUCTURED ASSET SECURITIES CORPORATION, a Delaware corporation, as depositor
(the “Depositor”), AURORA LOAN SERVICES LLC, as Master Servicer (the “Master
Servicer”), and XXXXX
FARGO BANK, N.A.,
as
trustee (the “Trustee”).
PRELIMINARY
STATEMENT
The
Depositor has acquired the Mortgage Loans from Xxxxxx Brothers Holdings Inc.
(the “Seller”) and at the Closing Date is the owner of the Mortgage Loans and
the other property being conveyed by it to the Trustee for inclusion in the
Trust Fund. On the Closing Date, the Depositor will acquire the Certificates
from the Trust Fund, as consideration for its transfer to the Trust Fund of
the
Mortgage Loans and the other property constituting the Trust Fund. The Depositor
has duly authorized the execution and delivery of this Agreement to provide
for
the conveyance to the Trustee of the Mortgage Loans and the other property
constituting the Trust Fund. All covenants and agreements made by the Depositor,
the Master Servicer and the Trustee herein with respect to the Mortgage Loans
and the other property constituting the Trust Fund are for the benefit of the
Holders from time to time of the Certificates. The Depositor and the Master
Servicer are entering into this Agreement, and the Trustee is accepting the
Trust Fund created hereby, for good and valuable consideration, the receipt
and
sufficiency of which are hereby acknowledged.
As
provided herein, the Trustee shall elect that the Trust Fund be treated for
federal income tax purposes as comprising four real estate mortgage investment
conduits (each a “REMIC” or, in the alternative, REMIC I, REMIC IIA, REMIC IIB
and REMIC III (the “Upper Tier REMIC”)). Each Underlying REMIC Certificate and
each Certificate (other than the Exchange and Exchangeable Certificates and
the
Class LT-R or Class R Certificate, and exclusive of the right to receive any
FPD
Premiums in the case of the Class 2-A2, Class 2-A3, Class 2-A4, Class 3-A3
and
Class 3-A4 Certificates), represents ownership of one or more regular interests
in REMIC III for purposes of the REMIC Provisions. Each Exchange and
Exchangeable Certificate represents beneficial ownership of one or more regular
interests in a REMIC for purposes of the REMIC Provisions. The Class LT-R
Certificate represents ownership of the sole class of residual interest in
REMIC
I for purposes of the REMIC Provisions. The Class R Certificate represents
ownership of the sole class of residual interest in REMIC IIA, REMIC IIB and
the
Upper Tier REMIC for purposes of the REMIC Provisions.
The
Upper
Tier REMIC shall hold as its assets the several Classes of uncertificated Lower
Tier Interests in REMIC IIB, other than the Class R-2B Interest, and each such
Lower Tier Interest is hereby designated as a regular interest in REMIC IIB
for
purposes of the REMIC Provisions. REMIC IIB shall hold as its assets the several
Classes of uncertificated Lower Tier Interests in REMIC IIA, other than the
Class R-2A Interest, and each such Lower Tier Interest is hereby designated
as a
regular interest in REMIC IIA. REMIC IIA shall hold as its assets the several
Classes of uncertificated Lower Tier Interests in REMIC I, and each such Lower
Tier Interest is hereby designated as a regular interest in REMIC I. REMIC
I
shall hold as its assets the property of the Trust Fund other than the Lower
Tier Interests in REMIC I, REMIC IIA and REMIC IIB.
1
The
startup day for each REMIC created hereby for purposes of the REMIC Provisions
is the Closing Date. In addition, for purposes of the REMIC Provisions, the
latest possible maturity date for each regular interest in each REMIC created
hereby is the later (or latest) date provided in the definition of Latest
Possible Maturity Date.
REMIC
I:
REMIC
I
shall issue one uncertificated interest in respect of each Mortgage Loan held
by
the Trust on the Closing Date, each of which is hereby designated as a regular
interest in REMIC I (the “REMIC I Regular Interests”). Each REMIC I Regular
Interest shall have an initial principal balance equal to the Scheduled
Principal Balance of the Mortgage Loan to which it relates and shall bear
interest at a per annum rate equal to the Net Mortgage Rate of such Mortgage
Loan. In the event a Qualified Substitute Mortgage Loan is substituted for
such
Mortgage Loan (the “Original Mortgage Loan”), no amount of interest payable on
such Qualified Substitute Mortgage Loan shall be distributed on such REMIC
I
Regular Interest at a rate in excess of the Net Mortgage Rate of the Original
Mortgage Loan.
On
each
Distribution Date the Trustee shall distribute the interest portion of the
Available Distribution Amount (net of expenses described in the preceding
paragraph) with respect to each of the Lower Tier Interests in REMIC I based
on
the above-described interest rates.
On
each
Distribution Date, the Trustee shall distribute the principal portion of the
Available Distribution Amount among the Lower Tier Interests in REMIC I in
accordance with the amount of the principal attributable to the Mortgage Loan
corresponding to each such Lower Tier Interests in REMIC I. All losses on the
Mortgage Loans shall be allocated among the Lower Tier Interests in REMIC I
in
the same manner that principal distributions are allocated.
On
each
Distribution Date, the Trustee shall distribute the Prepayment Penalty Amounts
collected during the preceding Prepayment Period, in the case of Principal
Prepayments in full, or during the related Due Period, in the case of Principal
Prepayments in part, to the Lower Tier Interest in REMIC I corresponding to
the
Mortgage Loan with respect to which such amounts were received.
On
each
Distribution Date, the Trustee shall first pay or charge as an expense of REMIC
I all expenses of the Trust Fund for such Distribution Date.
REMIC
IIA
REMIC
IIA
shall hold as assets the REMIC I Regular Interests. REMIC IIA shall issue the
several classes of uncertificated REMIC IIA Interests set out below. Each such
REMIC IIA Interest, other than the Class R-2A Interest, is hereby designated
as
a regular interest in REMIC IIA. The following table specifies the Class
designation, interest rate, and principal amount for each Class of REMIC IIA
Interests:
2
|
REMIC
IIA
Class
Designation
|
Interest
Rate
|
Initial
Class
Principal
Amount
|
Corresponding
Class of Certificates
|
|||
|
LTII-1-A1
|
5.75%
|
(8)
|
1-A1
|
|||
|
LTII-1-A2
|
5.75%
|
(8)
|
1-A2
|
|||
|
LTII-1-A3
|
5.75%
|
(8)
|
1-A3
|
|||
|
LTII-2-A6
|
7.00%
|
(8)
|
2-A6,
2-A3
|
|||
|
LTII-2-A7
|
7.00%
|
(8)
|
2-A7,
2-A3
|
|||
|
LTII-2-A8
|
7.00%
|
(8)
|
2-A8,
2-A2
|
|||
|
LTII-2-A9
|
7.00%
|
(8)
|
2-A9,
2-A2
|
|||
|
LTII-2-A10
|
7.00%
|
(8)
|
2-A10,
2-A4
|
|||
|
LTII-2-A11
|
7.00%
|
(8)
|
2-A11,
2-A4
|
|||
|
LTII-3-A5
|
7.50%
|
(8)
|
3-A5,
3-A4
|
|||
|
LTII-3-A6
|
7.50%
|
(8)
|
3-A6,
3-A3
|
|||
|
LTII-1-AR
|
5.75%
|
(8)
|
R
|
|||
|
LTII-1-GSA
|
(1)
|
$
105,448.78
|
N/A
|
|||
|
LTII-1-Pool
|
(1)
|
$
10,439,429.00
|
N/A
|
|||
|
LTII-2A-GSA
|
(2)
|
$
85,709.63
|
N/A
|
|||
|
LTII-2A-Pool
|
(2)
|
$
8,485,253.21
|
N/A
|
|||
|
LTII-2B-GSA
|
(3)
|
$
60,160.58
|
N/A
|
|||
|
LTII-2B-Pool
|
(3)
|
$
5,955,897.35
|
N/A
|
|||
|
LTII-2C-GSA
|
(4)
|
$ 46,112.78
|
N/A
|
|||
|
LTII-2C-Pool
|
(4)
|
$
4,565,165.24
|
N/A
|
|||
|
LTII-3A-GSA
|
(5)
|
$ 13,958.09
|
N/A
|
|||
|
LTII-3A-Pool
|
(5)
|
$
1,381,850.82
|
N/A
|
|||
|
LTII-3B-GSA
|
(6)
|
$ 18,667.76
|
N/A
|
|||
|
LTII-3B-Pool
|
(6)
|
$
1,848,108.07
|
N/A
|
|||
|
R-2A
|
(7)
|
(7)
|
N/A
|
____________
|
(1)
|
The
interest rate with respect to any Distribution Date (and the related
Accrual Period) for the LTII-1-Pool Interest and the LTII-1-GSA Interest
will be a per annum rate equal to the Designated Rate for Collateral
Group
1.
|
|
(2)
|
The
interest rate with respect to any Distribution Date (and the related
Accrual Period) for the LTII-2A-Pool Interest and the LTII-2A-GSA
Interest
will be a per annum rate equal to the Designated Rate for Collateral
Group
2A.
|
|
(3)
|
The
interest rate with respect to any Distribution Date (and the related
Accrual Period) for the LTII-2B-Pool Interest and the LTII-2B-GSA
Interest
will be a per annum rate equal to the Designated Rate for Collateral
Group
2B.
|
|
(4)
|
The
interest rate with respect to any Distribution Date (and the related
Accrual Period) for the LTII-2C-Pool Interest and the LTII-2C-GSA
Interest
will be a per annum rate equal to the Designated Rate for Collateral
Group
2C.
|
|
(5)
|
The
interest rate with respect to any Distribution Date (and the related
Accrual Period) for the LTII-3A-Pool Interest and the LTII-3A-GSA
Interest
will be a per annum rate equal to the Designated Rate for Collateral
Group
3A.
|
|
(6)
|
The
interest rate with respect to any Distribution Date (and the related
Accrual Period) for the LTII-3B-Pool Interest and the LTII-3B-GSA
Interest
will be a per annum rate equal to the Designated Rate for Collateral
Group
3B.
|
3
|
(7)
|
The
Class R-2A Interest does not have a principal balance and does not
bear
interest.
|
|
(8)
|
The
initial principal amount for each of these REMIC IIA Lower Tier Interests
shall be the Initial Class Principal Amount for its Corresponding
Class of
Certificates in the Upper Tier
REMIC.
|
On
each
Distribution Date, the portion of the Available Distribution Amount
distributable as interest shall be distributed as interest with respect to
the
REMIC IIA Interests based on the interest rates described above. On each
Distribution Date, Net Prepayment Shortfalls and Excess Losses sustained with
respect to any Collateral Group are to be allocated among the Classes of REMIC
IIA Interests related to such Collateral Group based on the relative amounts
of
interest otherwise accrued for the related Accrual Period on each such REMIC
IIA
Interest.
On
each
Distribution Date, the portion of the Available Distribution Amount
distributable as principal shall be distributed as principal on REMIC IIA
Interests as follows:
|
(1)
|
First,
from the remaining Available Distribution Amount for Collateral Group
1,
to
the Class LTII-1-GSA Interest until its principal balance equals
one
percent of the Group Subordinate Amount for Collateral Group 1 after
such
Distribution Date;
|
|
(2)
|
Second,
from the remaining Available Distribution Amount for Collateral Group
2A,
to
the Class LTII-2A-GSA Interest until its principal balance equals
one
percent of the Group Subordinate Amount for Collateral Group 2A after
such
Distribution Date;
|
|
(3)
|
Third,
from the remaining Available Distribution Amount for Collateral Group
2B,
to
the Class LTII-2B-GSA Interest until its principal balance equals
one
percent of the Group Subordinate Amount for Collateral Group 2B after
such
Distribution Date;
|
|
(4)
|
Fourth,
from the remaining Available Distribution Amount for Collateral Group
2C,
to
the Class LTII-2C-GSA Interest until its principal balance equals
one
percent of the Group Subordinate Amount for Collateral Group 2C after
such
Distribution Date;
|
|
(5)
|
Fifth,
from the remaining Available Distribution Amount for Collateral Group
3A,
to
the Class LTII-3A-GSA Interest until its principal balance equals
one
percent of the Group Subordinate Amount for Collateral Group 3A after
such
Distribution Date;
|
|
(6)
|
Sixth,
from the remaining Available Distribution Amount for Collateral Group
3B,
to
the Class LTII-3B-GSA Interest until its principal balance equals
one
percent of the Group Subordinate Amount for Collateral Group 3B after
such
Distribution Date;
|
|
(7)
|
Seventh,
to
the
Class LTII-1-GSA, Class LTII-2A-GSA, Class LTII-2B-GSA, Class LTII-2C-GSA,
Class LTII-3A-GSA and Class LTII-3B-GSA Interests, from the remaining
Available Distribution Amount for Collateral Group 1, Collateral
Group 2A,
Collateral Group 2B, Collateral Group 2C, Collateral Group 3A and
Collateral Group 3B, the minimum amount necessary to cause the ratio
of
the principal balance of each such REMIC IIA Interest to the principal
balances of the other REMIC IIA Interests to equal the ratio of the
Group
Subordinate Amount related to such REMIC IIA Interest to the Group
Subordinate Amounts related to the other REMIC IIA Interests immediately
after such Distribution Date;
|
4
|
(8)
|
Eighth,
from the remaining Available Distribution Amount from each of the
Collateral Groups, concurrently, as follows -
|
(a) To
the
Class LTII-1-Pool until the sum of (a) its principal balance and (b) the
principal balance of the LTII-1-GSA, after taking into account distributions
made pursuant to priorities (1) and (7) above, equals the Group Subordinate
Amount for Collateral Group 1 immediately after such Distribution
Date;
(b) To
the
Class LTII-2A-Pool until the sum of (a) its principal balance and (b) the
principal balance of the LTII-2A-GSA, after taking into account distributions
made pursuant to priorities (2) and (7) above, equals the Group Subordinate
Amount for Collateral Group 2A immediately after such Distribution
Date;
(c) To
the
Class LTII-2B-Pool until the sum of (a) its principal balance and (b) the
principal balance of the LTII-2B-GSA, after taking into account distributions
made pursuant to priorities (3) and (7) above, equals the Group Subordinate
Amount for Collateral Group 2B immediately after such Distribution
Date;
(d) To
the
Class LTII-2C-Pool until the sum of (a) its principal balance and (b) the
principal balance of the LTII-2C-GSA, after taking into account distributions
made pursuant to priorities (4) and (7) above, equals the Group Subordinate
Amount for Collateral Group 2C immediately after such Distribution
Date;
(e) To
the
Class LTII-3A-Pool until the sum of (a) its principal balance and (b) the
principal balance of the LTII-3A-GSA, after taking into account distributions
made pursuant to priorities (5) and (7) above, equals the Group Subordinate
Amount for Collateral Group 3A immediately after such Distribution
Date;
(f) To
the
Class LTII-3B-Pool until the sum of (a) its principal balance and (b) the
principal balance of the LTII-3B-GSA, after taking into account distributions
made pursuant to priorities (6) and (7) above, equals the Group Subordinate
Amount for Collateral Group 3B immediately after such Distribution
Date;
|
(9)
|
Finally,
from the remaining Available Distribution Amount from each of the
Collateral Groups to each REMIC IIA Interest for which there is a
Corresponding Class of Certificates until the principal balance of
such
REMIC IIA Interest equals the Class Principal Amount of the Corresponding
Class of Certificates immediately after such Distribution
Date.
|
For
each
Distribution Date, Realized Losses, other than Excess Losses, shall be allocated
among the REMIC IIA Interests in the same manner that principal is allocated
among the REMIC IIA Interests.
5
On
each
Distribution Date, the Trustee shall distribute Prepayment Penalty Amounts
collected in respect of the Mortgage Loans during the preceding Prepayment
Period as follows:
(i)
all
amounts received on each Mortgage Loan in Subgroup 1-A will be allocated to
the
Class LTII-2A-Pool Lower Tier Interest;
(ii)
all
amounts received on each Mortgage Loan in Subgroup 1-B will be allocated to
the
Class LTII-2A-Pool and Class LTII-3A-Pool Lower Tier Interests on the basis
of
the Applicable Fractions of the related Mortgage Loans allocated to Collateral
Groups 2A and Collateral Group 3A, respectively;
(iii)
all
amounts received on each Mortgage Loan in Subgroup 2-A will be allocated to
the
Class LTII-2B-Pool Lower Tier Interest; and
(iv)
all
amounts received on each Mortgage Loan in Subgroup 2-B will be allocated to
the
Class LTII-2B-Pool and Class LTII-3B-Pool Lower Tier Interests on the basis
of
the Applicable Fractions of the related Mortgage Loans allocated to Collateral
Group 2B and Collateral Group 3B, respectively.
REMIC
IIB
REMIC
IIB
shall hold as assets the REMIC IIA Regular Interests. REMIC IIB shall issue
the
several classes of uncertificated REMIC IIB Interests set out below. Each such
REMIC IIB Interest, other than the Class R-2B Interest, is hereby designated
as
a regular interest in REMIC IIB. The following table specifies the Class
designation, interest rate, and principal amount for each Class of REMIC IIB
Interests:
|
REMIC
IIB
Class
Designation
|
|
Interest
Rate
|
|
Initial
Class
Principal
or Notional
Amount
|
|
Corresponding
Class of Certificates
|
|
LTIII-1-A1
|
|
(1)
|
|
(3)
|
|
1-A1
|
|
LTIII-1-A2
|
|
(1)
|
|
(3)
|
|
1-A2
|
|
LTIII-1-A3
|
|
(1)
|
|
(3)
|
|
1-A3
|
|
LTIII-2-A2
|
|
(1)
|
|
(2)
|
|
2-A2
|
|
LTIII-2-A3
|
|
(1)
|
|
(2)
|
|
2-A3
|
|
LTIII-2-A4
|
|
(1)
|
|
(2)
|
|
2-A4
|
|
LTIII-2-A6
|
|
(1)
|
|
(3)
|
|
2-A6
|
|
LTIII-2-A7
|
|
(1)
|
|
(3)
|
|
2-A7
|
|
LTIII-2-A8
|
|
(1)
|
|
(3)
|
|
2-A8
|
|
LTIII-2-A9
|
|
(1)
|
|
(3)
|
|
2-A9
|
|
LTIII-2-A10
|
|
(1)
|
|
(3)
|
|
2-A10
|
|
LTIII-2-A11
|
|
(1)
|
|
(3)
|
|
2-A11
|
|
LTIII-3-A3
|
|
(1)
|
|
(2)
|
|
3-A3
|
|
LTIII-3-A4
|
|
(1)
|
|
(2)
|
|
3-A4
|
|
LTIII-3-A5
|
|
(1)
|
|
(3)
|
|
3-A5
|
|
LTIII-3-A6
|
|
(1)
|
|
(3)
|
|
3-A6
|
|
LTIII-1-AR
|
|
(1)
|
|
(3)
|
|
R
|
6
|
REMIC
IIB
Class
Designation
|
|
Interest
Rate
|
|
Initial
Class
Principal
or Notional
Amount
|
|
Corresponding
Class of Certificates
|
|
LTIII-B1
|
|
(4)
|
|
(3)
|
|
B1
|
|
LTIII-B2
|
|
(4)
|
|
(3)
|
|
B2
|
|
LTIII-B3
|
|
(4)
|
|
(3)
|
|
B3
|
|
LTIII-B4
|
|
(4)
|
|
(3)
|
|
B4
|
|
LTIII-B5
|
|
(4)
|
|
(3)
|
|
B5
|
|
LTIII-B6
|
|
(4)
|
|
(3)
|
|
B6
|
|
LTIII-B7
|
|
(4)
|
|
(3)
|
|
B7
|
|
LTIII-B8
|
|
(4)
|
|
(3)
|
|
B8
|
|
LTIII-B9
|
|
(4)
|
|
(3)
|
|
B9
|
|
R-2B
|
|
(5)
|
|
(5)
|
|
N/A
|
____________
|
(1)
|
The
interest rate for each of these REMIC IIB Lower Tier Interests shall
be
the Certificate Interest Rate for its Corresponding Class of Certificates
in the Upper Tier REMIC.
|
|
(2)
|
Each
of these REMIC IIB Lower Tier Interests is an interest-only interest
and
does not have a principal balance. Each of these REMIC IIB Lower
Tier
Interests shall accrue interest on the notional balance of its
Corresponding Class of Certificates in the Upper Tier REMIC.
|
|
(3)
|
The
initial principal amount for each of these REMIC IIB Lower Tier Interests
shall be the Initial Class Principal Amount for its Corresponding
Class of
Certificates in the Upper Tier REMIC.
|
|
(4)
|
The
interest rate for each of these REMIC IIB Lower Tier Interests shall
be
the Average Rate for the Subordinate
Certificates.
|
|
(5)
|
The
Class R-2B Interest does not have a principal balance and does not
bear
interest.
|
On
each
Distribution Date, the portion of the Available Distribution Amount
distributable as interest shall be distributed as interest with respect to
the
REMIC IIB Interests based on the interest rates described above.
On
each
Distribution Date, the remaining portion of the Available Distribution Amount
from
each of the Collateral Groups
distributable as principal shall be distributed as principal to
each REMIC IIB Interest for which there is a Corresponding Class of Certificates
(other than any interest-only Interests) until the principal balance of such
REMIC IIB Interest equals the Class Principal Amount of the Corresponding Class
of Certificates immediately after such Distribution Date.
On
each
Distribution Date, the Trustee shall be deemed to pass through Prepayment
Penalty Amounts collected during the preceding Prepayment Period with respect
to
the Class LTII-2A-Pool, Class LTII-2B-Pool, Class LTII-3A-Pool and Class
LTII-3B-Pool Lower Tier Interests to the Class LTIII-2-A3, Class LTIII-2-A2,
Class LTIII-3-A4 and Class LTIII-3-A3 Lower Tier Interests,
respectively.
7
REMIC
III
Each
Class of Certificates constituting an interest in the Trust Fund created
hereunder (other than the Class LT-R and Class R Certificates) is hereby
designated (along with each Underlying REMIC Certificate) as one or more regular
interests in REMIC III. The Class Table specifies the Class designation,
Certificate Interest Rate, initial Class Principal (or Notional) Amount and
minimum denomination for (1) each class of Certificates and (2) for convenience,
each Class of Exchange and Exchangeable Certificates issued under the Exchange
Trust Agreement.
Each
Class of Underlying REMIC Certificates shall be issued hereunder in
uncertificated form to the Exchange Trustee, and held in trust pursuant to
the
terms of the Exchange Trust Agreement. Classes of Certificates having identical
characteristics and sharing the same Class designation shall also be issued
under the Exchange Trust Agreement.
The
Class
R Certificate represents ownership of the residual interest in each of REMIC
IIA, REMIC IIB and REMIC III and will be issued in a single Certificate
representing a 100% Percentage Interest in such Class.
The
Class
LT-R Certificate will be issued without a Class Principal Amount and will not
bear interest at a stated rate. The Class LT-R Certificate represents ownership
of the residual interest in REMIC I and shall be issued as a single Certificate
evidencing the entire Percentage Interest in such Class.
As
of the
Cut-off Date, the Mortgage Loans had an aggregate Scheduled Principal Balance
of
$550,093,861.31.
In
consideration of the mutual agreements herein contained, the Depositor, the
Master Servicer and the Trustee hereby agree as follows:
ARTICLE
I
DEFINITIONS
Section
1.01. Definitions.
The
following words and phrases, unless the context otherwise requires, shall
have
the following meanings:
10-K
Filing Deadline:
As
defined in Section 6.20(e)(i).
Accepted
Servicing Practices:
With
respect to any Mortgage Loan, as applicable, either (x) those customary
mortgage servicing practices of prudent mortgage servicing institutions that
service or master service mortgage loans of the same type and quality as
such
Mortgage Loan in the jurisdiction where the related Mortgaged Property is
located, to the extent applicable to the Trustee (as successor Master Servicer)
or the Master Servicer or (y) as provided in the applicable Servicing Agreement,
to the extent applicable to the related Servicer.
8
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 Certificate:
None.
Accretion
Termination Date:
None.
Accrual
Amount:
None.
Accrual
Certificate:
None.
Accrual
Component:
None.
Accrual
Period:
With
respect to any Distribution Date and any Class of Certificates or Components
(other than any LIBOR Certificates and any Class P Component) or Class of
Lower
Tier Interests, the calendar month immediately preceding the month in which
such
Distribution Date occurs. With respect to any Distribution Date and a Class
of
LIBOR Certificates, the period beginning on the Distribution Date in the
calendar month preceding the month in which such Distribution Date occurs
(or on
January 25, 2007, in the case of the first Accrual Period) and ending on
the day
immediately preceding such Distribution Date.
Accrued
Certificate Interest:
As to
any Class of Certificates or Components (other than any Class P Component)
and
any Distribution Date, the product of (i) the Certificate Interest Rate for
such
Class of Certificates divided by 12 and (ii) the Class Principal Amount (or
Class Notional Amount or Component Notional Amount) of such Class of
Certificates or Components as of the last day of the related Accrual Period,
as
reduced by such Class’s or Component’s share of (a) the interest portion of any
Excess Losses for the related Collateral Group for such Distribution Date
and
(b) the interest portion of any Relief Act Reduction for the related Collateral
Group for such Distribution Date, in each case, allocable among the
interest-bearing Senior Certificates (and any Class I Components) and the
Subordinate Certificates pro
rata
based
(x) in the case of such Senior Certificates and any such Components, on the
Accrued Certificate Interest otherwise distributable thereto and (y) in the
case
of the Subordinate Certificates, on their respective Apportioned Principal
Balances.
Interest
shall accrue on the basis of a 360-day year comprising twelve 30-day
months.
Act:
As
defined in Section 8.03(a).
Additional
Collateral:
None.
Additional
Form 10-D Disclosure:
As
defined in Section 6.20(d)(i).
Additional
Form 10-K Disclosure:
As
defined in Section 6.20(e)(i).
Additional
Servicer:
Each
affiliate of the related Servicer that Services any of the Mortgage Loans
and
each Person who is not an affiliate of the related Servicer, who Services
10% or
more of the Mortgage Loans.
9
Advance:
An
advance of the aggregate of payments of principal and interest (net of the
applicable Servicing Fee) on one or more Mortgage Loans (other than Charged-off
Loans or Released Mortgage Loans) that were due on the Due Date in the related
Due Period and not received as of the close of business on the related
Determination Date, required to be made by or on behalf of the Master Servicer
and the related Servicer (or by the Trustee as successor to the Master Servicer)
pursuant to Section 5.04, but only to the extent that such amount is expected,
in the reasonable judgment of the Master Servicer or the related Servicer
(or by
the Trustee as successor to the Master Servicer), to be recoverable from
collections or recoveries in respect of such Mortgage Loans.
Adverse
REMIC Event:
As
defined in Section 10.01(f).
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
Principal Balance:
The
aggregate of the Scheduled Principal Balances for all Mortgage Loans at any
date
of determination.
Aggregate
Subordinate Percentage:
With
respect to any Distribution Date, the sum of the Class Principal Amounts
of the
Subordinate Certificates immediately prior to such date divided by the Aggregate
Principal Balances of the Mortgage Loans for the immediately preceding
Distribution Date.
Aggregate
Voting Interests:
The
aggregate of the Voting Interests of all the Certificates under this
Agreement.
Agreement:
This
Trust Agreement and all amendments and supplements hereto.
Applicable
Fraction:
For
each Mortgage Loan in the specified Subgroup and the related Collateral Group,
such fractions as are set forth in the Applicable Fraction table attached
hereto
as Exhibit T.
Apportioned
Principal Balance:
As to
any Class of Subordinate Certificates and any Distribution Date, the Class
Principal Amount (or Class Notional Amount) of such Class immediately prior
to
such Distribution Date multiplied by a fraction, the numerator of which is
the
applicable Group Subordinate Amount for such date and the denominator of
which
is the sum of the Group Subordinate Amounts for all Collateral
Groups.
Appraised
Value:
With
respect to any Mortgage Loan, the amount set forth in an appraisal made in
connection with the origination of such Mortgage Loan as the value of the
related Mortgaged Property.
Assignment
Agreement:
The
agreement between LBB and the Seller dated as of January 1, 2007, pursuant
to
which LBB conveyed the Mortgage Loans to the Seller.
10
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.
Authenticating
Agent:
Any
authenticating agent appointed by the Trustee pursuant to Section
6.10.
Authorized
Officer:
Any
Person who may execute an Officer’s Certificate, as specified in the definition
thereof, on behalf of the Depositor.
Available
Distribution Amount:
As to
each Collateral Group on any Distribution Date, the sum of the Applicable
Fractions for each Mortgage Loan contributing to such Collateral Group of
the
principal portion of the following amounts with the interest portion thereof
adjusted to the related Designated Rate:
(i) the
total
amount of all cash received by the Master Servicer through the Servicer
Remittance Date applicable to each Servicer and deposited with the Trustee
by
the Master Servicer by the Master Servicer Remittance Date for such Distribution
Date on the Mortgage Loans of such Collateral Group (including proceeds of
any
Insurance Policy and any other credit support relating to such Mortgage Loans
and including any Subsequent Recovery or recoveries through liquidation of
any
REO Property), plus all Advances made by the Master Servicer or any Servicer
(or
the Trustee in its capacity as successor master servicer) for such Distribution
Date, any Compensating Interest Payment for such date and Collateral Group
and
any amounts paid by any Servicer in respect of Prepayment Interest Shortfalls
in
respect of the related Mortgage Loans for such date and any proceeds of any
purchase of a related Mortgage Loan, but not including:
(A) all
amounts distributed pursuant to Section 5.02 on prior Distribution
Dates;
(B) all
Scheduled Payments of principal and interest collected but due on a date
subsequent to the related Due Period;
(C) all
Principal Prepayments received or identified by the applicable Servicer after
the applicable Prepayment Period (together with any interest payments received
with such prepayments to the extent that they represent the payment of interest
accrued on the related Mortgage Loans for the period subsequent to the
applicable Prepayment Period);
(D) any
other
unscheduled collection, including Net Liquidation Proceeds and Insurance
Proceeds, received by the Master Servicer after the applicable Prepayment
Period;
11
(E) all
fees
and amounts due, other than any Prepayment Premium Amounts (as applicable),
and
reimbursable from funds of the Trust Fund to the Master Servicer, the Trustee,
a
Custodian or any Servicer pursuant to the terms of this Agreement, a Custodial
Agreement or the applicable Servicing Agreement; and
(F) such
portion of each payment in respect of interest representing Retained Interest,
if any; and
(ii) any
other
payment made by the Master Servicer, the Trustee (as successor Master Servicer),
any Servicer, the Seller, the Depositor, or any other Person with respect
to
such Distribution Date (including the Purchase Price with respect to any
Mortgage Loan purchased by the Seller, the Depositor or any other Person
and any
related Substitution Amount) pursuant to this Agreement, a Custodial Agreement
or a Servicing Agreement.
Average
Rate:
With
respect to each Distribution Date and each Class of Subordinate Certificates,
a
per annum rate equal to the weighted average of the Designated Rate applicable
to each Collateral Group, expressed as a percentage and weighted on the basis
of
the Group Subordinate Amount for each such Collateral Group.
Back-Up
Certification:
As
defined in Section 6.20(e)(iv).
Balloon
Mortgage Loan:
Any
Mortgage Loan having an original term to maturity that is shorter than its
amortization schedule, and a final Scheduled Payment that is disproportionately
large in comparison to other Scheduled Payments.
Balloon
Payment:
The
final Scheduled Payment in respect of a Balloon Mortgage Loan.
Bankruptcy:
With
respect 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 United States Bankruptcy Code of 1986, as amended,
or
any other similar state laws.
Bankruptcy
Coverage Termination Date:
The
Distribution Date on which the Bankruptcy Loss Limit has been reduced to
zero
(or less than zero).
Bankruptcy
Loss Limit:
As of
the Cut-off Date, initially, $200,769, which amount shall be reduced from
time
to time by the amount of Bankruptcy Losses allocated to the related
Certificates.
Bankruptcy
Losses:
With
respect to the Mortgage Loans in any Collateral Group, losses that are incurred
as a result of Deficient Valuations and any reduction, in a bankruptcy
proceeding, of the amount of the Scheduled Payment on a Mortgage Loan other
than
as a result of a Deficient Valuation.
12
Blanket
Mortgage:
The
mortgage or mortgages encumbering a Cooperative Property.
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 condition 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.” As of the Closing Date, all of the Classes of Certificates listed
in the third table of the Preliminary Statement, other than any Class R
Certificates, constitute Book-Entry Certificates.
Business
Day:
Any day
other than (i) a Saturday or a Sunday, (ii) a day on which banking institutions
in Colorado, Maryland, Minnesota or New York, or, if other than New York,
the
city in which the Corporate Trust Office of the Trustee is located, or (iii)
with respect to any Servicer Remittance Date or any Servicer reporting date,
the
States specified in the definition of “Business Day” in the applicable Servicing
Agreement, are authorized or obligated by law or executive order to be
closed.
Certificate:
Any one
of the certificates signed and countersigned by the Trustee in substantially
one
of the forms attached hereto as Exhibit A.
Certificate
Account:
The
account maintained by the Trustee in accordance with the provisions of Section
4.04.
Certificate
Interest Rate:
With
respect to each Class of Certificates and the Class I Components, the applicable
per annum rate formula specified or determined as provided in the Class
Table.
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) and with respect to Certificates other than Book-Entry Certificates,
the
Holder.
Certificate
Principal Amount:
With
respect to any Certificate (other than a Notional Certificate), at the time
of
determination, the maximum specified dollar amount of principal to which
the
Holder thereof is then entitled hereunder, such amount being equal to the
initial principal amount set forth on the face of such Certificate (1) less
the
amount of all principal distributions previously made with respect to such
Certificate, all Realized Losses allocated to such Certificate, and, in the
case
of a Subordinate Certificate, any Subordinate Certificate Writedown Amount
allocated to such Certificate and (2) as increased, in the case of any Accrual
Certificate, by such Certificate’s Percentage Interest of any Accrual Amount
allocated thereto; provided,
however,
that on
any Distribution Date on which a Subsequent Recovery is distributed, the
Certificate Principal Amount of any Class of Certificates then outstanding
for
which any Realized Loss or any Subordinate Certificate Writedown Amount has
been
applied will be increased, in order of seniority, by an amount (to be applied
pro
rata
to all
Certificates of such Class) equal to the lesser of (i) the amount the Class
of
Certificates has been reduced by any Realized Losses or any Subordinate
Certificate Writedown Amount which have not been previously increased by
any
Subsequent Recovery and (ii) the total amount of any Subsequent Recovery
distributed on such date to Certificateholders after application (for this
purpose) to more senior Classes of Certificates. For purposes of Article
V
hereof, unless specifically provided to the contrary, Certificate Principal
Amounts shall be determined as of the close of business of the immediately
preceding Distribution Date, after giving effect to all distributions made
on
such date. Notional Certificates are issued without Certificate Principal
Amounts.
13
Certificate
Register
and
Certificate
Registrar:
The
register maintained and the registrar appointed pursuant to Section
3.02.
Certificateholder:
The
meaning provided in the definition of “Holder.”
Certification
Parties:
As
defined in Section 6.20(e)(iv).
Certifying
Person:
As
defined in Section 6.20(e)(iv).
Charged-off
Loan:
As of
any date of determination, any Mortgage Loan other than a Covered Mortgage
Loan
that was delinquent in payment for a period of 180 days or more as of the
last
calendar day of the month immediately preceding the month in which such date
of
determination occurs, without giving effect to any grace period permitted
by the
related Mortgage Note; provided,
however,
that
with respect to any such Mortgage Loan, (i) an equity analysis performed
by the
related Servicer supports charge-off over foreclosure, (ii) the related
Mortgaged Property has not become REO Property, (iii) there are no active
foreclosure or other loss mitigation activities and (iv) nothing has come
to the
attention of the related Servicer indicating that any such Mortgage Loan,
at the
time of its origination, violated any applicable federal, state or local
law or
regulation, including, without limitation, usury, truth-in-lending, consumer
credit protection and privacy, equal credit opportunity, disclosure or predatory
and abusive lending laws, applicable to the origination and servicing of
such
Mortgage Loan.
Class:
All
Certificates bearing the same class designation, and, in the case of REMIC
I,
all Lower Tier Interests bearing the same designation.
Class
I Components:
Any of
the Class I Components of the Class 2-A2, Class 2-A3, Class 3-A3 or Class
3-A4
Certificates.
Class
LT-R Certificates:
Each Class LT-R Certificate executed by the Trustee, and authenticated and
delivered by the Certificate Registrar, substantially in the form annexed
hereto
as Exhibit A and evidencing the residual interest in REMIC I.
Class
Notional Amount:
With
respect to each Class of Notional Certificates (or in the case of the Class
2-A2, Class 2-A3, Class 3-A3 or Class 3-A4 Certificates, each Class I Component
thereof), as follows:
14
· With
respect to any Distribution Date and the Class 2-A2 Certificates, the aggregate
of the Class Principal Amounts of the Class 2-A8 and Class 2-A9 Certificates
immediately preceding such Distribution Date.
· With
respect to any Distribution Date and the Class 2-A3 Certificates, the aggregate
of the Class Principal Amounts of the Class 2-A6 and Class 2-A7 Certificates
immediately preceding such Distribution Date.
· With
respect to any Distribution Date and the Class 2-A4 Certificates, the aggregate
of the Class Principal Amounts of the Class 2-A10 and Class 2-A11 Certificates
immediately preceding such Distribution Date.
· With
respect to any Distribution Date and the Class 3-A3 Certificates, the Class
Principal Amount of the Class 3-A6 Certificates immediately preceding such
Distribution Date.
· With
respect to any Distribution Date and the Class 3-A4 Certificates, the Class
Principal Amounts of the Class 3-A5 Certificates immediately preceding such
Distribution Date.
· With
respect to any Distribution Date and the Class BIO1 Certificates, the aggregate
of the Class Principal Amounts of the Class B1 and Class B2 Certificates
immediately preceding such Distribution Date.
· With
respect to any Distribution Date and the Class BIO2 Certificates, the aggregate
of the Class Principal Amounts of the Class B3 and Class B4 Certificates
immediately preceding such Distribution Date.
Class
P Components:
Any of
the Class P Components of the Class 2-A2, Class 2-A3, Class 3-A3 or Class
3-A4
Certificates.
Class
Percentage:
With
respect to each Class of the Subordinate Certificates, for each Distribution
Date, the percentage obtained by dividing the Class Principal Amount of such
Class immediately prior to such Distribution Date by the sum of the aggregate
Class Principal Amount of all Classes of Senior Certificates and the aggregate
Class Principal Amount of all Classes of Subordinate Certificates immediately
prior to such date.
Class
Principal Amount:
With
respect to each Class of Certificates other than any Class of Notional
Certificates, the aggregate of the Certificate Principal Amounts of all
Certificates of such Class at the date of determination. With respect to
each
Class of Notional Certificates, zero. With respect to each Class of Lower
Tier
Interest and any date of determination, the initial Class Principal Amount,
if
any, as set forth in the Preliminary Statement as reduced by all distributions
of principal and all losses previously allocated to such Class.
Class
R-2A Interest:
The
sole residual interest in REMIC IIA.
Class
R-2B Interest:
The
sole residual interest in REMIC IIB.
15
Class
Table:
The
table, attached as Exhibit S hereto, setting forth the characteristics of
each
Class of Certificates (and the Exchange and Exchangeable Classes).
Clearing
Agency:
An
organization registered as a “clearing agency” pursuant to Section 17A of the
Exchange Act. 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.
Clearstream:
Clearstream Banking Luxembourg, and any successor thereto.
Closing
Date:
January
30, 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
Group:
Any of
Collateral Groups 1, 2A, 2B, 2C, 3A, or 3B.
Collateral
Group 1:
The
group of Mortgage Loans (or portions thereof) stripped to a rate of 5.75%
derived from Subgroup 1-A, Subgroup 2-A and Subgroup 3-A.
Collateral
Group 2A:
The
group of Mortgage Loans (or portions thereof) stripped to a rate of 7.00%
derived from Subgroup 1-A and Subgroup 1-B.
Collateral
Group 2B:
The
group of Mortgage Loans (or portions thereof) stripped to a rate of 7.00%
derived from Subgroup 2-A and Subgroup 2-B.
Collateral
Group 2C:
The
group of Mortgage Loans (or portions thereof) stripped to a rate of 7.00%
derived from Subgroup 3-A.
Collateral
Group 3A:
The
group of Mortgage Loans (or portions thereof) stripped to a rate of 7.50%
derived from Subgroup 1-B.
Collateral
Group 3B:
The
group of Mortgage Loans (or portions thereof) stripped to a rate of 7.50%
derived from Subgroup 2-B.
Collection
Account:
A
separate account established and maintained by the Master Servicer pursuant
to
Section 4.01.
Commission:
U.S.
Securities and Exchange Commission.
Combination
Group:
Any
combination of Exchange Certificates set forth on Appendix A to the Exchange
Trust Agreement.
Compensating
Interest Payment:
With
respect to any Distribution Date, an amount equal to the aggregate amount
of any
Prepayment Interest Shortfalls required to be paid by the Servicers with
respect
to such Distribution Date. The Master Servicer shall not be responsible to
make
any Compensating Interest Payment.
16
Component:
Each of
the Class 2-A2, Class 2-A3, Class 3-A3 and 3-A4 Certificates shall be issued
in
two non-severable Components: the Class I and Class P Components. The Class
I
Components shall be issued with a Certificate Interest Rate and Class Notional
Amount; the Class P Components shall not be issued with either a Certificate
Interest Rate or a balance but shall evidence the right to receive distributions
pursuant to Section 5.02(i).
Component
Certificate:
None.
Component
Interest Rate:
None.
Component
Notional Amount:
None.
Component
Principal Amount:
None.
Component
Writedown Amount:
Not
applicable.
Control:
The
meaning specified in Section 8-106 of the UCC.
Conventional
Loan:
A
Mortgage Loan that is not insured by the United States Federal Housing
Administration or guaranteed by the United States Veterans
Administration.
Converted
Mortgage Loan:
None.
Convertible
Mortgage Loan:
None.
Cooperative
Corporation:
The
entity that holds title (fee or an acceptable leasehold estate) to the real
property and improvements constituting the Cooperative Property and which
governs the Cooperative Property, which Cooperative Corporation must qualify
as
a Cooperative Housing Corporation under Section 216 of the Code.
Cooperative
Loan:
Any
Mortgage Loan secured by Cooperative Shares and a Proprietary
Lease.
Cooperative
Loan Documents:
As to
any Cooperative Loan, (i) the Cooperative Shares, together with a stock power
in
blank; (ii) the original executed Security Agreement and the assignment of
the
Security Agreement endorsed in blank; (iii) the original executed Proprietary
Lease and the assignment of the Proprietary Lease endorsed in blank; (iv)
the
original executed Recognition Agreement and the assignment of the Recognition
Agreement (or a blanket assignment of all Recognition Agreements) endorsed
in
blank; (v) the executed UCC-1 financing statement with evidence of recording
thereon, which has been filed in all places required to perfect the security
interest in the Cooperative Shares and the Proprietary Lease; and (vi) executed
UCC-3 financing statements (or copies thereof) or other appropriate UCC
financing statements required by state law, evidencing a complete and unbroken
line from the mortgagee to the Trustee with evidence of recording thereon
(or in
a form suitable for recordation).
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
Cooperative Shares of the Cooperative Corporation.
Cooperative
Shares:
Shares
issued by a Cooperative Corporation.
Cooperative
Unit:
A
single-family dwelling located in a Cooperative Property.
Corporate
Trust Office:
With
respect to the Trustee, the principal corporate trust office at which, at
any
particular time, its corporate trust business shall be administered, which
office at the date hereof is located at (a) for purposes of presentment,
exchange and surrender of the Certificates, Xxxxx Fargo Bank, N.A., Xxxxx
Xxxxxx
xxx Xxxxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000, Attention: Corporate
Trust,
LMT 2007-1 and (b) for all other purposes, Xxxxx Fargo Bank, N.A., 0000 Xxx
Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000, Attention: Client Service Manager,
LMT
2007-1.
Corresponding
Class:
With
respect to any class of REMIC IIA or REMIC IIB Interests, the Class of
Certificates so designated in the Preliminary Statement hereto. With respect
to
any Class of Certificates, the class or classes of Lower Tier Interests so
designated in the Preliminary Statement hereto.
Covered
Mortgage Loan:
Any
mortgage loan that is covered by a Primary Mortgage Insurance
Policy.
Credit
Score:
With
respect to any Mortgage Loan, a numerical assessment of default risk with
respect to the Mortgagor under such Mortgage Loan, determined on the basis
of a
methodology developed by Fair, Xxxxx & Co., Inc.
Credit
Support Depletion Date:
The
Distribution Date on which, giving effect to all distributions on such date,
the
aggregate Certificate Principal Amount of the Subordinate Certificates is
reduced to zero.
Credit
Support Percentage:
As to
any Class of Subordinate Certificates and any Distribution Date, the sum
of the
Class Percentages of all related Classes of Certificates that rank lower
in
priority than such Class.
Custodial
Agreement:
Each
custodial agreement attached as Exhibit K hereto, and any custodial agreement
subsequently executed by the Trustee substantially in the form
thereof.
Custodian:
Each
custodian appointed by the Trustee pursuant to the Custodial Agreement, and
any
successor thereto. The initial custodians shall be U.S. Bank National
Association, LaSalle Bank, National Association and Deutsche Bank National
Trust
Company.
Cut-off
Date:
January
1, 2007.
Cut-off
Date Aggregate Principal Balance:
With
respect to the Mortgage Loans in the Trust Fund on the Closing Date, the
Aggregate Principal Balance for all such Mortgage Loans as of the Cut-off
Date.
18
Debt
Service Reduction:
With
respect to any Mortgage Loan, a reduction of the Scheduled Payment that the
related Mortgagor is obligated to pay on any Due Date as a result of any
proceeding under Bankruptcy law or any similar proceeding.
Deceased
Holder:
Not
applicable.
Deferred
Interest:
Not
applicable.
Deficiency
Amount:
Not
applicable.
Deficient
Valuation:
With
respect to any Mortgage Loan, a valuation by a court of competent jurisdiction
of the Mortgaged Property in an amount less than the then outstanding
indebtedness under such Mortgage Loan, which valuation results from a proceeding
under Bankruptcy law or any similar proceeding.
Definitive
Certificate:
A
Certificate of any Class issued in definitive, fully registered, certificated
form.
Deleted
Mortgage Loan:
A
Mortgage Loan that is repurchased from the Trust Fund pursuant to the terms
hereof or as to which one or more Qualifying Substitute Mortgage Loans are
substituted therefor.
Depositor:
Structured Asset Securities Corporation, a Delaware corporation having its
principal place of business in New York, or its successors in
interest.
Designated
Rate:
With
respect to Collateral Group 1, 5.75%. With respect to Collateral Group 2A,
7.00%. With respect to Collateral Group 2B, 7.00%. With respect to Collateral
Group 2C, 7.00%. With respect to Collateral Group 3A, 7.50%. With respect
to
Collateral Group 3B, 7.50%.
Determination
Date:
With
respect to each Distribution Date and any Servicer, as specified in the
applicable Servicing Agreement.
Discount
Mortgage Loan:
Any
Mortgage Loan with a Net Rate less than 6.00% per annum.
Disqualified
Organization:
A
“disqualified organization” as defined in Section 860E(e)(5) of the
Code.
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 February
2007.
Distribution
Date Statement:
As
defined in Section 4.03(a) hereof.
Document
Transfer Event:
Not
applicable.
Due
Date:
With
respect to any Mortgage Loan, the date on which a Scheduled Payment is due
under
the related Mortgage Note.
19
Due
Period:
With
respect to any Distribution Date, the period commencing on the second day
of the
month immediately preceding the month in which such Distribution Date occurs
and
ending on the first day of the month in which such Distribution Date
occurs.
Eligible
Account:
Either
(i) an account or accounts maintained with a federal or state chartered
depository institution or trust company acceptable to the Rating Agencies
or
(ii) an account or accounts the deposits in which are insured by the FDIC
to the
limits established by such corporation, provided
that any
such deposits not so insured shall be maintained in an account at a depository
institution or trust company whose commercial paper or other short term debt
obligations (or, in the case of a depository institution or trust company
which
is the principal subsidiary of a holding company, the commercial paper or
other
short term debt or deposit obligations of such holding company or depository
institution, as the case may be) have been rated by each Rating Agency in
its
highest short-term rating category, or (iii) a segregated trust account or
accounts (which shall be a “special deposit account”) maintained with the
Trustee or any other federal or state chartered depository institution or
trust
company, acting in its fiduciary capacity, in a manner acceptable to the
Trustee
and the Rating Agencies. Eligible Accounts may bear interest.
Eligible
Investments:
Any one
or more of the following obligations or securities:
(i) direct
obligations of, and obligations fully guaranteed as to timely payment of
principal and interest by, the United States of America or any agency or
instrumentality of the United States of America the obligations of which
are
backed by the full faith and credit of the United States of America (“Direct
Obligations”);
(ii) federal
funds, or demand and time deposits in, certificates of deposits of, or bankers’
acceptances issued by, any depository institution or trust company (including
U.S. subsidiaries of foreign depositories and the Trustee or any agent of
the
Trustee, acting in its respective commercial capacity) incorporated or organized
under the laws of the United States of America or any state thereof and subject
to supervision and examination by federal or state banking authorities, so
long
as at the time of investment or the contractual commitment providing for
such
investment the commercial paper or other short-term debt obligations of such
depository institution or trust company (or, in the case of a depository
institution or trust company which is the principal subsidiary of a holding
company, the commercial paper or other short-term debt or deposit obligations
of
such holding company or deposit institution, as the case may be) have been
rated
by each Rating Agency in its highest short-term rating category or one of
its
two highest long-term rating categories;
(iii) repurchase
agreements collateralized by Direct Obligations or securities guaranteed
by
GNMA, FNMA or FHLMC with any registered broker/dealer subject to Securities
Investors’ Protection Corporation jurisdiction or any commercial bank insured by
the FDIC, if such broker/dealer or bank has an uninsured, unsecured and
unguaranteed obligation rated by each Rating Agency in its highest short-term
rating category;
20
(iv) securities
bearing interest or sold at a discount issued by any corporation incorporated
under the laws of the United States of America or any state thereof which
have a
credit rating from each Rating Agency, at the time of investment or the
contractual commitment providing for such investment, at least equal to one
of
the two highest short-term credit ratings of each Rating Agency; provided,
however,
that
securities issued by any particular corporation will not be Eligible Investments
to the extent that investment therein will cause the then outstanding principal
amount of securities issued by such corporation and held as part of the Trust
Fund to exceed 20% of the sum of the Aggregate Principal Balance and the
aggregate principal amount of all Eligible Investments in the Certificate
Account; provided,
further,
that
such securities will not be Eligible Investments if they are published as
being
under review with negative implications from any Rating Agency;
(v) commercial
paper (including both non interest-bearing discount obligations and
interest-bearing obligations payable on demand or on a specified date not
more
than 180 days after the date of issuance thereof) rated by each Rating Agency
in
its highest short-term ratings;
(vi) a
Qualified GIC;
(vii) certificates
or receipts representing direct ownership interests in future interest or
principal payments on obligations of the United States of America or its
agencies or instrumentalities (which obligations are backed by the full faith
and credit of the United States of America) held by a custodian in safekeeping
on behalf of the holders of such receipts; and
(viii) any
other
demand, money market fund, common trust fund or time deposit or obligation,
or
interest-bearing or other security or investment (including those managed
or
advised by the Trustee or any Affiliate thereof), (A) rated in the highest
rating category by each Rating Agency rating such investment or (B) that
would
not adversely affect the then current rating by any Rating Agency of any
of the
Certificates. Such investments in this subsection (viii) may include money
market mutual funds or common trust funds, including any other fund for
which Xxxxx
Fargo Bank, N.A. (in
its commercial capacity), the Trustee,
the
Master Servicer or an affiliate thereof serves as an investment advisor,
administrator, shareholder servicing agent, and/or custodian or subcustodian,
notwithstanding that (x) Xxxxx Fargo Bank, N.A. (in its commercial capacity),
the
Trustee,
the Master Servicer or an affiliate thereof charges and collects fees and
expenses from such funds for services rendered, (y) Xxxxx Fargo Bank, N.A.
(in
its commercial capacity), the
Trustee,
the
Master Servicer or an affiliate thereof charges and collects fees and expenses
for services rendered pursuant to this Agreement, and (z) services performed
for
such funds and pursuant to this Agreement may converge at any time. The
Trustee or
an
affiliate thereof is specifically authorized to charge and collect from the
Trust Fund such fees as are collected from all investors in such funds for
services rendered to such funds (but not to exceed investment earnings
thereon);
21
provided,
however,
that no
such instrument shall be an Eligible Investment if such instrument evidences
either (i) a right to receive only interest payments with respect to the
obligations underlying such instrument, or (ii) both principal and interest
payments derived from obligations underlying such instrument and the principal
and interest payments with respect to such instrument provide a yield to
maturity of greater than 120% of the yield to maturity at par of such underlying
obligations, provided
that any
such investment will be a “permitted investment” within the meaning of Section
860G(a)(5) of the Code.
Employee
Discount Rate:
Not
applicable.
Employee
Mortgage Loan:
None.
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:
Any
Class R, Class LT-R, Class B7, Class B8 or Class B9 Certificate or any
Certificate with a rating below the lowest applicable rating permitted under
the
Underwriter’s Exemption.
Escrow
Account:
Any
account established and maintained by the applicable Servicer pursuant to
the
applicable Servicing Agreement.
Euroclear:
JPMorgan Chase Bank, Brussels office, as operator of the Euroclear
System.
Event
of Default:
Any one
of the conditions or circumstances enumerated in Section 6.14(a).
Excess
Loss:
Any
Bankruptcy Loss, or portion thereof, in excess of the then-applicable Bankruptcy
Loss Limit, any Fraud Loss, or portion thereof, in excess of the then-applicable
Fraud Loss Limit, and any Special Hazard Loss, or portion thereof, in excess
of
the then-applicable Special Hazard Loss Limit.
Exchange
Act:
The
Securities and Exchange Act of 1934, as amended.
Exchange
Act Signing Party:
Either
the Depositor or the Master Servicer, to be determined by mutual agreement
between such parties.
Exchange
Class
or Exchange
Certificates:
The Classes of Certificates identified as such, and issued under, the Exchange
Trust Agreement.
Exchangeable
Classes
or Exchangeable
Certificates:
The
Classes of Certificates identified as such, and issued under, the Exchange
Trust
Agreement.
22
Exchange
Trust Agreement:
The
Exchange Trust Agreement dated as of January 1, 2007, entered into by and
among
the Depositor and the Trustee for the issuance of the Exchange and Exchangeable
Certificates.
Exchange
Trustee:
Xxxxx
Fargo Bank, N.A., in its capacity as trustee under the Exchange Trust
Agreement.
FDIC:
The
Federal Deposit Insurance Corporation or any successor thereto.
FHLMC
or Xxxxxxx Mac:
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.
Financial
Asset:
The
meaning specified in Section 8-102(a)(9) of the UCC.
Financial
Intermediary:
A
broker, dealer, bank or other financial institution or other Person that
clears
through or maintains a custodial relationship with a Clearing Agency
Participant.
First
Payment Default Mortgage Loan:
Any
Mortgage Loan (i) originated by LBB specified in Section 1.04(e) of the Mortgage
Loan Sale and Assignment Agreement in respect of which the related Mortgagor
does not make the first payment due to the Seller within the time frame required
under such section or (ii) originated by LBB specified in Section 1.04(e)
of the
Mortgage Loan Sale Agreement in respect of which the related Mortgagor does
not
make the first or second payment due to the Seller within the time frame
required under such section.
Fitch:
Fitch
Ratings or any successor in interest.
FNMA
or Xxxxxx Xxx:
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.
Form
8-K Disclosure Information:
As
defined in Section 6.20(f)(i).
Form
10-K Certification:
The
certification required pursuant to Rule 13a-14 under the Exchange
Act.
FPD
Premium:
With
respect to any First Payment Default Mortgage Loan repurchased under Section
1.04(e) of the Mortgage Loan Sale and Assignment Agreement, the excess, if
any
of the FPD Purchase Price over the Purchase Price for such Mortgage
Loan.
FPD
Purchase Price:
With
respect to any First Payment Default Mortgage Loan, an amount equal to the
sum
of (a) the greater of (i) 100% of the unpaid principal balance of such Mortgage
Loan and (ii) the price at which such Mortgage Loan was originally purchased
by
the Seller as set forth on Schedule B, and (b) accrued interest thereon at
the
applicable Mortgage Rate from the date as to interest was last paid to (but
not
including) the Due Date in the Collection Period immediately preceding the
related Distribution Date.
23
Fraud
Loss:
Any
Realized Loss on a Liquidated Mortgage Loan sustained by reason of a default
arising from fraud, dishonesty or misrepresentation in connection with such
Liquidated Mortgage Loan, as reported by a Servicer to the Master
Servicer.
Fraud
Loss Limit:
As of
the Cut-off Date, initially, $11,001,877. The Fraud Loss Limit shall be reduced,
from time to time, by the amount of Fraud Losses allocated to the related
Certificates. In addition, on each anniversary of the Cut-off Date, the Fraud
Loss Limit shall be reduced as follows: (a) on the first anniversary of the
Cut-off Date, to an amount equal to the lesser of (1) the Fraud Loss Limit
as of
the most recent anniversary of the Cut-off Date and (2) 2.00% of the aggregate
Scheduled Principal Balance of the Mortgage Loans, as of the most recent
anniversary of the Cut-off Date, and (b) on the second through the fifth
anniversaries of the Cut-off Date, to an amount equal to the lesser of (1)
the
Fraud Loss Limit as of the most recent anniversary of the Cut-off Date and
(2)
1.00% of the aggregate Scheduled Principal Balance of the Mortgage Loans,
as of
the most recent anniversary of the Cut-off Date and thereafter, to zero.
Global
Securities:
The
global certificates representing the Book-Entry Certificates.
GNMA:
The
Government National Mortgage Association, a wholly owned corporate
instrumentality of the United States within HUD.
Group
1 Percentage:
With
respect to each Distribution Date and the Class 1-A1 and 1-A3 Certificates,
the
percentage obtained by dividing (x) the aggregate Class Principal Amount
of such
Classes of Certificates immediately prior to such Distribution Date, by (y)
the
aggregate Class Principal Amount of the Class 1-A1, Class 1-A2, Class 1-A3
and
Class R Certificates immediately prior to such date.
Group
1 Priority Amount:
With
respect to each Distribution Date and the Class 1-A1 and Class 1-A3
Certificates, an amount equal to the lesser of (i) the sum of (x) the product
of
the Group 1 Percentage for such date, the Shift Percentage and the Scheduled
Principal Amount for Collateral Group 1 for such date and (y) the product
of the
Group 1 Percentage for such date, the Shift Percentage for such date and
the
Unscheduled Principal Amount for Collateral Group 1 for such date, and (ii)
the
aggregate Class Principal Amount of the Class 1-A1 and Class 1-A3
Certificates.
Group
Subordinate Amount:
For any
Collateral Group and any Distribution Date, the excess of the Pool Balance
for
the immediately preceding Distribution Date for that Collateral Group over
the
total Certificate Principal Amount of the related Senior Certificates
immediately prior to that Distribution Date.
Holder
or Certificateholder:
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, 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
shall be protected in relying upon any such consent, only Certificates which
a
Responsible Officer of the
Trustee
knows to be so owned shall be disregarded. The Trustee may request and
conclusively rely on certifications by the Depositor, the Master Servicer
and
any Servicer in determining whether any Certificates are registered to an
Affiliate of the Depositor, the Master Servicer or any Servicer. After a
Section
7.01(c) Purchase Event other than in Sections 5.02(a) through (h) and 11.03(a)
and (b) herein, and, except in the case of the Class LT-R Certificates, Sections
3.03, 3.04, 3.05, 3.06, 3.07, 3.09 and 5.07(c) and (f) herein, all references
in
this Agreement to “Holder” or “Certificateholder” shall be deemed to be
references to the LTURI-holder, as recorded on the books of the Certificate
Registrar, as holder of the Lower Tier REMIC 1 Uncertificated Regular
Interests.
24
HUD:
The
United States Department of Housing and Urban Development, or any successor
thereto.
Independent:
When
used with respect to any Accountants, a Person who is “independent” within the
meaning of Rule 2-01(b) of the 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.
Individual
Redemption Certificate:
Not
applicable.
Initial
LIBOR Rate:
5.320%.
Initial
Optional Termination Date:
As
defined in Section 7.01(b).
Insurance
Policy:
Any
Primary Mortgage Insurance Policy and any standard hazard insurance policy,
flood insurance policy, earthquake insurance policy or title insurance policy
relating to the Mortgage Loans or the Mortgaged Properties, to be in effect
as
of the Closing Date or thereafter during the term of this
Agreement.
Insurance
Proceeds:
Amounts
paid by the insurer under any Insurance Policy, other than amounts (i) to
cover
expenses incurred by or on behalf of a Servicer in connection with procuring
such proceeds, (ii) to be applied to restoration or repair of the related
Mortgaged Property, (iii) required to be paid over to the Mortgagor pursuant
to
law or the related Mortgage Note or (iv) to be applied toward payment of
any
Retained Interest.
Interest
Distribution Amount:
Not
applicable.
Interest
Shortfall:
With
respect to any Class of Certificates (including any interest-bearing Component
thereof) and any Distribution Date, any Accrued Certificate Interest not
distributed (or added to principal) with respect to any previous Distribution
Date, other than due to any Net Prepayment Interest Shortfalls.
Intervening
Assignments:
The
original intervening assignments of the Mortgage, notice of transfer or
equivalent instrument.
25
Latest
Possible Maturity Date:
With
respect to all Collateral Groups, the Distribution Date in February 2037.
LBB:
Xxxxxx
Brothers Bank, FSB.
LBH:
Xxxxxx
Brothers Holdings Inc., or any successor in interest.
LIBOR:
With
respect to the first Accrual Period, the Initial LIBOR Rate. With respect
to
each subsequent Accrual Period, a per annum rate determined on the LIBOR
Determination Date in the following manner by the Trustee on the basis of
the
“Interest Settlement Rate” set by the British Bankers’ Association (the “BBA”)
for one-month United States dollar deposits, as such rates appear on the
Telerate Page 3750, as of 11:00 a.m. (London time) on such LIBOR Determination
Date.
If
on
such a LIBOR Determination Date, the BBA’s Interest Settlement Rate does not
appear on the Telerate Page 3750 as of 11:00 a.m. (London time), or if the
Telerate Page 3750 is not available on such date, the Trustee will obtain
such
rate first
from
Reuters’ “page LIBOR 01,” or if such page is not available, then from
Bloomberg’s page “BBAM”. If such rate is not published for such LIBOR
Determination Date, LIBOR for such date will be the most recently published
Interest Settlement Rate. In the event that the BBA no longer sets an Interest
Settlement Rate, the Trustee will designate an alternative index that has
performed, or that the Trustee expects to perform, in a manner substantially
similar to the BBA’s Interest Settlement Rate. The Trustee will select a
particular index as the alternative index only if it receives an Opinion
of
Counsel, which opinion shall be an expense reimbursed from the Certificate
Account pursuant to Section 4.04, that the selection of such index will not
cause any of the REMICs to lose their classification as REMICs for federal
income tax purposes.
The
establishment of LIBOR by the Trustee and the Trustee’s subsequent calculation
of the Certificate Interest Rate applicable to the LIBOR Certificates for
the
relevant Accrual Period, in the absence of manifest error, will be final
and
binding.
LIBOR
Business Day:
Any day
on which banks in London, England and The City of New York are open and
conducting transactions in foreign currency and exchange.
LIBOR
Certificate:
Any
Certificate (or Component) whose Certificate Interest Rate adjusts on the
basis
of LIBOR.
LIBOR
Component:
None.
LIBOR
Determination Date:
For any
LIBOR Certificate, the second LIBOR Business Day immediately preceding the
commencement of each Accrual Period other than the first Accrual
Period.
Liquidated
Mortgage Loan:
Any
Charged-off Loan or defaulted Mortgage Loan as to which the Mortgage Loan
or
related REO Property has been disposed of and as to which the Master Servicer
or
the applicable Servicer has determined that all amounts that it expects to
recover on behalf of the Trust Fund from or on account of such Mortgage Loan
have been recovered.
26
Liquidation
Expenses:
Expenses that are incurred by the Master Servicer or a Servicer in connection
with the liquidation of any defaulted Mortgage Loan and are not recoverable
under the applicable Primary Mortgage Insurance Policy, including, without
limitation, foreclosure and rehabilitation expenses, legal expenses and
unreimbursed amounts expended pursuant to Sections 9.06, 9.16 or
9.22.
Liquidation
Proceeds:
Cash
received in connection with the liquidation of a defaulted Mortgage Loan,
whether through the sale or assignment of such Mortgage Loan, trustee’s sale,
foreclosure sale or otherwise, or the sale of the related Mortgaged Property
if
the Mortgaged Property is acquired in satisfaction of the Mortgage Loan,
including any amounts remaining in the related Escrow Account, together with
an
net proceeds received on a monthly basis with respect to any properties acquired
on behalf of the Holders by foreclosure or deed in lieu of
foreclosure.
Living
Holder:
Not
applicable.
Loan-to-Value
Ratio:
With
respect to any Mortgage Loan and any date of determination, the ratio, expressed
as a percentage, of (a) of the principal balance of such Mortgage Loan on
such
date, over (b) the Original Value thereof.
London
Business Day:
Any day
on which banks are open for dealing in foreign currency and exchange in London,
England and New York City.
Lower
Tier Interest:
Any one
of the interests in a Lower Tier REMIC, as described in the Preliminary
Statement.
Lower
Tier REMIC:
REMIC
I, REMIC IIA or REMIC IIB, as described in the Preliminary
Statement.
Lower
Tier REMIC I Uncertificated Regular Interests:
Lower
Tier Interests of REMIC I constituting regular interests held in uncertificated
form.
LTURI
holder:
The
holder of Lower Tier REMIC I Uncertificated Regular Interests, which, upon
the
occurrence of a Section 7.01(c) Purchase Event, shall be the Master Servicer
or
its designee, and including any trustee in its capacity as trustee of any
privately placed securitization.
Maintenance:
With
respect to any Cooperative Unit, the rent or fee paid by the Mortgagor to
the
Cooperative Corporation pursuant to the Proprietary Lease.
Master
Servicer:
Aurora
Loan Services LLC, or any successor in interest, or if any successor master
servicer shall be appointed as herein provided, then such successor master
servicer.
Master
Servicing Fee:
As to
any Distribution Date, an amount equal to one-twelfth the product of (a)
the
Master Servicing Fee Rate and (b) the outstanding principal balance of each
Mortgage Loan.
27
Master
Servicing Fee Rate:
0.00%
per annum.
Master
Servicer Remittance Date:
With
respect to each Distribution Date, the
third
Business
Day immediately preceding such Distribution Date.
Material
Defect:
As
defined in Section 2.02(c) hereof.
MERS:
Mortgage Electronic Registration Systems, Inc., a Delaware Corporation, or
any
successor in interest thereto.
MERS
Mortgage Loan:
Any
Mortgage Loan as to which the related Mortgage, or an Assignment of Mortgage,
has been or will be recorded in the name of MERS, as agent for the holder
from
time to time of the Mortgage Note.
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
File:
The
mortgage documents listed in Section 2.01(b) pertaining to a particular Mortgage
Loan required to be delivered to the Trustee or a Custodian pursuant to this
Agreement.
Mortgage
Loan:
A
Mortgage and the related notes or other evidences of indebtedness secured
by
each such Mortgage or a manufactured housing contract conveyed, transferred,
sold, assigned to or deposited with the Trustee pursuant to Section 2.01
or
Section 2.05, including without limitation, each Mortgage Loan listed on
the
Mortgage Loan Schedule, as amended from time to time.
Mortgage
Loan Sale Agreement:
The
agreement dated as of January 1, 2007, for the sale of the Mortgage Loans
by LBH
to the Depositor.
Mortgage
Loan Schedule:
The
schedule attached hereto as Schedule A, which shall identify each Mortgage
Loan,
as such schedule may be amended from time to time to reflect the addition
of
Mortgage Loans to, or the deletion of Mortgage Loans from, the Trust Fund.
Such
schedule shall set forth, among other things, the following information with
respect to each Mortgage Loan: (i) the Mortgage Loan identifying number;
(ii)
the Mortgagor’s name; (iii) the street address of the Mortgaged Property
including the city, state and zip code; (iv) the original principal amount
of
the Mortgage Loan; (v) the Mortgage Rate at origination; (vi) the monthly
payment of principal and interest at origination; (vii) the Mortgage Pool,
Collateral Group or Group to which such Mortgage Loan has been assigned,
(viii)
the Servicer of such Mortgage Loan, (ix) the term and method of calculation
of Prepayment Penalty Amounts, (x) whether such Mortgage Loan is an
Employee Mortgage Loan, and (xi) the initial Custodian for such Mortgage
Loan. The Depositor shall be responsible for providing the Trustee and the
Master Servicer with all amendments to the Mortgage Loan Schedule.
Mortgage
Note:
The
note or other evidence of the indebtedness of a Mortgagor secured by a Mortgage
under a Mortgage Loan.
Mortgage
Pool:
Any of
Pool 1, Pool 2 or Pool 3.
28
Mortgage
Rate:
As to
any Mortgage Loan, the per annum rate at which interest accrues on such Mortgage
Loan, as determined under the related Mortgage Note as reduced by any Relief
Act
Reductions.
Mortgaged
Property:
Either
of (x) the fee simple interest in real property, together with improvements
thereto including any exterior improvements to be completed within 120 days
of
disbursement of the related Mortgage Loan proceeds, or (y) in the case of
a
Cooperative Loan, the related Cooperative Shares and Proprietary Lease, securing
the indebtedness of the Mortgagor under the related Mortgage Loan.
Mortgagor:
The
obligor on a Mortgage Note.
Negative
Amortization Certificate:
None.
Net
Liquidation Proceeds:
With
respect to any Liquidated Mortgage Loan, the related Liquidation Proceeds
net of
unreimbursed expenses incurred in connection with liquidation or foreclosure
and
unreimbursed Advances, Servicing Advances, Servicing Fees and Retained Interest,
if any, received and retained in connection with the liquidation of such
Mortgage Loan.
Net
Mortgage Rate or NMR:
With
respect to any Mortgage Loan, the Mortgage Rate thereof reduced by the sum
of
the applicable Servicing Fee Rate, the applicable Retained Interest Rate,
if
any, and, if applicable and specified on the Mortgage Loan Schedule, the
premium
rate on any lender-provided mortgage insurance. The Net Mortgage Rate of
any
Employee Mortgage Loan shall be calculated without regard to any increase
in the
Mortgage Rate thereof as a result of the related Mortgagor ceasing to be
an
employee of the Underwriter or any of its affiliates.
Net
Prepayment Interest Shortfall:
With
respect to each Collateral Group and any Distribution Date, the excess, if
any,
of any Prepayment Interest Shortfalls with respect to the Mortgage Loans
for
such date over the sum of any amounts paid by the Servicers with respect
to such
shortfalls and any amount that is required to be paid by the Master Servicer
in
respect of such shortfalls pursuant to this Agreement.
Non-Book-Entry
Certificate:
Any
Certificate other than a Book-Entry Certificate.
Non-MERS
Mortgage Loan:
Any
Mortgage Loan other than a MERS Mortgage Loan.
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.
Notice
of Nonpayment:
Not
applicable.
Notional
Amount:
With
respect to any Notional Certificate and any Distribution Date, such
Certificate’s Percentage Interest of the Class Notional Amount of such Class of
Certificates for such Distribution Date.
29
Notional
Certificate:
Any
Class of Certificates issued with a Class Notional Amount (or Component issued
with a Component Notional Amount), as identified in the Class
Table.
Offering
Document:
The
private placement memorandum relating to the Privately Offered Certificates,
or
the Prospectus.
Offered
Certificates:
The
Certificates other than the Privately Offered Certificates.
Officer’s
Certificate:
A
certificate signed by the Chairman of the Board, any Vice Chairman, the
President, any Vice President or any Assistant Vice President of a Person,
and
in each case delivered to the Trustee.
Opinion
of Counsel:
A
written opinion of counsel, reasonably acceptable in form and substance to
the
Trustee or the Depositor, as applicable, and who may be in-house or outside
counsel to the Depositor, the Master Servicer, the
Trustee
or a Servicer 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. For purpose of Section 2.01(c)(i),
the
Opinion of Counsel referred to therein may take the form of a memorandum
of law
or other acceptable assurance.
Original
Credit Support Percentage:
With
respect to each Class of Subordinate Certificates, the sum of the Class
Percentages of all Classes of Certificates that rank lower in priority than
such
Class on the Closing Date.
Original
Group Subordinate Amount:
The
excess of the Pool Balance for each Collateral Group over the sum of the
Class
Principal Amounts of the Senior Certificates for such Collateral Group as
of the
Cut-off Date.
Original
Value:
With
respect to any Mortgage Loan, the lesser of (a) the Appraised Value of a
Mortgaged Property at the time the related Mortgage Loan was originated and
(b)
if the Mortgage Loan was made to finance the acquisition of the related
Mortgaged Property, the purchase price paid for the Mortgaged Property by
the
Mortgagor at the time the related Mortgage Loan was originated.
Originator:
The
entity that originated a Mortgage Loan.
Paying
Agent:
Any
paying agent appointed pursuant to Section 3.08.
Percentage
Interest:
With
respect to any Certificate and the related Class, such Certificate’s percentage
interest in the undivided beneficial ownership interest in the Trust Fund
evidenced by all Certificates of the same Class as such Certificate. With
respect to any Certificate other than a Notional Certificate, the Percentage
Interest evidenced thereby shall equal the initial Certificate Principal
Amount
(or Component Notional Amount) thereof divided by the initial Class Principal
Amount (or Component Notional Amount) of all Certificates of the same Class.
With respect to any Notional Certificate, the Percentage Interest evidenced
thereby shall equal the initial Class Notional Amount divided by the initial
Class Notional Amount of all Certificates of the same Class. With respect
to the
Class R and Class LT-R Certificates, the Percentage Interest evidenced thereby
shall be as specified on the face thereof, or otherwise be equal to
100%.
30
Permitted
Servicing Amendment:
Any
amendment to any Servicing Agreement pursuant to Section 11.03(a)(iii) hereunder
in connection with any servicing transfer or transfer of any servicing
rights.
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.
Placement
Agent:
Xxxxxx
Brothers Inc.
Plan
Asset Regulations:
The
Department of Labor regulations set forth in 29 C.F.R. 2510.3-101.
Plan:
An
employee benefit plan or other retirement arrangement which is subject to
Section 406 of ERISA and/or Section 4975 of the Code or any entity whose
underlying assets include such plan's or arrangement's assets by reason of
their
investment in the entity.
Pool
1:
The
aggregate of the Mortgage Loans identified on the Mortgage Loan Schedule
as
being included in Pool 1.
Pool
2:
The
aggregate of the Mortgage Loans identified on the Mortgage Loan Schedule
as
being included in Pool 2.
Pool
3:
The
aggregate of the Mortgage Loans identified on the Mortgage Loan Schedule
as
being included in Pool 3.
Pool
Balance:
As to
any Collateral Group and any Distribution Date, the sum of the related
Applicable Fractions of the Scheduled Principal Balance of each Mortgage
Loan
included in the applicable Collateral Group for such Distribution
Date.
Preference
Amount:
Not
applicable.
Prepayment
Interest Shortfall:
With
respect to any Distribution Date and any Principal Prepayment, the difference
between (i) one full month’s interest at the applicable Mortgage Rate (after
giving effect to any applicable Relief Act Reduction), as reduced by the
applicable Servicing Fee Rate, the Master Servicing Fee Rate and the applicable
Retained Interest Rate, if any, on the outstanding principal balance of such
Mortgage Loan immediately prior to such prepayment and (ii) the amount of
interest actually received with respect to such Mortgage Loan in connection
with
such Principal Prepayment.
Prepayment
Penalty Amounts:
With
respect to any Distribution Date, all premiums or charges paid by the obligors
under the related Mortgage Notes due to Principal Prepayments collected by
the
Servicers during the immediately preceding Prepayment Period and required
to be
remitted to the Trust.
31
Prepayment
Period:
With
respect to any Distribution Date the period specified as such in the related
Servicing Agreement.
Primary
Mortgage Insurance Policy:
Mortgage guaranty insurance, if any, on an individual Mortgage Loan, as
evidenced by a policy or certificate.
Principal
Prepayment:
Any
Mortgagor payment of principal (other than a Balloon Payment) or other recovery
of principal on a Mortgage Loan that is recognized as having been received
or
recovered in advance of its scheduled Due Date and applied to reduce the
principal balance of the Mortgage Loan in accordance with the terms of the
Mortgage Note or the related Servicing Agreement.
Privately
Offered Certificates:
The
Class B7, Class B8 and Class B9 Certificates.
Proceeding:
Any
suit in equity, action at law or other judicial or administrative
proceeding.
Proprietary
Lease:
With
respect to any Cooperative Unit, a lease or occupancy agreement between a
Cooperative Corporation and a holder of related Cooperative Shares.
Prospectus:
The
prospectus supplement dated January 26, 2007, together with the accompanying
prospectus dated November 13, 2006, relating to the Offered
Certificates.
Purchase
Price:
With
respect to the repurchase of a Mortgage Loan pursuant to this Agreement,
an
amount equal to the sum of (a) 100% of the unpaid principal balance of such
Mortgage Loan, (b) accrued interest thereon at the Mortgage Rate, from the
date
as to which interest was last paid to (but not including) the Due Date
immediately preceding the related Distribution Date, (c)
any
costs
and damages incurred by the Trust Fund with respect to such Mortgage Loan
in
connection with any violation of any federal, state or local predatory or
abusive lending laws or other similar laws and (d) any unreimbursed Servicing
Advances with respect to such Mortgage Loan. The Master Servicer or the
applicable Servicer (or the Trustee, if applicable) shall be reimbursed from
the
Purchase Price for any Mortgage Loan or related REO Property for any Advances
made with respect to such Mortgage Loan that are reimbursable to the Master
Servicer, such Servicer or the Trustee under this Agreement or the related
Servicing Agreement, as well as any unreimbursed Servicing Advances and accrued
and unpaid Master Servicing Fees or Servicing Fees, as applicable.
QIB:
As
defined in Section 3.03(c).
Qualified
GIC:
A
guaranteed investment contract or surety bond providing for the investment
of
funds in the Collection Account or the Certificate Account and insuring a
minimum, fixed or floating rate of return on investments of such funds, which
contract or surety bond shall:
(a) be
an
obligation of an insurance company or other corporation whose long-term debt
is
rated by each Rating Agency in one of its two highest rating categories or,
if
such insurance company has no long-term debt, whose claims paying ability
is
rated by each Rating Agency in one of its two highest rating categories,
and
whose short-term debt is rated by each Rating Agency in its highest rating
category;
32
(b) provide
that the Trustee may exercise all of the rights under such contract or surety
bond without the necessity of taking any action by any other
Person;
(c) provide
that if at any time the then current credit standing of the obligor under
such
guaranteed investment contract is such that continued investment pursuant
to
such contract of funds would result in a downgrading of any rating of the
Certificates, the Trustee shall terminate such contract without penalty and
be
entitled to the return of all funds previously invested thereunder, together
with accrued interest thereon at the interest rate provided under such contract
to the date of delivery of such funds to the Trustee;
(d) provide
that the Trustee’s interest therein shall be transferable to any successor
trustee hereunder; and
(e) provide
that the funds reinvested thereunder and accrued interest thereon be returnable
to the Collection Account or the Certificate Account, as the case may be,
not
later than the Business Day prior to any Distribution Date.
Qualified
Insurer:
An
insurance company duly qualified as such under the laws of the states in
which
the related Mortgaged Properties are located, duly authorized and licensed
in
such states to transact the applicable insurance business and to write the
insurance provided and whose claims paying ability is rated by each Rating
Agency in its highest rating category or whose selection as an insurer will
not
adversely affect the rating of the Certificates.
Qualifying
Substitute Mortgage Loan:
In the
case of a Mortgage Loan substituted for a Deleted Mortgage Loan, a Mortgage
Loan
that, on the date of substitution, (i) has a Scheduled Principal Balance
(together with that of any other mortgage loan substituted for the same Deleted
Mortgage Loan) as of the Due Date in the month in which such substitution
occurs
not in excess of the Scheduled Principal Balance of the related Deleted Mortgage
Loan; provided,
however,
that,
to the extent that the Scheduled Principal Balance of such Mortgage Loan
is less
than the Scheduled Principal Balance of the related Deleted Mortgage Loan,
then
a Substitution Amount shall be paid by the party effecting such substitution
to
the Trustee for deposit into the Certificate Account, and shall be treated
as a
Principal Prepayment hereunder; (ii) has a Net Mortgage Rate not lower than
the
Net Mortgage Rate of the related Deleted Mortgage Loan and a Net Mortgage
Rate
within the Net Mortgage Rate parameters of the related Subgroup; (iii) has
a
remaining stated term to maturity not more than eighteen months longer than,
and
not more than eighteen months shorter than, the remaining term to stated
maturity of the related Deleted Mortgage Loan; provided,
however,
in no
case shall such substitute Mortgage Loan have a remaining stated term to
maturity later than the Final Scheduled Distribution Date; (iv) (A) has a
Loan-to-Value Ratio as of the date of such substitution of not greater than
80%;
provided,
however,
that if
the related Deleted Mortgage Loan has a Loan-to-Value Ratio of greater than
80%
as of the date of substitution, then the Loan-to-Value Ratio of such substitute
Mortgage Loan may be greater than 80% but shall not be greater than the
Loan-to-Value Ratio of the related Deleted Mortgage Loan and (B) the addition
of
such substitute Mortgage Loan does not increase the weighted average
Loan-to-Value Ratio, as of the date of substitution of the Mortgage Pool
by more
than 5%; (v) will comply with all of the representations and warranties relating
to Mortgage Loans set forth herein, as of the date as of which such substitution
occurs; (vi) is not a Cooperative Loan unless the related Deleted Mortgage
Loan
was a Cooperative Loan; (vii) if applicable, has the same index as and a
margin
not less than that of the related Deleted Mortgage Loan; (viii) has not been
delinquent for a period of more than 30 days more than once in the twelve
months
immediately preceding such date of substitution; (ix) is covered by a Primary
Mortgage Insurance Policy if the related Deleted Mortgage Loan is so covered,
and the Loan-to-Value Ratio of such Mortgage Loan is greater than 80%; and
(x)
has a Credit Score not greater than 20 points lower than the Credit Score
of the
related Deleted Mortgage Loan; provided,
however,
that if
the Deleted Mortgage Loan does not have a Credit Score, then such substitute
Mortgage Loan shall have a Credit Score equal to or greater than 700. In
the
event that either one mortgage loan is substituted for more than one Deleted
Mortgage Loan or more than one mortgage loan is substituted for one or more
Deleted Mortgage Loans, then (a) the Scheduled Principal Balance referred
to in
clause (i) above shall be determined such that the aggregate Scheduled Principal
Balance of all such substitute Mortgage Loans shall not exceed the aggregate
Scheduled Principal Balance of all Deleted Mortgage Loans and (b) each of
(1)
the rate referred to in clause (ii) above, (2) the remaining term to stated
maturity referred to in clause (iii) above, (3) the Loan-to-Value Ratio referred
to in clause (iv) above and (4) the Credit Score referred to in clause (x)
above
shall be determined on a weighted average basis, provided
that the
final scheduled maturity date of any Qualifying Substitute Mortgage Loan
shall
not exceed the Final Scheduled Distribution Date of any Class of Certificates.
Whenever a Qualifying Substitute Mortgage Loan is substituted for a Deleted
Mortgage Loan pursuant to this Agreement, the party effecting such substitution
shall certify such qualification in writing to the Trustee. Notwithstanding
any
provision herein to the contrary, a Qualifying Substitute Mortgage Loan shall
be
deemed to have the same Applicable Fraction as that of the Deleted Mortgage
Loan
for which it was substituted.
33
Rating
Agency:
Each of
Fitch and S&P.
Realized
Loss:
(a)
With respect to each Liquidated Mortgage Loan, an amount equal to (i) the
unpaid
principal balance of such Mortgage Loan as of the date of liquidation, plus
(ii) interest at the applicable Net Mortgage Rate from the date as to which
interest was last paid up to the last day of the month of such liquidation,
minus (iii) Liquidation Proceeds received, net of amounts that are reimbursable
to the Master Servicer or the applicable Servicer with respect to such Mortgage
Loan (other than Advances of principal and interest) including expenses of
liquidation, and (b) with respect to each Mortgage Loan that has become the
subject of a Deficient Valuation, the difference between the unpaid principal
balance of such Mortgage Loan immediately prior to such Deficient Valuation
and
the unpaid principal balance of such Mortgage Loan as reduced by the Deficient
Valuation. In determining whether a Realized Loss on a Liquidated Mortgage
Loan
is a Realized Loss of interest or principal, Liquidation Proceeds shall be
allocated, first, to payment of expenses related to such Liquidated Mortgage
Loan (including payment of any Retained Interest), then to accrued unpaid
interest and finally to reduce the principal balance of the Mortgage
Loan.
34
Recognition
Agreement:
With
respect to any Cooperative Loan, an agreement between the related Cooperative
Corporation and the originator of such Mortgage Loan to establish the rights
of
such originator in the related Cooperative Property.
Record
Date:
With
respect to any Distribution Date and each Class of Certificates (other than
the
LIBOR Certificates), the close of business on the last Business Day of the
month
immediately preceding the month in which such Distribution Date occurs; and
with
respect to any Distribution Date and the LIBOR Certificates, the Business
Day
immediately preceding the related Distribution Date.
Redemption
Certificate:
None.
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.
Regulation
S:
Regulation S promulgated under the Securities Act or any successor provision
thereto, in each case as the same may be amended from time to time; and all
references to any rule, section or subsection of, or definition or term
contained in, Regulation S means such rule, section, subsection, definition
or
term, as the case may be, or any successor thereto, in each case as the same
may
be amended from time to time.
Regulation
S Global Security:
The
meaning specified in Section 3.01(c).
Reimbursement
Amount:
Not
applicable.
Released
Mortgage Loan:
As of
any transfer date as set forth in the related Servicing Agreement, any Mortgage
Loan other than a Covered Mortgage Loan that was delinquent in payment for
a
period of time equal to the later to occur of (i) 210 days or more or (ii)
30
days or more after such Mortgage Loan became a Charged-off Loan, in each
case as
of the last calendar day of the month immediately proceeding the month in
which
such transfer date occurs, without giving effect to any grace period permitted
by the related Mortgage Note, and for which foreclosure proceedings have
not
been initiated.
Released
Mortgage Transferee:
The
Master Servicer.
Relevant
Servicing Criteria:
The
Servicing Criteria applicable to each party, as set forth on Exhibit Q attached
hereto. Multiple parties can have responsibility for the same Relevant Servicing
Criteria. With respect to a Servicing Function Participant engaged by the
Master
Servicer, the Paying Agent, the Trustee, each Custodian or a Servicer, the
term
“Relevant Servicing Criteria” may refer to a portion of the Relevant Servicing
Criteria applicable to such parties.
Relevant
UCC:
The
Uniform Commercial Code as in effect in the applicable
jurisdiction.
35
Relief
Act Reduction:
With
respect to any Mortgage Loan as to which there has been a reduction in the
amount of interest collectible thereon as a result of application of the
Servicemembers Civil Relief Act, as amended, or any similar state law or
local
statute, any amount by which interest collectible on such Mortgage Loan for
the
Due Date in the related Due Period is less than interest accrued thereon
for the
applicable one-month period at the Mortgage Rate without giving effect to
such
reduction.
REMIC:
Each of
REMIC I, REMIC IIA, REMIC IIB and REMIC III, as described in the Preliminary
Statement hereto.
REMIC
Provisions:
The
provisions of the federal income tax law relating to real estate mortgage
investment conduits, which appear at sections 860A through 86OG of Subchapter
M
of Chapter 1 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.
Reportable
Event:
As
defined in Section 6.20(f)(i).
Reporting
Servicer:
As
defined in Section 6.20(e)(i).
Residual
Certificate:
Any
Class LT-R or Class R Certificate.
Responsible
Officer or responsible officer:
When
used with respect to the Trustee, any Vice President, Assistant Vice President,
the Secretary, any assistant secretary, any Trust Officer, the Treasurer,
or any
assistant treasurer, working in its Corporate Trust Office and having direct
responsibility for the administration of this Agreement.
Restricted
Certificate:
Any
Class B7, Class B8 or Class B9 Certificate and any Restricted Global
Security.
Restricted
Global Security:
The
meaning specified in Section 3.01(c).
Retained
Interest:
Not
applicable.
Retained
Interest Mortgage Loan:
Not
applicable.
Retained
Interest Holder:
Not
applicable.
Retained
Interest Rate:
Not
applicable.
Retained
Mortgage File:
Not
applicable.
Rules:
As
defined in Section 6.20(c).
36
S&P:
Standard & Poor’s Ratings Services, a division of The XxXxxx-Xxxx Companies,
Inc., or any successor in interest.
Sarbanes
Oxley Act:
The
Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations of the Commission
promulgated thereunder (including any interpretations thereof by the
Commission’s staff).
Xxxxxxxx-Xxxxx
Certification:
A
written certification covering the activities of all Servicing Function
Participants and signed by an officer of the Exchange Act Signing Party that
complies with Section 302 of the Xxxxxxxx-Xxxxx Act, as amended from time
to
time.
Scheduled
Certificate:
None.
Scheduled
Component:
None.
Scheduled
Payment:
Each
scheduled payment of principal and interest (or of interest only, if applicable)
to be paid by the Mortgagor on a Mortgage Loan, as reduced (except where
otherwise specified herein) by the amount of any related Debt Service Reduction
(excluding all amounts of principal and interest that were due on or before
the
Cut-off Date whenever received) and, in the case of an REO Property, an amount
equal to the Scheduled Payment that would have been due on the related Mortgage
Loan if such Mortgage Loan had remained in existence. In the case of any
bi-weekly payment Mortgage Loan, all payments due on such Mortgage Loan during
any Due Period shall be deemed collectively to constitute the Scheduled Payment
due on such Mortgage Loan in such Due Period.
Scheduled
Principal Amount:
With
respect to each Distribution Date and any Collateral Group, the amount described
in clause (i) of the definition of Senior Principal Distribution Amount with
respect to such Collateral Group.
Scheduled
Principal Balance:
With
respect to (i) any Mortgage Loan as of any Distribution Date, the principal
balance of such Mortgage Loan at the close of business on the Cut-off Date,
after giving effect to principal payments due on or before the Cut-off Date,
whether or not received, less an amount equal to principal payments due after
the Cut-off Date and on or before the Due Date in the related Due Period,
whether or not received from the Mortgagor or advanced by the applicable
Servicer or the Master Servicer, and all amounts allocable to unscheduled
principal payments (including Principal Prepayments, Net Liquidation Proceeds,
Insurance Proceeds and condemnation proceeds, in each case to the extent
identified and applied prior to or during the applicable Prepayment Period)
and
(ii) any REO Property as of any Distribution Date, the Scheduled Principal
Balance of the related Mortgage Loan on the Due Date immediately preceding
the
date of acquisition of such REO Property by or on behalf of the Trustee (reduced
by any amount applied as a reduction of principal on the Mortgage Loan).
With
respect to a Liquidated Mortgage Loan, the Scheduled Principal Balance will
equal zero. With respect to any Mortgage Loan as of the Cut-off Date, as
specified in the Mortgage Loan Schedule.
Section
7.01(c) Purchase Event:
The
purchase of all the Lower Tier REMIC 1 Uncertificated Regular
Interests.
37
Securities
Act:
The
Securities Act of 1933, as amended.
Security
Agreement:
With
respect to any Cooperative Loan, the agreement between the owner of the related
Cooperative Shares and the originator of the related Mortgage Note that defines
the terms of the security interest in such Cooperative Shares and the related
Proprietary Lease.
Seller:
LBH or
any successor in interest, as the context may require.
Senior
Certificate:
Any
Certificate (including any Exchangeable or Exchange Certificate) other than
a
Subordinate Certificate or Class LT-R Certificate.
Senior
Percentage:
With
respect to each Collateral Group and any Distribution Date, the percentage
equivalent of a fraction, the numerator of which is the sum of the Class
Principal Amounts of each Class of Senior Certificates for the such Collateral
Group immediately prior to such Distribution Date, to the extent that such
Classes are outstanding on such date, and the denominator of which is the
related Pool Balance as of the beginning of the related Due Period.
Senior
Prepayment Percentage:
With
respect to each Collateral Group and any Distribution Date occurring during
the
five years beginning on the first Distribution Date, 100%. With respect to
each
Collateral Group and for any Distribution Date occurring on or after the
fifth
anniversary of the first Distribution Date, the related Senior Percentage
plus
the following percentage of the related Subordinate Percentage for such
Distribution Date: for any Distribution Date in the first year thereafter,
70%;
for any Distribution Date in the second year thereafter, 60%; for any
Distribution Date in the third year thereafter, 40%; for any Distribution
Date
in the fourth year thereafter, 20%; and for any subsequent Distribution Date,
0%; provided,
however,
that if
on any of the foregoing Distribution Dates the Senior Percentage for a
Collateral Group exceeds the initial Senior Percentage for such Collateral
Group, the Senior Prepayment Percentage for each Collateral Group for such
Distribution Date shall once again equal 100% for such Distribution
Date.
Notwithstanding
the foregoing, no decrease in the Senior Prepayment Percentage for any
Collateral Group below the level in effect for the most recent prior period
set
forth in the paragraph above shall be effective on any Distribution Date
if, as
of the first Distribution Date as to which any such decrease applies, (i)
the
average outstanding principal balance on such Distribution Date and for the
preceding five Distribution Dates of all Mortgage Loans that were delinquent
60
days or more (including for this purpose any REO Property or Mortgage Loans
in
foreclosure or bankruptcy and Mortgage Loans with respect to which the related
Mortgaged Property has been acquired by the Trust Fund if the related Mortgage
Loan had remained in existence) is greater than or equal to 50% of the sum
of
the Group Subordinate Amounts, immediately prior to such Distribution Date
or
(ii) cumulative Realized Losses with respect to all the Mortgage Loans
exceed (a) with respect to the Distribution Date on or after the fifth
anniversary but prior to the sixth anniversary of the first Distribution
Date,
30% of the Original Group Subordinate Amount, (b) with respect to the
Distribution Date on or after the sixth anniversary but prior to the seventh
anniversary of the first Distribution Date, 35% of the Original Group
Subordinate Amount, (c) with respect to the Distribution Date on or after
the
seventh anniversary but prior to the eighth anniversary of the first
Distribution Date, 40% of the Original Group Subordinate Amount, (d) with
respect to the Distribution Date on or after the eighth anniversary but prior
to
the ninth anniversary of the first Distribution Date, 45% of the Original
Group
Subordinate Amount and (e) with respect to the Distribution Date on or after
the
ninth anniversary of the first Distribution Date or thereafter, 50% of the
Original Group Subordinate Amount.
38
After
the
Class Principal Amount of each Class of Senior Certificates for a Collateral
Group has been reduced to zero, the Senior Prepayment Percentage for such
Collateral Group shall be 0%.
Senior
Principal Distribution Amount:
For any
Collateral Group and any Distribution Date, the sum of the following
amounts:
(i) the
product of (a) the related Senior Percentage for such date and (b) the principal
portion (multiplied by the related Applicable Fraction) of each Scheduled
Payment (without giving effect to any Debt Service Reduction occurring prior
to
the Bankruptcy Coverage Termination Date), on each Mortgage Loan in the related
Collateral Group due during the related Due Period;
(ii) the
product of (a) the related Senior Prepayment Percentage for such date and
(b)
each of the following amounts (multiplied by the related Applicable Fraction):
(1) each Principal Prepayment on the Mortgage Loans in the related Collateral
Group collected during the related Prepayment Period, (2) each other unscheduled
collection, including any Subsequent Recovery, Insurance Proceeds and Net
Liquidation Proceeds (other than with respect to any Mortgage Loan in the
related Collateral Group that was finally liquidated during the related
Prepayment Period) representing or allocable to recoveries of principal received
during the related Prepayment Period, and (3) the principal portion of all
proceeds of the purchase of any Mortgage Loan in the related Collateral Group
(or, in the case of a permitted substitution, amounts representing a principal
adjustment) actually received by the Trustee during the related Prepayment
Period;
(iii) with
respect to unscheduled recoveries allocable to principal of any Mortgage
Loan in
the related Collateral Group that was finally liquidated during the related
Prepayment Period, the lesser of (a) the related net Liquidation Proceeds
allocable to principal (multiplied by the related Applicable Fraction) and
(b)
the product of the related Senior Prepayment Percentage for such date and
the
Scheduled Principal Balance (multiplied by the related Applicable Fraction)
of
such related Mortgage Loan at the time of liquidation; and
(iv) any
amounts described in clauses (i) through (iii) for any previous Distribution
Date that remain unpaid.
If
on any
Distribution Date the Class Principal Amount of the Class or Classes of Senior
Certificates related to any Collateral Group have been reduced to zero, the
Senior Principal Distribution Amount for such Class or Classes of Senior
Certificates for such date (following such reduction) and each subsequent
Distribution Date shall be zero.
39
Senior
Principal Priorities:
The
priorities for distribution of principal to the Senior Certificates as set
forth
in Exhibit O.
Servicer:
Any
Servicer that has entered into any of the Servicing Agreements identified
on
Exhibit E hereto, or any successors in interest. The initial Servicers shall
be
Aurora Loan Services LLC and IndyMac Bank, F.S.B.
Servicer
Remittance Date:
The day
in each month on which each Servicer is required to remit payments to the
account maintained by the Master Servicer, as specified in the related Servicing
Agreement, which is the 18th day of each month (or if such 18th day is not
a
Business Day, the next succeeding Business Day).
Service(s)(ing):
In
accordance with Regulation AB, the act of managing or collecting payments
on the
Mortgage Loans or any other assets of the Trust Fund by an entity that meets
the
definition of “servicer” set forth in Item 1101 of Regulation AB. For
clarification purposes, any uncapitalized occurrence of this term shall have
the
meaning commonly understood by participants in the residential mortgage-backed
securitization market.
Servicing
Advances:
Expenditures incurred by a Servicer in connection with the liquidation or
foreclosure of a Mortgage Loan which are eligible for reimbursement under
the
related Servicing Agreement.
Servicing
Agreement:
Each
servicing agreement or reconstituted servicing agreement between each Servicer
and the Seller and acknowledged by the Trustee dated as of January 1, 2007,
identified on Exhibit E hereto, and any other servicing agreement entered
into
between a successor servicer and the Seller or the Trustee pursuant to the
terms
hereof.
Servicing
Criteria:
The
criteria set forth in paragraph (d) of Item 1122 of Regulation AB, as such
may
be amended from time to time.
Servicing
Fee:
As to
any Distribution Date and each Mortgage Loan, an amount equal to the product
of
(a) one-twelfth of the Servicing Fee Rate and (b) the outstanding principal
balance of such Mortgage Loan as of the first day of the month preceding
the
month of such Distribution Date.
Servicing
Fee Rate:
With
respect to each Mortgage Loan, the rate specified in the applicable Servicing
Agreement.
Servicing
Function Participant:
Any
Subservicer, Subcontractor or any other Person, other than a Servicer, each
Custodian, the Master Servicer, the Paying Agent and the Trustee, that is
participating in the servicing function within the meaning of Regulation
AB,
unless such Person’s activities relate only to 5% or less of the Mortgage
Loans.
Servicing
Officer:
Any
officer of the Master Servicer involved in or responsible for the administration
and servicing or master servicing of the Mortgage Loans whose name appears
on a
list of servicing officers furnished by the Master Servicer to the Trustee
and
the Custodian, as such list may from time to time be amended.
40
Shift
Percentage:
With
respect to each Distribution Date occurring during the five years beginning
on
the first Distribution Date, 0%. With respect to each Distribution Date
occurring on or after the fifth anniversary of the first Distribution Date,
the
following percentage for such Distribution Date; 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%; and for any
subsequent Distribution Date, 100%.
Special
Hazard Loss:
With
respect to the Mortgage Loans, (x) any Realized Loss arising out of any direct
physical loss or damage to a Mortgaged Property which is caused by or results
from any cause, exclusive of any loss covered by a hazard policy or a flood
insurance policy required to be maintained in respect of such Mortgaged Property
and any loss caused by or resulting from (i) normal wear and tear, (ii)
conversion or other dishonest act on the part of the Trustee, the Master
Servicer, any Servicer or any of their agents or employees, or (iii) errors
in
design, faulty workmanship or faulty materials, unless the collapse of the
property or a part thereof ensues, or (y) any Realized Loss arising from
or
related to the presence or suspected presence of hazardous wastes, or hazardous
substances on a Mortgaged Property unless such loss is covered by a hazard
policy or flood insurance policy required to be maintained in respect of
such
Mortgaged Property, in any case, as reported by any Servicer to the Master
Servicer.
Special
Hazard Loss Limit:
As of
the Cut-off Date, initially, $5,520,938, which amount shall be reduced from
time
to time to an amount equal on any Distribution Date to the lesser of (a)
the
greatest of (i) 1.00% of the aggregate of the Scheduled Principal Balances
of
the Mortgage Loans; (ii) twice the Scheduled Principal Balance of the Mortgage
Loan having the highest Scheduled Principal Balance, and (iii) the aggregate
Scheduled Principal Balances of the Mortgage Loans secured by Mortgaged
Properties located in the single California postal zip code area having the
highest aggregate Scheduled Principal Balance of Mortgage Loans of any such
postal zip code area and (b) the Special Hazard Loss Limit as of the Closing
Date less the amount, if any, of Special Hazard Losses incurred with respect
to
the Mortgage Loans since the Closing Date.
Specified
Rating:
Not
applicable.
Startup
Day:
The day
designated as such pursuant to Section 10.01(b) hereof.
Subcontractor:
Any
vendor, subcontractor or other Person that is not responsible for the overall
servicing (as “servicing” is commonly understood by participants in the
mortgage-backed securities market) of the Mortgage Loans but performs one
or
more discrete material functions required to be performed under this Agreement,
each Custodial Agreement, each Servicing Agreement or any subservicing
agreement, as identified in Item 1122(d) of Regulation AB with respect to
the
Mortgage Loans under the direction or authority of the Trustee,
the Master Servicer, a Custodian or a Servicer.
Subgroups:
Each of
the subgroupings of Mortgage Loans described below:
“Subgroup
1-A”:
The
Mortgage Loans in Pool 1 with Net Mortgage Rates of greater than or equal
to
5.75% and less than 7.00%.
41
“Subgroup
1-B”:
The
Mortgage Loans in Pool 1 with Net Mortgage Loans of greater than or equal
to
7.00% and less than or equal to 7.50%
“Subgroup
2-A”:
The
Mortgage Loans in Pool 2 with Net Mortgage Rates of greater than or equal
to
5.75% and less than 7.00%.
“Subgroup
2-B”:
The
Mortgage Loans in Pool 2 with Net Mortgage Loans of greater than or equal
to
7.00% and less than or equal to 7.50%.
“Subgroup
3-A”:
The
Mortgage Loans in Pool 3 with Net Mortgage Rates of greater than or equal
to
5.75% and less than or equal to 7.00%.
Subordinate
Certificates:
Any of
the Class Class B1, Class B2, Class BIO1, Class B3, Class B4, Class BIO2,
Class
B5, Class B6, Class B7, Class B8 or Class B9 Certificates.
Subordinate
Certificate Writedown Amount:
As to
any Distribution Date, the amount by which (i) the sum of the Class Principal
Amounts of the Senior Certificates (after giving effect to the distribution
of
principal and the application of Realized Losses in reduction of the Certificate
Principal Amounts of such Certificates on such Distribution Date) exceeds
(ii)
the aggregate Scheduled Principal Balance of the Mortgage Loans such
Distribution Date.
Subordinate
Class Percentage:
With
respect to any Distribution Date and any Class of Subordinate Certificates,
the
percentage obtained by dividing the Class Principal Amount of such Class
immediately prior to such Distribution Date by the aggregate Certificate
Principal Amount of all Subordinate Certificates immediately prior to such
Distribution Date.
Subordinate
Percentage:
With
respect to each Collateral Group and any Distribution Date, the difference
between 100% and the related Senior Percentage for such Distribution
Date.
Subordinate
Prepayment Percentage:
With
respect to each Collateral Group and any Distribution Date, the difference
between 100% and the related Senior Prepayment Percentage for such Distribution
Date.
Subordinate
Principal Distribution Amount:
For any
Collateral Group and any Distribution Date, the sum of the
following:
(i) the
product of (a) the related Subordinate Percentage for such date and (b) the
principal portion (multiplied by the related Applicable Fraction) of each
Scheduled Payment (without giving effect to any Debt Service Reduction occurring
prior to the applicable Bankruptcy Coverage Termination Date) on each Mortgage
Loan in the related Collateral Group due during the related Due
Period;
(ii) the
product of (a) the related Subordinate Prepayment Percentage for such date
and
(b) each of the following amounts (multiplied by the related Applicable
Fraction): (1) each Principal Prepayment on the Mortgage Loans in the related
Collateral Group collected during the related Prepayment Period, (2) each
other
unscheduled collection, including any Subsequent Recovery, Insurance Proceeds
and Net Liquidation Proceeds (other than with respect to any Mortgage Loan
in
the related Collateral Group that was finally liquidated during the related
Prepayment Period) representing or allocable to recoveries of principal received
during the related Prepayment Period, and (3) the principal portion of all
proceeds of the purchase of any Mortgage Loan in the related Collateral Group
(or, in the case of a permitted substitution, amounts representing a principal
adjustment) actually received by the Trustee during the related Prepayment
Period;
42
(iii) with
respect to unscheduled recoveries allocable to principal of any Mortgage
Loan in
the related Collateral Group that was finally liquidated during the related
Prepayment Period, the related net Liquidation Proceeds allocable to principal
(multiplied by the related Applicable Fraction) less any related amount paid
pursuant to subsection (iii) of the definition of Senior Principal Distribution
Amount for the related Mortgage Pool; and
(iv) any
amounts described in clauses (i) through (iii) for any previous Distribution
Date that remain unpaid.
Subsequent
Recovery:
The
amount, if any, recovered by the related Servicer or the Master Servicer
with
respect to a Liquidated Mortgage Loan with respect to which a Realized Loss
has
been incurred after liquidation and disposition of such Mortgage
Loan.
Subservicer:
Any
Person that (i) is considered to be a Servicing Function Participant, (ii)
services Mortgage Loans on behalf of any Servicer or Additional Servicer,
and
(iii) is responsible for the performance (whether directly or through
subservicers or Subcontractors) of Servicing functions required to be performed
under this Agreement, any related Servicing Agreement or any subservicing
agreement that are identified in Item 1122(d) of Regulation AB.
Substitution
Amount:
The
amount, if any, by which the Scheduled Principal Balance of a Deleted Mortgage
Loan exceeds the Scheduled Principal Balance of the related Qualifying
Substitute Mortgage Loan, or aggregate Scheduled Principal Balance, if
applicable, plus
unpaid
interest thereon at the applicable Net Mortgage Rate from the date on which
interest was first paid through the end of the Due Period in which such
substitution occurs, and any related unpaid Advances or Servicing Advances
or
unpaid Servicing Fees, and the amount of any costs and damages incurred by
the
Trustee or the Trust Fund associated with a violation of any applicable federal,
state or local predatory or abusive lending law in connection with the
origination of such Deleted Mortgage Loan.
Supplemental
Interest Trust:
None.
Tax
Matters Person:
The
“tax matters person” as specified in the REMIC Provisions.
Telerate
Page 3750:
The
display currently so designated as “Page 3750” on the Reuters Telerate Service
(or such other page selected by the Trustee as may replace Page 3750 on that
service for the purpose of displaying daily comparable rates on
prices).
Termination
Price:
As
defined in Section 7.01 hereof.
43
Title
Insurance Policy:
A title
insurance policy maintained with respect to a Mortgage Loan.
Transfer
Agreement:
As
defined in the Mortgage Loan Sale Agreement.
Transferor:
Each
seller of Mortgage Loans to LBB or the Seller pursuant to a Transfer
Agreement.
Trust
Fund:
The
corpus of the Xxxxxx Mortgage Trust 2007-1 created pursuant to this Agreement,
consisting of the Mortgage Loans (other than any Retained Interest), the
assignment of the Depositor’s rights under the Mortgage Loan Sale Agreement,
such amounts as shall from time to time be held in the Collection Account,
the
Certificate Account, any Escrow Account, the Insurance Policies, any REO
Property and the other items referred to in, and conveyed to the Trustee
under,
Section 2.01(a).
Trust
Fund Termination Event:
As
defined in Section 7.01(a).
Trustee:
Xxxxx
Fargo Bank, N.A., not in its individual capacity but solely as Trustee, or
any
successor in interest, 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.
UCC:
The
Uniform Commercial Code as adopted in the State of New York.
Undercollateralization
Distribution:
As
defined in Section 5.02(i).
Undercollateralized
Class or Classes:
With
respect to any Distribution Date and any Class of Senior Certificates (other
than any related Notional Certificates) relating to a Collateral Group as
to
which the total Certificate Principal Amount thereof, after giving effect
to
distributions pursuant to Sections 5.02(a) and (b) on such date, is greater
than
the Pool Balance of the related Collateral Group for such Distribution
Date.
Underlying
REMIC Certificates:
The
following Classes of Certificates, issued hereunder in uncertificated form
to
the Exchange Trustee: Class 2-A2, Class 2-A3, Class 2-A4, Class 2-A6, Class
2-A7, Class 2-A8, Class 2-A9, Class 2-A10, Class 2-A11, Class 3-A3, Class
3-A4,
Class 3-A5 and Class 3-A6.
Underwriter:
Xxxxxx
Brothers Inc.
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.
Unscheduled
Principal Amount:
With
respect to each Distribution Date and any Collateral Group, the amount described
in clauses (ii) and (iii) (without application of the related Senior Prepayment
Percentage) of the definition of Senior Principal Distribution Amount with
respect to such Collateral Group.
44
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 until the Class Notional Amount of
each
Class of Notional Certificates has been reduced to zero, 95.00% of all Voting
Interests shall be allocated to the Certificates other than the Notional
Certificates. After the Class Notional Amount of each Class of Notional
Certificate has been reduced to zero, 100% of all Voting Interests shall
be
allocated to the remaining Classes of Certificates. Voting Interests allocated
to the Notional Certificates shall be allocated among the Certificates of
each
such Class in proportion to their Notional Amounts. Voting Interests shall
be
allocated among the other Classes of Certificates (and among the Certificates
of
each such Class) in proportion to their Class Principal Amounts (or Certificate
Principal Amounts). Voting Interests allocated to a Class of Exchange
Certificates shall be proportionately allocated to the related Class or Classes
of Exchangeable Certificates on the basis of the related exchange proportions.
In the case of the purchase by the Master Servicer of the Lower Tier REMIC
I
Uncertificated Regular Interests pursuant to a Section 7.01(c) Purchase Event,
the LTURI holder shall be allocated 100% of the Voting Interests and upon
such
purchase any provisions in this Agreement which require a vote by, a direction
or notice given by, an action taken by, a request in writing by or the consent
of, any percentage of the Holders of the Certificates or any Class of
Certificates may be exercised by the LTURI holder.
WAC:
Shall
have the same meaning as “Average Rate.”
Section
1.02. Calculations
Respecting Mortgage Loans.
Calculations
required to be made pursuant to this Agreement with respect to any Mortgage
Loan
in the Trust Fund shall be made based upon current information as to the
terms
of the Mortgage Loans and reports of payments received from the Mortgagor
on
such Mortgage Loans and payments to be made to the Trustee as supplied to
the
Trustee by the Master Servicer. The Trustee shall not be required to recompute,
verify or recalculate the information supplied to it by the Master
Servicer.
45
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, 2.04, 2.05 and 2.06, in trust,
all
the right, title and interest of the Depositor in and to the Mortgage Loans.
Such conveyance includes, without limitation, the right to all distributions
of
principal and interest received on or with respect to the Mortgage Loans
on and
after the Cut-off Date (other than payments of principal and interest 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, together with all of the Depositor’s right, title and interest in and to
the Collection Account and all amounts from time to time credited to and
the
proceeds of the Collection Account, the Certificate Account and all amounts
from
time to time credited to and the proceeds of the Certificate Account, any
Escrow
Account established pursuant to Section 9.06 hereof and all amounts from
time to
time credited to and the proceeds of any such Escrow Account, any REO Property
and the proceeds thereof, the Depositor’s rights under any Insurance Policies
related to the Mortgage Loans, and the Depositor’s security interest in any
collateral pledged to secure the Mortgage Loans, including the Mortgaged
Properties and any Additional Collateral, and any proceeds of the foregoing,
to
have and to hold, in trust; and the Trustee declares that, subject to the
review
provided for in Section 2.02, it (or a Custodian on its behalf) 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.
Concurrently
with the execution and delivery of this Agreement, the Depositor does hereby
assign to the Trustee all of its rights and interest under the Mortgage Loan
Sale Agreement including all rights of the Seller under the Servicing Agreements
and Transfer Agreements (other than first payment date default or early payment
date default rights against the related Transferor) to the extent assigned
under
such Mortgage Loan Sale Agreement or the Assignment Agreement (as applicable).
The Trustee hereby accepts such assignment, and shall be entitled to exercise
all rights of the Depositor under the Mortgage Loan Sale Agreement as if,
for
such purpose, it were the Depositor. The foregoing sale, transfer, assignment,
set-over, deposit and conveyance does not and is not intended to result in
creation or assumption by the Trustee of any obligation of the Depositor,
the
Seller, or any other Person in connection with the Mortgage Loans or any
other
agreement or instrument relating thereto except as specifically set forth
herein.
46
It
is
agreed and understood by the Depositor and the Trustee (and the Depositor
has so
represented and recognized in the Mortgage Loan Sale Agreement) that it is
not
intended that any Mortgage Loan to be included in the Trust Fund be a (i)
“High-Cost Home Loan” as defined in the New Jersey Home Ownership Act effective
November 27, 2003; (ii) “High-Cost Home Loan” as defined in the New Mexico Home
Loan Protection Act effective January 1, 2004; (iii) “High-Cost Home Mortgage
Loans” as defined in the Massachusetts Predatory Home Loan Practices Act
effective November 7, 2004 and (iv) “High Cost Home Loans” as defined in the
Indiana Home Loan Practices Act effective January 1, 2005.
(b) In
connection with such transfer and assignment, the Depositor does hereby deliver
and deposit with, or cause to be delivered to and deposited with, the Trustee,
and/or any Custodian acting on the Trustee’s behalf, if applicable, the
following documents or instruments with respect to each Mortgage Loan (each
a
“Mortgage File”) so transferred and assigned:
(i) with
respect to each Mortgage Loan, the original Mortgage Note endorsed without
recourse in proper form to the order of the Trustee, as shown in Exhibit
B-4, or
in blank (in each case, with all necessary intervening endorsements as
applicable);
(ii) the
original of any guarantee, security agreement or pledge agreement executed
in
connection with the Mortgage Note, assigned to the Trustee;
(iii) with
respect to each Mortgage Loan other than a Cooperative Loan, the original
recorded Mortgage with evidence of recording indicated thereon and the original
recorded power of attorney, if the Mortgage was executed pursuant to a power
of
attorney, with evidence of recording thereon or, if such Mortgage or power
of
attorney has been submitted for recording but has not been returned from
the
applicable public recording office, has been lost or is not otherwise available,
a copy of such Mortgage or power of attorney, as the case may be, certified to
be true and complete copy of the original submitted for recording. If, in
connection with any Mortgage Loan, the Depositor cannot deliver the Mortgage
with evidence of recording thereon on or prior to the Closing Date because
of a
delay caused by the public recording office where such Mortgage has been
delivered for recordation or because such Mortgage has been lost, the Depositor
shall deliver or cause to be delivered to the Trustee (or the applicable
Custodian), in the case of a delay due to recording, a true copy of such
Mortgage, pending delivery of the original thereof, together with an Officer’s
Certificate of the Depositor certifying that the copy of such Mortgage delivered
to the Trustee (or the applicable Custodian) is a true copy and that the
original of such Mortgage has been forwarded to the public recording office,
or,
in the case of a Mortgage that has been lost, a copy thereof (certified as
provided for under the laws of the appropriate jurisdiction) and a written
Opinion of Counsel acceptable to the Trustee and the Depositor that an original
recorded Mortgage is not required to enforce the Trustee’s interest in the
Mortgage Loan;
(iv) the
original of each assumption, modification or substitution agreement, if any,
relating to the Mortgage Loans, or, as to any assumption, modification or
substitution agreement which cannot be delivered on or prior to the Closing
Date
because of a delay caused by the public recording office where such assumption,
modification or substitution agreement has been delivered for recordation,
a
photocopy of such assumption, modification or substitution agreement, pending
delivery of the original thereof, together with an Officer’s Certificate of the
Depositor certifying that the copy of such assumption, modification or
substitution agreement delivered to the Trustee (or the applicable Custodian)
is
a true copy and that the original of such agreement has been forwarded to
the
public recording office;
47
(v) with
respect to each Non-MERS Mortgage Loan other than a Cooperative Loan, an
original Assignment of Mortgage, in form and substance acceptable for recording.
The Mortgage shall be assigned either (A) in blank, without recourse or (B)
to
“Xxxxx Fargo Bank, N.A., as Trustee of the Xxxxxx Mortgage Trust 2007-1,”
without recourse;
(vi) if
applicable, such original intervening assignments of the Mortgage, notice
of
transfer or equivalent instrument (each, an “Intervening Assignment”), as may be
necessary to show a complete chain of assignment from the originator, or,
in the
case of an Intervening Assignment that has been lost, a written Opinion of
Counsel acceptable to the Depositor that such original Intervening Assignment
is
not required to enforce the Trustee’s interest in the Mortgage
Loans;
(vii) the
original Primary Mortgage Insurance Policy or certificate, if private mortgage
guaranty insurance is required;
(viii) with
respect to each Mortgage Loan other than a Cooperative Loan, the original
mortgagee title insurance policy or attorney’s opinion of title and abstract of
title;
(ix) the
original of any security agreement, chattel mortgage or equivalent executed
in
connection with the Mortgage or as to any security agreement, chattel mortgage
or their equivalent that cannot be delivered on or prior to the Closing Date
because of a delay caused by the public recording office where such document
has
been delivered for recordation, a photocopy of such document, pending delivery
of the original thereof, together with an Officer’s Certificate of the Depositor
certifying that the copy of such security agreement, chattel mortgage or
their
equivalent delivered to the Trustee (or the applicable Custodian) is a true
copy
and that the original of such document has been forwarded to the public
recording office;
(x) with
respect to any Cooperative Loan, the Cooperative Loan Documents;
(xi) in
connection with any pledge of Additional Collateral, the original additional
collateral pledge and security agreement executed in connection therewith,
assigned to the Trustee; and
(xii) with
respect to any manufactured housing contract, any related manufactured housing
sales contract, installment loan agreement or participation
interest.
The
parties hereto acknowledge and agree that the form of endorsement attached
hereto as Exhibit B-4 is intended to effect the transfer to the Trustee,
for the
benefit of the Certificateholders, of the Mortgage Notes and the
Mortgages.
48
(c) (1) Assignments
of Mortgage with respect to each Non-MERS Mortgage Loan other than a Cooperative
Loan shall be recorded; provided,
however,
that
such Assignments of Mortgage need not be recorded if, in the Opinion of Counsel
(which must be from Independent counsel) (which Opinion of Counsel may be
in the
form of a memorandum of law) acceptable to the Trustee and the Rating Agencies,
recording in such states is not required to protect the Trustee’s interest in
the related Non-MERS Mortgage Loans. Subject to the preceding sentence, as
soon
as practicable after the Closing Date (but in no event more than 3 months
thereafter except to the extent delays are caused by the applicable recording
office), the Trustee, at the expense of the Depositor and with the cooperation
of the applicable Servicer, shall cause to be properly recorded by such Servicer
in each public recording office where the related Mortgages are recorded
each
Assignment of Mortgage referred to in subsection (b)(v) above with respect
to
each Non-MERS Mortgage Loan. With respect to each Cooperative Loan, the Trustee,
at the expense of the Depositor and with the cooperation of the applicable
Servicer, shall cause such Servicer to take such actions as are necessary
under
applicable law in order to perfect the interest of the Trustee in the related
Mortgaged Property.
(ii) With
respect to each MERS Mortgage Loan, the applicable Servicer, at the expense
of
the Depositor and with the cooperation of the Trustee, shall take such actions
as are necessary to cause the Trustee to be clearly identified as the owner
of
each such Mortgage Loan on the records of MERS for purposes of the system
of
recording transfers of beneficial ownership of mortgages maintained by
MERS.
(d) In
instances where a Title Insurance Policy is required to be delivered to the
Trustee, or to the applicable Custodian on behalf of the Trustee, under clause
(b)(viii) above and is not so delivered, the Depositor will provide a copy
of
such Title Insurance Policy to the Trustee, or 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.
(e) 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 to the Trustee, or to the applicable Custodian
on
behalf of the Trustee, 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 applicable Collection Account pursuant
to
Section 4.01 have been so deposited. All original documents that are not
delivered to the Trustee or the applicable Custodian on behalf of the Trustee
shall be held by a Servicer in trust for the benefit of the Trustee and the
Certificateholders.
(f) The
Depositor shall have the right to receive any and all loan-level information
regarding the characteristics and performance of the Mortgage Loans upon
request, and to publish, disseminate or otherwise utilize such information
in
its discretion, subject to applicable laws and regulations.
49
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 or
a
Custodian on behalf of the Trustee, of the Mortgage Files pertaining to the
Mortgage Loans listed on the Mortgage Loan Schedule, subject to review thereof
by the Trustee, or by the applicable Custodian on behalf of the Trustee,
under
this Section 2.02. The Trustee, or the applicable Custodian on behalf of
the
Trustee, will execute and deliver to the Trustee, the Depositor, the Servicers
and the Master Servicer on the Closing Date an Initial Certification in the
form
annexed hereto as Exhibit B-1 (or in the form annexed to the applicable
Custodial Agreement as Exhibit B-1, as applicable.
(b) Within
45
days after the Closing Date, the Trustee or the applicable Custodian will,
on
behalf of the Trustee and for the benefit of Holders of the Certificates,
review
each Mortgage File to ascertain that all required documents set forth in
Section
2.01 have been received and appear on their face to contain the requisite
signatures by or on behalf of the respective parties thereto, and shall deliver
to the Trustee, the Depositor, the Servicers and the Master Servicer an Interim
Certification in the form annexed hereto as Exhibit B-2 (or in the form annexed
to the applicable Custodial Agreement as Exhibit B-2, as applicable to the
effect that, as to each Mortgage Loan listed in the Mortgage Loan Schedule
(other than any Mortgage Loan prepaid in full or any Mortgage Loan specifically
identified in such certification as not covered by such certification), (i)
all
of the applicable documents specified in Section 2.01(b) are in its possession
and (ii) such documents have been reviewed by it and appear to relate to
such
Mortgage Loan. The Trustee, or the applicable Custodian on behalf of the
Trustee, shall make sure that the documents are executed and endorsed, but
shall
be under no duty or obligation to inspect, review or examine any such documents,
instruments, certificates or other papers to determine that the same are
valid,
binding, legally effective, properly endorsed, genuine, enforceable or
appropriate for the represented purpose or that they have actually been recorded
or are in recordable form or that they are other than what they purport to
be on
their face. Neither the Trustee nor any Custodian shall have any responsibility
for verifying the genuineness or the legal effectiveness of or authority
for any
signatures of or on behalf of any party or endorser.
(c) If
in the
course of the review described in paragraph (b) above the Trustee or the
applicable Custodian discovers any document or documents constituting a part
of
a Mortgage File that is missing, does not appear regular on its face (i.e.,
is
mutilated, damaged, defaced, torn or otherwise physically altered) or appears
to
be unrelated to the Mortgage Loans identified in the Mortgage Loan Schedule
(each, a “Material Defect”), the Trustee, or the applicable Custodian on behalf
of the Trustee, shall promptly identify the Mortgage Loan to which such Material
Defect relates in the Interim Certification delivered to the Depositor, the
Master Servicer and the Trustee. Within 90 days of its receipt of such notice,
the Transferor, or if the Transferor does not do so, the Depositor shall
be
required to cure such Material Defect (and, in such event, the Depositor
shall
provide the Trustee with an Officer’s Certificate confirming that such cure has
been effected). If the applicable Transferor or the Depositor, as applicable,
does not so cure such Material Defect, it shall, if a loss has been incurred
with respect to such Mortgage Loan that would, if such Mortgage Loan were
not
purchased from the Trust Fund, constitute a Realized Loss, and such loss
is
attributable to the failure of the applicable Transferor or the Depositor
to
cure such Material Defect, repurchase the related Mortgage Loan from the
Trust
Fund at the Purchase Price. A loss shall be deemed to be attributable to
the
failure of the applicable Transferor or the Depositor to cure a Material
Defect
if, as determined by the Depositor, upon mutual agreement with the Master
Servicer acting in good faith, absent such Material Defect, such loss would
not
have been incurred. Within the two-year period following the Closing Date,
the
Depositor may, in lieu of repurchasing a Mortgage Loan pursuant to this Section
2.02, substitute for such Mortgage Loan a Qualifying Substitute Mortgage
Loan
subject to the provisions of Section 2.05. The failure of the Trustee or
the
applicable Custodian to give the notice contemplated herein within 45 days
after
the Closing Date shall not affect or relieve the Depositor of its obligation
to
repurchase any Mortgage Loan pursuant to this Section 2.02 or any other Section
of this Agreement requiring the repurchase of Mortgage Loans from the Trust
Fund.
50
(d) Within
180 days following the Closing Date, the Trustee, or the applicable Custodian,
shall deliver to the Trustee, the Depositor, the Servicers and the Master
Servicer a Final Certification substantially in the form annexed hereto as
Exhibit B-3 (or in the form annexed to the applicable Custodial Agreement
as
Exhibit B-3, as applicable evidencing the completeness of the Mortgage Files
in
its possession or control, with any exceptions noted thereto.
(e) Nothing
in this Agreement shall be construed to constitute an assumption by the Trust
Fund, the Trustee or the Certificateholders of any unsatisfied duty, claim
or
other liability on any Mortgage Loan or to any Mortgagor.
(f) Each
of
the parties hereto acknowledges that each Custodian shall perform the applicable
review of the Mortgage Loans covered by its Custodial Agreement and deliver
the
respective certifications thereof as provided in this Section 2.02.
(g) Notwithstanding
anything to the contrary contained herein, the parties hereto acknowledge
that
the functions of the Trustee with respect to the custody, acceptance, inspection
and release of Mortgage Files, including but not limited to certain insurance
policies and documents contemplated by this Agreement or the Servicing
Agreement(s), and preparation and delivery of the certifications shall be
performed by the Custodians pursuant to the terms and conditions of the
Custodial Agreements.
(h) The
Trustee, solely in its capacity as Trustee, is hereby authorized and directed
by
the Depositor to execute and deliver, concurrently with the execution of
this
Agreement, the Custodial Agreements and Servicing Agreements.
Section
2.03. Representations
and Warranties of the Depositor.
(a) The
Depositor hereby represents and warrants to the Trustee, for the benefit
of
Certificateholders, and to the Master Servicer, as of the Closing Date or
such
other date as is specified, that:
51
(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;
(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 and the Master
Servicer, 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; and
(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.
52
(b) The
representations and warranties of each Transferor with respect to the related
Mortgage Loans in the applicable Transfer Agreement, which have been assigned
to
the Trustee hereunder, were made as of the date specified in the applicable
Transfer Agreement (or underlying agreement, if such Transfer Agreement is
in
the form of an assignment of a prior agreement). To the extent that any fact,
condition or event with respect to a Mortgage Loan constitutes a breach of
both
(i) a representation or warranty of the applicable Transferor under the
applicable Transfer Agreement and (ii) a representation or warranty of LBH
under
the Mortgage Loan Sale Agreement, the only right or remedy of the Trustee
or of
any Certificateholder shall be the Trustee’s right to enforce the obligations of
the applicable Transferor under any applicable representation or warranty
made
by it. The Trustee acknowledges that LBH shall have no obligation or liability
with respect to any breach of a representation or warranty made by it with
respect to the Mortgage Loans if the fact, condition or event constituting
such
breach also constitutes a breach of a representation or warranty made by
the
applicable Transferor in the applicable Transfer Agreement, without regard
to
whether such Transferor fulfills its contractual obligations in respect of
such
representation or warranty. The Trustee further acknowledges that the Depositor
shall have no obligation or liability with respect to any breach of any
representation or warranty with respect to the Mortgage Loans (except as
set
forth in Section 2.03(a)(vi)) under any circumstances.
Section
2.04. Discovery
of Breach.
It
is
understood and agreed that the representations and warranties (i) of the
Depositor set forth in Section 2.03 hereof, (ii) of LBH set forth in the
Mortgage Loan Sale Agreement and assigned to the Trustee by the Depositor
hereunder and (iii) of each Transferor, assigned by LBH to the Depositor
pursuant to the Mortgage Loan Sale Agreement and assigned to the Trustee
by the
Depositor hereunder, shall each survive delivery of the Mortgage Files and
the
Assignment of Mortgage of each Mortgage Loan to the Trustee and shall continue
throughout the term of this Agreement. Upon discovery by any of the Depositor,
the Master Servicer or the Trustee of a breach of any of such representations
and warranties that adversely and materially affects the value of the related
Mortgage Loan, the party discovering such breach shall give prompt written
notice to the other parties; provided, to the extent that knowledge of such
breach with respect to any Mortgage Loan is known by any officer, director,
employee or agent of Aurora Loan Services LLC acting in any capacity other
than
as Master Servicer hereunder, the Master Servicer shall not be deemed to
have
knowledge of any such breach until an officer of the Master Servicer has
actual
knowledge thereof. Within 90 days of the discovery of a breach of any
representation or warranty given to the Trustee by the Depositor, any Transferor
or LBH and assigned to the Trustee hereunder, the Depositor, such Transferor
or
LBH shall either (a) cure such breach in all material respects, (b) repurchase
such Mortgage Loan or any property acquired in respect thereof from the Trustee
at the Purchase Price (or in the case of a First Payment Default Mortgage
Loan,
the FPD Purchase Price) or (c) within the two year period following the Closing
Date, substitute a Qualifying Substitute Mortgage Loan for the affected Mortgage
Loan. In the event of the discovery of a breach of any representation and
warranty of any Transferor assigned to the Trustee, the Trustee shall enforce
its rights under the applicable Transfer Agreement and the Mortgage Loan
Sale
Agreement for the benefit of the Certificateholders. As provided in the Mortgage
Loan Sale Agreement, if any Transferor substitutes for a Mortgage Loan for
which
there is a breach of any representations and warranties in the related Transfer
Agreement which adversely and materially affects the value of such Mortgage
Loan
and such substitute mortgage loan is not a Qualifying Substitute Mortgage
Loan,
under the terms of the Mortgage Loan Sale Agreement, LBH will, in exchange
for
such Substitute Mortgage Loan, either (i) provide the applicable Purchase
Price for the affected Mortgage Loan or (ii) within two years of the
Closing Date, substitute such affected Mortgage Loan with a Qualifying
Substitute Mortgage Loan.
53
Section
2.05. Repurchase,
Purchase or Substitution of Mortgage Loans.
(a) With
respect to any Mortgage Loan repurchased by the Depositor pursuant to this
Agreement by LBH pursuant to the Mortgage Loan Sale Agreement or by any
Transferor pursuant to the applicable Transfer Agreement, the principal portion
of the funds (including the FPD Purchase Price in the case of any First Payment
Default Mortgage Loan) received by the Trustee in respect of such repurchase
of
a Mortgage Loan will be considered a Principal Prepayment and the Purchase
Price
or FPD Purchase Price, as applicable, shall be deposited in the Certificate
Account. The Trustee, upon receipt by LBH or a Transferor of the full amount
of
the Purchase Price for a Deleted Mortgage Loan, or upon its receipt of
notification from the applicable Custodian that it has received the Mortgage
File for a Qualifying Substitute Mortgage Loan substituted for a Deleted
Mortgage Loan (and any applicable Substitution Amount), shall release or
cause
to be released and reassigned to the Depositor, LBH or the applicable
Transferor, as applicable, the related Mortgage File for the Deleted Mortgage
Loan and shall execute and deliver such instruments of transfer or assignment,
in each case without recourse, representation or warranty, as shall be necessary
to vest in such party or its designee or assignee title to any Deleted Mortgage
Loan released pursuant hereto, free and clear of all security interests,
liens
and other encumbrances created by this Agreement, which instruments shall
be
prepared by the applicable Servicer or the Trustee (or the applicable
Custodian), and the Trustee shall have no further responsibility with respect
to
the Mortgage File relating to such Deleted Mortgage Loan. The Seller indemnifies
and holds the Trust Fund, the Trustee, the Depositor and each Certificateholder
harmless against any and all taxes, claims, losses, penalties, fines,
forfeitures, reasonable legal fees and related costs, judgments, and any
other
costs, fees and expenses that the Trust Fund, the Trustee, the Depositor
and any
Certificateholder may sustain in connection with any actions of the Seller
relating to a repurchase of a Mortgage Loan other than in compliance with
the
terms of this Section 2.05 and the Mortgage Loan Sale Agreement, to the extent
that any such action causes (i) any federal or state tax to be imposed on
the
Trust Fund, including without limitation, any federal tax imposed on “prohibited
transactions” under Section 860F(2) of the Code, or (ii) any REMIC created
hereunder to fail to qualify as a REMIC at any time that any Certificate
is
outstanding.
54
(b) With
respect to each Qualifying Substitute Mortgage Loan to be delivered to the
Trustee (or the applicable Custodian) pursuant to the terms of this Article
II
in exchange for a Deleted Mortgage Loan: (i) the Depositor, the applicable
Transferor or LBH must deliver to the Trustee (or the applicable Custodian)
the
Mortgage File for the Qualifying Substitute Mortgage Loan containing the
documents set forth in Section 2.01(b) along with a written certification
certifying as to the delivery of such Mortgage File and containing the granting
language set forth in Section 2.01(a); and (ii) the Depositor will be deemed
to
have made, with respect to such Qualifying Substitute Mortgage Loan, each
of the
representations and warranties made by it with respect to the related Deleted
Mortgage Loan. As soon as practicable after the delivery of any Qualifying
Substitute Mortgage Loan hereunder, the Master Servicer, at the expense of
the
Depositor and at the direction and with the cooperation of the applicable
Servicer, shall, with respect to a Qualifying Substitute Mortgage Loan that
is a
Non-MERS Mortgage Loan, cause the Assignment of Mortgage to be recorded by
such
Servicer if required pursuant to Section 2.01(c)(i), or such Servicer shall,
with respect to a Qualifying Substitute Mortgage Loan that is a MERS Mortgage
Loan, cause to be taken such actions as are necessary to cause the Trustee
to be
clearly identified as the owner of each such Mortgage Loan on the records
of
MERS if required pursuant to Section 2.01(c)(ii).
(c) Notwithstanding
any other provision of this Agreement, the right to substitute Mortgage Loans
pursuant to this Article II shall be subject to the additional limitations
that
no substitution of a Qualifying Substitute Mortgage Loan for a Deleted Mortgage
Loan shall be made unless the Trustee has received an Opinion of Counsel
(at the
expense of the party seeking to make the substitution) that, under current
law,
such substitution will not (A) affect adversely the status of any REMIC
established hereunder as a REMIC, or of the related “regular interests” as
“regular interests” in any such REMIC, or (B) cause any such REMIC to engage in
a prohibited transaction or prohibited contribution pursuant to the REMIC
Provisions.
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 to secure repayment of an
obligation in an amount equal to the aggregate Class Principal Amount of
the
Certificates (or the aggregate principal balance of the Lower tier REMIC
I
Uncertificated Regular Interests, if applicable) in all of the Depositor’s
right, title and interest in, to and under, 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 or Lower Tier REMIC
I
Uncertificated Regular Interests, as applicable; 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 or Lower Tier REMIC I Uncertificated Regular Interests, as
applicable, 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.
55
(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 the Seller, the Depositor or the Trustee, (2) any change of location
of the jurisdiction of organization of the Seller or the Depositor, (3) any
transfer of any interest of the Seller or the Depositor in any Mortgage Loan
or
(4) any change under the relevant UCC or other applicable laws. Neither the
Seller nor the Depositor shall organize under the law of any jurisdiction
other
than the State under which each is organized as of the Closing Date (whether
changing its jurisdiction of organization or organizing under an additional
jurisdiction) without giving 30 days prior written notice of such action
to its
transferee, including the Trustee. Before effecting such change, the Seller
or
the Depositor proposing to change its jurisdiction of organization shall
prepare
and file in the appropriate filing office any financing statements or other
statements necessary to continue the perfection of the interests of its
transferees, including the Trustee, in the Mortgage Loans. In connection
with
the transactions contemplated by this Agreement, each of the Seller and the
Depositor authorizes its transferee 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).
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 Principal
Amount or Notional Amount, as applicable, or in the Percentage Interests,
specified herein. Each Class of Book-Entry Certificates shall be issued in
the
minimum denominations in Certificate Principal Amount (or Notional Amount)
or
Percentage Interest specified in the Preliminary Statement hereto and in
integral multiples of $1 or 5% (in the case of Certificates issued in Percentage
Interests) in excess thereof. Each Class of Non-Book Entry Certificates other
than the Residual Certificate shall be issued in definitive, fully registered
form in the minimum denominations in Certificate Principal Amount (or Notional
Amount) specified in the Preliminary Statement hereto and in integral multiples
of $1 in excess thereof. The Residual Certificates shall each be issued as
a
single Certificate and maintained in definitive, fully registered form in
a
minimum denomination equal to 100% of the Percentage Interest of such Class.
The
Certificates may be issued in the form of typewritten certificates. One
Certificate of each Class of Certificates other than any Class of Residual
Certificates may be issued in any denomination in excess of the minimum
denomination.
56
(b) The
Certificates shall be executed by manual or facsimile signature on behalf
of the
Trustee by an authorized signatory. Each Certificate shall, on original issue,
be authenticated by the Trustee upon the order of the Depositor upon receipt
by
the Trustee (or the Custodian on its behalf) of the 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 signatory of the Trustee or the Authenticating
Agent,
if any, 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 the Depositor to the Trustee or the Authenticating Agent for
authentication and the Trustee or the Authenticating Agent shall authenticate
and deliver such Certificates as in this Agreement provided and not otherwise.
(c) The
Privately Offered Certificates offered and sold in reliance on the exemption
from registration under Rule 144A under the Securities Act shall be issued
initially in the form of one or more permanent global Certificates in
definitive, fully registered form without interest coupons with the applicable
legends set forth in Exhibit A added to the forms of such Certificates (each,
a
“Restricted Global Security”), which, in the case of the Privately Offered
Certificates, shall be deposited on behalf of the subscribers for such
Certificates represented thereby with the Trustee, as custodian for DTC and
registered in the name of a nominee of DTC, duly executed and authenticated
by
the Trustee as hereinafter provided. The aggregate principal amounts of the
Restricted Global Securities may from time to time be increased or decreased
by
adjustments made on the records of the Trustee or DTC or its nominee, as
the
case may be, as hereinafter provided.
The
Privately Offered Certificates sold in offshore transactions in reliance
on
Regulation S shall be issued initially in the form of one or more permanent
global Certificates in definitive, fully registered form without interest
coupons with the applicable legends set forth in Exhibit A hereto added to
the
forms of such Certificates (each, a “Regulation S Global Security”), which, in
the case of the Privately Offered Certificates, shall be deposited on behalf
of
the subscribers for such Certificates represented thereby with the Trustee,
as
custodian for DTC and registered in the name of a nominee of DTC, duly executed
and authenticated by the Trustee as hereinafter provided. The aggregate
principal amounts of the Regulation S Global Securities may from time to
time be
increased or decreased by adjustments made on the records of the Trustee
or DTC
or its nominee, as the case may be, as hereinafter provided.
57
The
Privately Offered Certificates sold to an “accredited investor” under Rule
501(a)(1), (2), (3) or (7) under the Act shall be issued initially in the
form
of one or more Definitive Certificates.
Section
3.02. Registration.
The
Trustee is hereby appointed, and hereby accepts its appointment as, Certificate
Registrar in respect of the Certificates (and, after a Section 7.01(c) Purchase
Event, the Lower Tier REMIC I Uncertificated Regular Interests, if applicable)
and shall maintain books for the registration and for the transfer of
Certificates (and, after a Section 7.01(c) Purchase Event, the Lower Tier
REMIC
I Uncertificated Regular Interests, if applicable) (the “Certificate Register”).
A registration book shall be maintained for the Certificates (and, after
a
Section 7.01(c) Purchase Event, the Lower Tier REMIC I Uncertificated Regular
Interests, if applicable) collectively. The Certificate Registrar may resign
or
be discharged or removed and a new successor may be appointed by the Trustee
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
Trustee
and the appointment of a successor Trustee. 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.
Upon
the
occurrence of a Section 7.01(c) Purchase Event, the Master Servicer shall
provide the Trustee with written notice of the identity of any transferee
of the
Master Servicer’s interest in the Lower Tier REMIC I Uncertificated Regular
Interests, which notice shall contain a certification that such transferee
is
permitted LTURI holder. The Lower Tier REMIC I Uncertificated Regular Interests
may only be transferred in whole and not in part to no more than one LTURI
holder at a time who is either (1) an affiliate of the Master Servicer or
(2) a
trustee of a privately placed securitization. The Trustee and the Depositor
shall treat the Person in whose name the Lower Tier REMIC I Uncertificated
Regular Interests are registered on the books of the Certificate Registrar
as
the LTURI holder for all purposes hereunder.
Section
3.03. Transfer
and Exchange of Certificates.
58
(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 Trustee shall execute, and the Trustee or
any
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 Principal Amount or Percentage Interest 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 Principal Amount or Percentage Interest 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 (except as provided in the Exchange Trust
Agreement), 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 Trustee shall execute, and the Trustee or the
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 or a Regulation S Global Security,
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. In addition, each Holder of a Regulation S Global Security
shall be deemed to have represented and warranted to the Trustee, the
Certificate Registrar and any of their respective successors that: (i) such
Person (A) if the offer or sale was made to it prior to the expiration of
the 40-day distribution compliance period within the meaning of Regulation
S, is
not a U.S. person within the meaning of Regulation S and (B) was, at the
time
the buy order was originated, outside the United States and (ii) such Person
understands that such Certificates have not been registered under the Securities
Act, and that (x) until the expiration of the 40-day distribution compliance
period (within the meaning of Regulation S), no offer, sale, pledge or other
transfer of such Certificates or any interest therein shall be made in the
United States or to or for the account or benefit of a U.S. person (each
as
defined in Regulation S), (y) if in the future it decides to offer, resell,
pledge or otherwise transfer such Certificates, such Certificates may be
offered, resold, pledged or otherwise transferred only (A) to a person which
the
seller reasonably believes is a “qualified institutional buyer” (a “QIB”) as
defined in Rule 144A under the Securities Act, that is purchasing such
Certificates for its own account or for the account of a qualified institutional
buyer to which notice is given that the transfer is being made in reliance
on
Rule 144A or (B) in an offshore transaction (as defined in Regulation S)
in
compliance with the provisions of Regulation S, in each case in compliance
with
the requirements of this Agreement; and it will notify such transferee of
the
transfer restrictions specified in this Section.
59
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, the Servicers or the Placement
Agent or to an affiliate (as defined in Rule 405 under the Securities Act)
of
the Depositor or the Placement Agent or (y) being made to a QIB by a transferor
that has provided the Trustee with a certificate in the form of Exhibit F
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 Securities Act by a transferor who
furnishes to the Trustee a letter of the transferee substantially in the
form of
Exhibit G 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
Trustee
has received (A) a certificate substantially in the form of Exhibit H hereto
(or
Exhibit D-1, in the case of a Residual Certificate) from such transferee
or (B)
an Opinion of Counsel reasonably satisfactory to the Trustee to the effect
that
the purchase and holding of such a Certificate will not constitute or result
in
prohibited transactions under Title I of ERISA or Section 4975 of the Code
and
will not subject the Trustee, the Master Servicer or the Depositor to any
obligation in addition to those undertaken in the Agreement; provided,
however,
that
the Trustee will not require such certificate or opinion in the event that,
as a
result of a change of law or otherwise, the Trustee receives an Opinion of
Counsel 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.
Each
Transferee of an ERISA-Restricted Certificate that is a Book-Entry Certificate
shall be deemed to have made the representations set forth in Exhibit H.
The
preparation and delivery of the certificate and opinions referred to above
shall
not be an expense of the Trust Fund, the Trustee, the Master Servicer or
the
Depositor.
Notwithstanding
the foregoing, no opinion or certificate shall be required for the initial
issuance of the ERISA-Restricted Certificates. The Trustee 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 Trustee 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) or for making any payments due on such Certificate to the Holder
thereof
or taking any other action with respect to such Holder under the provisions
of
this Agreement so long as the transfer was registered by the Trustee in
accordance with the foregoing requirements. 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 either such time. Any such
payments so recovered by the Trustee shall be paid and delivered by the Trustee
to the last preceding Holder of such Certificate that is not such a Plan
or
Person acting on behalf of a Plan.
60
(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 Certificate, except as provided in the Exchange Trust
Agreement.
(f) Notwithstanding
anything to the contrary contained herein, no Residual Certificate may be
owned,
pledged or transferred, directly or indirectly, by or to (i) a Disqualified
Organization or (ii) an individual, corporation or partnership or other person
unless such person is (A) not a Non-U.S. Person or (B) is a Non-U.S. Person
that
holds a Residual Certificate in connection with the conduct of a trade or
business within the United States and has furnished the transferor and the
Trustee 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 Trustee an affidavit in substantially the form attached hereto as Exhibit
D-1 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 an affidavit in substantially the form attached hereto as
Exhibit
D-2. In addition, the Trustee may (but shall have no obligation to) require,
prior to and as a condition of any such transfer, the delivery by the proposed
transferee of an Opinion of Counsel, addressed to the Depositor and the Trustee
satisfactory in form and substance to the Depositor, 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 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 Trustee shall
not be
under any liability to any person for any registration or transfer of a Residual
Certificate to a Disqualified Organization, agent or nominee thereof, or
Non-permitted Foreign Holder or for the maturity of 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 a
Responsible Officer of the Trustee 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, agent or nominee thereof, or Non-permitted Foreign
Holder. The Trustee 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 Trustee shall
be paid
and delivered to the last preceding Holder of such Residual
Certificate.
61
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 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 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), for 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 of a Residual Certificate, by such Holder’s acceptance thereof, shall be
deemed for all purposes to have consented to the provisions of this
section.
(h) Notwithstanding
any provision to the contrary herein, so long as a Global Security representing
any of the Privately Offered Certificates remains outstanding and is held
by or
on behalf of DTC, transfers of a Global Security representing any such
Certificates, in whole or in part, shall only be made in accordance with
Section
3.01 and this Section 3.03(h).
(A) Subject
to clauses (B) and (C) of this Section 3.03(h), transfers of a Global Security
representing any of the Privately Offered Certificates shall be limited to
transfers of such Global Security, in whole or in part, to nominees of DTC
or to
a successor of DTC or such successor’s nominee.
(B) Restricted
Global Security to Regulation S Global Security.
If a
holder of a beneficial interest in a Restricted Global Security deposited
with
or on behalf of DTC wishes at any time to exchange its interest in such
Restricted Global Security for an interest in a Regulation S Global Security,
or
to transfer its interest in such Restricted Global Security to a Person who
wishes to take delivery thereof in the form of an interest in a Regulation
S
Global Security, such holder, provided
such
holder is not a U.S. person, may, subject to the rules and procedures of
DTC,
exchange or cause the exchange of such interest for an equivalent beneficial
interest in the Regulation S Global Security. Upon receipt by the Trustee,
as
Certificate Registrar, of (I) instructions from DTC directing the Trustee,
as
Certificate Registrar, to cause to be credited a beneficial interest in a
Regulation S Global Security in an amount equal to the beneficial interest
in
such Restricted Global Security to be exchanged but not less than the minimum
denomination applicable to such holder’s Certificates held through a Regulation
S Global Security, (II) a written order given in accordance with DTC’s
procedures containing information regarding the participant account of DTC
and,
in the case of a transfer pursuant to and in accordance with Regulation S,
the
Euroclear or Clearstream account to be credited with such increase and (III)
a
certificate in the form of Exhibit N-1 hereto given by the holder of such
beneficial interest stating that the exchange or transfer of such interest
has
been made in compliance with the transfer restrictions applicable to the
Regulation S Global Securities, including that the holder is not a U.S. person,
and pursuant to and in accordance with Regulation S, the Trustee, as Certificate
Registrar, shall reduce the principal amount of the Restricted Global Security
and increase the principal amount of the Regulation S Global Security by
the
aggregate principal amount of the beneficial interest in the Restricted Global
Security to be exchanged, and shall instruct Euroclear or Clearstream, as
applicable, concurrently with such reduction, to credit or cause to be credited
to the account of the Person specified in such instructions a beneficial
interest in the Regulation S Global Security equal to the reduction in the
principal amount of the Restricted Global Security.
62
(C) Regulation
S Global Security to Restricted Global Security.
If a
holder of a beneficial interest in a Regulation S Global Security deposited
with
or on behalf of DTC wishes at any time to transfer its interest in such
Regulation S Global Security to a Person who wishes to take delivery thereof
in
the form of an interest in a Restricted Global Security, such holder may,
subject to the rules and procedures DTC, exchange or cause the exchange of
such
interest for an equivalent beneficial interest in a Restricted Global Security.
Upon receipt by the Trustee, as Certificate Registrar, of (I) instructions
from
DTC directing the Trustee, as Certificate Registrar, to cause to be credited
a
beneficial interest in a Restricted Global Security in an amount equal to
the
beneficial interest in such Regulation S Global Security to be exchanged
but not
less than the minimum denomination applicable to such holder’s Certificates held
through a Restricted Global Security, to be exchanged, such instructions
to
contain information regarding the participant account with DTC to be credited
with such increase, and (II) a certificate in the form of Exhibit N-2 hereto
given by the holder of such beneficial interest and stating, among other
things,
that the Person transferring such interest in such Regulation S Global Security
reasonably believes that the Person acquiring such interest in a Restricted
Global Security is a QIB, is obtaining such beneficial interest in a transaction
meeting the requirements of Rule 144A under the Securities Act and in accordance
with any applicable securities laws of any State of the United States or
any
other jurisdiction, then the Trustee, as Certificate Registrar, will reduce
the
principal amount of the Regulation S Global Security and increase the principal
amount of the Restricted Global Security by the aggregate principal amount
of
the beneficial interest in the Regulation S Global Security to be transferred
and the Trustee, as Certificate Registrar, shall instruct DTC, concurrently
with
such reduction, to credit or cause to be credited to the account of the Person
specified in such instructions a beneficial interest in the Restricted Global
Security equal to the reduction in the principal amount of the Regulation
S
Global Security.
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(D) Other
Exchanges.
In the
event that a Global Security is exchanged for Certificates in definitive
registered form without interest coupons, pursuant to Section 3.09(c) hereof,
such Certificates may be exchanged for one another only in accordance with
such
procedures as are substantially consistent with the provisions above (including
certification requirements intended to insure that such transfers comply
with
Rule 144A, comply with Rule 501(a)(1), (2), (3) or (7) or are to non-U.S.
persons in compliance with Regulation S under the Securities Act, as the
case
may be), and as may be from time to time adopted by the Trustee.
(E) Restrictions
on U.S. Transfers.
Transfers of interests in a Regulation S Global Security to U.S. persons
(as
defined in Regulation S) shall be limited to transfers made pursuant to the
provisions of Section 3.03(h)(C).
Section
3.04. Cancellation
of Certificates.
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 any
Authenticating Agent or (ii) the Trustee or any Authenticating Agent receives
evidence to its satisfaction of the destruction, loss or theft of any
Certificate, and there is delivered to the Trustee or the Authenticating
Agent
such security or indemnity as may be required by them to save each of them
harmless, then, in the absence of notice to the Trustee and any Authenticating
Agent that such destroyed, lost or stolen Certificate has been acquired by
a
bona
fide
purchaser, the Trustee shall execute and the Trustee or any 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 Principal Amount (or Notional Amount). Upon the issuance
of any new Certificate under this Section 3.05, the Trustee and Authenticating
Agent 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 or the Authenticating
Agent) 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.
64
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 Trustee, the Certificate Registrar and
any
agent of any of them may 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 Trustee, the Certificate Registrar 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
Trustee shall execute and shall authenticate and deliver temporary Certificates
that are printed, 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 Trustee without charge to the Holder. Upon surrender
for
cancellation of any one or more temporary Certificates, the Trustee shall
execute and authenticate and deliver in exchange therefor a like aggregate
Certificate Principal Amount 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
Trustee may appoint a Paying Agent (which may be the Trustee) for the purpose
of
making distributions to Certificateholders hereunder. The Trustee shall cause
such Paying Agent (if other than the Trustee) 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
Certificateholders in an Eligible Account, on behalf of the Trustee, in trust
for the benefit of the Certificateholders entitled thereto until such sums
shall
be paid to the Certificateholders. All funds remitted by the Trustee to any
such
Paying Agent for the purpose of making distributions shall be paid to
Certificateholders on each Distribution Date and any amounts not so paid
shall
be returned on such Distribution Date to the Trustee. If the Paying Agent
is not
the Trustee, the Trustee 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. As of the Closing
Date,
the Trustee is the Paying Agent.
65
At
any time during the period that a Form 10-K is being filed with respect to
the
Trust in accordance with the Exchange Act and the rules and regulations of
the
Commission, the Trustee shall not appoint a Paying Agent that is not the
Trustee
unless that Paying Agent first agrees in writing with the Trustee (i) to
deliver
an assessment of compliance and an accountant’s attestation in such manner and
at such times in compliance with Section 9.25(a) and 9.25(b) of this Agreement,
(ii) to comply with the provisions of Section 9.25(a), 9.25(b), 6.20(e)(i)
and
6.20(e)(iv)of this Agreement and (iii) to indemnify the Depositor and the
Master
Servicer, and their respective directors, officers, employees and agents
and the
Trust Fund and hold each of them harmless as set forth in Section 6.23. For
so
long as the Depositor is subject to Exchange Act reporting requirements with
respect to the Trust, the Paying Agent (if other than the Trustee) shall
give
prior written notice to the Sponsor, the Master Servicer, the Trustee and
the
Depositor of the appointment of any Subcontractor by it and a written
description (in form and substance reasonably satisfactory to the Sponsor
and
the Depositor) of the role and function of each Subcontractor utilized by
the
Paying Agent, as applicable, specifying (A) the identity of each such
Subcontractor and (B) which elements of the servicing criteria set forth
under
Item 1122(d) of Regulation AB will be addressed in assessments of compliance
provided by each Subcontractor. In addition, for so long as the Depositor
is
subject to Exchange Act reporting requirements with respect to the Trust,
the
Paying Agent (including the Trustee in its capacity as Paying Agent, to the
extent not already required of the Trustee under this Agreement) shall notify
the Sponsor, the Master Servicer, the Trustee and the Depositor within five
(5)
calendar days of knowledge thereof (i) of any legal proceedings pending under
the Paying Agent of the type described in Item 1117 (§
229.1117) of Regulation AB, (ii) any merger, consolidation or sale of
substantially all of the assets of the Paying Agent and (iii) if the Paying
Agent shall become (but only to the extent not previously disclosed) at any
time
an affiliate of any of the parties listed on Exhibit I hereto or any of their
affiliates. On or before March 1st
of each year, the Depositor shall distribute the information in Exhibit I
to the
Paying Agent.
Any
Paying Agent (if other than the Trustee) agrees to indemnify the Depositor,
the
Trustee (if other than the Paying Agent) and the Master Servicer, and each
of
their respective directors, officers, employees and agents and the Trust
Fund
and 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 the failure by such Paying Agent to deliver any information,
report or certification when and as required under Section 6.20 and Section
9.25(a). This indemnification shall survive the termination of this Agreement
or
the termination of such Paying Agent hereunder.
In
addition, the Paying Agent (if other than the Trustee) (i) may not be an
originator of Mortgage Loans, the Master Servicer, a Servicer, the Depositor
or
an affiliate of the Depositor unless the Paying Agent is in an institutional
trust department of the Paying Agent, (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 that
has rated the Paying Agent, or the equivalent rating by S&P. If no successor
Paying Agent shall have been appointed and shall have accepted appointment
within 60 days after the Paying Agent ceases to be the Paying Agent pursuant
to
this Section 3.08, then the Trustee shall perform the duties of the Paying
Agent
pursuant to this Agreement. The Trustee shall notify the Rating Agencies
of any
change of Paying Agent.
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Section
3.09. Book-Entry
Certificates.
(i) 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, to be delivered to The Depository Trust Company, or its custodian,
the initial Clearing Agency, by, or on behalf of, the Depositor. 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):
(ii) the
provisions of this Section 3.09 shall be in full force and effect;
(iii) the
Depositor, the Master Servicer, the Paying Agent, the Certificate Registrar
and
the Trustee may 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 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;
(iv) 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
(v) 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 Trustee 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 Depositor advises the Trustee 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 Trustee or the Depositor is unable
to locate a qualified successor or (ii) after the occurrence of an Event
of
Default, Certificate Owners representing beneficial interests aggregating
not
less than 50% of the Class Principal Amount (or Class Notional Amount) of
a
Class of Book-Entry Certificates identified as such to the Trustee by an
Officer’s Certificate from the Clearing Agency advise the Trustee 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 Trustee shall notify or cause the Certificate Registrar
to
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 Trustee of the Book-Entry Certificates by the
Clearing Agency, accompanied by registration instructions from the Clearing
Agency for registration, the Trustee shall issue the Definitive Certificates.
Neither the Transferor 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 Trustee, to
the
extent applicable, with respect to such Definitive Certificates and the Trustee
shall recognize the holders of the Definitive Certificates as Certificateholders
hereunder. None of the Seller, the Depositor, the Underwriter, the Master
Servicer or the Trustee shall have any responsibility for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of the Book Entry Certificates held by the Clearing Agency or for
maintaining, supervising or reviewing any records relating to such beneficial
ownership interests.
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Section
3.10. Deposit
of Underlying REMIC Certificates under the Exchange Trust
Agreement.
The
Underlying REMIC Certificates shall be issued in uncertificated form to the
Underwriter and transferred by the Underwriter to the Exchange Trustee to
be
held in trust pursuant to terms of the Exchange Trust Agreement.
ARTICLE
IV
ADMINISTRATION
OF THE TRUST FUND
Section
4.01. Collection
Account.
(a) On
the
Closing Date, the Master Servicer shall open and shall thereafter maintain
a
segregated account held in trust (the “Collection Account”), entitled, Aurora
Loan Services LLC, as Master Servicer, in trust for the benefit of the Holders
of Xxxxxx Mortgage Trust Mortgage Pass-Through Certificates, Series 2007-1.” The
Collection Account shall relate solely to the Certificates issued by the
Trust
Fund hereunder, and funds in such Collection Account shall not be commingled
with any other monies.
(b) The
Collection Account shall be an Eligible Account. If an existing Collection
Account ceases to be an Eligible Account, the Master Servicer shall establish
a
new Collection Account that is an Eligible Account within 30 days and transfer
all funds on deposit in such existing Collection Account into such new
Collection Account.
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(c) The
Master Servicer shall give to the Trustee prior written notice of the name
and
address of the depository institution at which the Collection Account is
maintained and the account number of such Collection Account. No later than
2:00
p.m. New York City time on each Master Servicer Remittance Date, the entire
amount on deposit in the Collection Account (subject to permitted withdrawals
set forth in Section 4.02), excluding any amounts that are not included in
the
Available Distribution Amount for such Distribution Date (other than amounts
due
or reimbursable to the Trustee or Custodians pursuant to this Agreement),
shall
be remitted to the Trustee for deposit into the Certificate Account by wire
transfer in immediately available funds. The Master Servicer, at its option
and
with prior notice to the Trustee, may choose to make daily remittances from
the
Collection Account to the Trustee for deposit into the Certificate
Account.
(d) The
Master Servicer shall deposit or cause to be deposited into the Collection
Account, no later than two Business Days following the Closing Date, any
amounts
representing Scheduled Payments on the Mortgage Loans due after the Cut-off
Date
and received by the Master Servicer on or before the Closing Date. Thereafter,
the Master Servicer shall deposit or cause to be deposited in the Collection
Account on the earlier of the applicable Master Servicer Remittance Date
and two
Business Days following receipt thereof, the following amounts received or
payments made by it (other than in respect of principal of and interest on
the
Mortgage Loans due on or before the Cut-off Date):
(i) all
payments on account of principal, including Principal Prepayments and late
collections, as indicated in the Mortgage Loan Schedule, on the Mortgage
Loans;
(ii) all
payments on account of interest on the Mortgage Loans (other than payments
due
prior to the Cut-off Date), net of the applicable Servicing Fee and Master
Servicing Fee with respect to each such Mortgage Loan, but only to the extent
of
the amount permitted to be withdrawn or withheld from the Collection Account
in
accordance with Sections 5.04 and 9.21;
(iii) any
unscheduled payment or other recovery with respect to a Mortgage Loan not
otherwise specified in this paragraph (d), including any Subsequent Recovery,
all Net Liquidation Proceeds with respect to the Mortgage Loans and REO
Property, and all amounts received in connection with the operation of any
REO
Property, net of any unpaid Servicing Fees and Master Servicing Fees with
respect to such Mortgage Loans, but only to the extent of the amount permitted
to be withdrawn or withheld from the Collection Account in accordance with
Sections 5.04 and 9.21; provided
that if
the applicable Servicer is also the Retained Interest Holder with respect
to any
Mortgage Loan, payments on account of interest on the Mortgage Loans as to
which
such Servicer is the Retained Interest Holder may also be made net of the
related Retained Interest with respect to each such Mortgage
Loan.
(iv) all
Insurance Proceeds;
69
(v) all
Advances made by the Master Servicer or any Servicer pursuant to Section
5.04 or
the applicable Servicing Agreement;
(vi) all
proceeds of any Mortgage Loan purchased by any Person and any Substitution
Amounts related to any Qualifying Substitute Mortgage Loan; and
(vii) the
Purchase Price or FPD Purchase Price (including any FPD Premium) of any Mortgage
Loan repurchased by the Depositor, the Seller, the Master Servicer or any
other
Person and any Substitution Amount related to any Qualifying Substitute Mortgage
Loan.
(e) Funds
in
the Collection Account may be invested in Eligible Investments (selected
by and
at the written direction of the Master Servicer) which shall mature not later
than the earlier of (a) the Master Servicer Remittance Date or (b) the day
on
which the funds in such Collection Account are required to be remitted to
the
Trustee for deposit into the Certificate Account, and any such Eligible
Investment shall not be sold or disposed of prior to its maturity. All such
Eligible Investments shall be made in the name of the Master Servicer in
trust
for the benefit of the Trustee and Holders of the Certificates. All income
and
gain realized from any such investment shall be for the benefit of the Master
Servicer as compensation and shall be subject to its withdrawal on order
from
time to time, and shall not be part of the Trust Fund. The amount of any
losses
incurred in respect of any such investments shall be deposited in the Collection
Account by the Master Servicer out of its own funds, without any right of
reimbursement therefor, immediately as realized. The foregoing requirements
for
deposit in the Collection Account are exclusive, it being understood and
agreed
that, without limiting the generality of the foregoing, payments of interest
on
funds in the Collection Account and payments in the nature of late payment
charges or assumption fees need not be deposited by the Master Servicer in
the
Collection Account and may be retained by the Master Servicer or the applicable
Servicer as additional servicing compensation. If the Master Servicer deposits
in the Collection Account any amount not required to be deposited therein,
it
may at any time withdraw such amount from the Collection Account.
Section
4.02. Application
of Funds in the Collection Account.
The
Master Servicer may, from time to time, make, or cause to be made, withdrawals
from the Collection Account for the following purposes:
(i) to
reimburse itself or any Servicer for Advances made by it or by such Servicer
pursuant to Section 5.04 or the applicable Servicing Agreement; provided,
however,
that the
Master Servicer’s right to reimburse itself pursuant to this subclause is
limited to amounts received on or in respect of particular Mortgage Loans
(including, for this purpose, Liquidation Proceeds and amounts representing
Insurance Proceeds with respect to the property subject to the related Mortgage)
which represent late recoveries (net of the applicable Servicing Fee and
the
Master Servicing Fee) of payments of principal or interest respecting which
any
such Advance was made; provided,
further,
that
following the final liquidation of a Mortgage Loan, the Master Servicer may
reimburse itself for previously unreimbursed Advances in excess of Liquidation
Proceeds or Insurance Proceeds with respect to such Mortgage Loans from any
funds in the Collection Account, it being understood, in the case of any
such
reimbursement, that the Master Servicer’s or Servicer’s right thereto shall be
prior to the rights of the Certificateholders;
70
(ii) to
reimburse itself or any Servicer for any Servicing Advances made by it or
by
such Servicer that it or such Servicer determines in good faith will not
be
recoverable from amounts representing late recoveries of payments of principal
or interest respecting the particular Mortgage Loan as to which such Servicing
Advance was made or from Liquidation Proceeds or Insurance Proceeds with
respect
to such Mortgage Loan, it being understood, in the case of any such
reimbursement, that such Master Servicer’s or Servicer’s right thereto shall be
prior to the rights of the Certificateholders;
(iii) to
reimburse itself or any Servicer from Liquidation Proceeds for Liquidation
Expenses and for amounts expended by it pursuant to Sections 9.20 and 9.22(a)
or
the applicable Servicing Agreement in good faith in connection with the
restoration of damaged property and, to the extent that Liquidation Proceeds
after such reimbursement exceed the unpaid principal balance of the related
Mortgage Loan, together with accrued and unpaid interest thereon at the
applicable Mortgage Rate less the applicable Servicing Fee and the Master
Servicing Fee for such Mortgage Loan to the Due Date next succeeding the
date of
its receipt of such Liquidation Proceeds, to pay to itself out of such excess
the amount of any unpaid assumption fees, late payment charges or other
Mortgagor charges on the related Mortgage Loan and to retain any excess
remaining thereafter as additional servicing compensation, it being understood,
in the case of any such reimbursement or payment, that such Master Servicer’s or
Servicer’s right thereto shall be prior to the rights of the
Certificateholders;
(iv) to
reimburse itself or any Servicer for expenses incurred by and recoverable
by or
reimbursable to it or such Servicer pursuant to Section 9.04, 9.05, 9.06,
9.16
or 9.22(a) or pursuant to the applicable Servicing Agreement, and to reimburse
itself for any expenses reimbursable to it pursuant to Section
10.01(c);
(v) to
pay to
the applicable Person, with respect to each Mortgage Loan or REO Property
acquired in respect thereof that has been repurchased by such Person pursuant
to
this Agreement, all amounts received thereon and not distributed on the date
on
which the related repurchase was effected, and to pay to the applicable Person
any Advances and Servicing Advances to the extent specified in the definition
of
Purchase Price, any FPD Premium, or any amounts paid by LBH for shortfalls
in
the Purchase Price for repurchases of First Payment Default Mortgage Loans
pursuant to Section 1.04(f) of the Mortgage Loan Sale Agreement relating
to the
Seller paying the difference if the FPD Purchase Price is less than the Purchase
Price;
(vi) to
pay to
itself income earned on the investment of funds deposited in the Collection
Account;
71
(vii) to
make
payments to the Trustee for deposit into the Certificate Account in the amounts
and in the manner provided for in Section 4.01(c);
(viii) to
make
distributions of any Retained Interest to the Retained Interest Holder on
each
Distribution Date (other than any Retained Interest not deposited into the
Collection Account in accordance with Section 4.01(d)(iii));
(ix) to
make
payment to itself, the Trustee and others pursuant to any provision of this
Agreement;
(x) to
withdraw funds deposited in error in the Collection Account;
(xi) to
clear
and terminate the Collection Account pursuant to Section 7.02;
(xii) to
reimburse the Trustee and a successor Master Servicer (solely in its capacity
as
successor Master Servicer), for any fee or advance occasioned by a termination
of the Master Servicer, and the assumption of such duties by the Trustee
or a
successor Master Servicer appointed by the Trustee pursuant to Section 6.14,
in
each case to the extent not reimbursed by the terminated Master Servicer,
it
being understood, in the case of any such reimbursement or payment, that
the
right of the successor Master Servicer or the Trustee thereto shall be prior
to
the rights of the Certificateholders; and
(xiii) to
reimburse any Servicer for such amounts as are due thereto under the applicable
Servicing Agreement and have not been retained by or paid to such Servicer
to
the extent provided in such Servicing Agreement.
In
the
event that the Master Servicer fails on any Master Servicer Remittance Date
to
remit to the Trustee any amounts required to be so remitted to the Trustee
pursuant to subclause (vii) on such date, the Master Servicer shall pay the
Trustee, for the account of the Trustee, interest calculated at the “prime rate”
(as published in the “Money Rates” section of The
Wall Street Journal)
on such
amounts not timely remitted for the period from and including that Master
Servicer Remittance Date through the date such funds are remitted to and
received by the Trustee.
In
connection with withdrawals pursuant to subclauses (i), (iii), (iv) and (vi)
above, the Master Servicer’s or Servicer’s entitlement thereto is limited to
collections or other recoveries on the related Mortgage Loan, except as provided
herein. The Master Servicer shall therefore keep and maintain a separate
accounting for each Mortgage Loan it master services for the purpose of
justifying any withdrawal from the Collection Account it maintains pursuant
to
subclauses (i), (iii), (iv) and (vi) above.
Section
4.03. Reports
to Certificateholders.
(a) On
each
Distribution Date on or prior to a Section 7.01(c) Purchase Event or a Trust
Fund Termination Event, the Trustee shall prepare (based solely on information
provided by the Master Servicer (other than item (xvii) below, which shall
be
determined solely by the Trustee)) and shall make available to each
Certificateholder and each Rating Agency a report (the “Distribution Date
Statement”), setting forth the following information (on the basis of Mortgage
Loan level information obtained from the Master Servicer (other than with
respect to item (xvii) below)):
72
(i) the
aggregate amount of the distribution to be made on such Distribution Date
to the
Holders of each Class of Certificates, other than any Class of Notional
Certificates, and in respect of any Component, to the extent applicable,
allocable to principal on the Mortgage Loans, including any Subsequent Recovery,
Liquidation Proceeds and Insurance Proceeds, stating separately the amount
attributable to scheduled principal payments and unscheduled payments in
the
nature of principal in each Mortgage Pool;
(ii) the
aggregate amount of the distribution to be made on such Distribution Date
to the
Holders of each Class of Certificates, and in respect of any Component,
allocable to interest;
(iii) the
amount, if any, of any distribution to the Holders of a Residual
Certificate;
(iv) for
each
Collateral Group and in the aggregate, (A) the aggregate amount of any
Advances required to be made with respect to the related Collection Period
by or
on behalf of the Master Servicer or a Servicer (or the Trustee solely in
its
capacity as successor Master Servicer), (B) the aggregate amount of such
Advances actually made, and (C) the amount, if any, by which (A) above
exceeds (B) above;
(v) the
Aggregate Principal Balance of the Mortgage Loans and the Pool Balance of
each
Collateral Group for such Distribution Date, after giving effect to payments
allocated to principal reported under clause (i) above;
(vi) the
Class
Principal Amount (or Class Notional Amount) of each Class of Certificates,
to
the extent applicable, and the Component Principal Amount or Component Notional
Amount, as applicable, of each Component as of such Distribution Date after
giving effect to payments allocated to principal reported under clause (i)
above
(and to the addition of any Accrual Amount in the case of any Class of Accrual
Certificates), separately identifying any reduction of any of the foregoing
Certificate Principal Amounts, Component Principal Amounts or Component Notional
Amounts due to Realized Losses;
(vii) for
each
Collateral Group and in the aggregate, any Realized Losses realized with
respect
to the Mortgage Loans (x) in the applicable Prepayment Period and (y) in
the
aggregate since the Cut-off Date, stating separately the amount of Special
Hazard Losses, Fraud Losses and Bankruptcy Losses and the aggregate amount
of
such Realized Losses, and the remaining Special Hazard Loss Amount, Fraud
Loss
Amount and Bankruptcy Loss Amount;
(viii) the
amount of the Master Servicing Fees and Servicing Fees paid during the Due
Period to which such distribution relates;
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(ix) the
number and aggregate outstanding principal balance of Mortgage Loans, as
reported to the Trustee by the Master Servicer, (a) remaining outstanding,
(b) delinquent 30 to 59 days, (c) delinquent 60 to 89 days,
(d) delinquent 90 or more days, (e) as to which foreclosure
proceedings have been commenced, all as of the close of business on the last
Business Day of the calendar month immediately before the month in which
that
Distribution Date occurs, (f) in bankruptcy, (g) that are REO
Properties, (h) that are Charged-off Loans and (i) that are Released
Mortgage Loans (the information in this item (ix) will be calculated using
the
MBA delinquency method);
(x) the
deemed principal balance of each REO Property as of the close of business
on the
last Business Day of the calendar month immediately preceding the month in
which
such Distribution Date occurs;
(xi) with
respect to any Mortgage Loan that became an REO Property during the preceding
calendar month, the principal balance of such Mortgage Loan and the number
of
such Mortgage Loans as of the close of business on the last Business Day
of the
calendar month immediately preceding the month in which such Distribution
Date
occurs;
(xii) with
respect to substitution of Mortgage Loans in the preceding calendar month,
the
Scheduled Principal Balance of each Deleted Mortgage Loan, and of each
Qualifying Substitute Mortgage Loan;
(xiii) the
aggregate outstanding Interest Shortfalls and Net Prepayment Interest
Shortfalls, if any, for each Class of Certificates, after giving effect to
distributions made on such Distribution Date;
(xiv) the
Certificate Interest Rate or Component Interest Rate applicable to such
Distribution Date with respect to each Class of Certificates and each Component,
respectively;
(xv) if
applicable, the amount of any shortfall (i.e., the difference between the
aggregate amounts of principal and interest which Certificateholders would
have
received if there were sufficient available amounts in the Certificate Account
and the amounts actually distributed);
(xvi) the
amount of any Prepayment Penalty Amounts collected by the Servicers and paid
to
the Class P Components;
(xvii) a
statement as to whether any exchanges of Exchangeable Certificates or Exchange
Certificates have taken place since the preceding Distribution Date, and,
if
applicable, the Class of Certificates, certificate balances, including notional
balances, certificate interest rates, and any interest and principal paid,
including any shortfalls allocated, of any classes of certificates that were
received by the Certificateholder as a result of such exchange; and
(xviii)
the amount of any FPD Premiums, if any, for such Distribution Date.
74
In
addition to the information listed above, for every year in which the Depositor
is subject to Exchange Act reporting with respect to the Certificates, such
Distribution Date Statement shall also include, to the extent that the Trustee
shall have received any such information from the Depositor, the Sponsor,
the
Master Servicer or the Servicer, as applicable, no later than four Business
Days
prior to the related Distribution Date, such
other information as is required by Form 10-D, including, but not limited
to,
the information required by Item 1121 (§ 229.1121) of Regulation AB,
other
than those data elements specified in Item 1121(a)(11), (12) and (14) for
as
long as reports on From 10-D are required to be filed by the Trustee pursuant
to
Section 6.20.
In
the
case of information furnished pursuant to subclauses (i), (ii) and (vii)
above,
the amounts shall be expressed as a dollar amount per $1,000 of original
principal amount of Certificates.
On
any
Distribution Date after the occurrence of a Section 7.01(c) Purchase Event,
the
information required by subclauses (i), (iii), (iv), (v), (vii), (viii),
(ix),
(x), (xi), (xii) and (xvi) shall be provided to the Holder of the LT-R
Certificate and the LTURI Holder with regard to the Lower Tier REMIC I
Uncertificated Regular Interests in lieu of the Certificates.
The
Trustee shall make such report and any additional loan level information
(and,
at its option, any additional files containing the same information in an
alternative format) available each month to the Certificateholders and the
Rating Agencies via the Trustee’s internet website. The Trustee’s internet
website shall initially be located at “xxx.xxxxxxx.xxx.”
Assistance in using the website can be obtained by calling the Trustee’s
customer service desk at (000) 000-0000. Such parties that are unable to
use the
website are entitled to have a paper copy mailed to them via first class
mail by
calling the customer service desk and indicating such. The Trustee shall
have
the right to change the way such statements are distributed in order to make
such distribution more convenient and/or more accessible to the above parties
and the Trustee shall provide timely and adequate notification to all above
parties regarding any such changes.
The
foregoing information and reports shall be prepared and determined by the
Trustee based solely on Mortgage Loan data provided to the Trustee by the
Master
Servicer (in a format attached hereto as Exhibit V or in such other format
mutually agreed to by the Trustee and the Master Servicer) no later than
2:00
p.m. Eastern Time four Business Days prior to the Distribution Date (or such
other time period set forth in Section 9.23(b)). In preparing or furnishing
Mortgage Loan data to the Trustee, the Master Servicer shall be entitled
to rely
conclusively on the accuracy of the information or data regarding the Mortgage
Loans (including any First Payment Default Mortgage Loan) and the related
REO
Property that has been provided to the Master Servicer by each Servicer,
and the
Master Servicer shall not be obligated to verify, recompute, reconcile or
recalculate any such information or data. In preparing or furnishing the
foregoing information to the Certificateholders, the Trustee shall be entitled
to rely conclusively on the accuracy and completeness of the information
and
data regarding the Mortgage Loans and the related REO Property, that has
been
provided to the Trustee by the Master Servicer, and the Trustee shall not
be
obligated to verify, recompute, reconcile or recalculate any such information
or
data. The Trustee shall be entitled to conclusively rely on the Mortgage
Loan
data provided by the Master Servicer and shall have no liability for any
errors
or omissions in such Mortgage Loan data.
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(b) 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,
will be promptly forwarded to the Master Servicer, the Master Servicer 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
Servicing Agreement, shall use reasonable efforts to obtain such information
and
documentation from such Servicer, and provide) to such Certificateholder
such
reports and access to information and documentation regarding the Mortgage
Loans
as such Certificateholder 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 investment in the Certificates;
provided,
however,
that
the Master Servicer shall be entitled to be reimbursed by such Certificateholder
for such Master Servicer’s actual expenses incurred in providing such reports
and access.
(c) Within
90
days, or such shorter period as may be required by statute or regulation,
after
the end of each calendar year, the Trustee shall make available to each Person
who at any time during the calendar year was a Certificateholder of record,
a
report summarizing the items provided to Certificateholders pursuant to Section
4.03(a)(i) and (ii) on an annual basis as may be required to enable such
Holders
to prepare their federal income tax returns. Such information shall include
the
amount of original issue discount accrued on each Class of Certificates and
information regarding the expenses of the Trust Fund. The Trustee shall be
deemed to have satisfied this requirement if it forwards such information
in any
other format permitted by the Code. The Master Servicer shall provide the
Trustee with such information (to the extent available to the Master Servicer
pursuant to this Agreement and each Servicing Agreement) as is necessary
for the
Trustee to prepare such reports (and the Trustee may rely solely upon such
information).
(d) The
Trustee shall, to the extent reasonably available, furnish any other information
that is required by the Code and regulations thereunder to be made available
to
Certificateholders. The Master Servicer shall, to the extent reasonably
available, provide the Trustee with such information as is necessary for
the
Trustee to prepare such reports (and the Trustee may rely solely upon such
information).
(e) So
long
as not prohibited by applicable law, the Master Servicer shall provide to
the
Depositor or to any party designated by the Depositor, as promptly as
practicable upon the Depositor’s request, any and all loan-level information
that the Depositor may request in any format reasonably requested by the
Depositor.
Section
4.04. Certificate
Account.
(a) The
Trustee shall establish and maintain in its name, as Trustee, a trust account
(the “Certificate Account”), entitled “Certificate Account, Xxxxx Fargo Bank,
N.A., as Trustee, in trust for the benefit of the Holders of Xxxxxx Mortgage
Trust Mortgage Pass-Through Certificates, Series 2007-1” until disbursed
pursuant to the terms of this Agreement. The Certificate Account shall be
an
Eligible Account. If the existing Certificate Account ceases to be an Eligible
Account, the Trustee shall establish a new Certificate Account that is an
Eligible Account within 20 Business Days and transfer all funds on deposit
in
such existing Certificate Account into such new Certificate Account. The
Certificate Account shall relate solely to the Certificates issued hereunder
and
funds in the Certificate Account shall be held separate and apart from and
shall
not be commingled with any other monies including, without limitation, other
monies of the Trustee held under this Agreement.
76
(b) The
Trustee shall cause to be deposited into the Certificate Account on the day
on
which, or, if such day is not a Business Day, the Business Day immediately
following the day on which, any monies are remitted by the Master Servicer
to
the Trustee, all such amounts.
(c) The
Trustee shall make withdrawals from the Certificate Account only for the
following purposes:
(i) to
withdraw amounts deposited in the Certificate Account in error;
(ii) to
pay
itself any investment income earned with respect to funds in the Certificate
Account invested in Eligible Investments as set forth in subsection (d) below,
and to make payments to itself or the Custodians prior to making distributions
pursuant to Section 5.02 for any expenses or other indemnification owing
to the
Trustee and others pursuant to any provision of this Agreement or the Custodial
Agreements;
(iii) to
make
payments of the Master Servicing Fee (to the extent not already withheld
or
withdrawn from the Collection Account by the Master Servicer) to the Master
Servicer;
(iv) to
make
distributions to the Certificateholders pursuant to Article V; and
(v) to
clear
and terminate the Certificate Account pursuant to Section 7.02.
(d) The
Trustee may invest, or cause to be invested, funds held in the Certificate
Account, which funds, if invested, shall be invested in Eligible Investments
(which may be obligations of the Trustee or its affiliates described in
paragraph (viii) of the definition thereof). All such investments must be
payable on demand or mature no later than the next Distribution Date, and
shall
not be sold or disposed of prior to their maturity. All such Eligible
Investments will be made in the name of the Trustee (in its capacity as such)
or
its nominee. All income and gain realized from any such investment shall
be
compensation for the Trustee and shall be subject to its withdrawal on order
from time to time. The amount of any losses incurred in respect of any such
investments shall be paid by the Trustee for deposit in the Certificate Account
out of its own funds, without any right of reimbursement therefor, immediately
as realized. Funds held in the Certificate Account that are not invested
shall
be held uninvested.
ARTICLE
V
DISTRIBUTIONS
TO HOLDERS OF CERTIFICATES
Section
5.01. Distributions
Generally.
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(a) Subject
to Section 7.01 respecting (a) the final distribution on the Certificates
and
(b) distributions on the Lower Tier REMIC I Uncertificated Regular Interests,
on
each Distribution Date the Trustee or the Paying Agent shall make distributions
in accordance with this Article V. Such distributions shall be made by wire
transfer if the Certificateholder has provided the Trustee with wire
instructions or by check mailed to the address of such Certificateholder
as it
appears in the books of the Trustee if the Certificateholder has not provided
the Trustee with wire instructions 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 applicable 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 such final distribution of principal of any
of the
Certificates, each Residual Certificate will remain outstanding until the
termination of each related REMIC and the payment in full of all other amounts
due with respect to such Residual Certificate and at such time such final
payment in retirement of any such Residual Certificate will be made only
upon
presentation and surrender of such Certificate at the Corporate Trust Office
of
the Trustee. If any payment required to be made on the Certificates or the
Lower
Tier REMIC I Uncertificated Regular Interests 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 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
Certificate Principal Amounts (or initial Notional Amounts).
Section
5.02. Distributions
from the Certificate Account.
(a) On
each
Distribution Date, the Trustee (or the Paying Agent on behalf of the Trustee)
shall withdraw from the Certificate Account, the Available Distribution Amount
with respect to each Collateral Group, and shall distribute such amount to
the
Holders of record of each Class of Certificates, in the following order of
priority:
(i) from
the
Available Distribution Amount for each Collateral Group, to each Class of
Senior
Certificates (or related Component) relating to such Collateral Group, the
Accrued Certificate Interest thereon for such Distribution Date, as reduced,
in
each case, by such Class’s (or related Component’s) allocable share of any Net
Prepayment Interest Shortfalls for the related Collateral Group for such
Distribution Date; provided,
however,
that
any shortfall in available amounts for each Collateral Group shall be allocated
among the Classes of Senior Certificates related to such Collateral Group
in
proportion to the amount of Accrued Certificate Interest (as so reduced)
that
would otherwise be distributable thereon;
78
(ii) from
the
remaining Available Distribution Amount for each Collateral Group, to each
Class
of Senior Certificates (or related Component) relating to such Collateral
Group,
any related Interest Shortfall for such Distribution Date; provided,
however,
that
any shortfall in available amounts for each Collateral Group shall be allocated
among the Classes of Senior Certificates (or related Component) related to
such
Collateral Group in proportion to the amount of such interest (as so reduced)
related that would otherwise be distributable thereon;
(iii) from
the
remaining Available Distribution Amount for each Collateral Group to the
Senior
Certificates (other than any related Notional Certificates) as set forth
in the
Senior Principal Priorities attached as Exhibit O hereto;
(iv) from
the
remaining Available Distribution Amounts for all the Collateral Groups, to
the
Subordinate Certificates, subject to the prior distribution of amounts pursuant
to Section 5.02(f), in the following order of priority:
(A) to
the
Class B1 Certificates, the Accrued Certificate Interest thereon for such
Distribution Date, as reduced by such Class’s allocable share of any Net
Prepayment Interest Shortfalls for such Distribution Date;
(B) to
the
Class B1 Certificates, any Interest Shortfall for such Class on such
Distribution Date;
(C) to
the
Class B1 Certificates, in reduction of the Class Principal Amount thereof,
such
Class’s Subordinate Class Percentage of the Subordinate Principal Distribution
Amount for each Collateral Group on such Distribution Date, except as provided
in Section 5.02(d), until the Class Principal Amount thereof has been reduced
to
zero;
(D) pro
rata,
to the
Class B2 and Class BIO1 Certificates, the Accrued Certificate Interest thereon
for such Distribution Date, as reduced by each such Class’s allocable share of
any Net Prepayment Interest Shortfalls for such Distribution Date;
(E) pro
rata,
to the
Class B2 and Class BIO1 Certificates, any Interest Shortfall for each such
Class
on such Distribution Date;
(F) to
the
Class B2 Certificates, in reduction of the Class Principal Amount thereof,
such
Class’s Subordinate Class Percentage of the Subordinate Principal Distribution
Amount for each Collateral Group on such Distribution Date, except as provided
in Section 5.02(d), until the Class Principal Amount thereof has been reduced
to
zero;
(G) to
the
Class B3 Certificates, the Accrued Certificate Interest thereon for such
Distribution Date, as reduced by such Class’s allocable share of any Net
Prepayment Interest Shortfalls for such Distribution Date;
79
(H) to
the
Class B3 Certificates, any Interest Shortfall for such Class on such
Distribution Date;
(I) to
the
Class B3 Certificates, in reduction of the Class Principal Amount thereof,
such
Class’s Subordinate Class Percentage of the Subordinate Principal Distribution
Amount for each Collateral Group on such Distribution Date, except as provided
in Section 5.02(d), until the Class Principal Amount thereof has been reduced
to
zero;
(J) pro
rata,
to the
Class B4 and Class BIO2 Certificates, the Accrued Certificate Interest thereon
for such Distribution Date, as reduced by each such Class’s allocable share of
any Net Prepayment Interest Shortfalls for such Distribution Date;
(K) pro
rata,
to the
Class B4 and Class BIO2 Certificates, any Interest Shortfall for each such
Class
on such Distribution Date;
(L) to
the
Class B4 Certificates, in reduction of the Class Principal Amount thereof,
such
Class’s Subordinate Class Percentage of the Subordinate Principal Distribution
Amount for each Collateral Group on such Distribution Date, except as provided
in Section 5.02(d), until the Class Principal Amount thereof has been reduced
to
zero;
(M) to
the
Class B5 Certificates, the Accrued Certificate Interest thereon for such
Distribution Date, as reduced by such Class’s allocable share of any Net
Prepayment Interest Shortfalls for such Distribution Date;
(N) to
the
Class B5 Certificates, any Interest Shortfall for such Class on such
Distribution Date;
(O) to
the
Class B5 Certificates, in reduction of the Class Principal Amount thereof,
such
Class’s Subordinate Class Percentage of the Subordinate Principal Distribution
Amount for each Collateral Group on such Distribution Date, except as provided
in Section 5.02(d), until the Class Principal Amount thereof has been reduced
to
zero;
(P) to
the
Class B6 Certificates, the Accrued Certificate Interest thereon for such
Distribution Date, as reduced by such Class’s allocable share of any Net
Prepayment Interest Shortfalls for such Distribution Date;
(Q) to
the
Class B6 Certificates, any Interest Shortfall for such Class on such
Distribution Date;
80
(R) to
the
Class B6 Certificates, in reduction of the Class Principal Amount thereof,
such
Class’s Subordinate Class Percentage of the Subordinate Principal Distribution
Amount for each Collateral Group on such Distribution Date, except as provided
in Section 5.02(d), until the Class Principal Amount thereof has been reduced
to
zero;
(S) to
the
Class B7 Certificates, the Accrued Certificate Interest thereon for such
Distribution Date, as reduced by such Class’s allocable share of any Net
Prepayment Interest Shortfalls for such Distribution Date;
(T) to
the
Class B7 Certificates, any Interest Shortfall for such Class on such
Distribution Date;
(U) to
the
Class B7 Certificates, in reduction of the Class Principal Amount thereof,
such
Class’s Subordinate Class Percentage of the Subordinate Principal Distribution
Amount for each Collateral Group on such Distribution Date, except as provided
in Section 5.02(d), until the Class Principal Amount thereof has been reduced
to
zero;
(V) to
the
Class B8 Certificates, the Accrued Certificate Interest thereon for such
Distribution Date, as reduced by such Class’s allocable share of any Net
Prepayment Interest Shortfalls for such Distribution Date;
(W) to
the
Class B8 Certificates, any Interest Shortfall for such Class on such
Distribution Date;
(X) to
the
Class B8 Certificates, in reduction of the Class Principal Amount thereof,
such
Class’s Subordinate Class Percentage of the Subordinate Principal Distribution
Amount for each Collateral Group on such Distribution Date, except as provided
in Section 5.02(d), until the Class Principal Amount thereof has been reduced
to
zero;
(Y) to
the
Class B9 Certificates, the Accrued Certificate Interest thereon for such
Distribution Date, as reduced by such Class’s allocable share of any Net
Prepayment Interest Shortfalls for such Distribution Date;
(Z) to
the
Class B9 Certificates, any Interest Shortfall for such Class on such
Distribution Date; and
(AA) to
the
Class B9 Certificates, in reduction of the Class Principal Amount thereof,
such
Class’s Subordinate Class Percentage of the Subordinate Principal Distribution
Amount for each Collateral Group on such Distribution Date, except as provided
in Section 5.02(d), until the Class Principal Amount thereof has been reduced
to
zero.
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(b) Net
Prepayment Interest Shortfalls for each Collateral Group shall be allocated
among the Senior Certificates related to such Collateral Group (including
any
interest-bearing Component thereof) and the Subordinate Certificates
pro
rata
based on
(i) in the case of the related Senior Certificates (and any such Component),
the
Accrued Certificate Interest otherwise distributable thereon, and (ii) in
the
case of the Subordinate Certificates, interest accrued on the related
Apportioned Principal Balances.
(c) After
the
applicable Credit Support Depletion Date, the Senior Distribution Amount
with
respect to each Collateral Group remaining after distribution of interest
to the
related Senior Certificates on such date shall be distributed among the related
Classes of Senior Certificates proportionately, on the basis of their respective
Class Principal Amounts immediately prior to such Distribution Date, regardless
of the priorities and amounts set forth in Section 5.02(a)(iii).
(d) With
respect to each Class of Subordinate Certificates (other than the Class B1,
Class BIO1 and Class BIO2 Certificates), if on any Distribution Date the
Credit
Support Percentage for that Class is less than the Original Credit Support
Percentage for such Class, then, notwithstanding anything to the contrary
in
Section 5.02(a), no distribution of amounts described in clauses (ii) and
(iii)
of the definition of the related Subordinate Principal Distribution Amount
will
be made to any Subordinate Certificates of lower priority. Any such amounts
will
be distributed proportionately to such Class of Subordinate Certificates
entitled to distributions in respect such clauses (ii) and (iii) of the
definition of Subordinate Principal Distribution Amount on such date. Any
amount
not distributed in respect of any Class on any Distribution Date pursuant
to the
immediately preceding paragraph shall be allocated among the remaining Classes
of Subordinate Certificates in proportion to their respective Class Principal
Amounts.
(e) On
each
Distribution Date, the Trustee shall distribute to the Holder of the Class
R
Certificate any amounts remaining in REMIC III for such Distribution Date
after
application of all amounts described in paragraph (a) of this Section 5.02.
Any
distributions pursuant to this paragraph (e) shall not reduce the Class
Principal Amount of the Class R Certificate.
(f) On
each
Distribution Date prior to the Credit Support Depletion Date but after the
date
on which the total Certificate Principal Amount of the Senior Certificate
or
Certificates (other than any interest-only Certificates) relating to one
or more
Collateral Groups have been reduced to zero, amounts otherwise distributable
as
principal on each Class of Subordinate Certificates pursuant to Section
5.02(a)(iv), in reverse order of priority, in respect of such Class’s
Subordinate Class Percentage of the Subordinate Principal Distribution Amount
relating to such retired Certificates, shall be distributed as principal
to such
Senior Certificates (other than any interest-only Certificates) remaining
outstanding pursuant to Section 5.02(a)(iii) until the Class Principal Amounts
thereof have been reduced to zero, provided
that on
such Distribution Date (a) the Aggregate Subordinate Percentage for all
Collateral Groups for such Distribution Date is less than 200% of such Aggregate
Subordinate Percentage for the Subordinate Certificates, as of the Cut-off
Date
or (b) the average outstanding principal balance of the Mortgage Loans in
any of
such Collateral Groups that are delinquent 60 days or more for the last six
months (including for this purpose any REO Property or Mortgage Loans in
foreclosure or bankruptcy and the Scheduled Payments that would have been
due on
Mortgage Loans with respect to which the related Mortgaged Property has been
acquired by the Trust Fund if the related Mortgage Loan had remained in
existence) as a percentage of the related Group Subordinate Amount is greater
than or equal to 50%.
82
On
each
Distribution Date on which the Class Principal Amounts of the Senior
Certificates (other than any interest-only Certificates) relating to one
or more
Collateral Groups have been reduced to zero, any amounts distributable pursuant
to this Section 5.02(f) will be allocated, as to each applicable Class of
Subordinate Certificates, in proportion to such Class’s Subordinate Class
Percentage of the Subordinate Principal Distribution Amount for the Collateral
Group relating to each such retired Senior Certificate.
On
each
Distribution Date on which the Senior Certificates (other than any interest-only
Certificates) for one or more Collateral Groups remain outstanding, any amounts
distributable pursuant to this Section 5.02(f) will be distributed in proportion
to the aggregate Certificate Principal Amount of such Certificates relating
to
each such Collateral Group.
(g) (A) On
any Distribution Date on which the Senior Certificates relating to any
Collateral Group constitute an Undercollateralized Class or Classes, all
amounts
otherwise distributable as principal on the Subordinate Certificates, in
reverse
order of priority (other than amounts necessary to pay any unpaid Interest
Shortfalls) (or, following the Credit Support Depletion Date, such other
amounts
described in the immediately following sentence), will be distributed as
principal to such Undercollateralized Class or Classes pursuant to Section
5.02(a)(iii), until the total Certificate Principal Amount of the
Undercollateralized Class or Classes equals the Pool Balance of the related
Collateral Group, (such distribution, an “Undercollateralization Distribution”).
In the event that any Senior Certificate or Certificates constitute an
Undercollateralized Class or Classes on any Distribution Date following the
Credit Support Depletion Date, Undercollateralization Distributions will
be made
from any Available Distribution Amount not related to an Undercollateralized
Class or Classes remaining after all required amounts have been distributed
to
the Senior Certificates related to such other Collateral Groups. In addition,
the amount of any unpaid Interest Shortfalls with respect to an
Undercollateralized Class on any Distribution Date (including any Interest
Shortfalls for such Distribution Date) will be distributed to such
Undercollateralized Class or Classes prior to the payment of any related
Undercollateralization Distributions from amounts otherwise distributable
as
principal on the Subordinate Certificates, in reverse order of priority (or,
following the Credit Support Depletion Date, as provided in the preceding
sentence).
(B) If
on any Distribution Date the Senior Certificates relating to more than one
Collateral Group are Undercollateralized Classes, the distribution described
in
paragraph (A) above will be made in proportion to the amount by which the
total
Certificate Principal Amount of the Senior Certificate or Certificates relating
to each such Collateral Group, after giving effect to distributions pursuant
to
Section 5.02(a) on such Distribution Date, exceeds the Pool Balance for the
related Collateral Group for such Distribution Date.
83
(h) On
each
Distribution Date occurring after a Section 7.01(c) Purchase Event but on
or
prior to a Trust Fund Termination Event, the Trustee (or the Paying Agent
on
behalf of the Trustee), shall withdraw from the Certificate Account the
Available Distribution Amount (to the extent such amount is on deposit in
the
Certificate Account), and shall allocate such amount to the interests issued
in
respect of the Lower Tier REMIC 1 Uncertificated Regular Interests created
pursuant to this Agreement and shall distribute such amount first, to the
Trustee, any amounts reimbursable pursuant to Section 4.04(b)(i) and not
previously reimbursed to the Trustee, second, to the LTURI-holder, any remaining
Available Distribution Amount to the extent payable on the Lower Tier REMIC
1
Uncertificated Regular Interests as provided in the Preliminary Statement,
and
third, to the Class LT-R Certificates.
(i) On
each
Distribution Date, all Prepayment Penalty Amounts to which the Trust Fund
is
entitled received during the related Prepayment Period shall be distributed
to
the following Classes (in each case, in respect of the related Class P Component
thereof), regardless of whether the Class Notional Amount of the related
Class I
Component thereof has been reduced to zero, as follows:
(A)
all
Prepayment Penalty Amounts received on each Mortgage Loan in Subgroup 1-A
shall
be distributed to the Class 2-A3 Certificates;
(B)
all
Prepayment Penalty Amounts received on each Mortgage Loan in Subgroup 1-B
shall
be distributed to the Class 2-A3 and Class 3-A4 Certificates on the basis
of the
Applicable Fractions of the related Mortgage Loans;
(C)
all
Prepayment Penalty Amounts received on each Mortgage Loan in Subgroup 2-A
shall
be distributed to the Class 2-A2 Certificates; and
(D)
all
Prepayment Penalty Amounts received on each Mortgage Loan in Subgroup 2-B
shall
be distributed to the Class 2-A2 and Class 3-A3 Certificates on the basis
of the
Applicable Fractions of the related Mortgage Loans.
(j) On
each
Distribution Date, all FPD Premium Amounts to which the Trust Fund is entitled
received with respect to a First Payment Default Mortgage Loan, shall be
distributed to the Class 2-A2, Class 2-A3, Class 2-A4, Class 3-A3 and Class
3-A4
Certificates, as follows:
(A)
any such
excess received on a Mortgage Loan in Subgroup 1-A will be allocated to the
Class 2-A3 Certificates;
(B)
any such
excess received on a Mortgage Loan in Subgroup 1-B shall be distributed to
the
Class 2-A3 and Class 3-A4 Certificates on the basis of the Applicable Fractions
of such Mortgage Loan;
84
(C)
any such
excess received on each Mortgage Loan in Subgroup 2-A shall be distributed
to
the Class 2-A2 Certificates;
(D)
any such
excess received on a Mortgage Loan in Subgroup 2-B shall be distributed to
the
Class 2-A2 and Class 3-A3 Certificates on the basis of the Applicable Fractions
of such Mortgage Loan; and
(E)
any such
excess received on a Mortgage Loan in Pool 3 shall be distributed to the
Class
2-A4 Certificates.
(k) For
federal income tax purposes, the Trustee shall treat the beneficial owners
of
the Class 2-A2, Class 2-A3, Class 2-A4, Class 3-A3 and Class 3-A4 Certificates
(each, an “FPD Certificate”) as having entered into a cash-settled option
contract. Pursuant to each cash-settled option contract, each FPD Certificate
has the right to receive amounts in respect of FPD Premium Amounts. Any
payments
to an FPD Certificate in light of the foregoing shall not be payments with
respect to a “regular interest” in a REMIC within the meaning of Code Section
860G(a)(1). Notwithstanding the priority and sources of payments set forth
in
Article V or otherwise, the Trustee shall account for all distributions
in
respect of FPD Premium Amounts on an FPD Certificate as set forth in this
section. For purposes of providing tax information reporting with respect
to the
FPD Certificates, the Trustee shall treat each cash-settled option contract
described in this paragraph as having a value of $10,000 as of the Closing
Date.
Section
5.03. Allocation
of Realized Losses.
(a) On
any
Distribution Date, the related Applicable Fraction of the principal portion
of
each Realized Loss (other than any Excess Loss) in respect of a Mortgage
Loan,
shall be allocated in the following order of priority:
first,
to the
Class B9 Certificates, in reduction of their Class Principal Amount, until
the
Class Principal Amount thereof has been reduced to zero;
second,
to the
Class B8 Certificates, in reduction of their Class Principal Amount, until
the
Class Principal Amount thereof has been reduced to zero;
third,
to the
Class B7 Certificates, in reduction of their Class Principal Amount, until
the
Class Principal Amount thereof has been reduced to zero;
fourth,
to the
Class B6 Certificates, in reduction of their Class Principal Amount, until
the
Class Principal Amount thereof has been reduced to zero;
fifth,
to the
Class B5 Certificates, in reduction of their Class Principal Amount, until
the
Class Principal Amount thereof has been reduced to zero;
sixth,
to the
Class B4 Certificates, in reduction of their Class Principal Amount, until
the
Class Principal Amount thereof has been reduced to zero;
seventh,
to the
Class B3 Certificates, in reduction of their Class Principal Amount, until
the
Class Principal Amount thereof has been reduced to zero;
eighth,
to the
Class B2 Certificates, in reduction of their Class Principal Amount, until
the
Class Principal Amount thereof has been reduced to zero;
ninth,
to the
Class B1 Certificates, in reduction of their Class Principal Amount, until
the
Class Principal Amount thereof has been reduced to zero; and
tenth,
to the
related Classes of Senior Certificates (other than any interest-only
Certificates), pro
rata,
in
accordance with their respective Class Principal Amounts provided,
however,
that
any Realized Loss (or Excess Loss) allocated (1) to the Class 1-A1 Certificates
shall instead be allocated to the Class 1-A3 Certificates until the Class
Principal Amount thereof has been reduced to zero; (2) to the Class 2-A7
Certificates shall instead be allocated to the Class 2-A6 Certificates until
the
Class Principal Amount thereof has been reduced to zero; (3) to the Class
2-A9
Certificates shall instead be allocated to the Class 2-A8 Certificates until
the
Class Principal Amount thereof has been reduced to zero; and (4) to the Class
2-A11 Certificates shall instead be allocated to the Class 2-A10 Certificates
until the Class Principal Amount thereof has been reduced to zero.
85
In
addition, any Realized Loss (including any Excess Loss) allocated to an Exchange
Class shall be proportionately distributed to the related Exchangeable Class
or
Classes. Furthermore, any Realized Loss (or Excess Loss) allocated to reduce
the
Class Principal Amounts of the Class B1 or Class B2 Certificates shall cause
a
reduction in the Class Notional Amount of the Class BIO1 Certificates, and
any
Realized Loss (or Excess Loss) allocated to reduce the Class Principal Amounts
of the Class B3 or Class B4 Certificates shall cause a reduction in the Class
Notional Amount of the Class BIO2 Certificates.
(b) With
respect to any Distribution Date, the related Applicable Fraction of the
principal portion of any Excess Loss in respect of a Mortgage Loan in any
Collateral Group shall be allocated, pro
rata,
to the
Subordinate Certificates and related Senior Certificate or Certificates (other
than any interest-only Certificates) on the basis of the Apportioned Principal
Balances of the Classes of Subordinate Certificates and Class Principal Amounts
of the Senior Certificates (other than any interest-only Certificates) (and
in
the same manner as specified in clause tenth
of
subsection (a) above).
(c) Any
Realized Losses allocated to a Class of Certificates pursuant to Section
5.03(a)
shall be allocated among the Certificates of such Class in proportion to
their
respective Certificate Principal Amounts. Any allocation of Realized Losses
pursuant to this paragraph (c) shall be accomplished by reducing the Certificate
Principal Amounts of the related Certificates on the related Distribution
Date
in accordance with Section 5.03(d).
(d) Realized
Losses allocated in accordance with this Section 5.03 shall be allocated
on the
Distribution Date in the month following the month in which such loss was
incurred and, in the case of the principal portion thereof, after giving
effect
to distributions made on such Distribution Date.
(e) On
each
Distribution Date, the Subordinate Certificate Writedown Amount for such
date
shall effect a corresponding reduction in the Class Principal Amount of the
lowest ranking Class of outstanding Subordinate Certificates, which reduction
shall occur on such Distribution Date after giving effect to distributions
made
on such Distribution Date.
Section
5.04. Advances
by the Master Servicer and the Trustee.
86
(a) Advances
shall be made in respect of each Master Servicer Remittance Date as provided
herein. If, on any Determination Date, the Master Servicer determines that
any
Scheduled Payments due during the related Due Period (other than Balloon
Payments) have not been received, the Master Servicer shall, or cause the
applicable Servicer to, advance such amount on the Master Servicer Remittance
Date immediately following such Determination Date, less an amount, if any,
to
be set forth in an Officer’s Certificate to be delivered to the Trustee on such
Determination Date, which if advanced the Master Servicer or the applicable
Servicer has determined would not be recoverable from amounts received with
respect to such Mortgage Loan, including late payments, Liquidation Proceeds,
Insurance Proceeds or otherwise. If the Master Servicer determines that an
Advance is required, it shall on the Master Servicer Remittance Date immediately
following such Determination Date either (i) remit to the Trustee from its
own
funds (or funds advanced by the applicable Servicer) for deposit in the
Certificate Account immediately available funds in an amount equal to such
Advance, (ii) cause to be made an appropriate entry in the records of the
Collection Account that funds in such account being held for future distribution
or withdrawal have been, as permitted by this Section 5.04, used by the Master
Servicer to make such Advance, and remit such immediately available funds
to the
Trustee for deposit in the Certificate Account or (iii) make Advances in
the
form of any combination of clauses (i) and (ii) aggregating the amount of
such
Advance. Any funds being held in the Collection Account for future distribution
to Certificateholders and so used shall be replaced by the Master Servicer
from
its own funds by remittance to the Trustee for deposit in the Certificate
Account on or before any future Master Servicer Remittance Date to the extent
that funds in the Certificate Account on such Master Servicer Remittance
Date
shall be less than payments to Certificateholders required to be made on
the
related Distribution Date. The Trustee shall be entitled to conclusively
rely
upon any determination by the Master Servicer that an Advance, if made, would
constitute a non-recoverable advance. The Master Servicer and each Servicer
shall be entitled to be reimbursed from the Collection Account for all Advances
made by it as provided in Section 4.02.
(b) In
the
event that the Master Servicer fails for any reason to make an Advance required
to be made pursuant to this Section 5.04, the Trustee, solely in its capacity
as
successor Master Servicer pursuant to Section 6.14, shall, on or before the
related Distribution Date, deposit in the Certificate Account an amount equal
to
the excess of (a) Advances required to be made by the Master Servicer that
would
have been deposited in such Certificate Account over (b) the amount of any
Advance made by the Master Servicer and Servicers with respect to such
Distribution Date; provided,
however,
that
the Trustee shall be required to make such Advance only if it is not prohibited
by law from doing so and it has determined that such Advance would be
recoverable from amounts to be received with respect to such Mortgage Loan,
including late payments, Liquidation Proceeds, Insurance Proceeds, or otherwise.
The Trustee shall be entitled to be reimbursed from the Certificate Account
for
Advances made by it pursuant to this Section 5.04 as if it were the Master
Servicer.
Section
5.05. Compensating
Interest Payments.
87
The
Master Servicer shall not be responsible for making any Compensating Interest
Payments not made by the Servicers. Any Compensating Interest Payments made
by
the Servicers shall be a component of the Available Distribution
Amount.
ARTICLE
VI
CONCERNING
THE TRUSTEE; EVENTS OF DEFAULT
Section
6.01. Duties
of Trustee.
(a) The
Trustee, except during the continuance of an Event of Default, undertakes
to
perform such duties and only such duties as are specifically set forth in
this
Agreement. Any permissive right of the Trustee provided for in this Agreement
shall not be construed as a duty of the Trustee. If an Event of Default has
occurred and has not otherwise been cured or waived, the Trustee shall exercise
such of the rights and powers vested in it by this Agreement and use the
same
degree of care and skill in its 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 as the Master Servicer hereunder.
(b) The
Trustee, upon receipt of all resolutions, certificates, statements, opinions,
reports, documents, orders or other instruments furnished to the Trustee
which
are specifically required to be furnished pursuant to any provision of this
Agreement, shall examine them to determine whether they are on their face
in the
form required by this Agreement; provided,
however,
that the
Trustee shall not 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
pursuant to this Agreement, and shall not be required to recalculate or verify
any numerical information furnished to the Trustee 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 on its face to the form required by this Agreement in
a
material manner the Trustee shall notify the Person providing such resolutions,
certificates, statements, opinions, reports or other documents of the
non-conformity, and if the instrument is not corrected to the Trustee’s
satisfaction, the Trustee 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) The
Trustee shall not have any liability arising out of or in connection with
this
Agreement, except for its negligence or willful misconduct. No provision
of this
Agreement shall be construed to relieve the Trustee from liability for its
own
negligent action, its own negligent failure to act or its own willful
misconduct; provided,
however,
that:
88
(i) The
Trustee shall not be liable with respect to any action taken, suffered or
omitted to be taken by it in good faith in accordance with the direction
of the
Holders 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 address provided in Section 11.07,
and
such notice references the Holders of the Certificates and this
Agreement;
(iii) For
all
purposes under this Agreement, the Trustee shall not be deemed to have notice
of
any Event of Default (other than resulting from a failure by the Master Servicer
to (i) remit funds (or make Advances) when required to do so or (ii) furnish
information to the Trustee when required to do so) 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 its
Corporate Trust Office, and such notice references the Holders of the
Certificates and this Agreement;
(iv) No
provision of this Agreement shall require the Trustee 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
adequate indemnity 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 to perform, or be responsible for the manner of performance
of, any of the obligations of the Master Servicer under this
Agreement;
(v) The
Trustee shall not be responsible for any act or omission of the Master Servicer,
any Servicer, the Depositor, the Seller or the 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
address of the Trustee provided in Section 11.07 and makes reference to this
series of Certificate or this Agreement, (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.
(e) 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 any 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 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.
89
(f) The
Trustee shall not be required to perform services under this Agreement, 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 adequate indemnity
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
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
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
Collection Account resulting from any investment loss on any Eligible Investment
included therein (except to the extent that the Trustee is the obligor and
has
defaulted thereon).
(h) The
Trustee, except as otherwise provided herein, shall not 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 or claim under any
Insurance Policy, and (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 or
the Supplemental Interest Trust other than from funds available in the
Certificate Account. Except as otherwise provided herein, the Trustee shall
not
have any duty to confirm or verify the contents of any reports or
certificates of the Master Servicer, or any Servicer delivered to the Trustee
pursuant to this Agreement believed by the Trustee to be genuine and to have
been signed or presented by the proper party or parties.
(i) The
Trustee shall not 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
unless it shall be proved that the Trustee was negligent in ascertaining
the
pertinent facts.
(j) Notwithstanding
anything in this Agreement to the contrary, neither the Trustee nor any Paying
Agent 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 such Paying Agent, as applicable, has been advised of the
likelihood of such loss or damage and regardless of the form of
action.
(k) For
so
long as the Depositor is subject to the Exchange Act reporting with respect
to
the Certificates, the Trustee shall give prior written notice to the Sponsor,
the Master Servicer and the Depositor of the appointment of any Subcontractor
by
it and a written description (in form and substance satisfactory to the Sponsor
and the Depositor) of the role and function of each Subcontractor utilized
by
the Trustee specifying (A) the identity of each such Subcontractor and (B)
which
elements of the servicing criteria set forth under Item 1122(d) of Regulation
AB
will be addressed in assessments of compliance provided by each such
Subcontractor.
90
(l) This
Agreement shall not be construed to render the Trustee an agent of the Master
Servicer or any Servicer.
Section
6.02. Certain
Matters Affecting the Trustee.
Except
as
otherwise provided in Section 6.01:
(a) The
Trustee 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;
(b) The
Trustee 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;
(c) The
Trustee shall not 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;
(d) Unless
an
Event of Default shall have occurred and be continuing, the Trustee shall
not be
bound to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, bond or other paper or document (provided
the
same appears regular on its face), unless requested in writing to do so by
the
Holders of at least a majority in Class Principal Amount (or Percentage
Interest) of each Class of Certificates; provided,
however,
that, if
the payment within a reasonable time to the Trustee 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, not reasonably assured to the Trustee by the
security afforded to it by the terms of this Agreement, the Trustee may require
reasonable indemnity 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 by the Trust Fund;
(e) The
Trustee 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 conferred on them by such
appointment, provided
that the
Trustee shall continue to be responsible for its duties and obligations
hereunder to the extent provided herein, and provided further that the Trustee
shall not be responsible for any misconduct or negligence on the part of
any
such agent or attorney appointed with due care by the Trustee;
91
(f) The
Trustee shall not be under any obligation to exercise any of the trusts or
powers vested in it by this Agreement 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
reasonable security or indemnity against the costs, expenses and liabilities
which may be incurred therein or thereby;
(g) The
right
of the Trustee to perform any discretionary act enumerated in this Agreement
shall not be construed as a duty, and the Trustee shall not be answerable
for
other than its negligence or willful misconduct in the performance of such
act;
and
(h) The
Trustee shall not be required to give any bond or surety in respect of the
execution of the Trust Fund or Supplemental Interest Trust created hereby
or the
powers granted hereunder.
Section
6.03. Trustee
Not Liable for Certificates.
The
Trustee makes no representations as to the validity or sufficiency of this
Agreement, the Exchange Trust Agreement or the Certificates (other than the
certificate of authentication on the Certificates) or the Lower Tier REMIC
1
Uncertificated Regular Interests, or of any Mortgage Loan, or related document
save that the Trustee represents that, assuming due execution and delivery
by
the other parties hereto, this Agreement has been duly authorized, executed
and
delivered by it and constitutes its valid and binding obligation, enforceable
against it in accordance with its terms except that such enforceability may
be
subject to (A) applicable bankruptcy and insolvency laws and other 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 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 Certificate Account,
any Escrow Account or any other fund or account maintained with respect to
the
Certificates. The Trustee shall not be responsible for the legality or validity
of this Agreement or the Exchange Trust Agreement or the validity, priority,
perfection or sufficiency of the security for the Certificates or the Lower
Tier
REMIC 1 Uncertificated Regular Interests issued or intended to be issued
hereunder. Except as otherwise provided herein, the Trustee shall have no
responsibility for filing any financing or continuation statement in any
public
office at any time or to otherwise perfect or maintain the perfection of
any
security interest or lien granted to it hereunder or to record this
Agreement.
Section
6.04. Trustee
May Own Certificates.
The
Trustee and any Affiliate or agent of the Trustee in its individual or any
other
capacity may become the owner or pledgee of Certificates and may transact
banking and trust business with the other parties hereto and their Affiliates
with the same rights it would have if it were not Trustee or such
agent.
92
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 addition, the Trustee (i) may not be an originator
of
Mortgage Loans, the Master Servicer, a Servicer, the Depositor or an affiliate
of the Depositor unless the Trustee is in an institutional trust department
of
the Trustee, (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 that has rated the Trustee, or the
equivalent rating by S&P. 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.
(a) The
Trustee may at any time resign and be discharged from the trust hereby created
by giving written notice thereof to the Depositor and the Master Servicer.
Upon
receiving such notice of resignation, the Depositor will promptly appoint
a
successor trustee, one copy of which instrument shall be delivered to the
resigning Trustee, one copy to the successor trustee 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.
(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 a receiver of the Trustee of
its
property shall be appointed, or any public officer shall take charge or control
of the Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation, (iii) the Trustee shall fail to observe or perform
in any material respect any of the covenants or agreements of the Trustee
contained in this Agreement, including any failure to provide the information,
reports, assessments or attestations required pursuant to Subsection 9.25(a)
or
9.25(b) hereof, (iv) 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, (v) 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,
(vi)
the Paying Agent shall fail to provide the information required pursuant
to
Sections 9.25(a) and (b) hereof or (vii) the Depositor desires to replace
the
Trustee with a successor Trustee, then the Depositor or the Master Servicer
shall remove the Trustee or the Paying Agent, as applicable, 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 each to the successor trustee and one copy to the Master
Servicer.
93
(c) The
Holders of more than 50% of the Class Principal Amount (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
and one copy to the Master Servicer; the Depositor shall thereupon appoint
a
successor trustee in accordance with this Section mutually acceptable to
the
Depositor and the Master Servicer.
(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.
Section
6.07. Successor
Trustee.
(a) Any
successor trustee appointed as provided in Section 6.06 shall execute,
acknowledge and deliver to the Depositor, the Master Servicer and to its
predecessor trustee an instrument accepting such appointment hereunder, and
thereupon the resignation or removal of the predecessor trustee shall become
effective and such successor trustee without any further act, deed or
conveyance, shall become fully vested with all the rights, powers, duties
and
obligations of its predecessor hereunder, with like effect as if originally
named as trustee herein. A predecessor trustee shall deliver to the Trustee
or
any successor trustee (or assign to the Trustee its interest under the Custodial
Agreement, to the extent permitted thereunder), all Mortgage Files and documents
and statements related to each 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 Master Servicer and the predecessor trustee shall
execute and deliver such other instruments and do such other things as may
reasonably be required to more fully and certainly vest and confirm in the
successor trustee all such rights, powers, duties and obligations.
(b) No
successor trustee shall accept appointment as provided in this Section unless
at
the time of such appointment such successor trustee shall be eligible under
the
provisions of Section 6.05.
(c) Upon
acceptance of appointment by a successor trustee as provided in this Section,
the predecessor trustee shall mail notice of the succession of such trustee
to
all Holders of Certificates at their addresses as shown in the Certificate
Register and to any Rating Agency. The expenses of such mailing shall be
borne
by the predecessor trustee.
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(d) Upon
the
resignation or removal of the Trustee pursuant to this Section 6.06, the
Trustee
shall deliver the amounts held in its possession for the benefit of the
Certificateholders to the successor trustee upon the appointment of the
successor trustee.
Section
6.08. Merger
or Consolidation of Trustee.
Any
Person into which the Trustee may be merged or with which it may be
consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any Persons succeeding
to the corporate trust business of the Trustee, shall be the successor to
the
Trustee hereunder, without the execution or filing of any paper or any further
act on the part of any of the parties hereto, anything herein to the contrary
notwithstanding, provided
that
such Person shall be eligible under the provisions of Section 6.05. Unless
and
until a Form 15 suspension notice shall have been filed, as a condition to
a
succession to the Trustee under this Agreement by any Person (i) into which
the
Trustee may be merged or consolidated, or (ii) which may be appointed as
a
successor to the Trustee, the Trustee shall notify the Sponsor, the Master
Servicer and the Depositor, at least 15 calendar days prior to the effective
date of such succession or appointment, of such succession or appointment
and
shall furnish to the Sponsor, the Master Servicer and the Depositor in writing
and in form and substance reasonably satisfactory to the Sponsor, the Master
Servicer and the Depositor, all information reasonably necessary for the
Trustee
to accurately and timely report, pursuant to Section 6.20, the event under
Item
6.02 of Form 8-K pursuant to the Exchange Act (if such reports under the
Exchange Act are required to be filed under the Exchange Act).
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 Amount
(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 Trustee to make Advances pursuant to
Section 5.04 and 6.14 hereof shall not be affected or assigned by the
appointment of a co-trustee. Notwithstanding the foregoing, if such co-custodian
or co-trustee is determined to be a Servicing Function Participant no such
co-custodian or co-trustee shall be vested with any powers, rights and remedies
under this Agreement unless such party has agreed to comply with all Regulation
AB requirements set forth under this Agreement or the related Custodial
Agreement, as applicable.
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(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 monies shall be exercised solely by the
Trustee;
(ii) all
other
rights, powers, duties and obligations conferred or imposed upon the Trustee
shall be conferred or imposed upon and exercised or performed by the Trustee
and
such separate trustee, co-trustee, or custodian jointly, except to the extent
that under any law of any jurisdiction in which any particular act or acts
are
to be performed the Trustee shall be incompetent or unqualified to perform
such
act or acts, in which event such rights, powers, duties and obligations,
including the holding of title to the Trust Fund or any portion thereof in
any
such jurisdiction, shall be exercised and performed by such separate trustee,
co-trustee, or custodian;
(iii) no
trustee or custodian hereunder shall be personally liable by reason of any
act
or omission of any other trustee or custodian hereunder; and
(iv) the
Trustee or the Certificateholders evidencing more than 50% of the Aggregate
Voting Interests of the Certificates may at any time accept the resignation
of
or remove any separate trustee, co-trustee or custodian, so appointed by
it or
them, if such resignation or removal does not violate the other terms of
this
Agreement.
(c) Any
notice, request or other writing given to the Trustee shall be deemed to
have
been given to each of the then separate trustees and co-trustees, as effectively
as if given to each of them. Every instrument appointing any separate trustee,
co-trustee or custodian shall refer to this Agreement and the conditions
of this
Article 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.
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(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 Certificateholders of the appointment shall be required under
Section 6.07 hereof.
(f) The
Trustee agrees to instruct the co-trustees, if any, to the extent necessary
to
fulfill the Trustee’s obligations hereunder.
(g) The
Trustee shall pay the reasonable compensation of the co-trustees requested
by
the Trustee to be so appointed (which compensation shall not reduce any
compensation payable to the Trustee ) and, if paid by the Trustee, shall
be a
reimbursable expense pursuant to Section 6.12.
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. 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 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. Any Authenticating Agent shall
be
entitled to reasonable compensation for its services and, if paid by the
Trustee, it shall be a reimbursable expense pursuant to Section
6.12.
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Section
6.11. Indemnification
of Trustee.
The
Trustee and its directors, officers, employees and agents shall be entitled
to
indemnification from the Trust Fund for any loss, liability or expense incurred
in connection with any legal proceeding or incurred without negligence or
willful misconduct on its part, arising out of, or in connection with, the
acceptance or administration of the trusts created hereunder or in connection
with the performance of its duties hereunder or under the Exchange Trust
Agreement, the Mortgage Loan Sale Agreement, the Transfer Agreement, any
Servicing Agreement or the Custodial Agreements, including any applicable
fees
and expenses payable pursuant to Section 6.12 and the costs and expenses
of
defending themselves against any claim in connection with the exercise or
performance of any of their powers or duties hereunder, provided
that:
(i) with
respect to any such claim, the Trustee shall have given the Depositor, the
Master Servicer and the Holders written notice thereof promptly after a
Responsible Officer of the Trustee shall have knowledge thereof provided
that the
failure to provide such prompt written notice shall not affect the Trustee’s
right to indemnification hereunder;
(ii) while
maintaining control over its own defense, the Trustee shall cooperate and
consult fully with the Depositor and the Master Servicer 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 entered into without
the
prior consent of the Depositor and the Master Servicer, which consent shall
not
be unreasonably withheld.
The
Trustee shall be further indemnified by the Seller for and held harmless
against, any loss, liability or expense arising out of, or in connection
with,
the provisions set forth in the fourth paragraph of Section 2.01(a) hereof,
including, without limitation, all costs, liabilities and expenses (including
reasonable legal fees and expenses) of investigating and defending itself
against any claim, action or proceeding, pending or threatened, relating
to the
provisions of such paragraph.
The
provisions of this Section 6.11 shall survive any termination of this Agreement
and the resignation or removal of the Trustee and shall be construed to include,
but not be limited to any loss, liability or expense under any environmental
law.
Section
6.12. Fees
and Expenses of Trustee and Custodian.
The
Trustee shall be entitled to receive, and is authorized to pay itself, any
investment income and earnings on the Certificate Account. The Trustee shall
be
entitled to reimbursement of all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with this Agreement (including
fees and expenses of its counsel and all persons not regularly in its employment
and any amounts described in Section 10.01 to which the Trustee is entitled
as
provided therein), except for expenses, disbursements and advances that either
(i) do not constitute “unanticipated expenses” within the meaning of Treasury
Regulation Section 1.860G-1(b)(3)(ii) or (ii) arise from its negligence,
bad
faith or willful misconduct. Each Custodian shall receive compensation and
reimbursement or payment of its expenses under the applicable Custodial
Agreement as provided therein; provided
that,
to the
extent required under the Custodial Agreement, the Trustee is hereby authorized
to pay such compensation or indemnity amounts from amounts on deposit in
the
Certificate Account prior to any distributions to Certificateholders pursuant
to
Section 5.02 hereof.
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Section
6.13. Collection
of Monies.
Except
as
otherwise expressly provided in this Agreement, the Trustee may demand payment
or delivery of, and shall receive and collect, all money and other property
payable to or receivable by it pursuant to this Agreement. 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. If the Trustee shall not
have
timely received amounts to be remitted with respect to the Mortgage Loans
from
the Master Servicer, the Trustee shall request the Master Servicer to make
such
distribution as promptly as practicable or legally permitted. If the Trustee
shall subsequently receive any such amounts, it may withdraw such
request.
Section
6.14. Events
of Default; Trustee To Act; Appointment of Successor.
(a) The
occurrence of any one or more of the following events shall constitute an
“Event
of Default”:
(i) Any
failure by the Master Servicer to furnish to the Trustee the Mortgage Loan
data
sufficient to prepare the reports described in Section 4.03(a) (other than
with
respect to the information referred to in clause (xviii) of such Section
4.03(a)) which continues unremedied for a period of two (2) Business Days
after
the date upon which written notice of such failure shall have been given
to such
Master Servicer by the Trustee or to such Master Servicer and the Trustee
by the
Holders of not less than 25% of the Class Principal Amount of each Class
of
Certificates affected thereby; or
(ii) Any
failure by the Master Servicer to duly perform, within the required time
period
and without notice, its obligations to provide any certifications required
pursuant to Sections 9.25 or 9.26; or
(iii) Except
with respect to those items listed in clause (ii) above, any failure by the
Master Servicer to duly perform, within the required time period, without
notice
or grace period, its obligations to provide any information, data or materials
required to be provided hereunder pursuant to Sections 9.23 and 9.29(b),
including any items required to be included in any Exchange Act report;
or
(iv) 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 on the part of
the
Master Servicer contained in this Agreement which continues unremedied for
a
period of 30 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 to the Master Servicer and the Trustee by the Holders
of more
than 50% of the Aggregate Voting Interests of the Certificates; or
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(v) 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
(vi) 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
(vii) The
Master Servicer shall admit in writing its inability to pay its debts generally
as they become due, file a petition to take advantage of any applicable
insolvency or reorganization statute, make an assignment for the benefit
of its
creditors or voluntarily suspend payment of its obligations; or
(viii) 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
9.27
hereof; or
(ix) If
a
representation or warranty set forth in Section 9.14 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 30 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 to the Master Servicer and
the
Trustee by the Holders of more than 50% of the Aggregate Voting Interests
of the
Certificates; or
(x) 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
(xi) The
Master Servicer has notice or actual knowledge that any Servicer at any time
is
not either a Xxxxxx Xxx- or Xxxxxxx Mac- approved Seller/Servicer, and the
Master Servicer has not terminated the rights and obligations of such Servicer
under the applicable Servicing Agreement and replaced such Servicer with
a
Xxxxxx Mae- or Xxxxxxx Mac -approved servicer within 60 days of the date
the
Master Servicer receives such notice or acquires such actual
knowledge.
100
(xii) After
receipt of notice from the Trustee, any failure of the Master Servicer to
deposit into the Certificate Account any payment required to be made for
the
benefit of Certificateholders under the terms of this Agreement, including
any
Advance, on the Master Servicer Remittance Date immediately preceding the
related Distribution Date which such failure continues unremedied for a period
of one Business Day after the date upon which notice of such failure shall
have
been given to the Master Servicer by the Trustee.
If
an
Event of Default described in clauses (i) through (xi) of this Section shall
occur, 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 shall, if so directed by Certificateholders evidencing
more
than 50% of the Class Principal Amount of each Class of Certificates, terminate
all of the rights and obligations of the Master Servicer hereunder and in
and to
the Mortgage Loans and the proceeds thereof. If an Event of Default described
in
clause (xii) of this Section shall occur, then, in each and every case, subject
to applicable law, so long as such Event of Default shall not have been remedied
within the time period prescribed by clause (xii) of this Section 6.14, the
Trustee, by notice in writing to the Master Servicer, shall promptly terminate
all of the rights and obligations of the Master Servicer hereunder and in
and to
the Mortgage Loans and the proceeds thereof. On or after the receipt by the
Master Servicer of such written notice, all authority and power of the Master
Servicer, and 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; provided,
however,
the
parties acknowledge that notwithstanding the preceding sentence there may
be a
transition period, not to exceed 90 days, in order to effect the transfer
of the
Master Servicing obligations to the Trustee. 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 Mortgage Loans
and
related documents or otherwise. The defaulting Master Servicer agrees to
cooperate with the Trustee in effecting the termination of the defaulting
Master
Servicer’s responsibilities and rights hereunder as Master Servicer including,
without limitation, notifying 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 (or its designee) for administration
by it of all amounts which shall at the time be or should have been deposited
by
the defaulting Master Servicer and any other account or fund maintained with
respect to the Certificates or thereafter received with respect to the Mortgage
Loans. The Master Servicer being terminated (or the Trust Fund, if the Master
Servicer is unable to fulfill its obligations hereunder) as a result of an
Event
of Default shall bear all reasonable costs and expenses of a master servicing
transfer, including but not limited to those of the Trustee 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.
101
The
Trustee shall be entitled to be reimbursed from the Master Servicer (or by
the
Trust Fund, if the Master Servicer is unable to fulfill its obligations
hereunder) for all costs associated with the transfer of master servicing
from
the predecessor Master Servicer, including, without limitation, any costs
or
expenses associated with the complete transfer of all master servicing data
and
the completion, correction or manipulation of such servicing data as may
be
required by the Trustee to correct any errors or insufficiencies in the master
servicing data or otherwise to enable the Trustee to master service the Mortgage
Loans properly and effectively. If the terminated Master Servicer does not
pay
such reimbursement within thirty (30) days of its receipt of an invoice
therefore, such reimbursement shall be an expense of the Trust and the Trustee
shall be entitled to withdraw such reimbursement from amounts on deposit
in the
Certificate Account pursuant to Section 4.04; provided
that the
terminated Master Servicer shall reimburse the Trust for any such expense
incurred by the Trust; and provided,
further,
that
the Trustee shall decide whether and to what extent it is in the best interest
of the Certificateholders to pursue any remedy against any party obligated
to
make such reimbursement.
Notwithstanding
the termination of its activities as Master Servicer, each terminated Master
Servicer shall continue to be entitled to reimbursement to the extent provided
in Section 4.02 to the extent such reimbursement relates to the period prior
to
such Master Servicer’s termination.
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 of the nature and extent of such Event of Default. The Trustee
shall immediately give written notice to the Master Servicer upon the Master
Servicer’s failure to remit funds to the Trustee on the Master Servicer
Remittance Date.
(b) On
and
after the time the Master Servicer receives a notice of termination from
the
Trustee pursuant to Section 6.14(a) or the Trustee receives the resignation
of
the Master Servicer evidenced by an Opinion of Counsel pursuant to Section
9.28
but in any event within a period of time not to exceed 90 days after the
Master
Servicer or the Trustee receives such written notice pursuant to Section
6.14(a)
or Section 9.28, respectively, 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 Master
Servicer’s failure to provide information required by this Agreement shall not
be considered a default by the Trustee hereunder. In addition, the Trustee
shall
have no responsibility for any act or omission of the Master Servicer prior
to
the issuance of any notice of termination and within a period of time in
not to
exceed 90 days after the Master Servicer or the Trustee receives such written
notice pursuant to Section 6.14(a) or Section 9.28, as applicable. The Trustee
shall have no liability relating to the representations and warranties of
the
Master Servicer set forth in Section 9.14. In the Trustee’s capacity as such
successor, the Trustee shall have the same limitations on liability herein
granted to the Master Servicer. As compensation therefor, the Trustee shall
be
entitled to receive all compensation payable to the Master Servicer under
this
Agreement, including the Master Servicing Fee.
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(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 responsibilities, duties or liabilities of the Master Servicer hereunder.
Any entity designated by the Trustee as a successor master servicer may be
an
Affiliate of the Trustee; provided,
however,
that,
unless such Affiliate meets the net worth requirements and other standards
set
forth herein for a successor master servicer, the Trustee, in its individual
capacity shall agree, at the time of such designation, to be and remain liable
to the 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 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 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 Mortgagors of the assignment of
the
master servicing functions and providing the Trustee and successor master
servicer, as applicable, 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 master
servicer, as applicable, all amounts which shall at the time be or should
have
been deposited by the Master Servicer in the Collection Account and any other
account or fund maintained with respect to the Certificates or the Lower
Tier
REMIC 1 Uncertificated Regular Interests or thereafter be received with respect
to the Mortgage Loans. Neither the Trustee nor any other 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 Master Servicer to deliver, or any delay
in
delivering, cash, documents or records to it, (ii) the failure of the Master
Servicer to cooperate as required by this Agreement, (iii) the failure of
the
Master Servicer to deliver the Mortgage Loan data to the Trustee as required
by
this Agreement or (iv) restrictions imposed by any regulatory authority having
jurisdiction over the Master Servicer.
Notwithstanding
anything herein to the contrary, in no event shall the Trustee be liable
for any
Master Servicing Fee or Servicing Fee or for any differential in the amount
of
the Master Servicing Fee or Servicing Fee paid hereunder or under the applicable
Servicing Agreement and the amount necessary to induce any successor master
servicer or successor servicer to act as successor master servicer or successor
servicer under this Agreement or the applicable Servicing Agreement and the
transactions set forth or provided for herein.
103
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 an
express
trust, 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.
Section
6.16. Waiver
of Defaults.
More
than
50% of the Aggregate Voting Interests of 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 Certificate Account that would result in a failure of the
Trustee
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 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 a Responsible
Officer of the Trustee, give written notice thereof to 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 Amount (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 reasonable security or indemnity 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 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
or be
unjustly prejudicial to the non-assenting Certificateholders.
104
Section
6.19. Action
Upon Certain Failures of the Master Servicer and Upon Event of Default.
In
the
event that the Trustee shall have actual knowledge 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
Trustee 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 Trustee shall file federal tax
returns, all in accordance with Article X hereof. If the Trustee determines
that
a state tax return or other return is required, then, at its sole expense,
the
Trustee 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, and shall file any other documents to the extent required
by applicable state tax law (to the extent such documents are in the Trustee’s
possession). The Trustee shall forward copies to the Depositor of all such
returns and supplemental tax information and such other information within
the
Trustee’s control as the Depositor may reasonably request in writing. The
Trustee shall furnish to each Certificateholder, such forms and such information
within the control of the Trustee as are required by the Code and the REMIC
Provisions to be furnished to them (other than any Form 1099s). The Master
Servicer will indemnify the Trustee for any liability of or assessment against
the Trustee resulting from any error in any of such tax or information returns
directly resulting from or arising out of errors in the information provided
by
such Master Servicer.
(b) The
Trustee shall prepare and file with the Internal Revenue Service (“IRS”), on
behalf of the Trust Fund and each of the REMICs specified in the Preliminary
Statement, an application for an employer identification number on IRS Form
SS-4
or by any other acceptable method. The Trustee shall also file a Form 8811
as
required. The Trustee, 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 Depositor. The Trustee shall have no obligation to verify
the
information in any Form 8811 or Form SS-4 filing.
105
(c) The
Depositor shall prepare or cause to be prepared the initial current report
on
Form 8-K. Thereafter, the Trustee shall, in accordance with industry standards
and the rules of the Commission as in effect from time to time (the “Rules”),
prepare and file with the Commission via the Electronic Data Gathering and
Retrieval System (“XXXXX”), the reports listed in subsections (d) through (f) of
this Section 6.20 in respect of the Trust Fund as and to the extent required
under the Exchange Act.
(d) Reports
Filed on Form 10-D.
(i) Within
15
days after each Distribution Date (subject to permitted extensions under
the
Exchange Act), the Trustee shall prepare and file on behalf of the Trust
Fund
any Form 10-D required by the Exchange Act, in form and substance as required
by
the Exchange Act. The Trustee shall file each Form 10-D with a copy of the
related Distribution Date Statement. Any disclosure in addition to the
Distribution Date Statement that is required to be included on Form 10-D
(“Additional Form 10-D Disclosure”) shall be determined and prepared by and at
the direction of the Depositor pursuant to the following paragraph and the
Trustee will have no duty or liability for any failure hereunder to determine
or
prepare any Additional Form 10-D Disclosure, except as set forth in the next
paragraph.
(ii) As
set
forth on Exhibit L-1 hereto, within five calendar days after the related
Distribution Date, (A) certain parties to the transaction contemplated hereby
shall be required to provide to the Trustee and the Depositor, to the extent
known by a responsible officer (or with respect to the Trustee, Responsible
Officer) thereof, in XXXXX-compatible form (which may be Word or Excel documents
easily convertible to XXXXX format), or in such other form as otherwise agreed
upon by the Trustee and such party, the form and substance of any Additional
Form 10-D Disclosure, if applicable, and include with such Additional Form
10-D
Disclosure Notification in the form attached hereto as Exhibit L-4, and (B)
the
Depositor will approve, as to form and substance, or disapprove, as the case
may
be, the inclusion of the Additional Form 10-D Disclosure on Form 10-D. The
Sponsor will be responsible for any reasonable fees and expenses assessed
or
incurred by the Trustee in connection with including any Additional Form
10-D
Disclosure on Form 10-D pursuant to this paragraph.
(iii) After
preparing the Form 10-D, the Trustee shall forward electronically a copy
of the
Form 10-D to the Exchange Act Signing Party for review and approval. If the
Master Servicer is the Exchange Act Signing Party and the Form 10-D includes
Additional Form 10-D Disclosure, then the Form 10-D shall also be electronically
distributed to the Depositor for review and approval. The Trustee will make
available to the Exchange Act Signing Party the monthly statement to
certificateholders containing the information with respect to exchanges required
to be included in such report for each Distribution Date and the Exchange
Act
Signing Party shall have the right to ask the Trustee reasonable questions
regarding any information reported in a certificateholder statement regarding
any exchange. The Exchange Act Signing Party shall have the right to rely
on any
such information provided to it by the Trustee. No later than two Business
Days
prior to the 15th
calendar
day after the related Distribution Date, a duly authorized representative
of the
Exchange Act Signing Party 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 Trustee. If a Form 10-D cannot be filed on time
or if
a previously filed Form 10-D needs to be amended, the Trustee will follow
the
procedures set forth in subsection (g)(ii) of this Section 6.20. Promptly
(but
no later than one Business Day) after the deadline for filing such report
with
the Commission, the Trustee will make available on its internet website a
final
executed copy of each Form 10-D prepared and filed by the Trustee. Each party
to
this Agreement acknowledges that the performance by the Trustee of its duties
under this Section 6.20(d) related to the timely preparation 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 6.20(d). The Trustee
shall
have no liability for any loss, expense, damage, claim arising out of or
with
respect to any failure to properly prepare and/or timely file such Form 10-D,
where such failure results from the Trustee’s inability or failure to obtain or
receive, on a timely basis, any information from any other party hereto needed
to prepare, arrange for execution or file such Form 10-D, not resulting from
its
own negligence, bad faith or willful misconduct.
106
(iv) Form
10-D
requires the registrant to indicate (by checking "yes" or "no") that it “(1) has
filed all reports required to be filed by Section 13 or 15(d) of the Exchange
Act during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to
such
filing requirements for the past 90 days.” At the date of filing of each report
on Form 10-D with respect to the Trust Fund, the Depositor shall be deemed
to
represent to the Trustee that as of such date the Depositor has filed all
such
required reports during the preceding 12 months and that it has been subject
to
such filing requirement for the past 90 days. The Depositor shall notify
the
Trustee in writing, no later than the fifth calendar day after the related
Distribution Date with respect to the filing of a report on Form 10-D if
the
answer to the questions should be “no.” The Trustee shall be entitled to rely on
such representations in preparing, executing and/or filing any such
report.
(e) Reports
Filed on Form 10-K.
(i) Within
90
days after the end of each fiscal year of the Trust Fund for which the Trust
Fund is subject to Exchange Act reporting requirements or such earlier date
as
may be required by the Exchange Act (the “10-K Filing Deadline”) (it being
understood that the fiscal year for the Trust Fund ends on December
31st
of each
year), commencing in March 2008, the Trustee shall prepare and file on behalf
of
the Trust Fund a Form 10-K, in form and substance as required by the Exchange
Act. To facilitate the Trustee's preparation of the From 10-K, the Depositor
shall provide to the Trustee, no later than 30 days prior to the 10-K Filing
Deadline, a template of the Form-10K in an Xxxxx-compatible format. Each
such
Form 10-K shall include the following items, in each case to the extent they
have been delivered to the Trustee within the applicable time frames set
forth
in this Agreement and in the related Servicing Agreements and Custodial
Agreement, (A) an annual compliance statement for each Servicer, each Additional
Servicer and the Master Servicer, as described under Section 9.26 hereof
and in
each Servicing Agreement, (B)(I) the annual reports on assessment of compliance
with servicing criteria for each Servicer, the Custodian, each Additional
Servicer, the Master Servicer, any Servicing Function Participant, the Paying
Agent (if other than the Trustee) and the Trustee (each, a “Reporting
Servicer”), as described under Section 9.25(a) hereof and in each Servicing
Agreement and Custodial Agreement, and (II) if any Reporting Servicer’s report
on assessment of compliance with servicing criteria described under Section
9.25(a) hereof or in any Servicing Agreement or Custodial Agreement identifies
any material instance of noncompliance, disclosure identifying such instance
of
noncompliance, or if any Reporting Servicer’s report on assessment of compliance
with servicing criteria described under Section 9.25(a) hereof or in the
any
Servicing Agreement or Custodial Agreement 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, (C)(I) the registered public accounting firm
attestation report for each Reporting Servicer, as described under Section
9.25(b) hereof and in each Servicing Agreement and Custodial Agreement and
(II)
if any registered public accounting firm attestation report described under
Section 9.25(b) hereof or in any Servicing Agreement or Custodial Agreement
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 (D) a Xxxxxxxx-Xxxxx Certification. Any disclosure or information
in addition to (A) through (D) 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
Trustee 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.
107
(ii) As
set
forth on Exhibit L-2 hereto, no later than March 15 of each year that the
Trust
Fund is subject to the Exchange Act reporting requirements, commencing in
2008,
(A) certain parties to the transaction contemplated hereby shall be required
to
provide to the Trustee and the Depositor, to the extent known by a responsible
officer (or with respect to the Trustee, Responsible Officer) thereof, in
XXXXX-compatible form (which may be Word or Excel documents easily convertible
to XXXXX format), or in such other form as otherwise agreed upon by the Trustee
and such party, the form and substance of any Additional Form 10-K Disclosure,
if applicable, and include with such Additional Form 10-K Disclosure, an
Additional Disclosure Notification in the form attached hereto as Exhibit
L-4,
and (B) the Depositor will approve, as to form and substance, or disapprove,
as
the case may be, the inclusion of the Additional Form 10-K Disclosure on
Form
10-K. The Trustee has no duty under this Agreement to monitor or enforce
the
performance by the parties listed on Exhibit L-2 of their duties under this
paragraph or proactively solicit or procure from such parties any Form 10-K
Disclosure Information. The Sponsor will be responsible for any reasonable
fees
and expenses assessed or incurred by the Trustee in connection with including
any Additional Form 10-K Disclosure on Form 10-K pursuant to this paragraph.
(iii) After
preparing the Form 10-K, the Trustee shall forward electronically a copy
of the
Form 10-K to the Exchange Act Signing Party for review and approval. If the
Master Servicer is the Exchange Act Signing Party and the Form 10-K includes
Additional Form 10-K Disclosure, then the Form 10-K shall also be electronically
distributed to the Depositor for review and approval. No later than the close
of
business New York City time on the 4th Business Day prior to the 10-K Filing
Deadline, a duly authorized representative of the Exchange Act Signing Party
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 Trustee. If a Form 10-K cannot be filed on time or if a previously filed
Form 10-K needs to be amended, the Trustee will follow the procedures set
forth
in subsection (g) of this Section 6.20. Promptly (but no later than one Business
Day) after the deadline for filing such report with the Commission, the Trustee
will make available on its internet website a final executed copy of each
Form
10-K prepared and filed by the Trustee. The parties to this Agreement
acknowledge that the performance by the Trustee of its duties under this
Section
6.20(e) related to the timely preparation 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 6.20(e), Section 9.25(a), Section 9.25(b)
and
Section 9.26. The Trustee shall have no liability for any loss, expense,
damage,
claim arising out of or with respect to any failure to properly prepare and/or
timely file such Form 10-K, where such failure results from the Trustee’s
inability or failure to obtain or receive, on a timely basis, any information
from any other party hereto needed to prepare, arrange for execution or file
such Form 10-K, not resulting from its own negligence, bad faith or willful
misconduct.
108
(iv) Each
Form
10-K shall include the Xxxxxxxx-Xxxxx Certification. The Trustee, the Paying
Agent and, if the Depositor is the Exchange Act Signing Party, the Master
Servicer, shall, and the Trustee, the Paying Agent and the Master Servicer
(if
applicable) shall cause any Servicing Function Participant engaged by it
to,
provide to the Person who signs the Xxxxxxxx-Xxxxx Certification (the
“Certifying Person”), by March 15 of each year in which the Trust Fund is
subject to the reporting requirements of the Exchange Act (each, a “Back-Up
Certification”), in the form attached hereto as Exhibit P-1 (or, in the case of
(x) the Paying Agent, such other form as agreed to between the Paying Agent
and
the Exchange Act Signing Party, and (y) the Trustee, the form attached hereto
as
Exhibit P-2), upon which the Certifying Person, the entity for which the
Certifying Person acts as an officer, and such entity’s officers, directors and
Affiliates (collectively with the Certifying Person, “Certification Parties”)
can reasonably rely. The senior officer of the Exchange Act Signing Party
shall
serve as the Certifying Person on behalf of the Trust Fund. In the event
the
Master Servicer, the Trustee, the Paying Agent or any Servicing Function
Participant engaged by such parties is terminated or resigns pursuant to
the
terms of this Agreement, such party or Servicing Function Participant shall
provide a Back-Up Certification to the Certifying Person pursuant to this
Section 6.20(e)(iv) with respect to the period of time it was subject to
this
Agreement.
(v) Each
person (including their officers or directors) that signs any Form 10-K
Certification shall be entitled to indemnification from the Trust Fund for
any
liability or expense incurred by it in connection with such certification,
other
than any liability or expense attributable to such Person’s own bad faith,
negligence or willful misconduct. The provisions of this subsection shall
survive any termination of this Agreement and the resignation or removal
of such
Person.
109
(vi) Form
10-K
requires the registrant to indicate (by checking "yes" or "no") that it “(1) has
filed all reports required to be filed by Section 13 or 15(d) of the Exchange
Act during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to
such
filing requirements for the past 90 days.” At the date of filing of each report
on Form 10-K with respect to the Trust Fund, the Depositor shall be deemed
to
represent to the Trustee that as of such date the Depositor has filed all
such
required reports during the preceding 12 months and that it has been subject
to
such filing requirement for the past 90 days. The Depositor shall notify
the
Trustee in writing, no later than March 15th
with
respect to the filing of a report on Form 10-K, if the answer to the questions
should be “no.” The Trustee shall be entitled to rely on such representations in
preparing, executing and/or filing any such report.
(f) Reports
Filed on Form 8-K.
(i) Within
four Business Days after the occurrence of an event requiring disclosure
on Form
8-K (each such event, a “Reportable Event”), and if requested by the Depositor,
the Trustee shall prepare and file on behalf of the Trust Fund any Form 8-K,
as
required by the Exchange Act, provided
that the
Depositor shall file the initial Form 8-K in connection with the issuance
of the
Certificates. Any disclosure or information related to a Reportable Event
or
that is otherwise required to be included on Form 8-K (“Form 8-K Disclosure
Information”) shall be determined and prepared by and at the direction of the
Depositor pursuant to the following paragraph and the Trustee will have no
duty
or liability for any failure hereunder to determine or prepare any Form 8-K
Disclosure Information or any Form 8-K, except as set forth in the next
paragraph.
(ii) As
set
forth on Exhibit L-3 hereto, for so long as the Trust Fund is subject to
the
Exchange Act reporting requirements, no later than Noon New York City time
on
the 2nd Business Day after the occurrence of a Reportable Event (A) certain
parties to the transaction contemplated hereby shall be required to provide
to
the Trustee and the Depositor, to the extent known by a responsible officer
thereof (or, with respect to the Trustee, a Responsible Officer thereof),
in
XXXXX-compatible form (which may be Word or Excel documents easily convertible
to XXXXX format), or in such other form as otherwise agreed upon by the Trustee
and such party, the form and substance of any Form 8-K Disclosure Information,
if applicable, and include with such Form 8-K Disclosure Information, an
Additional Disclosure Notification in the form attached hereto as Exhibit
L-4,
and (B) the Depositor will approve, as to form and substance, or disapprove,
as
the case may be, the inclusion of the Form 8-K Disclosure Information. The
Trustee has no duty under this Agreement to monitor or enforce the performance
by the parties listed on Exhibit L-3 of their duties under this paragraph
or
proactively solicit or procure from such parties any Form 8-K Disclosure
Information. The Sponsor will be responsible for any reasonable fees and
expenses assessed or incurred by the Trustee in connection with including
any
Form 8-K Disclosure Information on Form 8-K pursuant to this paragraph.
110
(iii) After
preparing the Form 8-K, the Trustee shall forward electronically, no later
than
Noon New York City time on the 3rd
Business
Day after the Reportable Event, a copy of the Form 8-K to the Exchange Act
Signing Party for review and approval. If the Master Servicer is the Exchange
Act Signing Party, then the Form 8-K shall also be electronically distributed
to
the Depositor for review and approval. No later than Noon New York City time
on
the 4th
Business
Day after the Reportable Event, a senior officer of the Exchange Act Signing
Party shall sign the Form 8-K and 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 Trustee. If a Form 8-K cannot be filed on time or if a previously
filed Form 8-K needs to be amended, the Trustee will follow the procedures
set
forth in subsection (g) of this Section 6.20. Promptly (but no later than
one
Business Day) after the deadline for filing such Form with the Commission,
the
Trustee will make available on its internet website a final executed copy
of
each Form 8-K prepared and filed by it pursuant to this Section 6.20(f).
The
parties to this Agreement acknowledge that the performance by the Trustee
of its
duties under this Section 6.20(f) related to the timely preparation 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 6.20(f).
The
Trustee shall have no liability for any loss, expense, damage, claim arising
out
of or with respect to any failure to properly prepare and/or timely file
such
Form 8-K, where such failure results from the Trustee’s inability or failure to
obtain or receive, on a timely basis, any information from any other party
hereto needed to prepare, arrange for execution or file such Form 8-K, not
resulting from its own negligence, bad faith or willful misconduct.
(g) Suspension
of Reporting Obligation; Amendments; Late Filings.
(i) On
or
before January 30th
of the
first year in which the Trustee is able to do so under applicable law, unless
otherwise directed by the Depositor, the Trustee shall prepare and file a
Form
15 relating to the automatic suspension of reporting in respect of the Trust
Fund under the Exchange Act.
(ii) In
the
event that the Trustee becomes aware that it will be unable to timely file
with
the Commission all or any required portion of any Form 8-K, 10-D or 10-K
required to be filed by this Agreement because required disclosure information
was either not delivered to it or delivered to it after the delivery deadlines
set forth in this Agreement or for any other reason, the Trustee will promptly
notify the Depositor. In the case of Form 10-D and 10-K, the parties to this
Agreement and each Servicer will cooperate to prepare and file a Form 12b-25
and
a 10-D/A and 10-K/A as applicable, pursuant to Rule 12b-25 of the Exchange
Act.
In the case of Form 8-K, the Trustee will, upon receipt of all required Form
8-K
Disclosure Information and upon the approval and direction of the Depositor,
include such disclosure information on the next Form 10-D. In the event that
any
previously filed Form 8-K, 10-D or 10-K needs to be amended with respect
to an
additional disclosure item, the Trustee will notify the Depositor and any
applicable party affected thereby and such parties will cooperate to prepare
any
necessary 8-K/A, 10-D/A or 10-K/A. Any Form 15, Form 12b-25 or any amendment
to
Form 8-K, 10-D or 10-K shall be signed by a senior officer or a duly authorized
representative, as applicable, of the Exchange Act Signing Party. The parties
to
this Agreement acknowledge that the performance by the Trustee of its duties
under this Section 6.20(g) related to the timely preparation and filing of
Form
15, a Form 12b-25 or any amendment to Form 8-K, 10-D or 10-K is contingent
upon
each such party performing its duties under this Section. The Trustee shall
have
no liability for any loss, expense, damage, claim arising out of or with
respect
to any failure to properly prepare and/or timely file any such Form 15, Form
12b-25 or any amendments to Forms 8-K, 10-D or 10-K, where such failure results
from the Trustee’s inability or failure to obtain or receive, on a timely basis,
any information from any other party hereto needed to prepare, arrange for
execution or file such Form 15, Form 12b-25 or any amendments to Forms 8-K,
10-D
or 10-K, not resulting from its own negligence, bad faith or willful
misconduct.
111
(h) Any
party
that signs any Exchange Act report that the Trustee is required to file shall
provide to the Trustee prompt notice of the execution of such Exchange Act
report along with the name and contact information for the person signing
such
report and shall promptly deliver to the Trustee the original executed signature
page for such report. In addition, each of the parties agrees to provide
to the
Trustee such additional information related to such party as the Trustee
may
reasonably request, including evidence of the authorization of the person
signing any certification or statement, financial information and reports,
and
such other information related to such party or its performance hereunder.
(i) The
Depositor and the Master Servicer, by mutual agreement, shall determine which
of
the Depositor or the Master Servicer shall be the initial Exchange Act Signing
Party. Upon such determination, the Depositor shall timely notify the Trustee,
and such notice shall provide contact information for the Exchange Act Signing
Party. If the Depositor and Master Servicer, at any time, mutually agree
to
change the identity of the Exchange Act Signing Party, the Depositor shall
provide timely notice to the Trustee of any such change. Any notice delivered
pursuant to this Section 6.20 may be by fax or electronic copy notwithstanding
the notice provisions of Section 11.07.
Section
6.21. [Reserved]
Section
6.22. No
Merger.
(a) The
Trustee shall not cause or otherwise knowingly permit the assets of the Trust
Fund to be merged or consolidated with any other entity, except as a result
of a
final judicial determination.
Section
6.23. Indemnification
by the Trustee and Paying Agent.
The
Trustee (including in its capacity as Paying Agent) and any Paying Agent
other
than the Trustee each agrees to indemnify the Depositor and the Master Servicer,
and each of their respective directors, officers, employees and agents and
the
Trust Fund and 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 the engagement by it of any Subcontractor in
violation of Section 6.01(k) or any failure by it to deliver any assessment
of
compliance, information, report or certification when and as required under
Sections 6.20 or 9.25(a).
112
Section
6.24. Compliance
with Regulation AB.
Each
of
the parties hereto acknowledges and agrees that the purpose of Sections 6.01
and
6.20 of this Agreement is to facilitate compliance by the Sponsor, the Master
Servicer, the Depositor and the Trustee with the provisions of Regulation
AB, as
such may be amended or clarified from time to time. Therefore, each of the
parties agrees that (a) the obligations of the parties hereunder shall be
interpreted in such a manner as to accomplish compliance with Regulation
AB, (b)
the parties’ obligations hereunder will be supplemented and modified as
necessary to be consistent with any such amendments, interpretive advice
or
guidance from the Commission, convention or consensus among active participants
in the asset-backed securities markets, or otherwise in respect of the
requirements of Regulation AB and (c) the parties shall comply with reasonable
requests made by the Sponsor, the Master Servicer, the Depositor or the Trustee
for delivery of additional or different information, to the extent such
information is available or reasonably attainable within such time frame
as may
be requested, as the Sponsor, the Master Servicer, the Depositor or the Trustee
may determine in good faith is necessary to comply with the provisions of
Regulation AB.
ARTICLE
VII
PURCHASE
AND TERMINATION
OF
THE
TRUST FUND
Section
7.01. Termination
of Trust Fund Upon Repurchase or Liquidation of All Mortgage Loans.
(a) The
respective obligations and responsibilities of the Trustee and the Master
Servicer created hereby (other than the obligation of the Trustee to make
payments to Certificateholders as set forth in Section 7.02, the obligation
of
the Master Servicer to make a final remittance to the Trustee for deposit
into
the Certificate Account pursuant to Section 4.01 and the obligations of the
Master Servicer to the Trustee pursuant to Sections 9.10 and 9.14), shall
terminate upon the occurrence of the earlier 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(b) and (iii) the Latest Possible Maturity
Date (each, a “Trust Fund Termination Event”); 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 or beyond the Latest Possible Maturity Date. Upon
the
occurrence of a Trust Fund Termination Event, each REMIC shall be terminated
in
a manner that shall qualify as a “qualified liquidation” under the REMIC
Provisions.
(b) On
any
Distribution Date occurring after the date on which the aggregate Scheduled
Principal Balance of the Mortgage Loans is less than 10% of the Cut-off Date
Aggregate Principal Balance (the “Initial Optional Termination Date”), the
Master Servicer or LTURI-holders, as applicable, may, upon written direction
to
the Trustee (delivered no later than 30 days prior to the anticipated sale
date), cause (i) the Trustee to sell (or arrange for the sale of) in
consultation with the Master Servicer or LTURI-holders, as applicable, the
assets of the Trust Fund and (ii) the Trust Fund to adopt a plan of complete
liquidation pursuant to Section 7.03(a)(i) hereof to sell all of its property.
The property of the Trust Fund shall be sold at a price (the “Termination
Price”) equal to the sum of: (i) 100% of the unpaid principal balance of each
Mortgage Loan on the day of such purchase plus interest accrued thereon at
the
applicable Mortgage Rate with respect to any Mortgage Loan to the Due Date
in
the Due Period immediately preceding the related Distribution Date to the
date
of such repurchase, (ii) the fair market value of any REO Property and any
other
property held by any REMIC, such fair market value to be determined by an
appraiser or appraisers appointed by the Master Servicer and reasonably
acceptable to the Trustee (reduced, in the case of REO Property, by (1)
reasonably anticipated disposition costs (as determined by the Master Servicer
plus interest accrued thereon at the applicable Net Mortgage Rate to the
date of
purchases) and (2) any amount by which the fair market value as so reduced
exceeds the outstanding principal balance of the related Mortgage Loan) and
(iii) any unreimbursed Servicing Advances with respect to each Mortgage Loan.
The Master Servicer, each Servicer, the Trustee and each Custodian shall
be
reimbursed from the Termination Price for any Mortgage Loan or related REO
Property for any Advances made or other amounts advanced with respect to
the
Mortgage Loans that are reimbursable to any such entity under this Agreement,
the applicable Servicing Agreement or the applicable Custodial Agreement,
together with any accrued and unpaid compensation and any other amounts due
to
the Master Servicer or the Trustee hereunder or the Servicers or the
Custodians.
113
(c) On
any
Distribution Date occurring on or after the Initial Optional Termination
Date,
the Master Servicer, with the prior written consent of the Seller, which
consent
shall not be unreasonably withheld, has the option to purchase all of the
Lower
Tier REMIC 1 Uncertificated Regular Interests. Upon exercise of such option,
the
Lower Tier REMIC 1 Uncertificated Regular Interests shall be sold to the
Master
Servicer at a price (the “Lower Tier REMIC 1 Uncertificated Regular Interests
Purchase Price”) equal to the sum of (i) 100% of the unpaid principal balance of
each Mortgage Loan on the day of such purchase plus interest accrued thereon
at
the applicable Mortgage Rate with respect to any Mortgage Loan to the Due
Date
in the Collection Period immediately preceding the related Distribution Date
to
the date of such repurchase and (ii) the fair market value of any REO Property
and any other property held by any REMIC, such fair market value to be
determined by an independent appraiser or appraisers mutually agreed upon
by the
Master Servicer and the Trustee (reduced, in the case of REO Property, by
(1)
reasonably anticipated disposition costs and (2) any amount by which the
fair
market value as so reduced exceeds the outstanding principal balance of the
related Mortgage Loan plus interest accrued thereon at the applicable Net
Mortgage Rate to the date of such purchase). If the Master Servicer elects
to
exercise such option, each REMIC created pursuant to this Agreement (other
than
REMIC I) shall be terminated in such a manner so that the termination of
each
such REMIC shall qualify as a “qualified liquidation” under the REMIC Provisions
and the Lower Tier REMIC 1 Uncertificated Regular Interests and the Class
LT-R
Certificates will evidence the entire beneficial interest in the property
of the
Trust Fund. Following a purchase of the Lower Tier REMIC 1 Uncertificated
Regular Interests pursuant to this subsection, the Trust Fund (and REMIC
I) will
remain outstanding and final payment on the Certificates (other than the
Class
LT-R Certificates) will be made in accordance with Sections 7.03(a)(iii)
and
5.02. The Trust Fund will terminate upon the occurrence of a Trust Fund
Termination Event, in accordance with Section 7.01(a).
114
Section
7.02. Procedure
Upon Termination of Trust Fund.
(a) Notice
of
any Trust Fund Termination Event and notice of the purchase of the Lower
Tier
REMIC 1 Uncertificated Regular Interests, specifying the Distribution Date
upon
which the final distribution to the Certificates (other than the Class LT-R
Certificates, in the case of a purchase of the Lower Tier REMIC 1 Uncertificated
Regular Interests) shall be made, shall be given promptly by the Trustee
by
first class mail to Certificateholders mailed no later than 5 Business Days
after the Trustee has received notice from the Master Servicer of its election
to cause (x) the sale of all of the property of the Trust Fund pursuant to
Section 7.01(b), (y) the purchase of the Lower Tier REMIC 1 Uncertificated
Regular Interests pursuant to Section 7.01(c) or (z) upon the final payment
or
other liquidation of the last Mortgage Loan or REO Property in the Trust
Fund.
In the case of a Trust Fund Termination Event, the Trustee shall also give
notice to the Certificate Registrar (if the Trustee and the Certificate
Registrar are not the same person) at the time notice is given to Holders
of the
Certificates.
In
the
case of a Trust Fund Termination Event, such notice shall specify (A) the
Distribution Date upon which final distribution on the Certificates or Lower
Tier REMIC 1 Uncertificated Regular Interests 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 Corporate Trust Office,
and (B) that the Record Date otherwise applicable 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 Trustee therein specified.
Upon
any such Trust Fund Termination Event, the duties of the Certificate Registrar
with respect to the Certificates or Lower Tier REMIC 1 Uncertificated Regular
Interests shall terminate and the Trustee shall terminate or request the
Master
Servicer to terminate, the Collection Account it maintains, the Certificate
Account and any other account or fund maintained with respect to the
Certificates or Lower Tier REMIC 1 Uncertificated Regular Interests, subject
to
the Trustee’s obligation hereunder to hold all amounts payable to
Certificateholders in trust without interest pending such payment.
In
the
case of a purchase of the Lower Tier REMIC 1 Uncertificated Regular Interests,
such notice shall specify (A) the Distribution Date upon which final
distribution on the Certificates (other than the Class LT-R Certificates)
of all
amounts required to be distributed to Certificateholders pursuant to Section
5.02 (other than any distributions to the Class LT-R Certificates in respect
of
REMIC I) will be made upon presentation and surrender of the Certificates
(other
than the Class LT-R Certificates) at the Corporate Trust Office of the Trustee,
and (B) that the Record Date otherwise applicable to such Distribution Date
is
not applicable, distribution being made only upon presentation and surrender
of
the Certificates (other than the Class LT-R Certificates) at the office or
agency of the Trustee therein specified. Upon any such purchase of the Lower
Tier REMIC 1 Uncertificated Regular Interests, the duties of the Certificate
Registrar with respect to the Certificates other than the Class LT-R Certificate
shall terminate but the Trustee shall not terminate or request the Master
Servicer to terminate, the Collection Account it maintains, the Certificate
Account and any other account or fund maintained with respect to the
Certificates, subject to the Trustee’s obligation hereunder to hold all amounts
payable to Certificateholders in trust without interest pending such payment.
For all Distribution Dates following the Distribution Date on which the Master
Servicer purchases the Lower Tier REMIC 1 Uncertificated Regular Interests,
all
amounts that would be distributed on the Certificates (other than the Class
LT-R
Certificate and exclusive of amounts payable from any fund held outside of
REMIC
I) absent such purchase shall be payable to the LTURI-holder.
115
(b) In
the
event that all of the applicable Holders do not surrender their Certificates
for
cancellation within three months after the time specified in the above-mentioned
written notice, the Trustee shall give a second written notice to such
Certificateholders to surrender their Certificates for cancellation and receive
the final distribution with respect thereto. If within one year after the
second
notice any such Certificates shall not have been surrendered for cancellation,
the Trustee may take appropriate steps to contact such 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 such Certificates shall not have
been
surrendered for cancellation, the Trustee 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
Trustee 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.
(c) Any
reasonable expenses incurred by the Trustee in connection with any Trust
Fund
Termination Event or any purchase of the Lower Tier REMIC I Uncertificated
Regular Interests shall be reimbursed from proceeds received from the
liquidation of the Trust Fund.
Section
7.03. Additional
Requirements for any Trust Fund Termination Events or Purchase of the Lower
Tier
REMIC 1 Uncertificated Regular Interests.
(a) Any
termination of the Trust Fund pursuant to Section 7.01(a) or any termination
of
a REMIC pursuant to Section 7.01(c) shall be effected in accordance with
the
following additional requirements, unless the Trustee receives (at the request
of the party exercising the option to purchase all of the Mortgage Loans
or
Lower Tier REMIC 1 Uncertificated Regular Interests pursuant to Section 7.01(b)
or Section 7.01(c), respectively) an Opinion of Counsel (at the expense of
such
requesting party), addressed to the Trustee to the effect that the failure
to
comply with the requirements of this Section 7.03 will not result in an Adverse
REMIC Event:
116
(i) Within
89
days prior to the time of the making of the final payment on the Certificates
other than the Class LT-R Certificates, in the case of a purchase of the
Lower
Tier REMIC 1 Uncertificated Regular Interests, upon notification by the Master
Servicer or an Affiliate of the Seller that it intends to exercise its option
to
cause the termination of the Trust Fund or purchase the Lower Tier REMIC
1
Uncertificated Regular Interests, the Trustee shall adopt a plan of complete
liquidation on behalf of each REMIC (other than REMIC I, in the case of a
purchase of the Lower Tier REMIC 1 Uncertificated Regular Interests), meeting
the requirements of a qualified liquidation under the REMIC Provisions;
(ii) Any
sale
of the assets of the Trust Fund or the Lower Tier REMIC 1 Uncertificated
Regular
Interests pursuant to Section 7.02 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 (other than
the
Class LT-R Certificates, in the case of a purchase of the Lower Tier REMIC
1
Uncertificated Regular Interests);
(iii) On
the
date specified for final payment of the Certificates (other than the Class
LT-R
Certificates, in the case of a purchase of the Lower Tier REMIC 1 Uncertificated
Regular Interests), the Trustee shall make final distributions of principal
and
interest on such Certificates in accordance with Section 5.02. In the case
of a
Trust Fund Termination Event, and, after payment of, or provision for any
outstanding expenses, the Trustee shall 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 in respect of the residual
interest in any liquidated REMIC be made after the 89th day from the date
on
which the plan of complete liquidation for such REMIC is adopted.
(b) By
its
acceptance of a Residual Certificate, each Holder thereof hereby (i) authorizes
the Trustee to take the action described in paragraph (a) above and (ii)
agrees
to take such other action as may be necessary to facilitate liquidation of
each
REMIC created under this Agreement, which authorization shall be binding
upon
all successor Residual Certificateholders.
(c) In
connection with the termination of the Trust Fund or a Section 7.01(c) Purchase
Event, the Trustee may request an Opinion of Counsel addressed to the Trustee
(at the expense of the Depositor) to the effect that all of the requirements
of
a qualified liquidation under the REMIC Provisions have been met.
Section
7.04. Charged-off
Loans and Released Mortgage Loans.
Notwithstanding
anything to the contrary contained in this Agreement, each Charged-off Loan
that
becomes a Released Mortgage Loan shall be released from the Trust Fund as
soon
as practicable after becoming a Released Mortgage Loan and shall no longer
be an
asset of any REMIC. Each Released Mortgage Loan shall be transferred to the
Released Mortgage Transferee, without recourse. The Trustee, upon receipt
of
certification from the Master Servicer that a Charged-off Loan has become
a
Released Mortgage Loan, shall execute such instruments of transfer, assignment
or release, in each case, without recourse, as shall be provided by the Master
Servicer and necessary to transfer such Released Mortgage Loan. Thereafter
(i)
the Released Mortgage Transferee shall be entitled to any amounts subsequently
received in respect of any such Released Mortgage Loans, (ii) the Released
Mortgage Transferee may designate any Servicer to service any such Released
Mortgage Loan and (iii) the Released Mortgage Transferee may sell any such
Released Mortgage Loan to a third party. For purposes of compliance with
the
REMIC Provisions, any such Released Mortgage Loan transferred to the Released
Mortgage Transferee pursuant to this Section 7.04 and having any value as
of the
date of such transfer shall be treated as having been transferred by the
related
REMIC as additional compensation for services provided to such
REMIC.
117
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
Amount) of Certificates of each Class 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 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.
118
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 Trustee, 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 Trustee
shall,
within five Business Days after the receipt of such application, afford such
Applicants reasonable access during the normal business hours of the Trustee
to
the most recent list of Certificateholders held by the Trustee 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
Certificate Registrar and the Trustee that neither the Depositor, the Master
Servicer, 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.
(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
Owner, 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, 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
and the
Master Servicer, if made in the manner provided in this Section. Each of
the
Trustee 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.
119
(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 or Lower Tier REMIC I Uncertificated Regular Interests
(whether or not such Certificates or Lower Tier REMIC I Uncertificated Regular
Interests 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 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 or Lower Tier REMIC I Uncertificated
Regular Interests shall bind every future Holder of the same Certificate
and the
Holder of every Certificate or Lower Tier REMIC I Uncertificated Regular
Interests 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 or Lower Tier REMIC
I
Uncertificated Regular Interests.
ARTICLE
IX
ADMINISTRATION
AND SERVICING OF MORTGAGE LOANS
BY
THE
MASTER SERVICER
Section
9.01. Duties
of the Master Servicer.
The
Certificateholders, by their purchase and acceptance of the Certificates
or
Lower Tier REMIC I Uncertificated Regular Interests, appoint Aurora Loan
Services LLC, as Master Servicer. For and on behalf of the Depositor, the
Trustee and the Certificateholders, the Master Servicer shall master service
the
Mortgage Loans in accordance with the provisions of this Agreement and the
provisions of the Servicing Agreements.
120
Section
9.02. Master
Servicer Fidelity Bond and Master Servicer Errors and Omissions Insurance
Policy.
(a) The
Master Servicer, at its expense, shall maintain in effect a 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 that would
meet
the requirements of FNMA or FHLMC if it were the purchaser of the Mortgage
Loans. The Master Servicer shall (i) require each Servicer to maintain an
Errors
and Omissions Insurance Policy and a Fidelity Bond in accordance with the
provisions of the applicable Servicing Agreement, (ii) cause each Servicer
to
provide to the Master Servicer certificates evidencing that such policy and
bond
is in effect and to furnish to the Master Servicer any notice of cancellation,
non-renewal or modification of the policy or bond received by it, as and
to the
extent provided in the applicable Servicing Agreement, and (iii) furnish
copies
of the certificates and notices referred to in clause (ii) to the Trustee
upon
its request. The Fidelity Bond and Errors and Omissions Insurance Policy
may be
obtained and maintained in blanket form.
(b) The
Master Servicer shall promptly report to the Trustee any material changes
that
may occur in the Master Servicer Fidelity Bond or the Master Servicer Errors
and
Omissions Insurance Policy and shall furnish to the Trustee, on request,
certificates evidencing that such bond and insurance policy are in full force
and effect. The Master Servicer shall promptly report to the Trustee all
cases
of embezzlement or fraud, if such events involve funds relating to the Mortgage
Loans. The total losses, regardless of whether claims are filed with the
applicable insurer or surety, shall be disclosed in such reports together
with
the amount of such losses covered by insurance. If a bond or insurance claim
report is filed with any of such bonding companies or insurers, the Master
Servicer shall promptly furnish a copy of such report to the Trustee. Any
amounts relating to the Mortgage Loans collected by the Master Servicer under
any such bond or policy shall be promptly remitted by the Master Servicer
to the
Trustee for deposit into the Certificate Account. Any amounts relating to
the
Mortgage Loans collected by any Servicer under any such bond or policy shall
be
remitted to the Master Servicer to the extent provided in the applicable
Servicing Agreement.
Section
9.03. Master
Servicer’s Financial Statements and Related Information.
For
each
year this Agreement is in effect, the Master Servicer shall submit to each
Rating Agency and the Depositor a copy of the annual audited financial
statements of its corporate parent on or prior to March 31st of each year
commencing on March 31, 2008. Such financial statements shall include
comparative balance sheets, income statements, statement of changes in
shareholder's equity, statements of cash flows, a consolidating schedule
showing
consolidated subsidiaries and any related notes required pursuant to generally
accepted accounting principles, certified by a nationally recognized firm
of
Independent Accountants to the effect that such financial statements were
examined and prepared in accordance with generally accepted accounting
principles applied on a basis consistent with that of the preceding
year.
121
Section
9.04. Power
to Act; Procedures.
(a) The
Master Servicer shall master service the Mortgage Loans and shall have full
power and authority, subject to the REMIC Provisions and the provisions of
Article X hereof, and each Servicer shall have full power and authority (to
the
extent provided in the applicable Servicing Agreement) to do any and all
things
that it may deem necessary or desirable in connection with the servicing
and
administration of the Mortgage Loans, including but not limited to the power
and
authority (i) to execute and deliver, on behalf of the Certificateholders
and
the Trustee, customary consents or waivers and other instruments and documents,
(ii) to consent to transfers of any Mortgaged Property and assumptions of
the
Mortgage Notes and related Mortgages, (iii) to collect any Insurance Proceeds
and Liquidation Proceeds, and (iv) to effectuate foreclosure or other conversion
of the ownership of the Mortgaged Property securing any Mortgage Loan, in
each
case, in accordance with the provisions of this Agreement and the applicable
Servicing Agreement, as applicable; provided
that the
Master Servicer shall not take, or knowingly permit any Servicer to take,
any
action that is inconsistent with or prejudices the interests of the Trust
Fund,
the Trustee or the Certificateholders in any Mortgage Loan or the rights
and
interests of the Depositor, the Trustee and the Certificateholders under
this
Agreement. The Master Servicer further is authorized and empowered by the
Trustee, on behalf of the Certificateholders and the Trustee, in its own
name or
in the name of any Servicer, when the Master Servicer or a Servicer, as the
case
may be, believes it is appropriate in its best judgment to register any Mortgage
Loan with MERS, or cause the removal from the registration of any Mortgage
Loan
on the MERS system, to execute and deliver, on behalf of the Trustee and
the
Certificateholders or any of them, any and all instruments of assignment
and
other comparable instruments with respect to such assignment or re-recording
of
a Mortgage in the name of MERS, solely as nominee for the Trustee and its
successors and assigns. The Master Servicer shall represent and protect the
interests of the Trust Fund in the same manner as it protects its own interests
in mortgage loans in its own portfolio in any claim, proceeding or litigation
regarding a Mortgage Loan and shall not make or knowingly permit any Servicer
to
make any modification, waiver or amendment of any term of any Mortgage Loan
that
would cause any REMIC formed hereby to fail to qualify as a REMIC or result
in
the imposition of any tax under Section 860F(a) or Section 860G(d) of the
Code.
Without limiting the generality of the foregoing, the Master Servicer in
its own
name or in the name of a Servicer, and each Servicer, to the extent such
authority is delegated to such Servicer by the Master Servicer under the
applicable Servicing Agreement, is hereby authorized and empowered by the
Trustee when the Master Servicer or applicable Servicer, as the case may
be,
believes it appropriate in its best judgment and in accordance with Accepted
Servicing Practices and the applicable Servicing Agreement, to execute and
deliver, on behalf of itself and the Certificateholders, the Trustee or any
of
them, any and all instruments of satisfaction or cancellation, or of partial
or
full release or discharge and all other comparable instruments, with respect
to
the Mortgage Loans and with respect to the Mortgaged Properties. The Trustee
shall execute, upon request, any powers of attorney furnished to it (and
reasonably acceptable to it) by the Master Servicer empowering the Master
Servicer or any Servicer to execute and deliver instruments of satisfaction
or
cancellation, or of partial or full release or discharge, and to foreclose
upon
or otherwise liquidate Mortgaged Property, and to appeal, prosecute or defend
in
any court action relating to the Mortgage Loans or the Mortgaged Property,
in
accordance with the applicable Servicing Agreement and this Agreement, and
the
Trustee shall execute and deliver such other documents, as the Master Servicer
may request, necessary or appropriate to enable the Master Servicer to master
service the Mortgage Loans and carry out its duties hereunder, and allow
each
Servicer to service the Mortgage Loans in each case in accordance with Accepted
Servicing Practices (and the Trustee shall have no liability for misuse of
any
such powers of attorney by the Master Servicer or any Servicer). If the Master
Servicer or the Trustee has been advised that it is likely that the laws
of the
state in which action is to be taken prohibit such action if taken in the
name
of the Trustee or that the Trustee would be adversely affected under the
“doing
business” or tax laws of such state if such action is taken in its name, then
upon request of the Trustee, the Master Servicer shall join with the Trustee
in
the appointment of a co-trustee pursuant to Section 6.09 hereof. In the
performance of its duties hereunder, the Master Servicer shall be an independent
contractor and shall not, except in those instances where it is taking action
in
the name of the Trustee, be deemed to be the agent of the Trustee. The Master
Servicer shall indemnify the Trustee for any and all costs, liabilities and
expenses incurred by the Trustee in connection with the negligent or willful
misuse of such powers of attorney by the Master Servicer.
122
(b) In
master
servicing and administering the Mortgage Loans, the Master Servicer shall
employ
procedures and exercise the same care that it customarily employs and exercises
in master servicing and administering loans for its own account, giving due
consideration to Accepted Servicing Practices where such practices do not
conflict with this Agreement. Consistent with the foregoing, the Master Servicer
may, and may permit any Servicer to, in its discretion (i) waive any late
payment charge or any prepayment charge or penalty interest in connection
with
the prepayment of a Mortgage Loan, and, except as set forth below (ii) extend
the due dates for payments due on a Mortgage Note for a period not greater
than
120 days; provided,
however,
that
the maturity of any Mortgage Loan shall not be extended past the date on
which
the final payment is due on the latest maturing Mortgage Loan as of the Cut-off
Date. In the event of any extension described in clause (ii) above, the Master
Servicer shall make or cause to be made Advances on the related Mortgage
Loan in
accordance with the provisions of Section 5.04 on the basis of the amortization
schedule of such Mortgage Loan without modification thereof by reason of
such
extension. Notwithstanding
anything to the contrary in this Agreement, the Master Servicer shall not
make
or knowingly permit any modification, waiver or amendment of any material
term
of any Mortgage Loan unless: (1) such Mortgage Loan is in default or default
by
the related Mortgagor is, in the reasonable judgment of the Master Servicer
or
the applicable
Servicer, reasonably foreseeable, (2) in the case of a waiver of a Prepayment
Premium if (a) such Mortgage Loan is in default or default by the related
Mortgagor is reasonably foreseeable, and such waiver would maximize recovery
of
total proceeds taking into account the value of such Prepayment Premium and
the
related Mortgage Loan or (b) if the prepayment is not the result of a refinance
by a Servicer or any of its affiliates and (i) such Mortgage Loan is in default
or default by the related Mortgagor is, in the reasonable judgment of the
Master
Servicer or the
applicable
Servicer, reasonably foreseeable, and such waiver would maximize recovery
of
total proceeds taking into account the value of such Prepayment Premium and
the
related Mortgage Loan or (ii) the collection of the Prepayment Premium would
be
in violation of applicable laws or (iii) the collection of such Prepayment
Premium would be considered “predatory” pursuant to written guidance published
or issued by any applicable federal, state or local regulatory authority
acting
in its official capacity and having jurisdiction over such matters, and (3)
the
Master Servicer shall have provided or caused to be provided to the Trustee
an
Opinion of Counsel(which opinion shall, if provided by the Master Servicer,
be
an expense reimbursed from the Collection Account pursuant to Section 4.02(v))
in writing to the effect that such modification, waiver or amendment would
not
cause an Adverse REMIC Event; provided,
in no event shall an Opinion of Counsel be required for the waiver of a
Prepayment Premium under clause (2) above. Notwithstanding
anything to the contrary, the Master Servicer shall not without the Trustee’s
written consent: (i) initiate any action, suit or proceeding solely under
the
Trustee’s name without indicating the Master Servicer’s representative capacity
or (ii) take any action with the intent to cause, and which actually does
cause,
the Trustee to be registered to do business in any state.
123
Section
9.05. Servicing
Agreements Between the Master Servicer and Servicers; Enforcement of Servicers’
Obligations.
(a) Each
Servicing Agreement requires the applicable Servicer to service the Mortgage
Loans in accordance with the provisions thereof. References in this Agreement
to
actions taken or to be taken by the Master Servicer include such actions
taken
or to be taken by a Servicer pursuant to a Servicing Agreement. Any fees,
costs
and expenses and other amounts payable to such Servicers shall be deducted
from
amounts remitted to the Master Servicer by the applicable Servicer (to the
extent permitted by the applicable Servicing Agreement) and shall not be
an
obligation of the Trust Fund, the Trustee or the Master Servicer.
(b) The
Master Servicer shall not be required to (i) take any action with respect
to the
servicing of any Mortgage Loan that the related Servicer is not required
to take
under the related Servicing Agreement and (ii) cause a Servicer to take any
action or refrain from taking any action if the related Servicing Agreement
does
not require such Servicer to take such action or refrain from taking such
action; in both cases notwithstanding any provision of this Agreement that
requires the Master Servicer to take such action or cause a Servicer to take
such action.
(c) The
Master Servicer, for the benefit of the Trustee and the Certificateholders,
shall enforce the obligations of each Servicer under the related Servicing
Agreement, and shall use its reasonable best efforts to enforce the obligations
of each Servicer under the related Servicing Agreement and shall, upon its
obtaining actual knowledge of the failure of a Servicer to perform its
obligations in accordance with the related Servicing Agreement, to the extent
that the non-performance of any such obligations would have a material adverse
effect on a Mortgage Loan, the Trust Fund or Certificateholders terminate
the
rights and obligations of such Servicer thereunder to the extent and in the
manner permitted by each Servicing Agreement and either act as Servicer of
the
related Mortgage Loans or enter into a Servicing Agreement with a successor
servicer. Such enforcement, including, without limitation, the legal prosecution
of claims, termination of the Servicing Agreements and the pursuit of other
appropriate remedies, shall be in such form and carried out to such an extent
and at such time as the Master Servicer, in its good faith business judgment,
would require were it the owner of the related Mortgage Loans. The Master
Servicer shall pay the costs of such enforcement at its own expense, and
shall
be reimbursed therefor initially only (i) 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 or (ii) from a specific
recovery of costs, expenses or attorneys’ fees against the party against whom
such enforcement is directed, and then, to the extent that such amounts are
insufficient to reimburse the Master Servicer for the costs of such enforcement,
(iii) from the Collection Account.
124
(d) The
Master Servicer shall be entitled to rely conclusively on any certifications
or
other information provided by each Servicer under the terms of each Servicing
Agreement in its preparation of any certifications, notifications, filings
or
reports to be made in accordance with the terms hereof or as may be required
by
applicable law or regulation.
Section
9.06. Collection
of Taxes, Assessments and Similar Items.
(a) To
the
extent provided in the applicable Servicing Agreement, the Master Servicer
shall
cause each Servicer to establish and maintain one or more custodial accounts
at
a depository institution (which may be a depository institution with which
the
Master Servicer or any Servicer establishes accounts in the ordinary course
of
its servicing activities), the accounts of which are insured to the maximum
extent permitted by the FDIC (each, an “Escrow Account”) and shall deposit
therein any collections of amounts received with respect to amounts due for
taxes, assessments, water rates, Standard Hazard Insurance Policy premiums
or
any comparable items for the account of the Mortgagors. Withdrawals from
any
Escrow Account may be made (to the extent amounts have been escrowed for
such
purpose) only in accordance with the applicable Servicing Agreement. Each
Servicer shall be entitled to all investment income not required to be paid
to
Mortgagors on any Escrow Account maintained by such Servicer. The Master
Servicer shall make (or cause to be made) to the extent provided in the
applicable Servicing Agreement advances to the extent necessary in order
to
effect timely payment of taxes, water rates, assessments, Standard Hazard
Insurance Policy premiums or comparable items in connection with the related
Mortgage Loan (to the extent that the Mortgagor is required, but fails, to
pay
such items), provided
that it
has determined that the funds so advanced are recoverable from escrow payments,
reimbursement pursuant to Section 4.02(v) or otherwise.
(b) Costs
incurred by the Master Servicer or by Servicers in effecting the timely payment
of taxes and assessments on the properties subject to the Mortgage Loans
may be
added to the amount owing under the related Mortgage Note where the terms
of the
Mortgage Note so permit; provided,
however,
that
the addition of any such cost shall not be taken into account for purposes
of
calculating the distributions to be made to Certificateholders. Such costs,
to
the extent that they are unanticipated, extraordinary costs, and not ordinary
or
routine costs shall be recoverable by the Master Servicer pursuant to Section
4.02(v).
125
Section
9.07. Termination
of Servicing Agreements; Successor Servicers.
(a) The
Master Servicer shall be entitled to terminate the rights and obligations
of any
Servicer under the applicable Servicing Agreement in accordance with the
terms
and conditions of such Servicing Agreement and without any limitation by
virtue
of this Agreement; provided,
however,
that in
the event of termination of any Servicing Agreement by the Master Servicer
or
the related Servicer, the Master Servicer shall either act as Servicer of
the
related Mortgage Loans, or enter into a servicing agreement with a successor
servicer. The parties acknowledge that notwithstanding the preceding sentence,
there may be a transition period, not to exceed 90 days, in order to effect
the
transfer of servicing to a successor servicer. The Master Servicer shall
be entitled to be reimbursed from each Servicer (or by the Trust Fund, if
such
Servicer is unable to fulfill its obligations hereunder) for all costs
associated with the transfer of servicing from the predecessor Servicer,
including without limitation, any costs or expenses associated with the complete
transfer of all servicing data and the completion, correction or manipulation
of
such servicing data, as may be required by the Master Servicer to correct
any
errors or insufficiencies in the servicing data or otherwise to enable the
Master Servicer to service the Mortgage Loans properly and
effectively.
(b) If
the
Master Servicer acts as Servicer, it will not assume liability for the
representations and warranties of the Servicer, if any, that it replaces.
The
Master Servicer shall use reasonable efforts to have the successor servicer
assume liability for the representations and warranties made by the terminated
Servicer in respect of the related Mortgage Loans, and in the event of any
such
assumption by the successor servicer, the Trustee or the Master Servicer,
as
applicable, may, in the exercise of its business judgment, release the
terminated Servicer from liability for such representations and
warranties.
Section
9.08. Master
Servicer Liable for Enforcement.
Notwithstanding
any Servicing Agreement, the Master Servicer shall remain obligated and liable
to the Trustee and the Certificateholders in accordance with the provisions
of
this Agreement, to the extent of its obligations hereunder, without diminution
of such obligation or liability by virtue of such Servicing Agreement or
arrangements. The Master Servicer shall use commercially reasonable efforts
to
ensure that the Mortgage Loans are serviced in accordance with the provisions
of
this Agreement and shall use commercially reasonable efforts to enforce the
provisions of each Servicing Agreement for the benefit of the
Certificateholders. The Master Servicer shall be entitled to enter into any
agreement with the Servicers for indemnification of the Master Servicer and
nothing contained in this Agreement shall be deemed to limit or modify such
indemnification. Except as expressly set forth herein, the Master Servicer
shall
have no liability for the acts or omissions of such Servicer in the performance
by a Servicer of its obligations under the related Servicing
Agreement.
126
Section
9.09. No
Contractual Relationship Between Servicers and Trustee or Depositor.
Any
Servicing Agreement that may be entered into and any other transactions or
services relating to the Mortgage Loans involving a Servicer in its capacity
as
such and not as an originator shall be deemed to be between such Servicer,
the
related Seller and the Master Servicer, and except to the extent expressly
provided therein the Trustee and the Depositor shall not be deemed parties
thereto and shall have no claims, rights, obligations, duties or liabilities
with respect to such Servicer except as set forth in Section 9.10
hereof.
Section
9.10. Assumption
of Servicing Agreement 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 under this Agreement), after
a
period not to exceed ninety days after the issuance of any notice of termination
pursuant to Section 6.14 or Section 9.28, as applicable, the Trustee shall,
in
accordance with Section 6.14, thereupon assume all of the rights and obligations
of such Master Servicer hereunder and enforce the rights under each Servicing
Agreement entered into with respect to the Mortgage Loans. The Trustee, 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 Servicing Agreement 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 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 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 (or its designee) 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; provided
that the
Master Servicer shall not indemnify or hold harmless the Trustee against
negligent or willful misconduct of the Trustee.
(b) The
Master Servicer that has been terminated shall, upon request of the Trustee
but
at the expense of such Master Servicer or, at the expense of the Trust Fund
to
the extent provided in this Agreement, deliver to the assuming party all
documents and records relating to each Servicing Agreement and the related
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 Servicing Agreement to the assuming party.
Section
9.11. “Due-on-Sale”
Clauses; Assumption Agreements.
127
(a) To
the
extent provided in the applicable Servicing Agreement, to the extent Mortgage
Loans contain enforceable due-on-sale clauses, and to the extent that the
Master
Servicer has knowledge of the conveyance of a Mortgaged Property, the Master
Servicer shall use its reasonable best efforts to cause the Servicers to
enforce
such clauses in accordance with the applicable Servicing Agreement. If
applicable law prohibits the enforcement of a due-on-sale clause or such
clause
is otherwise not enforced in accordance with the applicable Servicing Agreement,
and, as a consequence, a Mortgage Loan is assumed, the original Mortgagor
may be
released from liability in accordance with the applicable Servicing
Agreement.
(b) The
Master Servicer or the related Servicer, as the case may be, shall be entitled
to approve a request from a Mortgagor for the granting of an easement thereon
in
favor of another Person or any alteration or demolition of the related Mortgaged
Property if it has determined, exercising its good faith business judgment
in
the same manner as it would if it were the owner of the related Mortgage
Loan,
that the security for, and the timely and full collectibility of, such Mortgage
Loan would not be materially adversely affected thereby. Any fee collected
by
the Master Servicer or the related Servicer for processing such a request
will
be retained by the Master Servicer or the such Servicer as additional servicing
compensation.
Section
9.12. Release
of Mortgage Files.
(a) Upon
(i)
becoming aware of the payment in full of any Mortgage Loan or, (ii) the receipt
by the applicable Servicer of a notification that payment in full has been
or
will be escrowed in a manner customary for such purposes, the Master Servicer
will, or will cause the applicable Servicer to, promptly notify the Trustee
(or
the applicable Custodian) by a certification (which certification shall include
a statement to the effect that all amounts received or to be received in
connection with such payment that are required to be deposited in the Collection
Account maintained by the Master Servicer pursuant to Section 4.01 have been
or
will be so deposited) of a Servicing Officer and shall request the Trustee
or
the applicable Custodian, to deliver to the applicable Servicer the related
Mortgage File. In lieu of sending a hard copy certification of a Servicing
Officer, the Master Servicer may, or may cause a Servicer to, deliver the
request for release in a mutually agreeable electronic format. To the extent
that such a request, on its face, originates from a Servicing Officer, no
signature shall be required. Upon receipt of such certification and request,
the
Trustee or the applicable Custodian, shall promptly release the related Mortgage
File to the applicable Servicer and neither the Trustee nor the applicable
Custodian shall have any further responsibility with regard to such Mortgage
File. The Master Servicer is authorized, and each Servicer, to the extent
such
authority is delegated to the Servicer by the Master Servicer under the
applicable Servicing Agreement, is authorized, to give, as agent for the
Trustee, as the mortgagee under the Mortgage that secured the Mortgage Loan,
an
instrument of satisfaction (or assignment of mortgage without recourse)
regarding the Mortgaged Property subject to the Mortgage, which instrument
of
satisfaction or assignment, as the case may be, shall be delivered to the
Person
or Persons entitled thereto against receipt therefor of such payment, it
being
understood and agreed that no expenses incurred in connection with such
instrument of satisfaction or assignment, as the case may be, shall be
chargeable to the Collection Account.
128
(b) From
time
to time and as appropriate for the servicing or foreclosure of, or other
legal
proceedings relating to, any Mortgage Loan and in accordance with Accepted
Servicing Practices and the applicable Servicing Agreement, the Trustee shall
execute such pleadings, request for trustee’s sale or other documents as shall
be prepared and furnished to the Trustee by the Master Servicer, or by a
Servicer (in form reasonably acceptable to the Trustee) and as are necessary
to
the prosecution of any such proceedings. The Trustee or the applicable
Custodian, shall, upon request of the Master Servicer, or of a Servicer,
and
delivery to the Trustee or the applicable Custodian, of a trust receipt signed
by a Servicing Officer substantially in the form annexed hereto as Exhibit
C or
in the form annexed to the applicable Custodial Agreement as Exhibit C, release
the related Mortgage File held in its possession or control to the Master
Servicer (or the applicable Servicer). Such trust receipt shall obligate
the
Master Servicer or applicable Servicer to return the Mortgage File to the
Trustee or applicable Custodian, as applicable, when the need therefor by
the
Master Servicer or applicable Servicer no longer exists unless (i) the Mortgage
Loan shall be liquidated, in which case, upon receipt of a certificate of
a
Servicing Officer similar to that herein above specified, the trust receipt
shall be released by the Trustee or the applicable Custodian, as applicable,
to
the Master Servicer (or the applicable Servicer) or (ii) the Mortgage File
has
been delivered directly or through a Servicer to an attorney, or to a public
trustee or other public official as required by law, for purposes of initiating
or pursuing legal action or other proceedings for the foreclosure of the
Mortgaged Property either judicially or non-judicially, and the Master Servicer
has delivered directly or through a Servicer to the Trustee a certificate
of a
Servicing Officer certifying as to the name and address of the Person to
which
such Mortgage File or such document was delivered and the purpose or purposes
of
such delivery.
Section
9.13. Documents,
Records and Funds in Possession of Master Servicer To Be Held for Trustee.
(a) The
Master Servicer shall transmit, or cause the applicable Servicer to transmit,
to
the Trustee such documents and instruments coming into the possession of
the
Master Servicer or such Servicer from time to time as are required by the
terms
hereof to be delivered to the Trustee. Any funds received by the Master Servicer
or by a Servicer in respect of any Mortgage Loan or which otherwise are
collected by the Master Servicer or by a Servicer as a Subsequent Recovery,
Liquidation Proceeds or Insurance Proceeds in respect of any Mortgage Loan
shall
be held for the benefit of the Trustee and the Certificateholders subject
to the
Master Servicer’s right to retain or withdraw from the Collection Account the
Master Servicing Fee and other amounts provided in this Agreement, and to
the
right of each Servicer to retain its Servicing Fee and other amounts as provided
in the applicable Servicing Agreement. The Master Servicer shall, and shall
(to
the extent provided in the applicable Servicing Agreement) cause a Servicer
to,
provide access to information and documentation regarding the Mortgage Loans
to
the Trustee, its agents and accountants at any time upon reasonable request
and
during normal business hours, and to Certificateholders that are savings
and
loan associations, banks or insurance companies, the Office of Thrift
Supervision, the FDIC and the supervisory agents and examiners of such Office
and Corporation or examiners of any other federal or state banking or insurance
regulatory authority if so required by applicable regulations of the Office
of
Thrift Supervision or other regulatory authority, such access to be afforded
without charge but only upon reasonable request in writing and during normal
business hours at the offices of the Master Servicer designated by it. In
fulfilling such a request the Master Servicer shall not be responsible for
determining the sufficiency of such information.
129
(b) All
Mortgage Files and funds collected or held by, or under the control of, the
Master Servicer, or any Servicer, in respect of any Mortgage Loans, whether
from
the collection of principal and interest payments or from a Subsequent Recovery,
Liquidation Proceeds or Insurance Proceeds, shall be held by the Master
Servicer, or by such Servicer, for and on behalf of the Trustee and the
Certificateholders and shall be and remain the sole and exclusive property
of
the Trustee; provided,
however,
that
the Master Servicer and each Servicer shall be entitled to setoff against,
and
deduct from, any such funds any amounts that are properly due and payable
to the
Master Servicer or such Servicer under this Agreement or the applicable
Servicing Agreement and shall be authorized to remit such funds to the Trustee
in accordance with this Agreement.
(c) The
Master Servicer hereby acknowledges that concurrently with the execution
of this
Agreement, the Trustee shall own or, to the extent that a court of competent
jurisdiction shall deem the conveyance of the Mortgage Loans from either
Seller
to the Depositor not to constitute a sale, the Trustee shall have a security
interest in either Mortgage Loans and in all Mortgage Files representing
such
Mortgage Loans and in all funds now or hereafter held by, or under the control
of, a Servicer or the Master Servicer that are collected by such Servicer
or the
Master Servicer in connection with such Mortgage Loans, whether as scheduled
installments of principal and interest or as full or partial prepayments
of
principal or interest or as a Subsequent Recovery, Liquidation Proceeds or
Insurance Proceeds or otherwise, and in all proceeds of the foregoing and
proceeds of proceeds (but excluding any fee or other amounts to which such
Servicer is entitled under the applicable Servicing Agreement, or the Master
Servicer or the Depositor is entitled to hereunder); and the Master Servicer
agrees that so long as the Mortgage Loans are assigned to and held by the
Trustee or a Custodian, all documents or instruments constituting part of
the
Mortgage Files, and such funds relating to the Mortgage Loans which come
into
the possession or custody of, or which are subject to the control of, the
Master
Servicer or any Servicer shall be held by the Master Servicer or such Servicer
for and on behalf of the Trustee as the Trustee’s agent and bailee for purposes
of perfecting the Trustee’s security interest therein as provided by the
applicable Uniform Commercial Code or other laws.
(d) The
Master Servicer agrees that it shall not, and shall not authorize a Servicer
to,
create, incur or subject any Mortgage Loans, or any funds that are deposited
in
any custodial account, Escrow Account or the Collection Account, or any funds
that otherwise are or may become due or payable to the Trustee, to any claim,
lien, security interest, judgment, levy, writ of attachment or other
encumbrance, nor assert by legal action or otherwise any claim or right of
setoff against any Mortgage Loan or any funds collected on, or in connection
with, a Mortgage Loan.
130
Section
9.14. Representations
and Warranties of the Master Servicer.
(a) The
Master Servicer hereby represents and warrants to the Depositor 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 jurisdiction of its formation,
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 certificate of formation or limited liability company
agreement, (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 certificate of formation or limited liability company agreement
provision or any other company 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 an FNMA- and 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;
(ix) the
consummation of the transactions contemplated by this Agreement are in the
ordinary course of business of the Master Servicer; and
(x) the
Master Servicer has obtained an Errors and Omissions Insurance Policy and
a
Fidelity Bond in accordance with Section 9.02, each of which is in full force
and effect, and each of which provides at least such coverage as is required
hereunder.
(b) It
is
understood and agreed that the representations and warranties set forth in
this
Section 9.14 shall survive the execution and delivery of this Agreement.
The
Master Servicer shall indemnify the Depositor 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 breach of the Master Servicer’s representations and warranties contained
in Section 9.14(a). Notwithstanding anything in this Agreement to the contrary,
the Master Servicer shall not be liable for special, indirect or consequential
losses or damages of any kind whatsoever (including, but not limited to,
lost
profits). It is understood and agreed that the enforcement of the obligation
of
the Master Servicer set forth in this Section to indemnify the Depositor
and the
Trustee as provided in this Section constitutes the sole remedy (other than
as
set forth in Section 6.14) of the Depositor 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,
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.
(c) It
is
understood and agreed that the representations and warranties of the Depositor
set forth in Sections 2.03(a) through (f) shall survive the execution and
delivery of this Agreement. The Depositor shall indemnify the Master Servicer
and hold it 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 breach of the Depositor’s representations and warranties
contained in Sections 2.03(a) through (f) hereof. It is understood and agreed
that the enforcement of the obligation of the Depositor set forth in this
Section to indemnify the Master Servicer as provided in this Section constitutes
the sole remedy of the Master Servicer respecting a breach by the Depositor
of
the representations and warranties in Sections 2.03(a) through (f)
hereof.
132
Any
cause
of action against the Depositor relating to or arising out of the breach
of the
representations and warranties made in Sections 2.03(a) through (f) hereof
shall
accrue upon discovery of such breach by either the Depositor or the Master
Servicer or notice thereof by any one of such parties to the other
parties.
Section
9.15. Closing
Certificate and Opinion.
On
or
before the Closing Date, the Master Servicer shall cause to be delivered
to the
Depositor, the Trustee and Xxxxxx Brothers Inc. an Opinion of Counsel, dated
the
Closing Date, in form and substance reasonably satisfactory to the Depositor
and
Xxxxxx Brothers Inc., as to the due authorization, execution and delivery
of
this Agreement by the Master Servicer and the enforceability thereof.
Section
9.16. Standard
Hazard and Flood Insurance Policies.
For
each
Mortgage Loan (other than a Cooperative Loan), the Master Servicer shall
maintain, or cause to be maintained by each Servicer, standard fire and casualty
insurance and, where applicable, flood insurance, all in accordance with
the
provisions of this Agreement and the related Servicing Agreement, as applicable.
It is understood and agreed that such insurance shall be with insurers meeting
the eligibility requirements set forth in the applicable Servicing Agreement
and
that no earthquake or other additional insurance is to be required of any
Mortgagor or to be maintained on property acquired in respect of a defaulted
loan, other than pursuant to such applicable laws and regulations as shall
at
any time be in force and as shall require such additional
insurance.
Pursuant
to Section 4.01, any amounts collected by the Master Servicer, or by any
Servicer, under any insurance policies maintained pursuant to this Section
9.16
(other than amounts to be applied to the restoration or repair of the property
subject to the related Mortgage or released to the Mortgagor in accordance
with
the Master Servicer’s or a Servicer’s normal servicing procedures and Accepted
Servicing Practices) shall be deposited into the Collection Account, subject
to
withdrawal pursuant to Section 4.02. Any cost incurred by the Master Servicer
or
any Servicer in maintaining any such insurance if the Mortgagor defaults
in its
obligation to do so shall be added to the amount owing under the Mortgage
Loan
where the terms of the Mortgage Loan so permit; provided,
however,
that
the addition of any such cost shall not be taken into account for purposes
of
calculating the distributions to be made to Certificateholders and shall
be
recoverable by the Master Servicer or such Servicer pursuant to Section
4.02(v).
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Section
9.17. Presentment
of Claims and Collection of Proceeds.
The
Master Servicer shall, or shall cause each Servicer (to the extent provided
in
the applicable Servicing Agreement) to, prepare and present on behalf of
the
Trustee and the Certificateholders all claims under the Insurance Policies
with
respect to the Mortgage Loans, and take such actions (including the negotiation,
settlement, compromise or enforcement of the insured’s claim) as shall be
necessary to realize recovery under such policies. Any proceeds disbursed
to the
Master Servicer (or disbursed to a Servicer and remitted to the Master Servicer)
in respect of such policies or bonds shall be promptly deposited in the
Collection Account upon receipt, except that any amounts realized that are
to be
applied to the repair or restoration of the related Mortgaged Property or
released to the Mortgagor in accordance with the Master Servicer’s or a
Servicer’s normal servicing procedures need not be so deposited (or
remitted).
Section
9.18. Maintenance
of the Primary Mortgage Insurance Policies.
(a) The
Master Servicer shall not take, or knowingly permit any Servicer (consistent
with the applicable Servicing Agreement) to take, any action that would result
in non-coverage under any applicable Primary Mortgage Insurance Policy of
any
loss which, but for the actions of such Master Servicer or Servicer, would
have
been covered thereunder. To the extent that coverage is available, the Master
Servicer shall use its best reasonable efforts to keep in force and effect,
or
to cause each Servicer to keep in force and effect (to the extent that the
Mortgage Loan requires the Mortgagor to maintain such insurance), primary
mortgage insurance applicable to each Mortgage Loan in accordance with the
provisions of this Agreement and the related Servicing Agreement, as applicable.
The Master Servicer shall not, and shall not permit any Servicer to, cancel
or
refuse to renew any such Primary Mortgage Insurance Policy that is in effect
at
the date of the initial issuance of the Certificates and is required to be
kept
in force hereunder except as required by applicable law or in accordance
with
the provisions of this Agreement and the related Servicing Agreement, as
applicable.
(b) The
Master Servicer agrees to present, or to cause each Servicer to present,
on
behalf of the Trustee and the Certificateholders, claims to the insurer under
any Primary Mortgage Insurance Policies and, in this regard, to take such
reasonable action as shall be necessary to permit recovery under any Primary
Mortgage Insurance Policies respecting defaulted Mortgage Loans. Pursuant
to
Section 4.01, any amounts collected by the Master Servicer or any Servicer
under
any Primary Mortgage Insurance Policies shall be deposited in the Collection
Account, subject to withdrawal pursuant to Section 4.02.
Section
9.19. Trustee
To Retain Possession of Certain Insurance Policies and Documents.
The
Trustee (or the applicable Custodian pursuant to the Custodial Agreement),
shall
retain possession and custody of the originals of the Primary Mortgage Insurance
Policies or certificate of insurance if applicable and any certificates of
renewal as to the foregoing as may be issued from time to time as contemplated
by this Agreement. Until all amounts distributable in respect of the
Certificates have been distributed in full and the Master Servicer otherwise
has
fulfilled its obligations under this Agreement, the Trustee (or any Custodian,
as directed by the Trustee) shall also retain possession and custody of each
Mortgage File in accordance with and subject to the terms and conditions
of this
Agreement. The Master Servicer shall promptly deliver or cause to be delivered
to the Trustee (or the applicable Custodian pursuant to the Custodial
Agreement), upon the execution or receipt thereof the originals of the Primary
Mortgage Insurance Policies and any certificates of renewal thereof, and
such
other documents or instruments that constitute portions of the Mortgage File
that come into the possession of the Master Servicer from time to
time.
134
Section
9.20. Realization
Upon Defaulted Mortgage Loans.
The
Master Servicer shall use its reasonable best efforts to, or to cause a Servicer
to, foreclose upon, repossess or otherwise comparably convert the ownership
of
Mortgaged Properties securing such of the Mortgage Loans as come into and
continue in default and as to which no satisfactory arrangements can be made
for
collection of delinquent payments, all in accordance with the applicable
Servicing Agreement. Alternatively, the Master Servicer may take, or authorize
any Servicer to take, other actions in respect of a defaulted Mortgage Loan,
which may include (i) accepting a short sale (a payoff of the Mortgage Loan
for
an amount less than the total amount contractually owed in order to facilitate
a
sale of the Mortgaged Property by the Mortgagor) or permitting a short
refinancing (a payoff of the Mortgage Loan for an amount less than the total
amount contractually owed in order to facilitate refinancing transactions
by the
Mortgagor not involving a sale of the Mortgaged Property), (ii) arranging
for a
repayment plan or (iii) agreeing to a modification in accordance with Section
9.04. In connection with such foreclosure or other conversion or action,
the
Master Servicer shall, consistent with Section 9.18, follow such practices
and
procedures as it shall reasonably determine to be in the best interests of
the
Trust Fund and the Certificateholders and which shall be consistent with
its
customary practices in performing its general mortgage servicing activities;
provided that the Master Servicer shall not be liable in any respect hereunder
if the Master Servicer is acting in connection with any such foreclosure
or
other conversion or action in a manner that is consistent with the provisions
of
this Agreement. Neither the Master Servicer, nor any Servicer, shall be required
to expend its own funds or incur other reimbursable charges in connection
with
any foreclosure, or attempted foreclosure which is not completed, or toward
the
correction of any default on a related senior mortgage loan, or towards the
restoration of any property unless it shall determine (i) that such restoration
and/or foreclosure will increase the proceeds of liquidation of the Mortgage
Loan to the Certificateholders after reimbursement to itself for such expenses
or charges and (ii) that such expenses and charges will be recoverable to
it
through Liquidation Proceeds or Insurance Proceeds (as provided in Section
4.02).
Section
9.21. Compensation
to the Master Servicer.
The
Master Servicer shall be entitled to withdraw from the Collection Account,
the
Master Servicing Fee to the extent permitted by Section 4.02(vi). Servicing
compensation in the form of assumption fees, if any, late payment charges,
as
collected, if any, or otherwise shall be retained by the Master Servicer
(or the
applicable Servicer) and shall not be deposited in the Collection Account.
If
the Master Servicer does not retain or withdraw the Master Servicing Fee
from
the Collection Account as provided herein, the Master Servicer shall be entitled
to direct the Trustee to pay the Master Servicing Fee to such Master Servicer
by
withdrawal from the Certificate Account. The Master Servicer shall be required
to pay all expenses incurred by it in connection with its activities hereunder
and shall not be entitled to reimbursement therefor except as provided in
this
Agreement. Pursuant to Section 4.01(e), all income and gain realized from
any
investment of funds in the Collection Account shall be for the benefit of
the
Master Servicer as additional compensation. The provisions of this Section
9.21
are subject to the provisions of Section 6.14(b).
135
Section
9.22. REO
Property.
(a) In
the
event the Trust Fund acquires ownership of any REO Property in respect of
any
Mortgage Loan, the deed or certificate of sale shall be issued to the Trustee,
or to its nominee, on behalf of the Certificateholders. The Master Servicer
shall use its reasonable best efforts to sell, or, to the extent provided
in the
applicable Servicing Agreement, cause the applicable Servicer to sell, any
REO
Property as expeditiously as possible and in accordance with the provisions
of
this Agreement and the related Servicing Agreement, as applicable, but in
all
events within the time period, and subject to the conditions set forth in
Article X hereof. Pursuant to its efforts to sell such REO Property, the
Master
Servicer shall protect and conserve, or cause the applicable Servicer to
protect
and conserve, such REO Property in the manner and to such extent required
by the
applicable Servicing Agreement, subject to Article X hereof.
(b) The
Master Servicer shall deposit or cause to be deposited all funds collected
and
received by it, or recovered from any Servicer, in connection with the operation
of any REO Property in the Collection Account.
(c) The
Master Servicer and the applicable Servicer, upon the final disposition of
any
REO Property, shall be entitled to reimbursement for any related unreimbursed
Advances as well as any unpaid Master Servicing Fees or Servicing Fees from
Liquidation Proceeds received in connection with the final disposition of
such
REO Property; provided,
that
(without limitation of any other right of reimbursement that the Master Servicer
or any Servicer shall have hereunder) any such unreimbursed Advances as well
as
any unpaid Master Servicing Fees or Servicing Fees may be reimbursed or paid,
as
the case may be, prior to final disposition, out of any net rental income
or
other net amounts derived from such REO Property.
(d) The
Liquidation Proceeds from the final disposition of the REO Property, net
of any
payment to the Master Servicer and the applicable Servicer as provided above,
shall be deposited in the Collection Account on or prior to the Determination
Date in the month following receipt thereof and be remitted by wire transfer
in
immediately available funds to the Trustee for deposit into the Certificate
Account on the next succeeding Master Servicer Remittance Date.
Section
9.23. Notices
to the Depositor and the Trustee
(a) The
Master Servicer shall promptly notify the Trustee, the Sponsor and the Depositor
(i) of any legal proceedings pending against the Master Servicer of the type
described in Item 1117 (§ 229.1117) of Regulation AB and (ii) if the Master
Servicer shall become (but only to the extent not previously disclosed) at
any
time an affiliate of any of the parties listed on Exhibit I to this Agreement.
On or before March 1st
of each
year, the Depositor shall distribute the information in Exhibit I to the
Master
Servicer.
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(b) Not
later
than three Business Days prior to the Distribution Date of each month, the
Master Servicer shall provide to the Trustee, the Sponsor and the Depositor
notice of the occurrence of any material modifications, extensions or waivers
of
terms, fees, penalties or payments relating to the Mortgage Loans during
the
related Collection Period or that have cumulatively become material over
time
(Item 1121(a)(11) of Regulation AB) along with all information, data, and
materials related thereto as may be required to be included in the related
Distribution Report on Form 10-D. The parties to this Agreement acknowledge
that
the performance by the Master Servicer of its duties under this Section 9.23(b)
related to the timely preparation and delivery of such information is contingent
upon each applicable Servicer strictly observing all requirements and deadlines
in the performance of their duties under their related Servicing Agreements.
The
Master Servicer shall have no liability for any loss, expense, damage or
claim
arising out of or with respect to any failure to properly prepare and/or
timely
deliver all such information where such failure results from the Master
Servicer’s inability or failure to obtain or receive, on a timely basis, any
information from any Servicer needed to prepare or deliver such information,
which failure does not result from the Master Servicer’s own negligence, bad
faith or willful misconduct.
Section
9.24. Reports
to the Trustee.
(a) Not
later
than 30 days after each Distribution Date, the Master Servicer shall forward
to
the Trustee a statement, deemed to have been certified by a Servicing Officer,
setting forth the status of the Collection Account maintained by the Master
Servicer as of the close of business on the related Distribution Date,
indicating that all distributions required by this Agreement to be made by
the
Master Servicer have been made (or if any required distribution has not been
made by the Master Servicer, specifying the nature and status thereof) and
showing, for the period covered by such statement, the aggregate of deposits
into and withdrawals from the Collection Account maintained by the Master
Servicer. Copies of such statement shall be provided by the Master Servicer
to
the Depositor, Attention: Contract Finance, and, upon request, any
Certificateholders (or by the Trustee at the Master Servicer’s expense if the
Master Servicer shall fail to provide such copies (unless (i) the Master
Servicer shall have failed to provide the Trustee with such statement or
(ii)
the Trustee shall be unaware of the Master Servicer’s failure to provide such
statement)).
(b) Not
later
than two Business Days following each Distribution Date, the Master Servicer
shall deliver to the Person designated by the Depositor, in a format consistent
with other electronic loan level reporting supplied by the Master Servicer
in
connection with similar transactions, “loan level” information with respect to
the Mortgage Loans as of the related Determination Date (including information
on any Net Prepayment Interest Shortfalls), to the extent that such information
has been provided to the Master Servicer by the Servicers or by the
Depositor.
137
(c) All
information, reports and statements prepared by the Master Servicer under
this
Agreement shall be based on information supplied to the Master Servicer by
the
Servicers without independent verification thereof and the Master Servicer
shall
be entitled to rely on such information.
Section
9.25. Assessment
of Compliance and Attestation Reports.
(a) Assessment
of Compliance
(i) By
March
15 of each year, commencing in March 2008, the Master Servicer, the Paying
Agent
(if other than the Trustee) and the Trustee, each at its own expense, shall
furnish, and shall cause any Servicing Function Participant engaged by it
to
furnish, each at its own expense, to the Sponsor, the Depositor, the Master
Servicer and the Trustee, a report on an assessment of compliance with the
Relevant Servicing Criteria that contains (A) a statement by such party of
its
responsibility for assessing compliance with the Relevant Servicing Criteria,
(B) a statement that such party used the Servicing Criteria to assess compliance
with the Relevant Servicing Criteria, (C) such party’s assessment of compliance
with the Relevant Servicing Criteria as of and for the fiscal year covered
by
the Form 10-K required to be filed pursuant to Section 6.20(e), 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. If the Trustee and the Paying
Agent are the same party, the Relevant Servicing Criteria of the Paying Agent
shall be included in the Trustee’s report.
(ii) When
the
Master Servicer, the Paying Agent (if other than the Trustee) and the Trustee
(or any Servicing Function Participant engaged by it) submit their assessments
to the Trustee, such parties will also at such time include the assessment
(and
attestation pursuant to subsection (b) of this Section 9.25) of each Servicing
Function Participant engaged by it and shall indicate to the Trustee what
Relevant Servicing Criteria will be addressed in any such reports prepared
by
any such Servicing Function Participant.
(iii) Promptly
after receipt of each report on assessment of compliance, the Trustee shall
confirm that the assessments, taken as a whole, address all applicable Servicing
Criteria and taken individually address the Relevant Servicing Criteria (and
disclose the inapplicability of the Servicing Criteria not determined to
be
Relevant Criteria) for each party as set forth on Exhibit Q and on any similar
exhibit set forth in each Servicing Agreement in respect of each Servicer,
and
each Custodial Agreement in respect of each Custodian, and shall notify the
Depositor of any exceptions. By way of clarification and for the avoidance
of
doubt, it is acknowledged that the Trustee shall rely exclusively on Exhibit
Q
and on any similar exhibit set forth in the Servicing Agreement and Custodial
Agreement to determine such applicable Servicing Criteria and Relevant Servicing
Criteria, as the case may be, and shall not otherwise be reporting on the
content of or sufficiency of such assessments.
138
(b) Attestation
Reports
(i) By
March
15 of each year, commencing in March 2008, the Master Servicer, the Paying
Agent
(if other than the Trustee) and the Trustee, 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 Paying
Agent and the Trustee, as the case may be) that is a member of the American
Institute of Certified Public Accountants to furnish a report to the Sponsor,
the Depositor, the Master Servicer and the Trustee, to the effect that (A)
it
has obtained a representation regarding certain matters from the management
of
such party, which includes an assertion that such party has complied with
the
Relevant Servicing Criteria, and (B) 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. If the
Trustee and the Paying Agent are the same party, the attestation report caused
to be furnished by the Trustee shall also address the Relevant Servicing
Criteria of the Paying Agent. 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.
(ii) Promptly
after receipt of such report from the Master Servicer, the Paying Agent,
the
Trustee or any Servicing Function Participant engaged by such parties, the
Trustee shall confirm that each assessment submitted pursuant subsection
(a) of
this Section 9.25 is coupled with an attestation meeting the requirements
of
this Section and notify the Depositor of any exceptions.
(c) The
Trustee's, Paying Agent’s and the Master Servicer’s obligation to provide
assessments of compliance and attestations under this Section 9.25 shall
terminate upon the filing of a Form 15 suspension notice on behalf of the
Trust
Fund. Notwithstanding the foregoing after the occurrence of such event and
provided the Depositor is not otherwise provided with such reports or copies
of
such reports, the Trustee and Paying Agent shall be obligated to provide
a copy
of such reports by March 15 of each year to the Depositor.
Section
9.26. Annual
Statement of Compliance with Applicable Servicing Criteria.
(a) The
Master Servicer shall deliver (and the Master Servicer shall cause any
Additional Servicer engaged by it to deliver) to the Sponsor, the Depositor
and
the Trustee 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 and (B) to the best of such officer’s knowledge, based on
such review, such party has fulfilled all its obligations under this Agreement,
or such other applicable agreement in the case of 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.
139
Copies
of
such statements shall be provided to any Certificateholder upon request,
by the
Master Servicer or by the Trustee at the Master Servicer’s expense if the Master
Servicer failed to provide such copies (unless (i) the Master Servicer shall
have failed to provide the Trustee with such statement or (ii) the Trustee
shall
be unaware of the Master Servicer’s failure to provide such
statement).
(b) The
Master Servicer shall give prompt written notice to the Trustee, the Sponsor
and
the Depositor of the appointment of any Subcontractor by it and a written
description (in form and substance satisfactory to the Trustee, the Sponsor
and
the Depositor) of the role and function of each Subcontractor utilized by
the
Master Servicer, specifying (A) the identity of each such Subcontractor and
(B)
which elements of the Servicing Criteria set forth under Item 1122(d) of
Regulation AB will be addressed in assessments of compliance provided by
each
such Subcontractor.
Section
9.27. 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 FNMA or FHLMC
and
shall have a net worth of not less than $15,000,000.
Section
9.28. Resignation
of Master Servicer.
Except
as
otherwise provided in Sections 9.27 and 9.29 hereof, the Master Servicer
shall
not resign from the obligations and duties hereby imposed on it unless it
determines that the Master Servicer’s duties 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 shall be
evidenced by an Opinion of Counsel that shall be Independent to such effect
delivered to the Trustee. No such resignation shall become effective until
the
Trustee shall have assumed, or a successor master servicer acceptable to
the
Trustee shall have been appointed by the Trustee and until such successor
shall
have assumed, the Master Servicer’s responsibilities and obligations under this
Agreement. Notice of such resignation shall be given promptly by the Master
Servicer and the Depositor to the Trustee.
Section
9.29. Assignment
or Delegation of Duties by the Master Servicer.
Except
as
expressly provided herein, the Master Servicer shall not assign or transfer
any
of its rights, benefits or privileges hereunder to any other Person, or delegate
to or subcontract with, or authorize or appoint any Subservicer, Subcontractor
or any other Person to perform any of the duties, covenants or obligations
to be
performed by the Master Servicer hereunder; provided,
however,
that
the Master Servicer shall have the right without the prior written consent
of
the Trustee, the Depositor or the Rating Agencies to delegate or assign to
or
subcontract with or authorize or appoint an Affiliate of the Master Servicer
to
perform and carry out any duties, covenants or obligations to be performed
and
carried out by the Master Servicer hereunder. In no case, however, shall
any
such delegation, subcontracting or assignment to an Affiliate of the Master
Servicer relieve the Master Servicer of any liability hereunder. Notice of
such
permitted assignment shall be given promptly by the Master Servicer to the
Depositor and the Trustee. If, pursuant to any provision hereof, the duties
of
the Master Servicer are transferred to a successor master servicer, the entire
amount of the Master Servicing Fees and other compensation payable to the
Master
Servicer pursuant hereto, including amounts payable to or permitted to be
retained or withdrawn by the Master Servicer pursuant to Section 9.21 hereof,
shall thereafter be payable to such successor master servicer.
140
The
Master Servicer shall not permit a Subservicer to perform any master servicing
responsibilities hereunder with respect to the Mortgage Loans unless that
Subservicer first agrees in writing with such Master Servicer to deliver
an
assessment of compliance and an accountant’s attestation in such manner and at
such times in compliance with Sections 9.25(a)(ii) and (b)(ii) of this
Agreement.
Section
9.30. Limitation
on Liability of the Master Servicer and Others.
(a) The
Master Servicer undertakes to perform such duties and only such duties as
are
specifically set forth in this Agreement.
(b) No
provision of this Agreement shall be construed to relieve the Master Servicer
from liability for its own negligent action, its own negligent failure to
act or
its own willful misconduct; provided,
however,
that
the duties and obligations of the Master Servicer shall be determined solely
by
the express provisions of this Agreement, the Master Servicer shall not be
liable except for the performance of such duties and obligations as are
specifically set forth in this Agreement; no implied covenants or obligations
shall be read into this Agreement against the Master Servicer and, in absence
of
bad faith on the part of the Master Servicer, the Master Servicer may
conclusively rely, as to the truth of the statements and the correctness
of the
opinions expressed therein, upon any certificates or opinions furnished to
the
Master Servicer and conforming to the requirements of this
Agreement.
(c) None
of
the Master Servicer, the Seller or the Depositor or any of the directors,
officers, employees or agents of any of them 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, the Seller or the
Depositor 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, the Seller and the
Depositor and any director, officer, employee or agent of any of them shall
be
entitled to indemnification by the Trust Fund and will be held harmless against
any loss, liability or expense incurred in connection with any legal action
relating to this Agreement or the Certificates other than any loss, liability
or
expense incurred by reason of willful misfeasance, bad faith or negligence
in
the performance of his or its duties hereunder or by reason of reckless
disregard of his or its obligations and duties hereunder. The Master Servicer,
the Seller and the Depositor and any director, officer, employee or agent
of any
of them 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 Collection Account it maintains as provided by Section
4.02.
141
Section
9.31. Indemnification;
Third-Party Claims.
The
Master Servicer agrees to indemnify the Depositor, the Sponsor and the Trustee,
and their respective officers, directors, agents and affiliates, and hold
each
of them harmless against any and all claims, losses, penalties, fines,
forfeitures, reasonable legal fees and related costs, judgments, and any
other
costs, liability, fees and expenses that the Depositor, the Sponsor or the
Trustee may sustain as a result of (a) any material breach by the Master
Servicer of any if its obligations hereunder, including particularly its
obligations to provide any reports under Section 9.25(a), Section 9.25(b),
Section 9.26 or any information, data or materials required to be included
in
any Exchange Act report, (b) any material misstatement or omission in any
information, data or materials provided by the Master Servicer, or (c) the
negligence, bad faith or willful misconduct of the Master Servicer in connection
with its performance hereunder, provided,
however,
that in
no event shall the Master Servicer be liable for any special, consequential,
indirect or punitive damages pursuant to this Section 9.31, even if advised
of
the possibility of such damages. The Depositor, the Sponsor 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 Sponsor or the Trustee to indemnification hereunder, 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. Notwithstanding anything to the contrary contained
herein, the Master Servicer shall not settle any claim involving any of the
other parties hereto without such party’s prior written consent unless such
settlement involves a complete and absolute release of such party from any
and
all liability in connection with such claim. This indemnification shall survive
the termination of this Agreement or the termination of the Master Servicer
as a
party to this Agreement.
142
Section
9.32. Special
Servicing of Delinquent Mortgage Loans.
If
permitted under the terms of a Servicing Agreement, the Seller may appoint,
pursuant to the terms of such Servicing Agreement and with the written consent
of the Depositor, the Master Servicer and the Trustee, a special Servicer
(the
“Special Servicer”) to special service any Distressed Mortgage Loans. Any
applicable termination fee related to the termination of a Servicer and the
appointment of any Special Servicer shall be paid by the Mortgage Loan Seller
from its own funds, without right of reimbursement from the Trust Fund. Any
fees
paid to any such Special Servicer shall not exceed the Servicing Fee
Rate.
ARTICLE
X
REMIC
ADMINISTRATION
Section
10.01. REMIC
Administration.
(a) As
set
forth in the Preliminary Statement hereto, the Trustee shall elect REMIC
status
in accordance with the REMIC Provisions with respect to each of the REMICs.
The
Trustee shall make such elections 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. For the purposes of such
elections, each of the Interests in REMIC I, other than the Class LT-R
Certificate, is hereby designated as a regular interest in REMIC I; each
of the
interests in REMIC IIA, other than the Class R-2A Interest, is hereby designated
as a regular interest in REMIC IIA; each of the interests in REMIC IIB, other
than the Class R-2B Interest, is hereby designated as a regular interest
in
REMIC IIB; and each Underlying REMIC Certificate and each Certificate, other
than the Exchange Certificates and the Exchangeable Certificates Class LT-R
and
Class R Certificates, are hereby designated as regular interests in REMIC
III.
In addition, the Class R-2A Interest is hereby designated as the sole residual
interest in REMIC IIA, the Class R-2B Interest is hereby designated as the
sole
residual interest in REMIC IIB, and the Class R Certificate evidences ownership
of the Class R-2A and Class R-2B Interests, and is also hereby designated
as the
sole residual interest in REMIC III.
(b) The
Closing Date is hereby designated as the “Startup Day” of each REMIC within the
meaning of section 86OG(a)(9) of the Code. The latest possible maturity date
for
purposes of Treasury Regulation 1.86OG-1(a)(4) will be the Latest Possible
Maturity Date.
(c) The
Trustee 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 Trustee in
fulfilling its duties hereunder (including its duties as tax return preparer).
The Trustee shall be entitled to reimbursement of expenses to the extent
provided in clause (i) above from the Certificate Account, provided,
however,
the
Trustee shall not be entitled to reimbursement for expenses incurred in
connection with the preparation of tax returns and Form SS-4 as required
by
Section 6.20 and this Section 10.01.
143
(d) The
Trustee shall prepare, sign and file all of each REMIC’s federal and applicable
state tax and information returns as such REMIC’s direct representative. As used
in the previous sentence, “applicable state tax and information returns” shall
mean such returns as may be required by the laws of any state, the applicability
of which to the Trust Fund shall have been confirmed to the Trustee in writing
either (i) by the delivery to the Trustee of an Opinion of Counsel to such
effect, or (ii) by delivery to the Trustee of a written notification to such
effect by the taxing authority of such state. The expenses of preparing and
filing such returns shall be borne by the Trustee. If any Disqualified
Organization acquires any Ownership Interest in a Residual Certificate, then
the
Trustee will upon request provide to the Internal Revenue Service, and to
the
persons specified in Sections 860E(e)(3) and (6) of the Code, such information
as required in Section 860D(a)(6)(B) of the Code needed to compute the tax
imposed under Section 860E(e) of the Code on transfers of residual interests
to
disqualified organizations. The Trustee shall be entitled to additional
compensation from such person for the cost of providing such
information.
(e) The
Trustee 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 Trustee
shall provide (i) to the Treasury or other governmental authority such
information as is necessary for the application of any tax relating to the
transfer of a Residual Certificate to any disqualified person or organization
and (ii) to the Certificateholders such information or reports as are required
by the Code or the REMIC Provisions.
If,
after
the Closing Date, as a result of any changes to the Code, the REMIC Provisions,
or other compliance guidance issued by the Internal Revenue Service or any
state
or local taxing authority, the Trustee shall have additional duties or
obligations pursuant to this subsection (e), the Trustee shall be entitled
to
receive reasonable compensation for the performance of its duties under this
subsection (e); provided,
however,
that
such compensation shall not exceed $5,000 per year.
(f) The
Trustee, the Master Servicer and the Holders of Certificates shall take any
action within their respective control and scope of its duties or cause each
REMIC to take any action necessary to create or maintain the status of such
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 Master
Servicer or the Holder of any Residual Certificate shall take any action
within
their respective control, cause any REMIC to take any action or fail to take
(or
fail to cause to be taken) any action within its control and in the scope
of its
duties that, under the REMIC Provisions, if taken or not taken, as the case
may
be, could (i) endanger the status of any REMIC as a REMIC or (ii) result in
the imposition of a tax upon any REMIC (including but not limited to the
tax on
prohibited transactions as defined in Code Section 860F(a)(2) and the tax
on
prohibited contributions set forth on Section 860G(d) of the Code) (either
such
event, an “Adverse REMIC Event”) unless the Trustee 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
and
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 or the Master Servicer has advised
it in writing that an Adverse REMIC Event could occur.
144
(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
it
has actual knowledge that such taxes were not paid by a Residual
Certificateholder, the Trustee shall pay any remaining REMIC taxes out of
current or future amounts otherwise distributable to the Holder of the Residual
Certificate in such REMIC or, if no such amounts are available, out of other
amounts held in the Certificate Account, and shall reduce amounts otherwise
payable to holders of regular interests in such REMIC, as the case may
be.
(h) The
Trustee 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 with respect to eligible substitute
mortgage loans.
(j) Neither
the Trustee nor the Master Servicer shall enter into any arrangement by which
any REMIC will receive a fee or other compensation for services.
(k) Upon
the
request of any Rating Agency, the Trustee shall deliver to such Rating Agency
an
Officer’s Certificate stating, without regard to any actions taken by any party
other than the Trustee, the Trustee’s compliance with the provisions of this
Section 10.01 applicable to it.
Section
10.02. Prohibited
Transactions and Activities.
None
of
the Depositor, the Master Servicer or the Trustee shall sell, dispose of,
or
substitute for any of the Mortgage Loans, except in a disposition pursuant
to
(i) the foreclosure of a Mortgage Loan, (ii) the bankruptcy of the Trust
Fund,
(iii) the termination of 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 Certificate
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, or substitution) that such disposition,
acquisition, substitution, or acceptance will not (a) affect adversely the
status of such REMIC as a REMIC or of the Certificates, other than the Residual
Certificates, as the regular interests therein, (b) affect the distribution
of
interest or principal on the Certificates, (c) result in the encumbrance
of the
assets transferred or assigned to the Trust Fund (except pursuant to the
provisions of this Agreement) or (d) cause such REMIC to be subject to a
tax on
prohibited transactions or prohibited contributions pursuant to the REMIC
Provisions.
145
Section
10.03. Indemnification
with Respect to Certain Taxes and Loss of REMIC Status.
In
the
event that a REMIC fails to qualify as a REMIC, loses its status as a REMIC,
or
incurs federal, state or local taxes as a result of a prohibited transaction
or
prohibited contribution under the REMIC Provisions due to the negligent
performance by the Trustee of its duties and obligations set forth herein,
the
Trustee shall indemnify the Holder of the Residual Certificate against any
and
all losses, claims, damages, liabilities or expenses (“Losses”) resulting from
such negligence; provided,
however,
that
the Trustee shall not be liable for any such Losses attributable to the action
or inaction of the Master Servicer, a Servicer, the Depositor, or the Holder
of
such Residual Certificate, as applicable, or for any such Losses resulting
from
misinformation provided by the Holder of such Residual Certificate on which
the
Trustee has relied. The foregoing shall not be deemed to limit or restrict
the
rights and remedies of the Holder of such Residual Certificate now or hereafter
existing at law or in equity. Notwithstanding the foregoing, however, in
no
event shall the Trustee 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, (2) for any
Losses
other than arising out of a negligent performance by the Trustee its duties
and
obligations set forth herein, and (3) for any special or consequential damages
to Certificateholders (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 Servicing Agreement) permit any Servicer to, rent, lease, or
otherwise earn income on behalf of any REMIC with respect to any REO Property
which might cause such REO Property to fail to qualify as “foreclosure” property
within the meaning of section 860G(a)(8) of the Code or result in the receipt
by
any REMIC of any “income from non-permitted assets” within the meaning of
section 860F(a)(2) of the Code or any “net income from foreclosure property”
which is subject to tax under the REMIC Provisions unless the Master Servicer
has advised, or has caused the applicable Servicer to advise, the Trustee
in
writing to the effect 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 the imposition of a tax
upon
such REMIC.
146
(b) The
Master Servicer shall make, or shall cause the applicable Servicer to make,
reasonable efforts to sell any REO Property for its fair market value. In
any
event, however, the Master Servicer shall, or shall cause the applicable
Servicer to, dispose of any REO Property within three years from the end
of the
calendar year of its acquisition by the Trust Fund unless the Master Servicer
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 adversely affecting the REMIC status of such REMIC or causing
the
imposition of a Federal or state tax upon such REMIC. If such an extension
has
been received, then (a) the Master Servicer shall provide a copy of such
extension to the Trustee and (b) the Master Servicer, acting on behalf of
the
Trust Fund, 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
the Master Servicer has not received such an extension, or the Master Servicer
is acting on behalf of the Trust Fund hereunder, or the applicable Servicer
is
unable to sell the REO Property within 33 months after its acquisition by
the
Trust Fund or if an extension has been received and the Master Servicer acting
on behalf of the Trust Fund hereunder, is unable to sell the REO Property
within
the period ending three months before the close of the Extended Period, the
Master Servicer shall, or shall cause the applicable Servicer to, before
the end
of the three year period or the Extended Period, as applicable, (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 Master
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.
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.
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.
147
(a) On
or
prior to a Section 7.01(c) Purchase Event, this Agreement may be amended
from
time to time by the Depositor, the Master Servicer and the Trustee, without
notice to or the consent of any of the Holders, (i) to cure any ambiguity,
(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,
(iii) to make any other provisions with respect to matters or questions arising
under this Agreement or with the provisions of any Servicing Agreement (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, adversely affect the status of any REMIC created
pursuant to this Agreement, 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 may require an Opinion of Counsel
(at
the expense of the party requesting such amendment) to the effect that such
amendment is permitted under this paragraph. 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, qualify or withdraw the then current
rating assigned to the Certificates (and any Opinion of Counsel requested
by the
Trustee in connection with any such amendment may rely expressly on such
confirmation as the basis therefor).
(b) On
or
prior to a Section 7.01(c) Purchase Event, this Agreement may also be amended
from time to time by the Depositor, the Master Servicer and the Trustee with
the
consent of the Holders of not less than 66 2/3% of the Class Principal Amount
(or Class Notional Amount 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 Amount (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 Amount (or Class Notional Amount)
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.
(c) After
a
Section 7.01(c) Purchase Event but on or prior to a Trust Fund Termination
Event, this Agreement may be amended from time to time by the Depositor,
the
Master Servicer, the
Trustee,
the LTURI holder and the Trustee. 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 addressed to the Trustee
(at the expense of the party requesting such amendment) to the effect that
such
amendment is permitted under this Section and will not result in an Adverse
REMIC Event.
148
(d) Promptly
after the execution of any such amendment, the Trustee
shall furnish written notification of the substance of such amendment to
each
Holder, the Depositor and to 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.
(f) Notwithstanding
anything to the contrary in any Servicing Agreement, the Trustee shall not
consent to any amendment of any Servicing Agreement unless (i) such amendment
is
effected pursuant to the standards provided in Section 11.03(a) or Section
11.03(b) with respect to amendment of this Agreement and (ii) except for
a
Permitted Servicing Amendment, any such amendment pursuant to Section
11.03(a)(iii) shall not be materially inconsistent with the provisions of
such
Servicing Agreement as evidenced by an Officer’s Certificate of the
Depositor.
(g) Notwithstanding
anything to the contrary in this Section 11.03, this Agreement may be amended
from time to time by the Depositor, the Master Servicer and the Trustee to
the
extent necessary, in the judgment of the Depositor and its counsel, to comply
with the Rules.
(h) Prior
to
the execution of any amendment to this Agreement, the Trustee shall be entitled
to receive and rely upon an Opinion of Counsel addressed to it stating that
the
execution of such amendment is authorized or permitted by this Agreement.
The
Trustee may, but shall not be obligated to, enter into any such amendment
which
affects the Trustee’s own rights, duties or immunities under this
Agreement.
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 Principal Amount (or Notional Amount),
Certificates owned by the Depositor, the Master Servicer, the Trustee or
any
Servicer or Affiliates thereof are not to be counted so long as such
Certificates are owned by the Depositor, the Master Servicer, the Trustee
or any
Servicer or Affiliates thereof.
Section
11.05. Provision
of Information.
(a) For
so
long as any of the Certificates of any Series or Class are “restricted
securities” within the meaning of Rule 144(a)(3) under the Act, each of the
Depositor and the Trustee agree to cooperate with each other to provide to
any
Certificateholders and to any prospective purchaser of Certificates designated
by such Certificateholder, upon the request of such Certificateholder 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
in
providing such information shall be reimbursed by the Depositor.
149
(b) The
Trustee will make available to any person to whom a Prospectus was delivered,
upon the request of such person specifying the document or documents requested,
(i) 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(c) and
(ii)
a copy of any other document incorporated by reference in the Prospectus
to the
extent in the possession of the Trustee. Any reasonable out-of-pocket expenses
incurred by the Trustee in providing copies of such documents shall be
reimbursed by the Depositor.
(c) On
each
Distribution Date, the Trustee shall deliver or cause to be delivered by
first
class mail or make available on its website to the Depositor, Attention:
Contract Finance, a copy of the report delivered to Certificateholders pursuant
to Section 4.03.
Section
11.06. Governing
Law.
THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE
STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS (OTHER
THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW), AND THE OBLIGATIONS,
RIGHTS
AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH
SUCH LAWS.
Section
11.07. Notices.
All
demands, notices and communications 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 below (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): (a) in the case of the Depositor, Structured Asset Securities
Corporation, 000 Xxxxxxx Xxxxxx, 0xx
Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention:
Mortgage Finance, LMT 2007-1,
(b) in
the case of the Trustee, its Corporate Trust Office and (c) in the case of
the
Master Servicer, Aurora Loan Services LLC, 00000 Xxxx Xxxxxxx Xxxxx, Xxxxxxxxx,
Xxxxxxxx 00000; Attention: Master Servicing, or as to each party such other
address as may hereafter be furnished by such party to the other parties
in
writing. Any notice required or permitted to be mailed to a Holder shall
be
given by first class mail, postage prepaid, at the address of such Holder
as
shown in the Certificate Register. Any notice so mailed within the time
prescribed in this Agreement shall be conclusively presumed to have been
duly
given, whether or not the Holder receives such notice.
150
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 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.
(a) 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 Sections 11.14 and 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;
and
151
(vi) the
making of a final payment pursuant to Section 7.02.
(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, as
follows:
If
to
S&P, to:
Standard
& Poor’s Ratings Services
00
Xxxxx
Xxxxxx, 00xx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Residential Mortgage Surveillance
If
to Fitch, to:
Fitch
Ratings
Xxx
Xxxxx
Xxxxxx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Residential Mortgages
(c) The
Trustee shall provide or make available to the Rating Agencies reports prepared
pursuant to Section 4.03. In addition, the Trustee shall, at the expense
of the
Trust Fund, make available to each Rating Agency such information 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
Trustee.
Section
11.13. 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
11.14. Transfer
of Servicing.
The
Seller agrees that it shall provide written notice to the Trustee and the
Master
Servicer thirty days prior to any transfer or assignment by the Seller of
its
rights under any Servicing Agreement or of the servicing thereunder or
delegation of its rights or duties thereunder or any portion thereof to any
Person other than the initial Servicer under any Servicing Agreement;
provided,
that
(i) the Seller shall not be required to provide prior notice of any transfer
of
servicing that occurs within three months following the Closing Date to an
entity that is a Servicer on the Closing Date or (ii) LBH or LBB shall be
required to provide notice of any transfer of servicing rights by either
of them
to the other. In addition, the ability of the Seller to transfer or assign
its
rights and delegate its duties under any Servicing Agreement (other than
a
transfer of servicing rights between LBH and LBB) or to transfer the servicing
thereunder to a successor servicer shall be subject to the following
conditions:
(i) Such
successor servicer must be qualified to service loans for FNMA or
FHLMC;
152
(ii) Such
successor servicer must satisfy a Servicer eligibility standards in the
applicable Servicing Agreement, exclusive of any experience in mortgage loan
origination, and must be reasonably acceptable to the Master Servicer, whose
approval shall not be unreasonably withheld;
(iii) Such
successor servicer must execute and deliver to the Trustee and the Master
Servicer an agreement, in form and substance reasonably satisfactory to the
Trustee and the Master Servicer, that contains an assumption by such successor
servicer of the due and punctual performance and observance of each covenant
and
condition to be performed and observed by a Servicer under the applicable
Servicing Agreement or, (i) in the case of a transfer of servicing to a party
that is already a Servicer pursuant to this Agreement, an agreement to add
the
related Mortgage Loans to each Servicing Agreement already in effect with
each
Servicer and (ii) in the case of a transfer of servicing to a Special Servicer
pursuant to Section 9.32 herein, a special servicing agreement in the form
of
that attached to each Servicing Agreement;
(iv) If
the
successor servicer is not a Servicer of Mortgage Loans at the time of transfer,
there must be delivered to the Trustee a letter from each Rating Agency to
the
effect that such transfer of servicing will not result in a qualification,
withdrawal or downgrade of the then-current rating of any of the Certificates;
and
(v) The
Seller shall, at its cost and expense, take such steps, or cause the terminated
Servicer to take such steps, as may be necessary or appropriate to effectuate
and evidence the transfer of the servicing of the Mortgage Loans to such
successor servicer, including, but not limited to, the following: (A) to
the
extent required by the terms of the Mortgage Loans and by applicable federal
and
state laws and regulations, the Seller shall cause the prior Servicer to
timely
mail to each obligor under a Mortgage Loan any required notices or disclosures
describing the transfer of servicing of the Mortgage Loans to the successor
servicer; (B) prior to the effective date of such transfer of servicing,
the
Seller shall cause the prior Servicer to transmit to any related insurer
notification of such transfer of servicing; (C) on or prior to the effective
date of such transfer of servicing, the Seller shall cause the prior Servicer
to
deliver to the successor servicer all Mortgage Loan Documents and any related
records or materials; (D) on or prior to the effective date of such transfer
of
servicing, the Seller shall cause the prior Servicer to transfer to the
successor servicer, or, if such transfer occurs after a Servicer Remittance
Date
but before the next succeeding Master Servicer Remittance Date, to the Master
Servicer, all funds held by the applicable Servicer in respect of the Mortgage
Loans; (E) on or prior to the effective date of such transfer of servicing,
the
Seller shall cause the prior Servicer to, after the effective date of the
transfer of servicing to the successor servicer, continue to forward to such
successor servicer, within one Business Day of receipt, the amount of any
payments or other recoveries received by the prior Servicer, and to notify
the
successor servicer of the source and proper application of each such payment
or
recovery; and (F) the Seller shall cause the prior Servicer to, after the
effective date of transfer of servicing to the successor servicer, continue
to
cooperate with the successor servicer to facilitate such transfer in such
manner
and to such extent as the successor servicer may reasonably
request.
153
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.
STRUCTURED
ASSET SECURITIES
CORPORATION,
as Depositor
By:
/s/
Xxxxxxx Hitzmann___________
Name:
Xxxxxxx Xxxxxxxx
Title:
Senior Vice President
XXXXX
FARGO BANK, N.A.,
as
Trustee
By:
/s/
Xxxxxxx Pinzon_______________
Name:
Xxxxxxx Xxxxxx
Title:
Vice President
AURORA
LOAN SERVICES LLC,
as
Master
Servicer
By:
/s/ Xxxxxx X. Dreyer_______________
Name:
Xxxxxx X. Xxxxxx
Title:
Vice President
Solely
for purposes of Sections 6.11 and 11.14,
accepted
and agreed to by:
XXXXXX
BROTHERS HOLDINGS INC.
By:
/s/
Xxxxx X. Xxxxxxx ______________
Name:
Xxxxx X. Xxxxxxx
Title:
Authorized Signatory
EXHIBIT
A
FORMS
OF
CERTIFICATES
X-0
XXXXXXX
X-0
FORM
OF INITIAL CERTIFICATION
|
|
[Date]
|
Xxxxx
Fargo Bank, N.A.
X.X.
Xxx 00
Xxxxxxxx,
Xxxxxxxx 00000
Attention:
Corporate Trust Group, LMT 2007-1
(or
in the case of overnight deliveries,
0000
Xxx Xxxxxxxxx Xxxx
Xxxxxxxx,
Xxxxxxxx 21045)
Structured
Asset Securities Corporation
000
Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Aurora
Loan Services LLC
00000
Xxxx Xxxxxxx Xxxxx
Xxxxxxxxx,
Xxxxxxxx 00000
|
RE:
|
Trust
Agreement dated as of January 1, 2007, (the “Trust Agreement”), among
Structured Asset Securities Corporation, as Depositor, Aurora
Loan
Services LLC, as Master Servicer, and Xxxxx Fargo Bank, N.A.,
as Trustee,
with respect to Xxxxxx Mortgage
Trust Mortgage Pass-Through Certificates, Series
2007-1
|
Ladies
and Gentlemen:
In
accordance with Section 2.02(a) of the Trust Agreement, subject to review
of the
contents thereof, the undersigned, as Custodian on behalf of the Trustee,
hereby
certifies that it has received the documents listed in Section 2.01(b)
of the
Trust Agreement for each Mortgage File pertaining to each Mortgage Loan
listed
on Schedule A, to the Trust Agreement, subject to any exceptions noted
on
Schedule I hereto.
Capitalized
words and phrases used herein and not otherwise defined herein shall have
the
respective meanings assigned to them in the Trust Agreement. This Certificate
is
subject in all respects to the terms of Section 2.02 of the Trust Agreement
and
the Trust Agreement sections cross-referenced therein.
|
[Custodian],
on behalf of
Xxxxx
Fargo Bank, N.A.,
as
Trustee
|
||
| |
|
|
| By: | ||
|
Name:
Title:
|
||
X-0-0
XXXXXXX
X-0
FORM
OF INTERIM CERTIFICATION
|
|
[Date]
|
X.X.
Xxx 00
Xxxxxxxx,
Xxxxxxxx 00000
Attention:
Corporate Trust Group, LMT 2007-1
(or
in the case of overnight deliveries,
0000
Xxx Xxxxxxxxx Xxxx
Xxxxxxxx,
Xxxxxxxx 21045)
Structured
Asset Securities Corporation
000
Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Aurora
Loan Services LLC
00000
Xxxx Xxxxxxx Xxxxx
Xxxxxxxxx,
Xxxxxxxx 00000
|
RE:
|
Trust
Agreement dated as of January 1, 2007, (the “Trust Agreement”), among
Structured Asset Securities Corporation, as Depositor, Aurora
Loan
Services LLC, as Master Servicer, and Xxxxx Fargo Bank, N.A.,
as Trustee,
with respect to Xxxxxx Mortgage
Trust Mortgage Pass-Through Certificates, Series
2007-1
|
Ladies
and Gentlemen:
In
accordance with Section 2.02(b) of the Trust Agreement, the undersigned,
as
Custodian on behalf of the Trustee, hereby certifies that as to each Mortgage
Loan listed in the Mortgage Loan Schedule (other than any Mortgage Loan
paid in
full or listed on the attachment hereto) it (or its custodian) has received
the
applicable documents listed in Section 2.01(b) of the Trust
Agreement.
The
undersigned hereby certifies that as to each Mortgage Loan identified on
the
Mortgage Loan Schedule, other than any Mortgage Loan listed on the attachment
hereto, it has reviewed the documents listed above and has determined that
each
such document appears regular on its face and appears to relate to the
Mortgage
Loan identified in such document.
Capitalized
words and phrases used herein shall have the respective meanings assigned
to
them in the Trust Agreement. This Certificate is qualified in all respects
by
the terms of said Trust Agreement including, but not limited to, Section
2.02(b).
|
[Custodian],
on behalf of
Xxxxx
Fargo Bank, N.A.,
as
Trustee
|
||
| |
|
|
| By: | ||
|
Name:
Title:
|
||
X-0-0
XXXXXXX
X-0
FORM
OF FINAL CERTIFICATION
|
|
[Date]
|
X.X.
Xxx 00
Xxxxxxxx,
Xxxxxxxx 00000
Attention:
Corporate Trust Group, LMT 2007-1
(or
in the case of overnight deliveries,
0000
Xxx Xxxxxxxxx Xxxx
Xxxxxxxx,
Xxxxxxxx 21045)
Structured
Asset Securities Corporation
000
Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Aurora
Loan Services LLC
00000
Xxxx Xxxxxxx Xxxxx
Xxxxxxxxx,
Xxxxxxxx 00000
|
Re:
|
Trust
Agreement dated as of January 1, 2007, (the “Trust Agreement”), among
Structured Asset Securities Corporation, as Depositor, Aurora
Loan
Services LLC, as Master Servicer, and Xxxxx Fargo Bank, N.A.,
as Trustee,
with respect to Xxxxxx Mortgage
Trust Mortgage Pass-Through Certificates, Series
2007-1
|
Ladies
and Gentlemen:
In
accordance with Section 2.02(d) of the Trust Agreement, the undersigned,
as
Custodian on behalf of the Trustee, hereby certifies that as to each Mortgage
Loan listed in the Mortgage Loan Schedule (other than any Mortgage Loan
paid in
full or listed on the attachment hereto) it has received the applicable
documents listed in Section 2.02(b) of the Trust Agreement.
The
undersigned hereby certifies that as to each Mortgage Loan identified in
the
Mortgage Loan Schedule, other than any Mortgage Loan listed on Schedule
I
hereto, it has reviewed the documents listed above and has determined that
each
such document appears to be complete and, based on an examination of such
documents, the information set forth in items (i) through (vi) of the definition
of Mortgage Loan Schedule is correct.
Capitalized
words and phrases used herein shall have the respective meanings assigned
to
them in the Trust Agreement. This Certificate is qualified in all respects
by
the terms of said Trust Agreement.
|
[Custodian],
on behalf of
Xxxxx
Fargo Bank, N.A.,
as
Trustee
|
||
| |
|
|
| By: | ||
|
Name:
Title:
|
||
X-0-0
XXXXXXX
X-0
FORM
OF
ENDORSEMENT
Pay
to
the order of
Xxxxx Fargo Bank, N.A.,
as
trustee (the “Trustee”) under the Trust
Agreement dated as of January 1, 2007, (the “Trust Agreement”), among Structured
Asset Securities Corporation, as Depositor, Aurora Loan Services LLC, as
Master
Servicer, and Xxxxx Fargo Bank, N.A., as Trustee,
relating
to Xxxxxx Mortgage Trust Mortgage Pass-Through Certificates, Series 2007-1,
without recourse.
______________________________________
[current
signatory on note]
By:___________________________________
Name:
Title:
B-4-1
EXHIBIT
C
REQUEST
FOR RELEASE OF DOCUMENTS AND RECEIPT
|
|
[Date]
|
[Addressed
to Trustee
or,
if
applicable, custodian]
In
connection with the administration of the mortgages held by you as Trustee
under
a certain
Trust Agreement dated as of January 1, 2007, (the “Trust Agreement”), among
Structured Asset Securities Corporation, as Depositor, Aurora Loan Services
LLC,
as Master Servicer, and you,
as
Trustee (the “Trust Agreement”), the undersigned Master Servicer hereby requests
a release of the Mortgage File held by you as Trustee, or Custodian, as
applicable, with respect to the following described Mortgage Loan for the
reason
indicated below.
Mortgagor’s
Name:
Address:
Loan
No.:
Reason
for requesting file:
1. Mortgage
Loan paid in full. (The Master Servicer hereby certifies that all amounts
received in connection with the loan have been or will be credited to the
Collection Account or the Certificate Account (whichever is applicable)
pursuant
to the Trust Agreement.)
2. The
Mortgage Loan is being foreclosed.
3. Mortgage
Loan substituted. (The Master Servicer hereby certifies that a Qualifying
Substitute Mortgage Loan has been assigned and delivered to you along with
the
related Mortgage File pursuant to the Trust Agreement.)
4. Mortgage
Loan repurchased. (The Master Servicer hereby certifies that the Purchase
Price
(or FPD Purchase Price (in the case of a First Payment Default Mortgage
Loan))
has been credited to the Collection Account or the Certificate Account
(whichever is applicable) pursuant to the Trust Agreement.)
5. Other.
(Describe)
The
undersigned acknowledges that the above Mortgage File will be held by the
undersigned in accordance with the provisions of the Trust Agreement and
will be
returned to you within ten (10) days of our receipt of the Mortgage File,
except
if the Mortgage Loan has been paid in full, or repurchased or substituted
for a
Qualifying Substitute Mortgage Loan (in which case the Mortgage File will
be
retained by us permanently).
C-1
Capitalized
terms used herein shall have the meanings ascribed to them in the Trust
Agreement.
_____________________________________
[Name
of
Master Servicer]
By:__________________________________
Name:
Title:
Servicing Officer
C-2
EXHIBIT
D-1
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.
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 are covered under
Sections I and III of PTCE 95-60; or (z) herewith delivers to the Certificate
Registrar an opinion of counsel satisfactory to the Trustee, and upon which
the
Trustee, the Certificate Registrar, the Master Servicer and the Depositor
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 Trustee, the Certificate Registrar, the Depositor or the Master
Servicer to any obligation in addition to those undertaken by such entities
in
the Trust 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 Trust Agreement
(the
“Agreement”) dated
as of January 1, 2007, among Structured Asset Securities Corporation, as
Depositor, Aurora Loan Services LLC, as Master Servicer and Xxxxx Fargo
Bank,
N.A., as Trustee,
no
transfer of a Residual Certificate shall be permitted to be made to any
person
unless the Depositor and the Certificate Registrar have received a certificate
from such transferee containing the representations in paragraphs 3, 4
and 5
hereof.
D-1-1
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, and that the Purchaser has provided financial
statements or other financial information requested by the transferor in
connection with the transfer of the Residual Certificate in order to permit
the
transferor to assess the financial capability of the Purchaser to pay such
taxes.
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 G 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 a 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 and the Certificate
Registrar with an effective Internal Revenue Service Form W-8 ECI (Certificate
of Foreign Person’s Claim for exception 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. “Non-U.S.
Person” means any person other than (i) a citizen or resident of the United
States; (ii) a corporation (or entity treated as a corporation for tax
purposes)
created or organized in the United States or under the laws of the United
States
or of any state thereof, including, for this purpose, the District of Columbia;
(iii) a partnership (or entity treated as a partnership for tax purposes)
organized in the United States or under the laws of the United States or
of any
state thereof, including, for this purpose, the District of Columbia (unless
provided otherwise by future Treasury regulations); (iv) an estate whose
income
is includible in gross income for United States income tax purposes regardless
of its source; (v) 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 U.S. Persons have authority to control all substantial decisions of
the
trust; (vi) and, to the extent provided in Treasury regulations, certain
trusts
in existence prior to 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.
D-1-2
11. That
the
Purchaser agrees to such amendments of the Trust 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.
12. That
the
Purchaser consents to the designation of the Trustee as its agent to act
as “tax
matters person” of the Trust Fund pursuant to the Trust Agreement.
D-1-3
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__.
X-0-0
XXXXXXX
X-0
FORM
OF
RESIDUAL CERTIFICATE TRANSFER AFFIDAVIT (TRANSFEROR)
__________________
Date
|
Re:
|
Xxxxxx
Mortgage Trust
|
|
|
Mortgage
Pass-Through Certificates
|
||
|
Series
2007-1
|
_______________________
(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:
D-2-1
EXHIBIT
E
LIST
OF
SERVICING AGREEMENT(S)
(a) Servicing
Agreement dated as of January 1, 2007, among Aurora Loan Services LLC,
as Master
Servicer and Servicer, and Xxxxxx Brothers Holdings Inc., as Seller, as
acknowledged by Xxxxx Fargo Bank, N.A., as Trustee.
(b) Reconstituted
Servicing Agreement dated as of January 1, 2007, by and between IndyMac
Bank, F.S.B., as servicer and Xxxxxx Brothers Holdings Inc., as
Seller, as acknowledged by Aurora Loan Services LLC, as Master
Servicer and Xxxxx Fargo Bank, N.A., as Trustee.
E-1
EXHIBIT
F
FORM
OF
RULE 144A TRANSFER CERTIFICATE
|
Re:
|
Xxxxxx
Mortgage Trust
|
|
|
Mortgage
Pass-Through Certificates
|
||
|
Series
2007-1
|
Reference
is hereby made to the Trust
Agreement dated as of January 1, 2007, (the “Trust Agreement”), among Structured
Asset Securities Corporation, as Depositor, Aurora Loan Services LLC, as
Master
Servicer, and Xxxxx Fargo Bank, N.A., as Trustee.
Capitalized terms used but not defined herein shall have the meanings given
to
them in the Trust Agreement.
This
letter relates to $_________ initial Certificate Principal Amount 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 Trust 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 Certificate Registrar, the Placement Agent and the
Depositor.
________________________________________
[Name
of
Transferor]
By:_____________________________________
Name:
Title:
Dated:
__________________, ________
F-1
EXHIBIT
G
FORM
OF
PURCHASER’S LETTER FOR
INSTITUTIONAL
ACCREDITED INVESTOR
|
|
[Date]
|
Dear
Sirs:
In
connection with our proposed purchase of $______________ principal amount
of
Mortgage Pass-Through Certificates, Series 2007-1 (the “Privately Offered
Certificates”) of Structured Asset Securities Corporation (the “Depositor”)
which are held in the form of Definitive Certificates, 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 (which includes the
Placement
Agent) 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
Trustee under the Trust
Agreement dated as of January 1, 2007, (the “Trust Agreement”), among
Structured Asset Securities Corporation, as Depositor, Aurora
Loan
Services LLC, as Master Servicer, and Xxxxx Fargo Bank, N.A.,
as
Trustee,
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 and the Depositor
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.
|
G-1
|
(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 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 Trust
Agreement.
|
Terms
used in this letter which are not otherwise defined herein have the respective
meanings assigned thereto in the Trust Agreement.
G-2
The
Certificate Registrar and the Depositor are entitled to rely upon this
letter
and are irrevocably authorized to produce this letter or a copy hereof
to any
interested party in any administrative or legal proceeding or official
inquiry
with respect to the matters covered hereby.
Very
truly yours,
__________________________________
[Purchaser]
By________________________________
Name:
Title:
G-3
EXHIBIT
H
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 retirement 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 are covered 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
upon which the Trustee, the Certificate Registrar, the Master Servicer
and the
Depositor shall be entitled to rely, to the effect that the purchase or
holding
of such 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 Trustee, the Depositor, the Certificate Registrar or the Master
Servicer to any obligation in addition to those undertaken by such entities
in
the Trust Agreement, which opinion of counsel shall not be an expense of
the
Trust Fund or any of the above parties.
3. The
Investor hereby acknowledges that under the terms of the
Trust Agreement dated as of January 1, 2007, (the “Agreement”), among Structured
Asset Securities Corporation, as Depositor, Aurora Loan Services LLC, as
Master
Servicer, and Xxxxx Fargo Bank, N.A., as Trustee,
no
transfer of the ERISA-Restricted Certificates shall be permitted to be
made to
any person unless the Depositor and Certificate Registrar have received
a
certificate from such transferee in the form hereof.
H-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__.
H-2
EXHIBIT
I
TRANSACTION
PARTIES
Depositor: Structured
Asset Securities Corporation
Trustee:
Xxxxx
Fargo Bank, N.A.
Securities
Administrator: N/A
Master
Servicer: Aurora
Loan Services LLC
Credit
Risk Manager: N/A
PMI
Insurer(s): N/A
Interest
Rate Swap Counterparty: N/A
Interest
Rate Cap Counterparty: N/A
Servicer(s):
Aurora Loan Services LLC and IndyMac Bank, F.S.B.
Primary
Originator(s): IndyMac Bank, F.S.B. and Xxxxxx Brothers Bank, FSB.
Custodian(s):
Deutsche Bank National Trust Company, LaSalle Bank National Association
and U.S.
Bank National Association
Sponsor
and Seller: Xxxxxx Brothers Holdings, Inc.
I-1
EXHIBIT
J
[RESERVED]
J-1
EXHIBIT
K
CUSTODIAL
AGREEMENTS
|
1.
|
Custodial
Agreement dated as of January 1, 2007, between U.S. Bank National
Association, as custodian and Xxxxx Fargo Bank, N.A. (“Xxxxx Fargo”), as
trustee, acknowledged by Structured Asset Securities Corporation
(“SASCO”), as depositor and Aurora Loan Services LLC (“Aurora”), in its
capacities as servicer and master
servicer
|
|
2.
|
Custodial
Agreement dated as of January 1, 2007, between Deutsche Bank
National
Trust Company, as custodian and Xxxxx Fargo, as trustee, acknowledged
by
SASCO, as depositor, Aurora, as master servicer and IndyMac Bank,
F.S.B.,
as servicer
|
|
3.
|
Custodial
Agreement dated as of January 1, 2007, between LaSalle Bank National
Association, as custodian and Xxxxx Fargo, as trustee, acknowledged
by
SASCO, as depositor and Aurora, as master servicer and
servicer
|
K-1
EXHIBIT
L-1
|
ADDITIONAL
FORM 10-D DISCLOSURE
|
|
|
Item
on Form 10-D
|
Party
Responsible
|
|
Item
1: Distribution and Pool Performance Information
|
|
|
Information
included in the Distribution Date Statement
|
Servicer(1)
Master
Servicer
Trustee
|
|
Any
information required by 1121 which is NOT included on the Distribution
Date Statement
|
Depositor
|
|
Item
2: Legal Proceedings
Any
legal proceeding pending against the following entities or their
respective property, that is material to Certificateholders,
including any
proceedings known to be contemplated by governmental
authorities:
|
|
|
▪
Issuing Entity (Trust Fund)
|
Trustee,
Master Servicer and Depositor
|
|
▪
Sponsor (Seller)
|
Seller
(if a party to the Trust Agreement) or Depositor
|
|
▪
Depositor
|
Depositor
|
|
▪
Trustee
|
Trustee
|
|
▪
Master Servicer
|
Master
Servicer
|
|
▪
Custodian
|
Custodian(2)
|
|
▪
1110(b) Originator
|
Depositor
|
|
▪
Any 1108(a)(2) Servicer (other than the Master Servicer or
Trustee)
|
Servicer(1)
|
|
▪
Any other party contemplated by 1100(d)(1)
|
Depositor
|
|
Item
3: Sale of Securities and Use of Proceeds
Information
from Item 2(a) of Part II of Form 10-Q:
With
respect to any sale of securities by the sponsor, depositor or
issuing
entity, that are backed by the same asset pool or are otherwise
issued by
the issuing entity, whether or not registered, provide the sales
and use
of proceeds information in Item 701 of Regulation S-K. Pricing
information
can be omitted if securities were not registered.
|
Depositor
|
L-1-1
|
ADDITIONAL
FORM 10-D DISCLOSURE
|
|
|
Item
on Form 10-D
|
Party
Responsible
|
|
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)
|
Trustee
|
|
Item
5: Submission of Matters to a Vote of Security
Holders
Information
from Item 4 of Part II of Form 10-Q
|
Trustee
|
|
Item
6: Significant Obligors of Pool Assets
Item
1112(b) - Significant
Obligor Financial Information*
|
Depositor
|
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Item.
|
|
|
Item
7: Significant Enhancement Provider Information
Item
1114(b)(2) - Credit Enhancement Provider Financial
Information*
|
|
|
▪
Determining applicable disclosure threshold
|
Depositor
|
|
▪
Requesting required financial information (including any required
accountants’ consent to the use thereof) or effecting incorporation by
reference
|
Depositor
|
|
Item
1115(b) - Derivative Counterparty Financial
Information*
|
|
|
▪
Determining current maximum probable exposure
|
Depositor
|
|
▪
Determining current significance percentage
|
Depositor
|
|
▪
Requesting required financial information (including any required
accountants’ consent to the use thereof) or effecting incorporation by
reference
|
Depositor
|
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Items.
|
|
|
Item
8: Other Information
Disclose
any information required to be reported on Form 8-K during the
period
covered by the Form 10-D but not reported
|
Any
party responsible for the applicable Form 8-K Disclosure
item
|
L-1-2
|
ADDITIONAL
FORM 10-D DISCLOSURE
|
|
|
Item
on Form 10-D
|
Party
Responsible
|
|
Item
9: Exhibits
|
|
|
Monthly
Statement to Certificateholders
|
Trustee
|
|
Exhibits
required by Item 601 of Regulation S-K, such as material
agreements
|
Depositor
|
_______________________
(1) This
information to be provided pursuant to the applicable Servicing
Agreement.
(2) This
information to be provided pursuant to the applicable Custodial
Agreement.
X-0-0
XXXXXXX
X-0
|
ADDITIONAL
FORM 10-K DISCLOSURE
|
|
|
Item
on Form 10-K
|
Party
Responsible
|
|
Item
1B: Unresolved Staff Comments
|
Depositor
|
|
Item
9B: Other Information
Disclose
any information required to be reported on Form 8-K during the
fourth
quarter covered by the Form 10-K but not reported
|
Any
party responsible for disclosure items on Form 8-K
|
|
Item
15: Exhibits, Financial Statement Schedules
|
Depositor
|
|
Reg
AB Item 1112(b): Significant Obligors of Pool
Assets
|
|
|
Significant
Obligor Financial Information*
|
Depositor
|
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Item.
|
|
|
Reg
AB Item 1114(b)(2): Credit Enhancement Provider Financial
Information
|
|
|
▪
Determining applicable disclosure threshold
|
Depositor
|
|
▪
Requesting required financial information (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.
|
|
L-2-1
|
ADDITIONAL
FORM 10-K DISCLOSURE
|
|
|
Item
on Form 10-K
|
Party
Responsible
|
|
Reg
AB Item 1117: Legal Proceedings
Any
legal proceeding pending against the following entities or their
respective property, that is material to Certificateholders,
including any
proceedings known to be contemplated by governmental
authorities:
|
|
|
▪
Issuing Entity (Trust Fund)
|
Trustee,
Master Servicer and Depositor
|
|
▪
Sponsor (Seller)
|
Seller
(if a party to the Trust Agreement) or Depositor
|
|
▪
Depositor
|
Depositor
|
|
▪
Trustee
|
Trustee
|
|
▪
Master Servicer
|
Master
Servicer
|
|
▪
Custodian
|
Custodian(1)
|
|
▪
1110(b) Originator
|
Depositor
|
|
▪
Any 1108(a)(2) Servicer (other than the Master Servicer or
Trustee)
|
Servicer(2)
|
|
▪
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)
|
|
▪
Master Servicer
|
Master
Servicer
|
|
▪
Trustee
|
Trustee
|
|
▪
Any other 1108(a)(3) servicer
|
Servicer(2)
|
|
▪
Any 1110 Originator
|
Depositor
|
|
▪
Any 1112(b) Significant Obligor
|
Depositor
|
|
▪
Any 1114 Credit Enhancement Provider
|
Depositor
|
|
▪
Any 1115 Derivate Counterparty Provider
|
Depositor
|
|
▪
Any other 1101(d)(1) material party
|
Depositor
|
|
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)
|
|
▪
Master Servicer
|
Master
Servicer
|
|
▪
Trustee
|
Depositor
|
|
▪
Any other 1108(a)(3) servicer
|
Servicer(2)
|
|
▪
Any 1110 Originator
|
Depositor
|
L-2-2
|
ADDITIONAL
FORM 10-K DISCLOSURE
|
|
|
Item
on Form 10-K
|
Party
Responsible
|
|
▪
Any 1112(b) Significant Obligor
|
Depositor
|
|
▪
Any 1114 Credit Enhancement Provider
|
Depositor
|
|
▪
Any 1115 Derivate Counterparty Provider
|
Depositor
|
|
▪
Any other 1101(d)(1) material party
|
Depositor
|
|
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)
|
|
▪
Master Servicer
|
Master
Servicer
|
|
▪
Trustee
|
Trustee
|
|
▪
Any other 1108(a)(3) servicer
|
Servicer(2)
|
|
▪
Any 1110 Originator
|
Depositor
|
|
▪
Any 1112(b) Significant Obligor
|
Depositor
|
|
▪
Any 1114 Credit Enhancement Provider
|
Depositor
|
|
▪
Any 1115 Derivate Counterparty Provider
|
Depositor
|
|
▪
Any other 1101(d)(1) material party
|
Depositor
|
(1) This
information to be provided pursuant to the applicable Custodial
Agreement.
(2) This
information to be provided pursuant to the applicable Servicing
Agreement.
X-0-0
XXXXXXX
X-0
|
FORM
8-K DISCLOSURE INFORMATION
|
|
|
Item
on Form 8-K
|
Party
Responsible
|
|
Item
1.01- Entry into a Material Definitive Agreement
Disclosure
is required regarding entry into or amendment of any definitive
agreement
that is material to the securitization, even if depositor is
not a party.
Examples:
servicing agreement, custodial agreement.
Note:
disclosure not required as to definitive agreements that are
fully
disclosed in the prospectus
|
All
parties (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:
|
Depositor
|
|
▪
Sponsor (Seller)
|
Depositor/Sponsor
(Seller)
|
|
▪
Depositor
|
Depositor
|
|
▪
Master Servicer
|
Master
Servicer
|
|
▪
Affiliated Servicer
|
Servicer(1)
|
|
▪
Other Servicer servicing 20% or more of the pool assets at the
time of the
report
|
Servicer(1)
|
|
▪
Other material servicers
|
Servicer(1)
|
|
▪
Trustee
|
Trustee
|
|
▪
Significant Obligor
|
Depositor
|
|
▪
Credit Enhancer (10% or more)
|
Depositor
|
|
▪
Derivative Counterparty
|
Depositor
|
|
▪
Custodian
|
Custodian(2)
|
L-3-1
|
FORM
8-K DISCLOSURE INFORMATION
|
|
|
Item
on Form 8-K
|
Party
Responsible
|
|
Item
2.04- Triggering Events that Accelerate or Increase a Direct
Financial
Obligation or an Obligation under an Off-Balance Sheet
Arrangement
Includes
an early amortization, performance trigger or other event, including
event
of default, that would materially alter the payment priority/distribution
of cash flows/amortization schedule.
Disclosure
will be made of events other than waterfall triggers which are
disclosed
in the monthly statements to the certificateholders.
|
Depositor
Master
Servicer
Trustee
Depositor
|
|
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 Trust Agreement.
|
Trustee
and Depositor
|
|
Item
5.03- Amendments of Articles of Incorporation or Bylaws; Change
of Fiscal
Year
Disclosure
is required of any amendment “to the governing documents of the issuing
entity”.
|
Depositor
|
|
Item
6.01- ABS Informational and Computational
Material
|
Depositor
|
|
Item
6.02- Change of Servicer or 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/Depositor/
Servicer(1)/Trustee
(as to itself and the Master Servicer)
|
|
Reg
AB disclosure about any new servicer or master servicer is also
required.
|
Servicer(1)/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 credit enhancements as well as
derivatives.
|
Depositor/Trustee
|
|
Reg
AB disclosure about any new enhancement provider is also
required.
|
Depositor
|
L-3-2
|
FORM
8-K DISCLOSURE INFORMATION
|
|
|
Item
on Form 8-K
|
Party
Responsible
|
|
Item
6.04- Failure to Make a Required Distribution
|
Trustee
|
|
Item
6.05- Securities Act Updating Disclosure
If
any material pool characteristic differs by 5% or more at the
time of
issuance of the securities from the description in the final
prospectus,
provide updated Reg AB disclosure about the actual asset
pool.
|
Depositor
|
|
If
there are any new servicers or originators required to be disclosed
under
Regulation AB as a result of the foregoing, provide the information
called
for in Items 1108 and 1110 respectively.
|
Depositor
|
|
Item
7.01- Reg FD Disclosure
|
All
parties
|
|
Item
8.01- Other Events
Any
event, with respect to which information is not otherwise called
for in
Form 8-K, that the registrant deems of importance to
certificateholders.
|
Depositor
|
|
Item
9.01- Financial Statements and Exhibits
|
Responsible
party for reporting/disclosing the financial statement or
exhibit
|
___________________
(1) This
information to be provided pursuant to the applicable Servicing
Agreement.
(2) This
information to be provided pursuant to the applicable Custodial
Agreement.
X-0-0
XXXXXXX
X-0
ADDITIONAL
DISCLOSURE NOTIFICATION
Xxxxx
Fargo Bank, N.A., as Trustee
0000
Xxx
Xxxxxxxxx Xxxx
Xxxxxxxx,
Xxxxxxxx 00000
Attn:
Corporate Trust Services - LMT 2007-1 - SEC Report Processing
RE:
**Additional Form [10-D][10-K][8-K] Disclosure** Required
Ladies
and Gentlemen:
In
accordance with Section [ ] of the Trust Agreement, dated as of January
1, 2007,
by and
among Structured Asset Securities Corporation, as Depositor, Aurora Loan
Services LLC, as Master Servicer, Xxxxx Fargo Bank, N.A., as Trustee, the
undersigned, as [ ], hereby notifies you that certain events have come
to our
attention that [will] [may] need to be disclosed on Form
[10-D][10-K][8-K].
Description
of Additional Form [10-D][10-K][8-K] Disclosure:
List
of any Attachments hereto to be included in the Additional Form
[10-D][10-K][8-K] Disclosure:
Any
inquiries related to this notification should be directed to
[ ], phone number:
[ ]; email address:
[
].
|
[NAME
OF PARTY],
as
[role]
|
||
| |
|
|
| By: | ||
|
Name:
Title:
|
||
L-4-1
|
cc:
|
Structured
Asset Securities Corporation
|
|
000
Xxxxxxx Xxxxxx, 0xx Xxxxx
|
|
|
Xxx
Xxxx, Xxx Xxxx 00000
|
|
|
Attention:
Mortgage Finance, LMT 2007-1
|
L-4-2
EXHIBIT
M
MONTHLY
ELECTRONIC DATA TRANSMISSION
M-1
EXHIBIT
N-1
FORM
OF TRANSFER CERTIFICATE FOR TRANSFER
FROM
RESTRICTED GLOBAL SECURITY TO REGULATION S
GLOBAL
SECURITY PURSUANT TO SECTION 3.03(h)(B)
|
Re:
|
Xxxxxx
Mortgage Loan Trust,
|
|
Mortgage
Pass-Through Certificates, Series
2007-1
|
Reference
is hereby made to the Trust
Agreement dated as of January 1, 2007, (the “Agreement”), among Structured Asset
Securities Corporation, as Depositor, Aurora Loan Services LLC, as Master
Servicer, and Xxxxx Fargo Bank, N.A., as Trustee.
Capitalized terms used but not defined herein shall have the meanings given
to
them in the Agreement.
This
letter relates to U.S. $
aggregate
principal amount of Securities which are held in the form of a Restricted
Global
Security with DTC in the name of [name of transferor]
(the
“Transferor”) to effect the transfer of the Securities in exchange for an
equivalent beneficial interest in a Regulation S Global Security.
In
connection with such request, the Transferor does hereby certify that such
transfer has been effected in accordance with the transfer restrictions
set
forth in the Agreement and the Securities and in accordance with Rule 904
of
Regulation S, and that:
a. the
offer
of the Securities was not made to a person in the United States;
b. at
the
time the buy order was originated, the transferee was outside the United
States
or the Transferor and any person acting on its behalf reasonably believed
that
the transferee was outside the United States;
c. no
directed selling efforts have been made in contravention of the requirements
of
Rule 903 or 904 of Regulation S, as applicable;
d. the
transaction is not part of a plan or scheme to evade the registration
requirements of the United States Securities Act of 1933, as amended;
and
e.
the
transferee is not a U.S. person (as
defined in Regulation S).
The
Certificate Registrar is entitled to rely upon this letter and is irrevocably
authorized to produce this letter or a copy hereof to any interested party
in
any administrative or legal proceedings or official inquiry with respect
to the
matters covered hereby. Terms used in this certificate have the meanings
set
forth in Regulation S.
|
[Name
of Transferor]
|
||
| |
|
|
| By: | ||
|
Name:
Title:
|
||
|
Date: ,
|
||
N-1-1
EXHIBIT
N-2
FORM
OF TRANSFER CERTIFICATE FOR TRANSFER
FROM
REGULATION S GLOBAL SECURITY TO
RESTRICTED
GLOBAL SECURITY PURSUANT TO SECTION 3.03(h)(C)
Re: Xxxxxx
Mortgage Trust Mortgage Pass-Through Certificates, Series
2007-1
Reference
is hereby made to the Trust
Agreement dated as of January 1, 2007, (the “Agreement”), among Structured Asset
Securities Corporation, as Depositor, Aurora Loan Services LLC, as Master
Servicer, and Xxxxx Fargo Bank, N.A., as Trustee.
Capitalized terms used but not defined herein shall have the meanings given
to
them in the Agreement.
This
letter relates to U.S. $
aggregate
principal amount of Securities which are held in the form of a Regulations
S
Global Security in the name of [name of transferor]
(the
“Transferor”) to effect the transfer of the Securities in exchange for an
equivalent beneficial interest in a Restricted Global Security.
In
connection with such request, and in respect of such Securities, the Transferor
does hereby certify that such Securities are being transferred in accordance
with (i) the transfer restrictions set forth in the Agreement and the Securities
and (ii) Rule 144A under the United States Securities Act of 1933, as amended,
to a transferee that the Transferor reasonably believes is purchasing the
Securities for its own account or an account with respect to which the
transferee exercises sole investment discretion, the transferee and any
such
account is a qualified institutional buyer within the meaning of Rule 144A,
in a
transaction meeting the requirements of Rule 144A and in accordance with
any
applicable securities laws of any state of the United States or any other
jurisdiction.
The
Certificate Registrar is entitled to rely upon this letter and is irrevocably
authorized to produce this letter or a copy hereof to any interested party
in
any administrative or legal proceedings or official inquiry with respect
to the
matters covered hereby.
|
[Name
of Transferor]
|
||
| |
|
|
| By: | ||
|
Name:
Title:
|
||
|
Date: ,
|
||
N-2-1
EXHIBIT
O
SENIOR
PRINCIPAL PRIORITIES
To
the
Senior Certificates related to a Collateral Group (other than any related
interest-only Certificates), to the extent of the remaining Available
Distribution Amount for the related Collateral Group, in reduction of their
Class Principal Amounts, concurrently, as follows:
(i) to
the
Class 1-A1, Class 1-A2, Class 1-A3 and Class R Certificates, from the Available
Distribution Amount for Collateral Group 1, in an amount up to the Senior
Principal Distribution Amount for Collateral Group 1, in the following
order or
priority:
(A) on
each
Distribution Date occurring in or after February 2012, pro
rata,
to the
Class 1-A1 and Class 1-A3 Certificates, based on their respective Class
Principal Amounts, the Group 1 Priority Amount for such Distribution Date,
until
the Class Principal Amount of each such Class has been reduced to
zero;
(B) sequentially,
to the Class R and Class 1-A2 Certificates, in that order, until the Class
Principal Amount of each such Class has been reduced to zero; and
(C) pro
rata,
to the
Class 1-A1 and Class 1-A3 Certificates, based on their respective Class
Principal Amounts, until the Class Principal Amount of each such Class
has been
reduced to zero;
(ii) pro
rata,
to the
Class 2-A6 and Class 2-A7 Certificates from the Available Distribution
Amount
for Collateral Group 2A, based on their respective Class Principal Amounts,
in
an amount up to the Senior Principal Distribution Amount for Collateral
Group
2A, until the Class Principal Amount of each such Class has been reduced
to
zero;
(iii) pro
rata,
to the
Class 2-A8 and Class 2-A9 Certificates from the Available Distribution
Amount
for Collateral Group 2B, based on their respective Class Principal Amounts,
in
an amount up to the Senior Principal Distribution Amount for Collateral
Group
2B, until the Class Principal Amount of each such Class has been reduced
to
zero;
(iv) pro
rata,
to the
Class 2-A10 and Class 2-A11 Certificates from the Available Distribution
Amount
for Collateral Group 2C, based on their respective Class Principal Amounts,
in
an amount up to the Senior Principal Distribution Amount for Collateral
Group
2C, until the Class Principal Amount of each such Class has been reduced
to
zero;
(v) to
the
Class 3-A5 Certificates from the Available Distribution Amount for Collateral
Group 3A, in an amount up to the Senior Principal Distribution Amount for
Collateral Group 3A, until the Class Principal Amount thereof has been
reduced
to zero; and
O-1
(vi) to
the
Class 3-A6 Certificates from the Available Distribution Amount for Collateral
Group 3B, in an amount up to the Senior Principal Distribution Amount for
Collateral Group 3B, until the Class Principal Amount thereof has been
reduced
to zero.
O-2
EXHIBIT
P
FORM
OF BACK-UP CERTIFICATION
Structured
Asset Securities Corporation
000
Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Mortgage Finance, XXX 0000-0
Xxxxxx
Loan Services LLC
00000
Xxxx Xxxxxxx Xxxxx
Xxxxxxxxx,
Xxxxxxxx 00000
|
Re:
|
Xxxxxx
Mortgage Trust
|
|
|
Mortgage
Pass-Through Certificates, Series
2007-1
|
The
Trustee hereby certifies to the Depositor and the Master Servicer, and
their
respective officers, directors and affiliates, and with the knowledge and
intent
that they will rely upon this certification, that:
(1) I
have
reviewed the annual report on Form 10-K for the fiscal year [____] (the
“Annual
Report”), and all reports on Form 10-D required to be filed in respect of period
covered by the Annual Report (collectively with the Annual Report, the
“Reports”), of the Trust;
(2) To
my
knowledge, (a) the Reports, taken as a whole, do not contain any untrue
statement of a material fact or omit to state a material fact necessary
to make
the statements made, in light of the circumstances under which such statements
were made, not misleading with respect to the period covered by the Annual
Report, and (b) the Trustee’s assessment of compliance and related attestation
report referred to below, taken as a whole, do not contain any untrue statement
of a material fact or omit to state a material fact necessary to make the
statements made, in light of the circumstances under which such statements
were
made, not misleading with respect to the period covered by such assessment
of
compliance and attestation report;
(3) To
my
knowledge, the distribution information required to be provided by the
Trustee
under the Trust Agreement for inclusion in the Reports is included in the
Reports;
(4) I
am
responsible for reviewing the activities performed by the Trustee under
the
Trust Agreement, and based on my knowledge and the compliance review conducted
in preparing the assessment of compliance of the Trustee required by the
Trust
Agreement, and except as disclosed in the Reports, the Trustee has fulfilled
its
obligations under the Trust Agreement in all material respects; and
(5) The
report on assessment of compliance with servicing criteria applicable to
the
Trustee for asset-backed securities of the Trustee and each Subcontractor
utilized by the Trustee and related attestation report on assessment of
compliance with servicing criteria applicable to it required to be included
in
the Annual Report in accordance with Item 1122 of Regulation AB and Exchange
Act
Rules 13a-18 and 15d-18 has been included as an exhibit to the Annual Report.
Any material instances of non-compliance are described in such report and
have
been disclosed in the Annual Report.
P-1
In
giving
the certifications above, the Trustee has reasonably relied on information
provided to it by the following unaffiliated parties: [names of servicer(s),
master servicer, subservicer(s), depositor, custodian(s)]
Date:
Xxxxx
Fargo Bank, N.A., as Trustee
[Signature]
[Title]
P-2
EXHIBIT
Q
FORM
OF
CERTIFICATION REGARDING SERVICING CRITERIA TO BE
ADDRESSED
IN REPORT ON ASSESSMENT OF COMPLIANCE
|
Reg
AB Reference
|
Servicing
Criteria
|
Paying
Agent
(including
the Trustee if acting as Paying Agent)
|
Master
Servicer
|
Trustee
|
|
General Servicing
Considerations
|
||||
|
1122(d)(1)(i)
|
Policies
and procedures are instituted to monitor any performance or other
triggers
and events of default in accordance with the transaction
agreements.
|
X
|
||
|
1122(d)(1)(ii)
|
If
any material servicing activities are outsourced to third parties,
policies and procedures are instituted to monitor the third party’s
performance and compliance with such servicing activities.
|
|||
|
1122(d)(1)(iii)
|
Any
requirements in the transaction agreements to maintain a back-up
servicer
for the pool assets are maintained.
|
|
X
|
|
|
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.
|
X
|
||
|
Cash Collection and Administration
|
||||
|
1122(d)(2)(i)
|
Payments
on pool assets are deposited into the appropriate custodial bank
accounts
and related bank clearing accounts no more than two business
days
following receipt, or such other number of days specified in
the
transaction agreements.
|
X
|
X
|
X
|
|
1122(d)(2)(ii)
|
Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made
only by authorized personnel.
|
X
|
X
|
|
|
1122(d)(2)(iii)
|
Advances
of funds or guarantees regarding collections, cash flows or distributions,
and any interest or other fees charged for such advances, are
made,
reviewed and approved as specified in the transaction agreements.
|
X
|
Q-1
|
Reg
AB Reference
|
Servicing
Criteria
|
Paying
Agent
(including
the Trustee if acting as Paying Agent)
|
Master
Servicer
|
Trustee
|
|
1122(d)(2)(iv)
|
The
related accounts for the transaction, such as cash reserve accounts
or
accounts established as a form of over collateralization, are
separately
maintained (e.g., with respect to commingling of cash) as set
forth in the
transaction agreements.
|
X
|
X
|
X
|
|
1122(d)(2)(v)
|
Each
custodial account is maintained at a federally insured depository
institution as set forth in the transaction agreements. For purposes
of
this criterion, “federally insured depository institution” with respect to
a foreign financial institution means a foreign financial institution
that
meets the requirements of Rule 13k-1(b)(1) of the Securities
Exchange Act.
|
X
|
||
|
1122(d)(2)(vi)
|
Unissued
checks are safeguarded so as to prevent unauthorized access.
|
X
|
X
|
|
|
1122(d)(2)(vii)
|
Reconciliations
are prepared on a monthly basis for all asset-backed securities
related
bank accounts, including custodial accounts and related bank
clearing
accounts. These reconciliations are (A) mathematically accurate;
(B)
prepared within 30 calendar days after the bank statement cutoff
date, or
such other number of days specified in the transaction agreements;
(C)
reviewed and approved by someone other than the person who prepared
the
reconciliation; and (D) contain explanations for reconciling
items. These
reconciling items are resolved within 90 calendar days of their
original
identification, or such other number of days specified in the
transaction
agreements.
|
X
|
X
|
|
|
Investor
Remittances and Reporting
|
Q-2
|
Reg
AB Reference
|
Servicing
Criteria
|
Paying
Agent
(including
the Trustee if acting as Paying Agent)
|
Master
Servicer
|
Trustee
|
|
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 pool assets serviced by the Servicer.
|
X
|
X
|
|
|
1122(d)(3)(ii)
|
Amounts
due to investors are allocated and remitted in accordance with
timeframes,
distribution priority and other terms set forth in the transaction
agreements.
|
X
|
X
|
X
|
|
1122(d)(3)(iii)
|
Disbursements
made to an investor are posted within two business days to the
Servicer’s
investor records, or such other number of days specified in the
transaction agreements.
|
X
|
X
|
|
|
1122(d)(3)(iv)
|
Amounts
remitted to investors per the investor reports agree with cancelled
checks, or other form of payment, or custodial bank statements.
|
X
|
X
|
|
|
Pool
Asset Administration
|
||||
|
1122(d)(4)(i)
|
Collateral
or security on pool assets is maintained as required by the transaction
agreements or related pool asset documents.
|
|
||
|
1122(d)(4)(ii)
|
Pool
assets and related documents are safeguarded as required by the
transaction agreements
|
|
||
|
1122(d)(4)(iii)
|
Any
additions, removals or substitutions to the asset pool are made,
reviewed
and approved in accordance with any conditions or requirements
in the
transaction agreements.
|
|
||
|
1122(d)(4)(iv)
|
Payments
on pool assets, including any payoffs, made in accordance with
the related
pool asset documents are posted to the Servicer’s obligor records
maintained no more than two business days after receipt, or such
other
number of days specified in the transaction agreements, and allocated
to
principal, interest or other items (e.g., escrow) in accordance
with the
related pool asset documents.
|
Q-3
|
Reg
AB Reference
|
Servicing
Criteria
|
Paying
Agent
(including
the Trustee if acting as Paying Agent)
|
Master
Servicer
|
Trustee
|
|
1122(d)(4)(v)
|
The
Servicer’s records regarding the pool assets agree with the Servicer’s
records with respect to an obligor’s unpaid principal balance.
|
|||
|
1122(d)(4)(vi)
|
Changes
with respect to the terms or status of an obligor's pool assets
(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.
|
X
|
||
|
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.
|
X
|
||
|
1122(d)(4)(viii)
|
Records
documenting collection efforts are maintained during the period
a pool
asset is delinquent in accordance with the transaction agreements.
Such
records are maintained on at least a monthly basis, or such other
period
specified in the transaction agreements, and describe the entity’s
activities in monitoring delinquent pool assets including, for
example,
phone calls, letters and payment rescheduling plans in cases
where
delinquency is deemed temporary (e.g., illness or unemployment).
|
|||
|
1122(d)(4)(ix)
|
Adjustments
to interest rates or rates of return for pool assets with variable
rates
are computed based on the related pool asset documents.
|
Q-4
|
Reg
AB Reference
|
Servicing
Criteria
|
Paying
Agent
(including
the Trustee if acting as Paying Agent)
|
Master
Servicer
|
Trustee
|
|
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 pool asset documents,
on at least an annual basis, or such other period specified in
the
transaction agreements; (B) interest on such funds is paid, or
credited,
to obligors in accordance with applicable pool asset documents
and state
laws; and (C) such funds are returned to the obligor within 30
calendar
days of full repayment of the related pool assets, or such other
number of
days specified in the transaction agreements.
|
|||
|
1122(d)(4)(xi)
|
Payments
made on behalf of an obligor (such as tax or insurance payments)
are made
on or before the related penalty or expiration dates, as indicated
on the
appropriate bills or notices for such payments, provided that
such support
has been received by the servicer at least 30 calendar days prior
to these
dates, or such other number of days specified in the transaction
agreements.
|
|
||
|
1122(d)(4)(xii)
|
Any
late payment penalties in connection with any payment to be made
on behalf
of an obligor are paid from the Servicer’s funds and not charged to the
obligor, unless the late payment was due to the obligor’s error or
omission.
|
|
||
|
1122(d)(4)(xiii)
|
Disbursements
made on behalf of an obligor are posted within two business days
to the
obligor’s records maintained by the servicer, or such other number of
days
specified in the transaction agreements.
|
|
||
|
1122(d)(4)(xiv)
|
Delinquencies,
charge-offs and uncollectible accounts are recognized and recorded
in
accordance with the transaction agreements.
|
X
|
||
|
1122(d)(4)(xv)
|
Any
external enhancement or other support, identified in Item 1114(a)(1)
through (3) or Item 1115 of Regulation AB, is maintained as set
forth in
the transaction agreements.
|
X
|
Q-5
EXHIBIT
R
FORM
OF
EXCHANGE TRUST AGREEMENT
R-1
EXHIBIT
S
CLASS
TABLE
|
|
|
Collateral
|
|
Class
Principal or Notional
|
|
Interest
|
|
Summary
Interest Rate
Formula
Subject to:
|
|
|
|
Interest Accrual
|
|
Minimum
|
|
||||||||||
|
Class
|
|
Group
|
|
Amount(1)
|
|
Rate
Formula
|
|
Minimum
Rate
|
|
Maximum
Rate
|
|
Exchange/Exchangeable
|
|
Convention
|
|
Denomination
|
|
||||||||
|
Not
Applicable
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Not
Applicable
|
|
|
Not
Applicable
|
|
|
30/360
|
|
$
|
100,000
|
|
|
1-A2
|
|
|
1
|
|
$
|
148,693,000
|
|
|
5.7500%
|
|
|
Not
Applicable
|
|
|
Not
Applicable
|
|
|
Not
Applicable
|
|
|
30/360
|
|
$
|
100,000
|
|
|
1-A3
|
|
|
1
|
|
$
|
1,060,000
|
|
|
5.7500%
|
|
|
Not
Applicable
|
|
|
Not
Applicable
|
|
|
Not
Applicable
|
|
|
30/360
|
|
$
|
100,000
|
|
|
2-A1
|
|
|
2A,
2B, 2C
|
|
$
|
281,561,000
|
|
|
LIBOR
+ 0.3700%
|
|
|
0.3700%
|
|
|
7.0000%
|
|
|
Exchangeable
|
|
|
30/360
|
|
$
|
100,000
|
|
|
2-A2(4)(2)
|
|
|
2B
|
|
$
|
94,246,000(1)
|
|
|
6.6300%
- LIBOR
|
|
|
0.0000%
|
|
|
6.6300%
|
|
|
Exchange
|
|
|
30/360
|
|
$
|
1,000,000
|
|
|
2-A3(4)(2)
|
|
|
2A
|
|
$
|
134,273,000(1)
|
|
|
6.6300%
- LIBOR
|
|
|
0.0000%
|
|
|
6.6300%
|
|
|
Exchange
|
|
|
30/360
|
|
$
|
1,000,000
|
|
|
2-A4(4)
|
|
|
2C
|
|
$
|
72,242,000(1)
|
|
|
6.6300%
- LIBOR
|
|
|
0.0000%
|
|
|
6.6300%
|
|
|
Exchange
|
|
|
30/360
|
|
$
|
1,000,000
|
|
|
2-A5
|
|
|
2A,
2B, 2C
|
|
$
|
19,200,000
|
|
|
LIBOR
+ 0.3700%
|
|
|
0.3700%
|
|
|
7.0000%
|
|
|
Exchangeable
|
|
|
30/360
|
|
$
|
100,000
|
|
|
2-A6(4)
|
|
|
2A
|
|
$
|
8,571,000
|
|
|
LIBOR
+ 0.3700%
|
|
|
0.3700%
|
|
|
7.0000%
|
|
|
Exchange
|
|
|
30/360
|
|
$
|
100,000
|
|
|
2-A7(4)
|
|
|
2A
|
|
$
|
125,702,000
|
|
|
LIBOR
+ 0.3700%
|
|
|
0.3700%
|
|
|
7.0000%
|
|
|
Exchange
|
|
|
30/360
|
|
$
|
100,000
|
|
|
2-A8(4)
|
|
|
2B
|
|
$
|
6,017,000
|
|
|
LIBOR
+ 0.3700%
|
|
|
0.3700%
|
|
|
7.0000%
|
|
|
Exchange
|
|
|
30/360
|
|
$
|
100,000
|
|
|
2-A9(4)
|
|
|
2B
|
|
$
|
88,229,000
|
|
|
LIBOR
+ 0.3700%
|
|
|
0.3700%
|
|
|
7.0000%
|
|
|
Exchange
|
|
|
30/360
|
|
$
|
100,000
|
|
|
2-A10(4)
|
|
|
2C
|
|
$
|
4,612,000
|
|
|
LIBOR
+ 0.3700%
|
|
|
0.3700%
|
|
|
7.0000%
|
|
|
Exchange
|
|
|
30/360
|
|
$
|
100,000
|
|
|
2-A11(4)
|
|
|
2C
|
|
$
|
67,630,000
|
|
|
LIBOR
+ 0.3700%
|
|
|
0.3700%
|
|
|
7.0000%
|
|
|
Exchange
|
|
|
30/360
|
|
$
|
100,000
|
|
|
2-A12
|
|
|
2B,
2C
|
|
$
|
206,515,000(1)
|
|
|
6.6300%
- LIBOR
|
|
|
0.0000%
|
|
|
6.6300%
|
|
|
Exchangeable
|
|
|
30/360
|
|
$
|
1,000,000
|
|
|
2-A13
|
|
|
2A,
2B
|
|
$
|
228,519,000(1)
|
|
|
6.6300%
- LIBOR
|
|
|
0.0000%
|
|
|
6.6300%
|
|
|
Exchangeable
|
|
|
30/360
|
|
$
|
1,000,000
|
|
|
2-A14
|
|
|
2A,
2B, 2C
|
|
$
|
300,761,000(1)
|
|
|
6.6300%
- LIBOR
|
|
|
0.0000%
|
|
|
6.6300%
|
|
|
Exchangeable
|
|
|
30/360
|
|
$
|
1,000,000
|
|
|
3-A1
|
|
|
3A,
3B
|
|
$
|
51,112,000
|
|
|
LIBOR
+ 0.2500%
|
|
|
0.2500%
|
|
|
7.5000%
|
|
|
Exchangeable
|
|
|
30/360
|
|
$
|
100,000
|
|
|
3-A2
|
|
|
3A,
3B
|
|
$
|
51,112,000(1)
|
|
|
7.2500%
- LIBOR
|
|
|
0.0000%
|
|
|
7.2500%
|
|
|
Exchangeable
|
|
|
30/360
|
|
$
|
1,000,000
|
|
|
3-A3(4)(2)
|
|
|
3B
|
|
$
|
29,247,000(1)
|
|
|
7.2500%
- LIBOR
|
|
|
0.0000%
|
|
|
7.2500%
|
|
|
Exchange
|
|
|
30/360
|
|
$
|
1,000,000
|
|
|
3-A4(4)(2)
|
|
|
3A
|
|
$
|
21,865,000(1)
|
|
|
7.2500%
- LIBOR
|
|
|
0.0000%
|
|
|
7.2500%
|
|
|
Exchange
|
|
|
30/360
|
|
$
|
1,000,000
|
|
|
3-A5(4)
|
|
|
3A
|
|
$
|
21,865,000
|
|
|
LIBOR
+ 0.2500%
|
|
|
0.2500%
|
|
|
7.5000%
|
|
|
Exchange
|
|
|
30/360
|
|
$
|
100,000
|
|
|
3-A6(4)
|
|
|
3B
|
|
$
|
29,247,000
|
|
|
LIBOR
+ 0.2500%
|
|
|
0.2500%
|
|
|
7.5000%
|
|
|
Exchange
|
|
|
30/360
|
|
$
|
100,000
|
|
|
B1
|
|
|
All
|
|
$
|
13,752,000
|
|
|
Weighted
Average Rate minus
0.4000%(3)
|
|
|
Not
Applicable
|
|
|
Not
Applicable
|
|
|
Not
Applicable
|
|
|
30/360
|
|
$
|
100,000
|
|
|
B2
|
|
|
All
|
|
$
|
3,576,000
|
|
|
Weighted
Average Rate minus
0.4000%
(3)
|
|
|
Not
Applicable
|
|
|
Not
Applicable
|
|
|
Not
Applicable
|
|
|
30/360
|
|
$
|
100,000
|
|
|
BIO1
|
|
|
All
|
|
$
|
3,576,000(1)
|
|
|
0.4000%
|
|
|
Not
Applicable
|
|
|
Not
Applicable
|
|
|
Not
Applicable
|
|
|
30/360
|
|
$
|
1,000,000
|
|
|
B3
|
|
|
All
|
|
$
|
4,126,000
|
|
|
Weighted
Average Rate minus
0.2500%
(3)
|
|
|
Not
Applicable
|
|
|
Not
Applicable
|
|
|
Not
Applicable
|
|
|
30/360
|
|
$
|
100,000
|
|
|
B4
|
|
|
All
|
|
$
|
1,375,000
|
|
|
Weighted
Average Rate minus
0.2500%
(3)
|
|
|
Not
Applicable
|
|
|
Not
Applicable
|
|
|
Not
Applicable
|
|
|
30/360
|
|
$
|
100,000
|
|
|
BIO2
|
|
|
All
|
|
$
|
5,501,000(1)
|
|
|
0.2500%
|
|
|
Not
Applicable
|
|
|
Not
Applicable
|
|
|
Not
Applicable
|
|
|
30/360
|
|
$
|
1,000,000
|
|
|
B5
|
|
|
All
|
|
$
|
2,750,000
|
|
|
Weighted
Average Rate(3)
|
|
|
Not
Applicable
|
|
|
Not
Applicable
|
|
|
Not
Applicable
|
|
|
30/360
|
|
$
|
100,000
|
|
|
B6
|
|
|
All
|
|
$
|
1,100,000
|
|
|
Weighted
Average Rate(3)
|
|
|
Not
Applicable
|
|
|
Not
Applicable
|
|
|
Not
Applicable
|
|
|
30/360
|
|
$
|
100,000
|
|
|
R
|
|
|
1
|
|
$
|
100
|
|
|
5.7500%
|
|
|
Not
Applicable
|
|
|
Not
Applicable
|
|
|
Not
Applicable
|
|
|
30/360
|
|
|
100%(5)
|
|
_______________
|
(1)
|
Initial
notional amount. The Class 2-A2, Class 2-A3, Class 2-A4, Class
2-A12,
Class 2-A13, Class 2-A14, Class 3-A2, Class 3-A3, Class 3-A4,
Class BIO1
and Class BIO2 Certificates are interest-only certificates;
they will not
be entitled to payments of principal and will accrue interest
on their
Notional Amounts.
|
|
(2)
|
The
Class 2-A2, Class 2-A3, Class 3-A3 and Class 3-A4 Certificates
will each
be issued in two components: a Class I Component and a Class
P Component.
Each Class I Component will be issued with an interest-bearing
component
and will accrue interest at the rate described in the table
above. Class P
Components will not be issued with an interest rate or principal
balance.
The components are not severable.
|
|
(3)
|
The
Weighted Average Rate applicable to this formula will be based
on the
weighted average of the Designated Rate applicable to Collateral
Groups 1,
2A, 2B, 2C, 3A and 3B, weighted on the basis of the Group Subordinate
Amounts thereof.
|
|
(4)
|
These
classes of certificates are Exchange Certificates. Certain
combinations of
Exchange Certificates can be exchanged for corresponding Exchangeable
Certificates.
|
|
(5)
|
The
Class R Certificate will be issued in definitive, fully registered
form,
representing the entire percentage interest of that
class.
|
S-1
EXHIBIT
T
APPLICABLE
FRACTIONS TABLE
Mortgage
Loans in Pool 1 with Net Mortgage Rates Greater than or Equal to 5.75%
and Less
than 7.00%.
Principal received or advanced on each Mortgage Loan in Pool 1 having a
Net
Mortgage Rate greater than or equal to 5.75% but less than 7.00% will be
allocated between Collateral Group 1 and Collateral Group 2A on the basis
of the
Applicable Fractions of the related Mortgage Loans. The Applicable Fraction
for
the portion of each such Mortgage Loan allocated to Collateral Group 1,
is
(7.00% minus
Net
Mortgage Rate) / 1.25%, and the Applicable Fraction for the portion of
each such
Mortgage Loan allocated to Collateral Group 2A, is 1 minus
((7.00%
minus
Net
Mortgage Rate) / 1.25%).
Mortgage
Loans in Pool 1 with Net Mortgage Rates Greater than or Equal to 7.00%
and Less
than or Equal to 7.50%.
Principal received or advanced on each Mortgage Loan in Pool 1 having a
Net
Mortgage Rate greater than or equal to 7.00% but less than or equal to
7.50%
will be allocated between Collateral Group 2A and Collateral Group 3A on
the
basis of the Applicable Fractions of the related Mortgage Loans. The Applicable
Fraction for the portion of each such Mortgage Loan allocated to Collateral
Group 2A, is (7.50% minus
Net
Mortgage Rate) / 0.50%, and the Applicable Fraction for the portion of
each such
Mortgage Loan allocated to Collateral Group 3A, is 1 minus
((7.50%
minus
Net
Mortgage Rate) / 0.50%).
Mortgage
Loans in Pool 2 with Net Mortgage Rates Greater than or Equal to 5.75%
and Less
than 7.00%.
Principal received or advanced on each Mortgage Loan in Pool 2 having a
Net
Mortgage Rate greater than or equal to 5.75% but less than 7.00% will be
allocated between Collateral Group 1 and Collateral Group 2B on the basis
of the
Applicable Fractions of the related Mortgage Loans. The Applicable Fraction
for
the portion of each such Mortgage Loan allocated to Collateral Group 1,
is
(7.00% minus
Net
Mortgage Rate) / 1.25%, and the Applicable Fraction for the portion of
each such
Mortgage Loan allocated to Collateral Group 2B, is 1 minus
((7.00%
minus
Net
Mortgage Rate) / 1.25%).
Mortgage
Loans in Pool 2 with Net Mortgage Rates Greater than or Equal to 7.00%
and Less
than or Equal to 7.50%.
Principal received or advanced on each Mortgage Loan in Pool 2 having a
Net
Mortgage Rate greater than or equal to 7.00% but less than or equal to
7.50%
will be allocated between Collateral Group 2B and Collateral Group 3B on
the
basis of the Applicable Fractions of the related Mortgage Loans. The Applicable
Fraction for the portion of each such Mortgage Loan allocated to Collateral
Group 2B, is (7.50% minus
Net
Mortgage Rate) / 0.50%, and the Applicable Fraction for the portion of
each such
Mortgage Loan allocated to Collateral Group 3B, is 1 minus
((7.50%
minus
Net
Mortgage Rate) / 0.50%).
T-1
Mortgage
Loans in Pool 3 with Net Mortgage Rates Greater than or Equal to 5.75%
and Less
than or Equal to 7.00%.
Principal received or advanced on each Mortgage Loan in Pool 3 having a
Net
Mortgage Rate greater than or equal to 5.75% but less than or equal to
7.00%
will be allocated between Collateral Group 1 and Collateral Group 2C on
the
basis of the Applicable Fractions of the related Mortgage Loans. The Applicable
Fraction for the portion of each such Mortgage Loan allocated to Collateral
Group 1, is (7.00% minus
Net
Mortgage Rate) / 1.25%, and the Applicable Fraction for the portion of
each such
Mortgage Loan allocated to Collateral Group 2C, is 1 minus
((7.00%
minus
Net
Mortgage Rate) / 1.25%).
T-2
EXHIBIT
U
[RESERVED]
U-1
EXHIBIT
V
MONTHLY
ELECTRONIC DATA TRANSMISSION
V-1
SCHEDULE
A
ALL
MORTGAGE LOANS
Sch
A-1
SCHEDULE
B
FIRST
PAYMENT DEFAULT MORTGAGE LOANS
Sch
B-1
