Exhibit 4.1
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.,
Depositor
XXXXX FARGO BANK, N.A.
Master Servicer and Securities Administrator
and
HSBC BANK USA, NATIONAL ASSOCIATION,
Trustee
POOLING AND SERVICING AGREEMENT
Dated as of March 1, 2007
----------
Mortgage Pass-Through Certificates, MANA Series 2007-F1
TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS ................................................... 8
Section 1.02 Accounting ............................................. 65
ARTICLE II CONVEYANCE OF MORTGAGE LOANS; ORIGINAL ISSUANCE OF
CERTIFICATES ................................................. 65
Section 2.01 Conveyance of Mortgage Loans to Trustee ................ 65
Section 2.02 Acceptance of Mortgage Loans by Trustee ................ 68
Section 2.03 Assignment of Interest in the Mortgage Loan Purchase
Agreement .............................................. 71
Section 2.04 Substitution of Mortgage Loans ......................... 72
Section 2.05 Issuance of Certificates ............................... 74
Section 2.06 Representations and Warranties Concerning the
Depositor .............................................. 74
Section 2.07 Representations and Warranties Concerning the Master
Servicer and Securities Administrator .................. 75
ARTICLE III ADMINISTRATION AND SERVICING OF MORTGAGE LOANS .............. 76
Section 3.01 Master Servicer ........................................ 76
Section 3.02 REMIC-Related Covenants ................................ 78
Section 3.03 Monitoring of Servicers ................................ 78
Section 3.04 Fidelity Bond .......................................... 79
Section 3.05 Power to Act; Procedures ............................... 79
Section 3.06 Due-on-Sale Clauses; Assumption Agreements ............. 80
Section 3.07 Release of Mortgage Files .............................. 80
Section 3.08 Documents, Records and Funds in Possession of Master
Servicer To Be Held for Trustee ........................ 81
Section 3.09 Standard Hazard Insurance and Flood Insurance Policies . 82
Section 3.10 Presentment of Claims and Collection of Proceeds ....... 82
Section 3.11 Maintenance of the Primary Mortgage Insurance
Policies ............................................... 83
Section 3.12 Trustee to Retain Possession of Certain Insurance
Policies and Documents ................................. 83
Section 3.13 Realization Upon Defaulted Mortgage Loans .............. 84
Section 3.14 Compensation for the Master Servicer ................... 84
Section 3.15 REO Property ........................................... 84
Section 3.16 Annual Statement as to Compliance ...................... 85
Section 3.17 Reports on Assessment of Compliance and Attestation .... 86
Section 3.18 Periodic Filings ....................................... 89
Section 3.19 Compliance with Regulation AB .......................... 95
Section 3.20 Servicing Rights Owner ................................. 96
ARTICLE IV ACCOUNTS ..................................................... 96
Section 4.01 Protected Accounts ..................................... 96
Section 4.02 Master Servicer Collection Account ..................... 98
Section 4.03 Permitted Withdrawals and Transfers from the Master
Servicer Collection Account ............................ 99
Section 4.04 Distribution Account ................................... 100
Section 4.05 Permitted Withdrawals and Transfers from the
Distribution Account ................................... 101
ARTICLE V CERTIFICATES .................................................. 102
Section 5.01 The Certificates ....................................... 102
Section 5.02 Certificate Register; Registration of Transfer and
Exchange of Certificates ............................... 103
Section 5.03 Mutilated, Destroyed, Lost or Stolen Certificates ...... 107
Section 5.04 Persons Deemed Owners .................................. 108
Section 5.05 Access to List of Certificateholders' Names and
Addresses .............................................. 108
Section 5.06 Book-Entry Certificates ................................ 108
Section 5.07 Notices to Depository .................................. 109
Section 5.08 Definitive Certificates ................................ 109
Section 5.09 Maintenance of Office or Agency ........................ 110
ARTICLE VI PAYMENTS TO CERTIFICATEHOLDERS ............................... 110
Section 6.01 Distributions .......................................... 110
Section 6.02 Allocation of Realized Losses .......................... 118
Section 6.03 Subordination .......................................... 120
Section 6.04 Payments ............................................... 120
Section 6.05 Statements to Certificateholders ....................... 121
Section 6.06 Compensating Interest Payments ......................... 124
Section 6.07 Allocation of Certain Interest Shortfalls .............. 124
ARTICLE VII THE MASTER SERVICER AND THE DEPOSITOR ....................... 125
Section 7.01 Liabilities of the Master Servicer ..................... 125
Section 7.02 Merger or Consolidation of the Master Servicer ......... 125
Section 7.03 Indemnification from the Master Servicer and the
Depositor .............................................. 125
Section 7.04 Limitations on Liability of the Master Servicer and
Others ................................................. 126
Section 7.05 Master Servicer Not to Resign .......................... 127
Section 7.06 Successor Master Servicer .............................. 127
Section 7.07 Sale and Assignment of Master Servicing ................ 127
ARTICLE VIII DEFAULT .................................................... 128
Section 8.01 Events of Default ...................................... 128
Section 8.02 Trustee to Act; Appointment of Successor ............... 129
Section 8.03 Notification to Certificateholders ..................... 131
Section 8.04 Waiver of Defaults ..................................... 131
Section 8.05 List of Certificateholders ............................. 131
ARTICLE IX CONCERNING THE TRUSTEE AND THE SECURITIES ADMINISTRATOR ...... 131
iii
Section 9.01 Duties of Trustee ...................................... 131
Section 9.02 Certain Matters Affecting the Trustee and the
Securities Administrator ............................... 134
Section 9.03 Trustee and Securities Administrator Not Liable for
Certificates or Mortgage Loans ......................... 135
Section 9.04 Trustee and Securities Administrator May Own
Certificates ........................................... 136
Section 9.05 Trustee's and Securities Administrator's Fees and
Expenses ............................................... 136
Section 9.06 Eligibility Requirements for Trustee and Securities
Administrator .......................................... 137
Section 9.07 Insurance .............................................. 138
Section 9.08 Resignation and Removal of the Trustee and Securities
Administrator .......................................... 138
Section 9.09 Successor Trustee and Successor Securities Administrator 139
Section 9.10 Merger or Consolidation of Trustee or Securities
Administrator .......................................... 139
Section 9.11 Appointment of Co-Trustee or Separate Trustee .......... 140
Section 9.12 Federal Information Returns and Reports to
Certificateholders; REMIC Administration ............... 141
ARTICLE X TERMINATION ................................................... 146
Section 10.01 Termination upon Liquidation or Repurchase of all
Mortgage Loans ......................................... 146
Section 10.02 Final Distribution on the Certificates ................. 147
Section 10.03 Additional Termination Requirements .................... 148
ARTICLE XI MISCELLANEOUS PROVISIONS ..................................... 149
Section 11.01 Intent of Parties ...................................... 149
Section 11.02 Amendment .............................................. 149
Section 11.03 Recordation of Agreement ............................... 151
Section 11.04 Limitation on Rights of Certificateholders ............. 151
Section 11.05 Acts of Certificateholders ............................. 152
Section 11.06 Governing Law .......................................... 153
Section 11.07 Notices ................................................ 153
Section 11.08 Severability of Provisions ............................. 153
Section 11.09 Successors and Assigns ................................. 154
Section 11.10 Article and Section Headings ........................... 154
Section 11.11 Counterparts ........................................... 154
Section 11.12 Notice to Rating Agencies .............................. 154
ARTICLE XII REMIC ADMINISTRATION ........................................ 154
Section 12.01 [Reserved] ............................................. 154
Section 12.02 Prohibited Transactions and Activities ................. 154
Section 12.03 Indemnification with Respect to Prohibited Transactions
or Loss of REMIC Status ................................ 155
Section 12.04 REO Property ........................................... 155
iv
EXHIBITS
Exhibit A-1 - Form of Class A, IO, PO and Class M Certificates
Exhibit A-2 - Form of Class B Certificates
Exhibit A-3 - Form of Class A-R Certificate
Exhibit A-4 Form of Class P Certificate
Exhibit B - Mortgage Loan Schedule
Exhibit C - [Reserved]
Exhibit D - Request for Release of Documents
Exhibit E-1 - Form of Transferee's Letter and Affidavit
Exhibit E-2 - Form of Transferor Certificate
Exhibit F-1 - Form of Transferor Representation Letter
Exhibit F-2 - Form of Investor Representation Letter
Exhibit F-3 - Form of Rule 144A Letter
Exhibit G - Form of Custodial Agreement
Exhibit H - [Reserved]
Exhibit I-1 to I-5 - Assignment Agreements
Exhibit J - Mortgage Loan Purchase Agreement
Exhibit K - Servicing Criteria To Be Addressed in Assessment of
Compliance
Exhibit L - Form of Xxxxxxxx-Xxxxx Certification
Exhibit M - Form of Back-up Xxxxxxxx-Xxxxx Certification
Exhibit N - [Reserved]
Exhibit O - Additional Disclosure Notification
Exhibit P - Form of Item 1123 Certification of Servicer
Exhibit Q-1 - Additional Form 10-D Disclosure
Exhibit Q-2 - Additional Form 10-K Disclosure
Exhibit Q-3 - Form 8-K Disclosure Information
v
POOLING AND SERVICING AGREEMENT
This Pooling and Servicing Agreement is dated as of March 1, 2007 (the
"Pooling and Servicing Agreement"), among XXXXXXX XXXXX MORTGAGE INVESTORS,
INC., as depositor (the "Depositor"), XXXXX FARGO BANK, N.A., as master servicer
(in such capacity, the "Master Servicer") and as securities administrator (in
such capacity, the "Securities Administrator") and HSBC BANK USA, NATIONAL
ASSOCIATION, as trustee (the "Trustee").
PRELIMINARY STATEMENT
The Depositor has acquired the Mortgage Loans from the Seller and at the
Closing Date is the owner of the Mortgage Loans and the other related property
being conveyed by the Depositor to the Trustee hereunder on behalf of the
Issuing Entity for inclusion in the Trust Fund. On the Closing Date, the
Depositor will acquire the Certificates from the Securities Administrator as
consideration for the Depositor's transfer to the Issuing Entity of the Mortgage
Loans and the other related property constituting that portion of the Trust Fund
relating to the Certificates. The Depositor has duly authorized the execution
and delivery of this Agreement to provide for the conveyance to the Issuing
Entity of the Mortgage Loans and the other related property constituting that
portion of the Trust Fund relating to the Certificates. All covenants and
agreements made by the Seller in the Mortgage Loan Purchase Agreement and in
this Agreement and all covenants and agreements made by the Depositor, the
Trustee, the Securities Administrator and the Master Servicer herein with
respect to the Mortgage Loans and the other related property constituting the
portion of the Trust Fund relating to the Certificates are for the benefit of
the Holders from time to time of the Certificates. The Depositor, the Trustee,
the Securities Administrator and the Master Servicer are entering into this
Agreement, and the Trustee on behalf of the Issuing Entity 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 Securities Administrator shall elect that the Trust
Fund (other than amounts payable to the Class P Certificates) be treated for
federal income tax purposes as comprising three real estate mortgage investment
conduits (each a "REMIC" or, in the alternative, "REMIC 1," "REMIC 2" and the
"Upper Tier REMIC," respectively) in a tiered structure. The Certificates
created under this Agreement, other than the Class A-R Certificate and the Class
P Certificate, shall represent ownership of regular interests in the Upper Tier
REMIC. The Class A-R Certificate represents the sole class of residual interest
in each of REMIC 1, REMIC 2 and the Upper Tier REMIC.
The Upper Tier REMIC shall hold as its assets the several classes of
uncertificated REMIC 2 Regular Interests. REMIC 2 shall hold as its assets the
several classes of uncertificated REMIC 1 Regular Interests. REMIC 1 shall hold
as its assets the property of the Trust Fund other than (i) the REMIC 1
Interests and the REMIC 2 Interests and (ii) the amounts payable to the Class P
Certificates.
Each Upper Tier REMIC Regular Interest is hereby designated as a regular
interest in the Upper Tier REMIC for purposes of the REMIC Provisions. Each
REMIC 2 Regular Interest is hereby designated as a regular interest in REMIC 2
for purposes of the REMIC Provisions. Each
REMIC 1 Regular Interest is hereby designated as a regular interest in REMIC 1
for purposes of the REMIC Provisions.
The Class LT1-R Interest is hereby designated as the sole class of residual
interest in REMIC 1 for purposes of the REMIC Provisions. The Class LT2-R
Interest is hereby designated as the sole class of residual interest in REMIC 2
for purposes of the REMIC Provisions. The Class UT-R Interest is hereby
designated as the sole class of residual interest in the Upper Tier REMIC for
purposes of the REMIC Provisions. The Class A-R Certificate shall represent the
Class LT1-R Interest, the Class LT2-R Interest and the Class UT-R Interest. The
entitlement of the Class A-R Certificate to payments in respect of principal and
interest shall be attributable to its representation of the Class UT-R Interest.
THE REMIC 1 INTERESTS
The following table sets forth (or describes) the class designation, interest
rate, initial principal balance, and related Subgroup for each class of REMIC 1
Interests:
Principal Interest Related Mortgage groups
Class Designation Balance Rate or Mortgage Group
----------------- --------- -------- --------------------------------------
LT11A (2) (11) Subgroup 1
LT11B (3) (12) Subgroup 1
LT12A (4) (11) Subgroup 2
LT12B (5) (13) Subgroup 2
LT13A (6) (11) Subgroup 3
LT13B (7) (14) Subgroup 3
LT14A (8) (11) Subgroup 4
LT14B (9) (15) Subgroup 4
LT1Z (10) (11) Subgroup 1, Subgroup 2, Subgroup 3 and
Subgroup 4
LT1PO (16) 0.00% Subgroup 1, Subgroup 3
LT1IO1 (17) 6.00% Subgroup 2
LT1IO2 (18) 6.25% Subgroup 4
LT1-R (1) (1) N/A
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(1) The Class LT1-R Interest represents the sole class of residual interest in
REMIC 1 and has neither a principal amount nor an interest rate. The Class
LT1-R Interest shall be represented by the Class A-R Certificate.
(2) The initial principal balance of the Class LT11A Interest shall equal 1% of
the excess of (x) the initial Non-PO Subgroup 1 Allocated Amount over (y)
the initial principal balances of the Subgroup 1 Certificates.
(3) The initial principal balance of the Class LT11B Interest shall equal 1% of
the initial Non-PO Subgroup 1 Allocated Amount.
(4) The initial principal balance of the Class LT12A Interest shall equal 1% of
the excess of (x) the initial Subgroup 2 Principal Balance over (y) the
initial principal balances of the Subgroup 2 Certificates.
(5) The initial principal balance of the Class LT12B Interest shall equal 1% of
the initial Subgroup 2 Principal Balance.
(6) The initial principal balance of the Class LT13A Interest shall equal 1% of
the excess of (x) the initial Non-PO Subgroup 3 Allocated Amount over (y)
the initial principal balances of the Subgroup 3 Certificates.
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(7) The initial principal balance of the Class LT13B Interest shall equal 1% of
the initial Non-PO Subgroup 3 Allocated Amount.
(8) The initial principal balance of the Class LT14A Interest shall equal 1% of
the excess of (x) the initial Subgroup 4 Principal Balance over (y) the
initial principal balances of the Subgroup 4 Certificates.
(9) The initial principal balance of the Class LT14B Interest shall equal 1% of
the initial Subgroup 4 Principal Balance.
(10) The initial principal balance of the Class LT1Z Interest shall equal the
excess of (x) the sum of the initial Non-PO Subgroup 1 Allocated Amount,
the initial Subgroup 2 Principal Balance, the initial Non-PO Subgroup 3
Allocated Amount and the initial Subgroup 4 Principal Balance over (y) the
sum of the initial principal amounts of each of the REMIC 1 Regular
Interests with a designation ending in "A" or "B".
(11) The Class LT11A Interest, the Class LT12A Interest, the Class LT13A
Interest, the Class LT14A Interest and the Class LT1Z Interest shall have
an interest rate for each Distribution Date (and the related Accrual
Period) equal to the weighted average of the Subgroup 1 Remittance Rate,
the Subgroup 2 Remittance Rate, the Subgroup 3 Remittance Rate and the
Subgroup 4 Remittance Rate (weighted based on the Non-PO Subgroup 1
Allocated Amount, the Subgroup 2 Principal Balance, the Non-PO Subgroup 3
Allocated Amount and the Subgroup 4 Principal Balance, respectively).
(12) The Class LT11B Interest shall have an interest rate for any Distribution
Date (and the related Accrual Period) equal to the Subgroup 1 Remittance
Rate.
(13) The Class LT12B Interest shall have an interest rate for any Distribution
Date (and the related Accrual Period) equal to the Subgroup 2 Remittance
Rate.
(14) The Class LT13B Interest shall have an interest rate for any Distribution
Date (and the related Accrual Period) equal to the Subgroup 3 Remittance
Rate.
(15) The Class LT14B Interest shall have an interest rate for any Distribution
Date (and the related Accrual Period) equal to the Subgroup 4 Remittance
Rate.
(16) The initial principal balance of the Class LT1PO Interest shall equal the
initial principal amount of the Class PO Certificates.
(17) The Class LT1IO1 Interest is an interest-only interest, has no principal
balance, is not entitled to payments of principal and will bear interest on
its notional amount. The notional amount of the Class LT1IO1 Interest shall
equal the Class IO-1 Notional Amount.
(18) The Class LT1IO2 Interest is an interest-only interest, has no principal
balance, is not entitled to payments of principal and will bear interest on
its notional amount. The notional amount of the Class LT1IO2 Interest shall
equal the Class IO-2 Notional Amount.
On each Distribution Date, the Securities Administrator shall first pay or
charge as an expense of REMIC 1 all expenses of the Issuing Entity for such
Distribution Date.
Interest shall be payable to, and shortfalls and losses are allocable to,
the Class LT1IO1 Interest as such amounts are payable or allocable to Class IO-1
Certificates. Interest shall be payable to, and shortfalls and losses are
allocable to, the Class LT1IO2 Interest as such amounts are payable or allocable
to Class IO-2 Certificates.
Principal shall be payable to, and shortfalls, losses, prepayments and
increases in principal amount related to Subsequent Recoveries are allocable to,
the Class LT1PO Interest as such amounts are payable or allocable to the Class
PO Certificates.
-3-
After the allocations and distributions are made pursuant to the two
immediately preceding paragraphs, principal distributions shall be deemed to be
made and Realized Losses shall be deemed allocated to the REMIC 1 Interests
first, so as to keep the uncertificated principal balance of each REMIC 1
Interest ending with the designation "A" equal to 1% of the excess of (x) the
Non-PO Subgroup 1 Allocated Amount (in the case of the Class LT11A Interest),
the Subgroup 2 Principal Balance (in the case of the Class LT12A Interest), the
Non-PO Subgroup 3 Allocated Amount (in the case of the Class LT13A Interest) or
the Subgroup 4 Principal Balance (in the case of the Class LT14A Interest) over
(y) the aggregate class principal amounts of the Subgroup 1 Certificates (in the
case of the Class LT11A Interest), the Subgroup 2 Certificates (in the case of
the Class LT12A Interest), the Subgroup 3 Certificates (in the case of the Class
LT13A Interest), or the Subgroup 4 Certificates (in the case of the Class LT14A
Interest) (except that if 1% of any such excess is greater than the principal
amount of the corresponding REMIC 1 Interest ending with the designation "A",
the least amount of principal and Realized Losses shall be distributed and
allocated to such REMIC 1 Interests such that the REMIC 1 Subordinate Balance
Ratio is maintained); second, to each REMIC 1 Interest ending with the
designation "B" so as to keep the uncertificated principal balance of each such
REMIC 1 Interest equal to 1% of the Non-PO Subgroup 1 Allocated Amount (in the
case of the Class LT11B Interest), the Subgroup 2 Principal Balance (in the case
of the Class LT12B Interest), the Non-PO Subgroup 3 Allocated Amount (in the
case of the Class LT13B Interest) or the Subgroup 4 Principal Balance (in the
case of the Class LT14B Interest) and finally, all remaining principal amounts
and Realized Losses shall be distributed and allocated in respect of the Class
LT1Z Interest.
If on any Distribution Date the Class Certificate Balance of any Class of
Certificates (other than the Class PO Certificates) is increased due to
Subsequent Recoveries pursuant to the definition of "Class Certificate Balance",
then there shall be an equivalent aggregate increase in the principal amounts of
the REMIC 1 Regular Interests, with such increase allocated (before the making
of distributions and the allocation of losses on the REMIC 1 Regular Interests
on such Distribution Date) among the REMIC 1 Regular Interests as follows: (i)
first, to each REMIC 1 Interest ending with the designation "B" so as to keep
the uncertificated principal balance of each such REMIC 1 Interest equal to 1%
of the Non-PO Subgroup 1 Allocated Amount (in the case of the Class LT11B
Interest), the Subgroup 2 Principal Balance (in the case of the Class LT12B
Interest), the Non-PO Subgroup 3 Allocated Amount (in the case of the Class
LT13B Interest) or the Subgroup 4 Principal Balance (in the case of the Class
LT14B Interest), (ii) second, to each REMIC 1 Regular Interest ending with the
designation "A", so that the uncertificated principal balance of each REMIC 1
Regular Interest ending with the designation "A" is as close as possible to (but
does not exceed) 1% of the excess of (x) the Non-PO Subgroup 1 Allocated Amount
(in the case of the Class LT11A Interest), the Subgroup 2 Principal Balance (in
the case of the Class LT12A Interest), the Non-PO Subgroup 3 Allocated Amount
(in the case of the Class LT13A Interest) or the Subgroup 4 Principal Balance
(in the case of the Class LT14A Interest) over (y) the aggregate class principal
amounts of the Subgroup 1 Certificates (in the case of the Class LT11A
Interest), the Subgroup 2 Certificates (in the case of the Class LT12A
Interest), the Subgroup 3 Certificates (in the case of the Class LT13A
Interest), or the Subgroup 4 Certificates (in the case of the Class LT14A
Interest); provided, however, that (a) the REMIC 1 Subordinate Balance Ratio is
maintained and (b) amounts allocated to any REMIC 1 Regular Interest pursuant to
this clause (ii) shall not exceed the
-4-
amount of any previous realized losses allocated to such REMIC 1 Regular
Interest not previously offset by distributions or increases in the principal
amount of such REMIC 1 Regular Interest and (iii) finally, all remaining amounts
to the Class LT1Z Interest.
All computations with respect to the REMIC 1 Interests shall be computed to
eight decimal places.
THE REMIC 2 INTERESTS
The following table sets forth (or describes) the class designation,
interest rate, initial principal amount, and corresponding class of certificates
or components for each class of REMIC 2 Interests:
Principal Interest
Class Designation Amount Rate Corresponding Classes of Certificates
----------------- --------- -------- -------------------------------------
LT21A1 (2) 5.50% Class 1-A1
LT21A2 (2) 6.00% Class 1-A2
LT22A1 (2) 6.00% Class 2-A1
LT22A2 (2) 6.00% Class 2-A2
LT22A3 (2) 6.00% Class 2-A3
LT22A4 (2) 7.00% Class 2-A4, Class 2-A5
LT22A6 (2) 6.00% Class 2-A6
LT22A7 (2) 6.00% Class 2-A7
LT22A8 (2) 6.00% Class 2-A8
LT22A9 (2) 6.00% Class 2-A9
LT22A10 (2) 6.00% Class 2-A10
LT2M1 (2) (5) Class M-1
LT2M2 (2) (5) Class M-2
LT2M3 (2) (5) Class M-3
LT2B1 (2) (5) Class B-1
LT2B2 (2) (5) Class B-2
LT2B3 (2) (5) Class B-3
LT2AR (2) 5.50% Class A-R
LT2PO (2) 0.00% Class PO
LT2IO1 (3) 6.00% Class IO-1
LT2IO2 (4) 6.25% Class IO-2
LT2-R (1) (1) N/A
----------
(1) The Class LT2-R Interest represents the sole class of residual interest in
REMIC 2 and has neither a principal amount nor an interest rate. The Class
LT2-R Interest shall be represented by the Class A-R Certificate.
(2) The initial principal amount of each of these interests shall be equal to
the initial principal amount of the Corresponding Classes of Certificates
(disregarding the notional amount of any class of "interest-only"
certificates).
(3) The Class LT2IO1 Interest is an interest-only interest, has no principal
balance, is not entitled to payments of principal and will bear interest on
its notional amount. The notional amount of the Class LT12IO1 Interest
shall equal the Class IO-1 Notional Amount.
(4) The Class LT2IO2 Interest is an interest-only interest, has no principal
balance, is not entitled to payments of principal and will bear interest on
its notional amount. The notional amount of the Class LT12IO2 Interest
shall equal the Class IO-2 Notional Amount.
(5) Each of the Class LT2M1 Interest, the Class LT2M2 Interest, the Class LT2M3
Interest, the Class LT2B1 Interest, the Class LT2B2 Interest and the Class
LT2B3 Interest shall have an interest rate for each Distribution Date (and
the related
-5-
Accrual Period) equal to the Certificate Rate for the Subordinate
Certificates which is the numerical equivalent of the weighted average of
the interest rates on the Class LT11A Interest, the Class LT12A Interest,
the Class LT13A Interest and the Class LT14A Interest (treating, for
purposes of computing this weighted average, the Class LT11A Interest as
subject to a cap and a floor equal to the interest rate on the Class LT11B
Interest, the Class LT12A Interest as subject to a cap and a floor equal to
the interest rate on the Class LT12B Interest, the Class LT13A Interest as
subject to a cap and a floor equal to the interest rate on the Class LT13B
Interest, and the Class LT14A Interest as subject to a cap and a floor
equal to the interest rate on the Class LT14B Interest).
Payments shall be deemed made and Realized Losses and shortfalls shall be
allocated among the REMIC 2 Interests in the same manner as such payments are
made or such Realized Losses and shortfalls are allocated among the
Corresponding Classes of Certificates (disregarding Section 6.01(a)(v)).
The principal amount of each REMIC 2 Regular Interest shall be increased on
any Distribution Date on which, and in the amount by which, the Class
Certificate Balance of any Corresponding Class of Certificates is increased due
to Subsequent Recoveries pursuant to the definition of "Class Certificate
Balance."
THE CERTIFICATES
The following table sets forth (or describes) the Class designation,
Certificate Rate, initial Class Certificate Balance or initial notional amount,
and minimum denomination for each Class of Certificates comprising interests in
the Trust Fund created hereunder.
Initial Class
Certificate Balance
Class Certificate or Initial Notional Minimum Denominations
Designation Rate Amount or Percentage Interest
----------- ----------- ------------------- ----------------------
Class 1-A1 5.50% $12,553,900 $25,000.00
Class 1-A2 6.00% $67,752,000 $25,000.00
Class 2-A1 6.00% $45,502,000 $25,000.00
Class 2-A2 6.00% $ 2,173,000 $25,000.00
Class 2-A3 6.00% $ 5,629,000 $25,000.00
Class 2-A4 (1) $70,255,000 $25,000.00
Class 2-A5 (2) $70,255,000(3) $25,000.00
Class 2-A6 6.00% $81,007,000 $25,000.00
Class 2-A7 6.00% $99,008,000 $25,000.00
Class 2-A8 6.00% $ 9,673,000 $25,000.00
Class 2-A9 6.00% $21,077,000 $25,000.00
Class 2-A10 6.00% $ 2,989,000 $25,000.00
Class IO-1 6.00% $ 6,505,282(3) $25,000.00
Class IO-2 6.25% $22,236,988(3) $25,000.00
Class PO (4) $ 1,034,336 $25,000.00
Class M-1 (5) $13,349,000 $25,000.00
Class M-2 (5) $ 4,449,000 $25,000.00
Class M-3 (5) $ 3,114,000 $25,000.00
Class B-1 (5) $ 2,225,000 $25,000.00
Class B-2 (5) $ 1,557,000 $25,000.00
Class B-3 (5) $ 1,556,960 $25,000.00
Class A-R 5.50% $ 100 $ 100
Class P N/A N/A(6) 100%
-6-
(1) The Certificate Rate for the Class 2-A4 Certificates will equal one-month
LIBOR plus 0.320% with respect to any Distribution Date.
(2) The Certificate Rate for the Class 2-A5 Certificates will equal 6.680%
minus one-month LIBOR with respect to any Distribution Date.
(3) The Class 2-A5, Class IO-1 and Class IO-2 Certificates are interest-only
certificates. The Class 2-A5, Class IO-1 and Class IO-2 Certificates will
accrue interest on their class notional amount.
(4) The Class PO Certificates are principal-only certificates and are not
entitled to payments of interest.
(5) The Certificate Rate with respect to any Distribution Date (and the related
Accrual Period) will equal the fraction, expressed as a percentage, the
numerator of which will equal the sum of (i) the product of (x) the
Subgroup 1 Remittance Rate and (y) the Subgroup 1 Subordinated Amount, (ii)
the product of (x) the Subgroup 2 Remittance Rate and (y) the Subgroup 0
Xxxxxxxxxxxx Xxxxxx, (xxx) the product of (x) the Subgroup 3 Remittance
Rate and (y) the Subgroup 3 Subordinated Amount and (iv) the product of (x)
the Subgroup 4 Remittance Rate and (y) the Subgroup 4 Subordinated Amount
and the denominator of which will equal the sum of the Subgroup 1
Subordinated Amount, the Subgroup 2 Subordinated Amount, the Subgroup 3
Subordinated Amount and the Subgroup 4 Subordinated Amount.
(6) The Class P Certificates will be entitled to receive Prepayment Charges on
the Prepayment Charge Mortgage Loans.
The Class PO Certificates consist of two components, referred to herein as
the "Class PO Component One" and "Class PO Component Two."
As of the Cut-off Date, the Mortgage Loans had an aggregate Stated
Principal Balance of $444,904,297.48.
In consideration of the mutual agreements herein contained, the Depositor,
the Trustee, Securities Administrator and the Master Servicer hereby agree as
follows:
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ARTICLE I
DEFINITIONS
Whenever used in this Agreement, the following words and phrases, unless
otherwise expressly provided or unless the context otherwise requires, shall
have the meanings specified in this Article.
10-K Filing Deadline: As defined in Section 3.18(h).
Accepted Master Servicing Practices: With respect to any Mortgage Loan, as
applicable, either (x) those customary mortgage master servicing practices of
prudent mortgage servicing institutions that master service mortgage loans of
the same type and quality as such Mortgage Loan in the jurisdiction where the
related Mortgaged Property is located, to the extent applicable to the Trustee
or the Master Servicer (except in its capacity as successor to a Servicer), or
(y) as provided in the applicable Servicing Agreement, to the extent applicable
to any Servicer, but in no event below the standard set forth in clause (x).
Account: The Master Servicer Collection Account, Distribution Account and
any Protected Account as the context may require.
Accountant's Attestation: As defined in Section 3.17(b).
Accrual Period: With respect to any Distribution Date, the calendar month
immediately preceding the month in which the related Distribution Date occurs.
Interest shall accrue on all Classes of Certificates and REMIC 1 Regular
Interests on the basis of a 360-day year consisting of twelve 30-day months.
Accrued Certificate Interest: With respect to each Class of Certificates,
an amount equal to the interest accrued during the related Accrual Period on the
Class Certificate Balance thereof at the then-applicable Certificate Rate.
Accrued Certificate Interest on any Class of Certificates will be reduced by the
amount of (i) Prepayment Interest Shortfalls (to the extent not offset by the
related Servicer or Master Servicer with a payment of Compensating Interest as
provided in Section 6.06), (ii) the interest portion of Realized Losses
Payments' allocated to such Class of Certificates pursuant to Section 6.02 and
(iii) any other interest shortfalls not covered by the subordination provided by
the Class M Certificates and Class B Certificates, including shortfalls as a
result of the Relief Act or similar legislation or regulations, with all such
reductions allocated among all of the Certificates in proportion to their
respective amounts of Accrued Certificate Interest payable on such Distribution
Date which would have resulted absent such reductions.
Additional Disclosure Notification: As defined in Section 3.18(b).
Additional Form 10-D Disclosure: As defined in Section 3.18(e).
Additional Form 10-K Disclosure: As defined in Section 3.18(h).
Adverse REMIC Event: As defined in Section 9.12(g).
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Affiliate: As to any Person, any other Person controlling, controlled by or
under common control with such Person. "Control" means the power to direct the
management and policies of a Person, directly or indirectly, whether through
ownership of voting securities, by contract or otherwise. "Controlled" and
"Controlling" have meanings correlative to the foregoing. The Master Servicer
may conclusively presume that a Person is not an Affiliate of another Person
unless a Responsible Officer of the Master Servicer has actual knowledge to the
contrary.
Aggregate Subordinated Percentage: The meaning set forth in Section
6.01(b)(x)(A) hereof.
Agreement: This Pooling and Servicing Agreement, including the exhibits
hereto, and all amendments hereof and supplements hereto.
Applicable Credit Rating: For any long-term deposit or security, a credit
rating of AAA in the case of S&P or Aaa in the case of Xxxxx'x. For any
short-term deposit or security, a rating of A-l+ in the case of S&P or P-1 in
the case of Xxxxx'x.
Appraised Value: For any Mortgaged Property related to a Mortgage Loan, the
amount set forth as the appraised value of such Mortgaged Property in an
appraisal made for the mortgage originator in connection with its origination of
the related Mortgage Loan.
Assessment of Compliance: As defined in Section 3.17(a).
Assignment: 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 of record the sale
of the Mortgage Loan to the Trustee for the benefit of Certificateholders, which
assignment, notice of transfer or equivalent instrument may be in the form of
one or more blanket assignments covering Mortgages secured by Mortgaged
Properties located in the same county, if permitted by law and accompanied by an
Opinion of Counsel to that effect.
Assignment Agreements: The CitiMortgage Assignment Agreement, the IndyMac
Assignment Agreement, the PHH Assignment Agreement, the Wachovia Assignment
Agreement and the Wilshire Servicing Agreement, which are attached hereto as
Exhibits I-1, I-2, I-3, I-4 and I-5 respectively.
Auction: The one-time auction conducted by the Securities Administrator, as
described in Section 10.01(b) hereof.
Available Distribution Amount: As to each Mortgage Group or, as the context
requires, all Mortgage Groups, on any Distribution Date, an amount equal to the
amount on deposit in the Master Servicer Collection Account with respect to such
Mortgage Group as of the close of business two Business Days immediately
preceding the related Distribution Date (but prior to making any deposits into
the Certificate Account on such date) except:
(a) amounts received on particular Mortgage Loans in such Mortgage Group as
late payments or other recoveries of principal or interest (including any
Subsequent Recoveries,
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Liquidation Proceeds, Insurance Proceeds and condemnation awards) and respecting
which the applicable Servicer previously made an unreimbursed Monthly Advance of
such amounts;
(b) reimbursement for Nonrecoverable Advances and other amounts permitted
to be withdrawn by the Servicers pursuant to Section 4.03 from, or not required
to be deposited in, the Master Servicer Collection Account attributable, in each
case, to Mortgage Loans in such Mortgage Group;
(c) amounts representing the applicable Servicing Fee attributable in each
case to the Mortgage Loans in such Mortgage Group with respect to such
Distribution Date;
(d) amounts representing all or part of a Monthly Payment with respect to a
Mortgage Loan in such Mortgage Group due (i) after the related Due Period or
(ii) on or prior to the Cut-off Date;
(e) all Repurchase Proceeds, Principal Prepayments, Liquidation Proceeds,
Insurance Proceeds, Subsequent Recoveries and condemnation awards with respect
to Mortgage Loans in such Mortgage Group received after the related Principal
Prepayment Period, and all related payments of interest representing interest
for any period of time after the last day of the related Due Period for such
Mortgage Loans; and
(f) all income from eligible investments held in the Master Servicer
Collection Account for the account of the Servicers.
Back-Up Certification: As defined in Section 3.18(k).
Bankruptcy Code: The United States Bankruptcy Code, as amended as codified
in 11 U.S.C. Sections 101-1330.
Book-Entry Certificates: Any of the Certificates that shall be registered
in the name of the Depository or its nominee, the ownership of which is
reflected on the books of the Depository or on the books of a Person maintaining
an account with the Depository (directly, as a Depository Participant, or
indirectly, as an indirect participant in accordance with the rules of the
Depository and as described in Section 5.02 hereof). On the Closing Date, the
Certificates (other than the Class A-R Certificate and the Private Certificates)
shall be Book-Entry Certificates.
Business Day: Any day other than (i) a Saturday or a Sunday, or (ii) a day
on which the New York Stock Exchange or Federal Reserve is closed or on which
banking institutions in the jurisdiction in which the Trustee, the Master
Servicer, any Servicer or the Securities Administrator are authorized or
obligated by law or executive order to be closed.
Carry-Over Subordinated Principal Amount: As of any Distribution Date, with
respect to any Class of Subordinate Certificates, an amount, if any, equal to
the amount of principal distributable to such Class on any prior Distribution
Date that has not been so distributed.
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Certificate: Any mortgage pass-through certificate issued pursuant to this
Agreement, evidencing a beneficial ownership interest in that portion of the
Trust Fund related to the Mortgage Loans, signed and countersigned by the
Securities Administrator.
Certificate Group: Each of the Group I Certificates and Group II
Certificates.
Certificate Owner: With respect to each Book-Entry Certificate, any
beneficial owner thereof.
Certificate Rate: The per annum rate of interest borne by each Class of
Certificates (other than the Class PO Certificates), which (i) with respect to
the Class 1-A1 and Class A-R Certificates will be 5.50%, (ii) with respect to
the case of the Class 1-A2, Class 2-A1, Class 2-A2, Class 2-A3, Class 2-A6,
Class 2-A7, Class 2-A8, Class 2-A9, Class 2A-10 and Class IO-1 Certificates will
be 6.00%, (iii) with respect to the Class 2-A4 Certificates will equal one-month
LIBOR plus 0.320%, (iv) with respect to the Class 2-A5 Certificates, will equal
6.680% minus one-month LIBOR (v) with respect to the Class IO-2 Certificates
will be 6.25% and (vi) with respect to each Class of Subordinate Certificates,
will equal a fraction, expressed as a percentage, the numerator of which will
equal the sum of (a) the product of (x) the Subgroup 1 Remittance Rate and
(y) the Subgroup 1 Subordinated Amount, (b) the product of (x) the Subgroup 2
Remittance Rate and (y) the Subgroup 2 Subordinated Amount, (c) the product of
(x) the Subgroup 3 Remittance Rate and (y) the Subgroup 3 Subordinated Amount
and (d) the product of (x) the Subgroup 4 Remittance Rate and (y) the Subgroup 4
Subordinated Amount and the denominator of which will equal the sum of the
Subgroup 1 Subordinated Amount, the Subgroup 2 Subordinated Amount, the Subgroup
3 Subordinated Amount and the Subgroup 4 Subordinated Amount. The minimum
Certificate Rates for the Class 2-A4 and Class 2-A5 Certificates will be 0.320%
and 0.000%, respectively, and the maximum Certificate Rates for the Class 2-A4
and Class 2-A5 Certificates will be 7.000% and 6.680%, respectively.
Certificate Register: The register maintained pursuant to Section 5.02
hereof.
Certificate Subgroup: Each of the Subgroup 1 Certificates, Subgroup 2
Certificates, Subgroup 3 Certificates and Subgroup 4 Certificates.
Certificateholder or Holder: The Person in whose name a Regular Certificate
is registered in the Certificate Register, except that a Disqualified
Organization or non-U.S. Person shall not be a Holder of the Class A-R
Certificate for any purpose hereof.
Certification Parties: As defined in Section 3.18(k).
Certifying Person: As defined in Section 3.18(k).
CitiMortgage: CitiMortgage, Inc.
CitiMortgage Assignment Agreement: The Assignment, Assumption and
Recognition Agreement, dated as of March 1, 2007, among CitiMortgage, the
Depositor and the Seller pursuant to which the CitiMortgage Servicing Agreement
and the rights of the Seller thereunder
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(other than the rights to enforce the representations and warranties with
respect to the CitiMortgage Loans) were assigned to the Depositor for the
benefit of the Certificateholders.
CitiMortgage Loans: The Mortgage Loans serviced by CitiMortgage pursuant to
the CitiMortgage Servicing Agreement.
CitiMortgage Servicing Agreement: The Mortgage Servicing Purchase and Sale
Agreement dated as of September 1, 2006, between CitiMortgage as seller and MLML
as purchaser, as at any time in effect.
Class: Collectively, Certificates which have the same priority of payment
and bear the same class designation and the form of which is identical except
for variation in the Percentage Interest evidenced thereby.
Class 1-A1 Certificate: Any one of the Class 1-A1 Certificates, executed by
the Securities Administrator and authenticated and delivered by the Securities
Administrator, senior in right of payment to the Class M and Class B
Certificates, substantially in the form of the Class A Certificate set forth in
Exhibit A-1 hereto.
Class 1-A1 Interest Accrual Amount: With respect to any Distribution Date,
one month's interest at the Certificate Rate on the Class Certificate Balance of
the Class 1-A1 Certificates minus (i) any Compensating Interest Shortfall
allocated to the Class 1-A1 Certificates on such Distribution Date pursuant to
Section 6.07(a), (ii) any Realized Loss Interest Shortfall allocated to the
Class 1-A1 Certificates on such Distribution Date pursuant to Section 6.07(b),
and (iii) any interest shortfall resulting from the Relief Act allocated to the
Class 1-A1 Certificates on such Distribution Date pursuant to Section 6.07(c).
Class 1-A1 Shortfall: With respect to any Distribution Date, the amount
equal to the excess, if any, of the Class 1-A1 Interest Accrual Amount over the
amount actually distributed to the Class 1-A1 Certificateholders on such
Distribution Date pursuant to Section 6.01(b)(i)(A).
Class 2-A1 Certificate: Any one of the Class 2-A1 Certificates, executed by
the Securities Administrator and authenticated and delivered by the Securities
Administrator, senior in right of payment to the Class M and Class B
Certificates, substantially in the form of the Class A Certificate set forth in
Exhibit A-1 hereto.
Class 2-A1 Interest Accrual Amount: With respect to any Distribution Date,
one month's interest at the Certificate Rate on the Class Certificate Balance of
the Class 2-A1 Certificates minus (i) any Compensating Interest Shortfall
allocated to the Class 2-A1 Certificates on such Distribution Date pursuant to
Section 6.07(a), (ii) any Realized Loss Interest Shortfall allocated to the
Class 2-A1 Certificates on such Distribution Date pursuant to Section 6.07(b),
and (iii) any interest shortfall resulting from the Relief Act allocated to the
Class 2-A1 Certificates on such Distribution Date pursuant to Section 6.07(c).
Class 2-A1 Shortfall: With respect to any Distribution Date, the amount
equal to the excess, if any, of the Class 2-A1 Interest Accrual Amount over the
amount actually distributed to the Class 2-A1 Certificateholders on such
Distribution Date pursuant to Section 6.01(b)(i)(D).
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Class 2-A2 Certificate: Any one of the Class 2-A2 Certificates, executed by
the Securities Administrator and authenticated and delivered by the Securities
Administrator, senior in right of payment to the Class M and Class B
Certificates, substantially in the form of the Class A Certificate set forth in
Exhibit A-1 hereto.
Class 2-A2 Interest Accrual Amount: With respect to any Distribution Date,
one month's interest at the Certificate Rate on the Class Certificate Balance of
the Class 2-A2 Certificates minus (i) any Compensating Interest Shortfall
allocated to the Class 2-A2 Certificates on such Distribution Date pursuant to
Section 6.07(a), (ii) any Realized Loss Interest Shortfall allocated to the
Class 2-A2 Certificates on such Distribution Date pursuant to Section 6.07(b),
and (iii) any interest shortfall resulting from the Relief Act allocated to the
Class 2-A2 Certificates on such Distribution Date pursuant to Section 6.07(c).
Class 2-A2 Shortfall: With respect to any Distribution Date, the amount
equal to the excess, if any, of the Class 2-A2 Interest Accrual Amount over the
amount actually distributed to the Class 2-A2 Certificateholders on such
Distribution Date pursuant to Section 6.01(b)(i)(E).
Class 2-A3 Certificate: Any one of the Class 2-A3 Certificates, executed by
the Securities Administrator and authenticated and delivered by the Securities
Administrator, senior in right of payment to the Class M and Class B
Certificates, substantially in the form of the Class A Certificate set forth in
Exhibit A-1 hereto.
Class 2-A3 Interest Accrual Amount: With respect to any Distribution Date,
one month's interest at the Certificate Rate on the Class Certificate Balance of
the Class 2-A3 Certificates minus (i) any Compensating Interest Shortfall
allocated to the Class 2-A3 Certificates on such Distribution Date pursuant to
Section 6.07(a), (ii) any Realized Loss Interest Shortfall allocated to the
Class 2-A3 Certificates on such Distribution Date pursuant to Section 6.07(b),
and (iii) any interest shortfall resulting from the Relief Act allocated to the
Class 2-A3 Certificates on such Distribution Date pursuant to Section 6.07(c).
Class 2-A3 Lockout Percentage: For any Distribution Date through March
2012, will equal 0% and for any Distribution Date thereafter will equal (a) for
any Distribution Date from April 2012 through March 2013, 30%, (b) for any
Distribution Date from April 2013 through March 2014, 40%, (c) for any
Distribution Date from April 2014 through March 2015, 60%, (d) for any
Distribution Date from April 2015 through March 2016, 80% and (e) for any
Distribution Date after March 2016, 100%.
Class 2-A3 Lockout Principal Distribution Amount: With respect to any
Distribution Date, will equal the product of (i) the Class 2-A3 Lockout
Percentage, (ii) the Class 2-A3 Priority Percentage and (iii) the Non-PO
Subgroup 3 Optimal Principal Amount.
Class 2-A3 Priority Percentage: For any Distribution Date, the percentage
equivalent of the fraction which the numerator is the Class 2-A3 Certificate
balance immediately prior to such Distribution Date and the denominator of
which is equal to the aggregate class certificate balance of the Class 2-A1,
Class 2-A2, Class 2-A3 and Class 2-A10 Certificates immediately prior to such
Distribution Date.
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Class 2-A3 Shortfall: With respect to any Distribution Date, the amount
equal to the excess, if any, of the Class 2-A3 Interest Accrual Amount over the
amount actually distributed to the Class 2-A3 Certificateholders on such
Distribution Date pursuant to Section 6.01(b)(i)(F).
Class 2-A4 Certificate: Any one of the Class 2-A4 Certificates, executed by
the Securities Administrator and authenticated and delivered by the Securities
Administrator, substantially in the form of the Class A Certificate set forth in
Exhibit A-1 hereto.
Class 2-A4 Interest Accrual Amount: With respect to any Distribution Date,
one month's interest at the Certificate Rate on the Class Certificate Balance of
the Class 2-A4 Certificates minus (i) any Compensating Interest Shortfall
allocated to the Class 2-A4 Certificates on such Distribution Date pursuant to
Section 6.07(a), (ii) any Realized Loss Interest Shortfall allocated to the
Class 2-A4 Certificates on such Distribution Date pursuant to Section 6.07(b),
and (iii) any interest shortfall resulting from the Relief Act allocated to the
Class 2-A4 Certificates on such Distribution Date pursuant to Section 6.07(c).
Class 2-A4 Shortfall: With respect to any Distribution Date, the amount
equal to the excess, if any, of the Class 2-A4 Interest Accrual Amount over the
amount actually distributed to the Class 2-A4 Certificateholders on such
Distribution Date pursuant to Section 6.01(b)(i)(G).
Class 2-A5 Certificate: Any one of the Class 2-A5 Certificates, executed by
the Securities Administrator and authenticated and delivered by the Securities
Administrator, senior in right of payment to the Class M and Class B
Certificates, substantially in the form of the Class A Certificate set forth in
Exhibit A-1 hereto.
Class 2-A5 Interest Accrual Amount: With respect to any Distribution Date,
one month's interest at the Certificate Rate on the Class Certificate Balance of
the Class 2-A5 Certificates minus (i) any Compensating Interest Shortfall
allocated to the Class 2-A5 Certificates on such Distribution Date pursuant to
Section 6.07(a), (ii) any Realized Loss Interest Shortfall allocated to the
Class 2-A5 Certificates on such Distribution Date pursuant to Section 6.07(b),
and (iii) any interest shortfall resulting from the Relief Act allocated to the
Class 2-A5 Certificates on such Distribution Date pursuant to Section 6.07(c).
Class 2-A5 Shortfall: With respect to any Distribution Date, the amount
equal to the excess, if any, of the Class 2-A5 Interest Accrual Amount over the
amount actually distributed to the Class 2-A5 Certificateholders on such
Distribution Date pursuant to Section 6.01(b)(i)(H).
Class 2-A6 Certificate: Any one of the Class 2-A6 Certificates, executed by
the Securities Administrator and authenticated and delivered by the Securities
Administrator, senior in right of payment to the Class M and Class B
Certificates, substantially in the form of the Class A Certificate set forth in
Exhibit A-1 hereto.
Class 2-A6 Interest Accrual Amount: With respect to any Distribution Date,
one month's interest at the Certificate Rate on the Class Certificate Balance of
the Class 2-A6 Certificates minus (i) any Compensating Interest Shortfall
allocated to the Class 2-A6 Certificates on such Distribution Date pursuant to
Section 6.07(a), (ii) any Realized Loss Interest Shortfall allocated to the
Class 2-A6 Certificates on such Distribution Date pursuant to Section 6.07(b),
and (iii) any
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interest shortfall resulting from the Relief Act allocated to the Class 2-A6
Certificates on such Distribution Date pursuant to Section 6.07(c).
Class 2-A6 Shortfall: With respect to any Distribution Date, the amount
equal to the excess, if any, of the Class 2-A6 Interest Accrual Amount over the
amount actually distributed to the Class 2-A6 Certificateholders on such
Distribution Date pursuant to Section 6.01(b)(i)(I).
Class 2-A7 Certificate: Any one of the Class 2-A7 Certificates, executed by
the Securities Administrator and authenticated and delivered by the Securities
Administrator, senior in right of payment to the Class M and Class B
Certificates, substantially in the form of the Class A Certificate set forth in
Exhibit A-1 hereto.
Class 2-A7 Interest Accrual Amount: With respect to any Distribution Date,
one month's interest at the Certificate Rate on the Class Certificate Balance of
the Class 2-A7 Certificates minus (i) any Compensating Interest Shortfall
allocated to the Class 2-A7 Certificates on such Distribution Date pursuant to
Section 6.07(a), (ii) any Realized Loss Interest Shortfall allocated to the
Class 2-A7 Certificates on such Distribution Date pursuant to Section 6.07(b),
and (iii) any interest shortfall resulting from the Relief Act allocated to the
Class 2-A7 Certificates on such Distribution Date pursuant to Section 6.07(c).
Class 2-A7 Shortfall: With respect to any Distribution Date, the amount
equal to the excess, if any, of the Class 2-A7 Interest Accrual Amount over the
amount actually distributed to the Class 2-A7 Certificateholders on such
Distribution Date pursuant to Section 6.01(b)(i)(J).
Class 2-A8 Certificate: Any one of the Class 2-A8 Certificates, executed by
the Securities Administrator and authenticated and delivered by the Securities
Administrator, senior in right of payment to the Class M and Class B
Certificates, substantially in the form of the Class A Certificate set forth in
Exhibit A-1 hereto.
Class 2-A8 Interest Accrual Amount: With respect to any Distribution Date,
one month's interest at the Certificate Rate on the Class Certificate Balance of
the Class 2-A8 Certificates minus (i) any Compensating Interest Shortfall
allocated to the Class 2-A8 Certificates on such Distribution Date pursuant to
Section 6.07(a), (ii) any Realized Loss Interest Shortfall allocated to the
Class 2-A8 Certificates on such Distribution Date pursuant to Section 6.07(b),
and (iii) any interest shortfall resulting from the Relief Act allocated to the
Class 2-A8 Certificates on such Distribution Date pursuant to Section 6.07(c).
Class 2-A8 Shortfall: With respect to any Distribution Date, the amount
equal to the excess, if any, of the Class 2-A8 Interest Accrual Amount over the
amount actually distributed to the Class 2-A8 Certificateholders on such
Distribution Date pursuant to Section 6.01(b)(i)(K).
Class 2-A9 Certificate: Any one of the Class 2-A9 Certificates, executed by
the Securities Administrator and authenticated and delivered by the Securities
Administrator, senior in right of payment to the Class M and Class B
Certificates, substantially in the form of the Class A Certificate set forth in
Exhibit A-1 hereto.
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Class 2-A9 Interest Accrual Amount: With respect to any Distribution Date,
one month's interest at the Certificate Rate on the Class Certificate Balance of
the Class 2-A9 Certificates minus (i) any Compensating Interest Shortfall
allocated to the Class 2-A9 Certificates on such Distribution Date pursuant to
Section 6.07(a), (ii) any Realized Loss Interest Shortfall allocated to the
Class 2-A9 Certificates on such Distribution Date pursuant to Section 6.07(b),
and (iii) any interest shortfall resulting from the Relief Act allocated to the
Class 2-A9 Certificates on such Distribution Date pursuant to Section 6.07(c).
Class 2-A9 Lockout Percentage: For any Distribution Date through March
2012, will equal 0% and for any Distribution Date thereafter will equal (a) for
any Distribution Date from April 2012 through March 2013, 30%, (b) for any
Distribution Date from April 2013 through March 2014, 40%, (c) for any
Distribution Date from April 2014 through March 2015, 60%, (d) for any
Distribution Date from April 2015 through March 2016, 80% and (e) for any
Distribution Date after March 2016, 100%.
Class 2-A9 Lockout Principal Distribution Amount: With respect to any
Distribution Date, will equal the product of (i) the Class 2-A9 Lockout
Percentage, (ii) the Class 2-A9 Priority Percentage and (iii) the Non-PO
Subgroup 4 Optimal Principal Amount.
Class 2-A9 Priority Percentage: For any Distribution Date, the percentage
equivalent of the fraction which the numerator is the Class 2-A9 Certificate
balance immediately prior to such Distribution Date and the denominator of which
is equal to the aggregate class certificate balance of the Class 2-A6, Class
2-A7, Class 2-A8 and Class 2-A9 Certificates immediately prior to such
Distribution Date.
Class 2-A9 Shortfall: With respect to any Distribution Date, the amount
equal to the excess, if any, of the Class 2-A9 Interest Accrual Amount over the
amount actually distributed to the Class 2-A9 Certificateholders on such
Distribution Date pursuant to Section 6.01(b)(i)(L).
Class 2-A10 Certificate: Any one of the Class 2-A10 Certificates, executed
by the Securities Administrator and authenticated and delivered by the
Securities Administrator, senior in right of payment to the Class M and Class B
Certificates, substantially in the form of the Class A Certificate set forth in
Exhibit A-1 hereto.
Class 2-A10 Interest Accrual Amount: With respect to any Distribution Date,
one month's interest at the Certificate Rate on the Class Certificate Balance of
the Class 2-A10 Certificates minus (i) any Compensating Interest Shortfall
allocated to the Class 2-A10 Certificates on such Distribution Date pursuant to
Section 6.07(a), (ii) any Realized Loss Interest Shortfall allocated to the
Class 2-A10 Certificates on such Distribution Date pursuant to Section 6.07(b),
and (iii) any interest shortfall resulting from the Relief Act allocated to the
Class 2-A10 Certificates on such Distribution Date pursuant to Section 6.07(c).
Class 2-A10 Shortfall: With respect to any Distribution Date, the amount
equal to the excess, if any, of the Class 2-A10 Interest Accrual Amount over the
amount actually distributed to the Class 2-A10 Certificateholders on such
Distribution Date pursuant to Section 6.01(b)(i)(M).
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Class A Certificate: Any of the Class 1-A1, Class 1-A2, Class 2-A1, Class
2-A2, Class 2-A3, Class 2-A4, Class 2-A5, Class 2-A6, Class 2-A7, Class 2-A8,
Class 2-A9, Class 2-A10 Class IO-1, Class IO-2, Class PO or Class A-R
Certificates as designated on the face thereof substantially in the form annexed
(other than the Class A-R Certificate) hereto as Exhibits A-1, executed by the
Securities Administrator and authenticated and delivered by the Securities
Administrator, representing the right to distributions as set forth herein and
therein.
Class A Certificateholder: Any Holder of a Class A Certificate.
Class A-R Certificate: The Class A-R Certificate created and issued under
this Agreement.
Class B Certificate: Any one of the Class B-1, Class B-2 or Class B-3
Certificates as designated on the face thereof substantially in the form annexed
hereto as Exhibit A-2, executed by the Securities Administrator and
authenticated and delivered by the Securities Administrator, representing the
right to distributions as set forth herein and therein.
Class B Certificateholder: Any Holder of a Class B Certificate.
Class B Percentage: As of any Distribution Date, the difference between
100% and the sum of (i) the Class A Percentage and (ii) the Class M Percentage
for such Distribution Date.
Class B-1 Certificate: Any one of the Class B-1 Certificates executed by
the Securities Administrator and authenticated and delivered by the Securities
Administrator, subordinated in right of payment to the Class A and Class M
Certificates, substantially in the form of the Class B Certificate set forth in
Exhibit A-2 hereto.
Class B-1 Interest Accrual Amount: With respect to any Distribution Date,
one month's interest at the Certificate Rate on the Class Certificate Balance of
the Class B-1 Certificates minus (i) any Compensating Interest Shortfall
allocated to the Class B-1 Certificates on such Distribution Date pursuant to
Section 6.07(a), (ii) any Realized Loss Interest Shortfall allocated to the
Class B-1 Certificates on such Distribution Date pursuant to Section 6.07(b) and
(iii) any interest shortfall resulting from the Relief Act allocated to the
Class B-1 Certificates on such Distribution Date pursuant to Section 6.07(c).
Class B-1 Shortfall: With respect to any Distribution Date, the amount
equal to the excess, if any, of the Class B-1 Interest Accrual Amount over the
amount actually distributed to the Class B-1 Certificates on such Distribution
Date pursuant to Sections 6.01(d)(i) (A) and (B).
Class B-2 Certificate: Any one of the Class B-2 Certificates executed by
the Securities Administrator and authenticated and delivered by the Securities
Administrator, subordinated in right of payment to the Class A, Class M and
Class B-1 Certificates, substantially in the form of the Class B Certificate set
forth in Exhibit A-2 hereto.
Class B-2 Interest Accrual Amount: With respect to any Distribution Date,
one month's interest at the Certificate Rate on the Class Certificate Balance of
the Class B-2 Certificates minus (i) any Compensating Interest Shortfall
allocated to the Class B-2 Certificates on such
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Distribution Date pursuant to Section 6.07(a), (ii) any Realized Loss Interest
Shortfall allocated to the Class B-2 Certificates on such Distribution Date
pursuant to Section 6.07(b) and (iii) any interest shortfall resulting from the
Relief Act allocated to the Class B-2 Certificates on such Distribution Date
pursuant to Section 6.07(c).
Class B-2 Shortfall: With respect to any Distribution Date, the amount
equal to the excess, if any, of the Class B-2 Interest Accrual Amount over the
amount actually distributed to the Class B-2 Certificates on such Distribution
Date pursuant to Sections 6.01(d)(ii) (A) and (B).
Class B-3 Certificate: Any one of the Class B-3 Certificates executed by
the Securities Administrator and authenticated and delivered by the Securities
Administrator, subordinated in right of payment to the Class A, Class M, Class
B-1 and Class B-2 Certificates, substantially in the form of the Class B
Certificate set forth in Exhibit A-2 hereto.
Class B-3 Interest Accrual Amount: With respect to any Distribution Date,
one month's interest at the Certificate Rate on the Class Certificate Balance of
the Class B-3 Certificates minus (i) any Compensating Interest Shortfall
allocated to the Class B-3 Certificates on such Distribution Date pursuant to
Section 6.07(a), (ii) any Realized Loss Interest Shortfall allocated to the
Class B-3 Certificates on such Distribution Date pursuant to Section 6.07(b) and
(iii) any interest shortfall resulting from the Relief Act allocated to the
Class B-3 Certificates on such Distribution Date pursuant to Section 6.07(c).
Class B-3 Shortfall: With respect to any Distribution Date, the amount
equal to the excess, if any, of the Class B-3 Interest Accrual Amount over the
amount actually distributed to the Class B-3 Certificates on such Distribution
Date pursuant to Sections 6.01(d)(iii) (A) and (B).
Class Certificate Balance: With respect to any Certificate (other than the
Interest-Only Certificates) as of any date of determination, the Class
Certificate Balance of such Certificate on the Distribution Date immediately
prior to such date of determination, plus any Subsequent Recoveries added to the
Class Certificate Balance of such Certificate pursuant to Section 6.01, and
reduced by the aggregate of (a) all distributions of principal made thereon on
such immediately prior Distribution Date and (b) without duplication of amounts
described in clause (a) above, reductions in the Class Certificate Balance
thereof in connection with allocations thereto of Realized Losses on the
Mortgage Loans and Extraordinary Trust Fund Expenses on such immediately prior
Distribution Date (or, in the case of any date of determination up to and
including the initial Distribution Date, the initial Class Certificate Balance
of such Certificate, as stated on the face thereof); provided, however, that the
Class Certificate Balance of each Subordinate Certificate of the Class of
Subordinate Certificates outstanding with the highest numerical designation at
any given time shall be calculated to equal the Percentage Interest evidenced by
such Certificate multiplied by the excess, if any, of (A) the then aggregate
Stated Principal Balance of the Mortgage Loans over (B) the then aggregate Class
Certificate Balance of all other Classes of Certificates then outstanding.
Class IO Certificate: Any one of the Class IO-1 Certificates or Class IO-2
Certificates.
Class IO Interest Accrual Amount: The sum of the Class IO-1 Interest
Accrual Amount and the Class IO-2 Interest Accrual Amount.
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Class IO Shortfall: The sum of the Class IO-1 Shortfall and the Class IO-2
Shortfall.
Class IO-1 Certificate: Any one of the Class IO-1 Certificates, executed by
the Securities Administrator and authenticated and delivered by the Securities
Administrator, senior in right of payment to the Class M and Class B
Certificates, substantially in the form of the Class A Certificate set forth in
Exhibit A-1 hereto.
Class IO-1 Interest Accrual Amount: With respect to any Distribution Date,
one month's interest at the Class IO-1 Certificate Rate on the Class IO-1
Notional Amount minus (i) any Compensating Interest Shortfall allocated to Class
IO-1 on such Distribution Date pursuant to Section 6.07(a), (ii) any Realized
Loss Interest Shortfall allocated to Class IO-1 Certificate on such Distribution
Date pursuant to Section 6.07(b) and (iii) any interest shortfall resulting from
the Servicemembers Civil Relief Act allocated to the Class IO-1 Certificate on
such Distribution Date pursuant to Section 6.07(c).
Class IO-1 Notional Amount: With respect to any Distribution Date, an
amount equal to the product of the aggregate Stated Principal Balance of the
Non-Discount Mortgage Loans in Mortgage Group One and a fraction the numerator
of which is the Group One Stripped Interest Rate and the denominator of which is
6.00%. The Class IO-1 Notional Amount for the first Distribution Date will be
$6,505,282.
Class IO-1 Shortfall: With respect to any Distribution Date the amount
equal to the excess, if any, of the Class IO-1 Interest Accrual Amount over the
amount actually distributed to the Class IO-1 Certificateholders on such
Distribution Date pursuant to Section 6.01(b)(i)(C).
Class IO-2 Certificate: Any one of the Class IO-2 Certificates, executed by
the Securities Administrator and authenticated and delivered by the Securities
Administrator, senior in right of payment to the Class M and Class B
Certificates, substantially in the form of the Class A Certificate set forth in
Exhibit A-1 hereto.
Class IO-2 Interest Accrual Amount: With respect to any Distribution Date,
one month's interest at the Class IO Certificate Rate on the Class IO-2 Notional
Amount minus (i) any Compensating Interest Shortfall allocated to Class IO-2 on
such Distribution Date pursuant to Section 6.07(a), (ii) any Realized Loss
Interest Shortfall allocated to Class IO-2 Certificate on such Distribution Date
pursuant to Section 6.07(b) and (iii) any interest shortfall resulting from the
Servicemembers Civil Relief Act allocated to the Class IO-2 Certificate on such
Distribution Date pursuant to Section 6.07(c).
Class IO-2 Notional Amount: With respect to any Distribution Date, an
amount equal to the product of the aggregate Stated Principal Balance of the
Non-Discount Mortgage Loans in Mortgage Group Two and a fraction the numerator
of which is the Group Two Stripped Interest Rate and the denominator of which is
6.25%. The Class IO-2 Notional Amount for the first Distribution Date will be
$22,236,988.
Class IO-2 Shortfall: With respect to any Distribution Date the amount
equal to the excess, if any, of the Class IO-2 Interest Accrual Amount over the
amount actually distributed to the Class IO Certificateholders on such
Distribution Date pursuant to Section 6.01(b)(i)(N)(2).
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Class M Certificate: Any one of the Class M-1, Class M-2 or Class M-3
Certificates as designated on the face thereof substantially in the form annexed
hereto as Exhibit A-1, executed by the Securities Administrator and
authenticated and delivered by the Securities Administrator, representing the
right to distributions as set forth herein and therein.
Class M Certificateholder: Any Holder of a Class M Certificate.
Class M Percentage: The Class M-1 Percentage, Class M-2 Percentage and
Class M-3 Percentage.
Class M Principal Balance: As of any Distribution Date, (a) the Class M
Principal Balance for the immediately preceding Distribution Date less (b)
amounts distributed to the Class M Certificateholders on such preceding
Distribution Date allocable to principal (including the principal portion of
Monthly Advances of the Servicer made pursuant to Section 6.05(d) and Realized
Losses allocated to the Class M Certificates pursuant to Section 6.02); provided
that the Class M Principal Balance on the first Distribution Date shall be the
Original Class M Principal Balance, and provided further that if the aggregate
Class Certificate Balance of the Class B Certificates has been reduced to zero,
as of any Distribution Date, the Class M Principal Balance will equal the excess
of the Mortgage Pool Principal Balance (together with the portion of any Monthly
Payment due but not paid with respect to which a Monthly Advance has not been
made) over the Class A Principal Balance.
Class M-1 Interest Accrual Amount: With respect to any Distribution Date,
one (1) month's interest at the Certificate Rate on the Class Certificate
Balance of the Class M-1 Certificates minus (i) any Compensating Interest
Shortfall allocated to the Class M-1 Certificates on such Distribution Date
pursuant to Section 6.07(a), (ii) any Realized Loss Interest Shortfall allocated
to the Class M-1 Certificates on such Distribution Date pursuant to Section
6.05(b) and (iii) any interest shortfall resulting from the Relief Act allocated
to the Class M-1 Certificates on such Distribution Date pursuant to Section
6.07(c).
Class M-1 Percentage: With respect to any Distribution Date, the lesser of
100% and a fraction, expressed as a percentage, the numerator of which is the
aggregate Class Certificate Balance of the Class M-1 Certificates immediately
prior to such date and the denominator of which is the aggregate Stated
Principal Balance of all of the Mortgage Loans (or related REO Properties)
immediately prior to such Distribution Date.
Class M-2 Interest Accrual Amount: With respect to any Distribution Date,
one (1) month's interest at the Certificate Rate on the Class Certificate
Balance of the Class M-2 Certificates minus (i) any Compensating Interest
Shortfall allocated to the Class M-2 Certificates on such Distribution Date
pursuant to Section 6.07(a), (ii) any Realized Loss Interest Shortfall allocated
to the Class M-2 Certificates on such Distribution Date pursuant to Section
6.05(b) and (iii) any interest shortfall resulting from the Relief Act allocated
to the Class M-2 Certificates on such Distribution Date pursuant to Section
6.07(c).
Class M-2 Percentage: With respect to any Distribution Date, the lesser of
100% and a fraction, expressed as a percentage, the numerator of which is the
aggregate Class Certificate Balance of the Class M-2 Certificates immediately
prior to such date and the denominator of
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which is the aggregate Stated Principal Balance of all of the Mortgage Loans (or
related REO Properties) immediately prior to such Distribution Date.
Class M-3 Interest Accrual Amount: With respect to any Distribution Date,
one (1) month's interest at the Certificate Rate on the Class Certificate
Balance of the Class M-3 Certificates minus (i) any Compensating Interest
Shortfall allocated to the Class M-3 Certificates on such Distribution Date
pursuant to Section 6.07(a), (ii) any Realized Loss Interest Shortfall allocated
to the Class M-3 Certificates on such Distribution Date pursuant to Section
6.05(b) and (iii) any interest shortfall resulting from the Relief Act allocated
to the Class M-3 Certificates on such Distribution Date pursuant to Section
6.07(c).
Class M-3 Percentage: With respect to any Distribution Date, the lesser of
100% and a fraction, expressed as a percentage, the numerator of which is the
aggregate Class Certificate Balance of the Class M-3 Certificates immediately
prior to such date and the denominator of which is the aggregate Stated
Principal Balance of all of the Mortgage Loans (or related REO Properties)
immediately prior to such Distribution Date.
Class P Certificate: Any one of the Class P Certificates as designated on
the face thereof substantially in the forum of annexed hereto as Exhibit A-4,
executed by the Securities Administrator and authenticated and delivered by the
Securities Administrator representing the right to distributions of Prepayment
Charges received on the Prepayment Charge Mortgage Loans as set forth herein.
Class PO Amount: With respect to any Distribution Date, the applicable PO
Percentage of (i) all principal received on or in respect of each Discount
Mortgage Loan (exclusive of any amounts in respect of any Monthly Payment)
during the related Principal Prepayment Period and (ii) all principal received
as part of a Monthly Payment on or in respect of a Discount Mortgage Loan during
the related Due Period.
Class PO Certificate: Any one of the Class PO Certificates, executed by the
Securities Administrator and authenticated and delivered by the Securities
Administrator, senior in right of payment to the Class M and Class B
Certificates, substantially in the form of the Class A Certificate set forth in
Exhibit A-1 hereto.
Class PO Certificate Distribution Amount: On each Distribution Date, the
sum of (i) the amount of principal received on any related Discount Mortgage
Loan multiplied by the applicable PO Percentage with respect to such Discount
Mortgage Loan, and (2) on each Distribution Date prior to and including the
Credit Support Depletion Date, the Class PO Shortfall Amount.
Class PO Component One: The portion of the Class PO Certificates so
designated under the heading "The Certificates" in the Preliminary Statement.
Class PO Component Two: The portion of the Class PO Certificates so
designated under the heading "The Certificates" in the Preliminary Statement.
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Class PO Shortfall Amount: With respect to any Distribution Date prior to
and including the Credit Support Depletion Date, to the extent of amounts
available to pay the Subordinated Optimal Principal Amount (without regard to
clause (2) of the definition of such term), an amount equal to the sum of (i)
the applicable PO Percentage of the principal portion of any Realized Loss with
respect to a Discount Mortgage Loan and (ii) the sum of amounts, if any, by
which the amounts specified in clause (i) with respect to each prior
Distribution Date exceeded the amount actually distributed in respect thereof on
such prior Distribution Date and not subsequently distributed to the Class PO
Certificateholders.
Class Subordination Percentage: With respect to any Distribution Date and
each Class of Subordinate Certificates, the fraction (expressed as a percentage)
the numerator of which is the Class Certificate Balance of such Class of
Subordinate Certificates immediately prior to such Distribution Date and the
denominator of which is the aggregate of the Class Certificate Balances of all
Classes of Certificates immediately prior to such Distribution Date.
Closing Date: March 26, 2007.
CMC: Central Mortgage Company.
Code: The Internal Revenue Code of 1986, as amended.
Commission: The Securities and Exchange Commission.
Compensating Interest Shortfall: As defined in Section 6.07(a).
Compensating Interest Payments: As defined in Section 6.06.
Cooperative: A corporation that has been formed for the purpose of
cooperative apartment ownership.
Cooperative Assets: Shares issued by Cooperatives, the related Cooperative
Lease and any other collateral securing the Cooperative Loans.
Cooperative Lease: With respect to a Cooperative Loan, the proprietary
lease or occupancy agreement with respect to the cooperative apartment occupied
by the Mortgagor and relating to the related Cooperative Assets, which lease or
agreement confers an exclusive right to the holder of such Cooperative Assets to
occupy such apartment.
Cooperative Loan: The indebtedness of a Mortgagor evidenced by a Mortgage
Note which is secured by Cooperative Assets and which is being sold to the
Depositor pursuant to this Agreement, the Mortgage Loans so sold being
identified in the Mortgage Loan Schedule.
Cooperative Stock: With respect to a Cooperative Loan, the single
outstanding class of stock, partnership interest or other ownership instrument
in the related Cooperative.
Corporate Trust Office: With respect to the Trustee, the principal
corporate trust office of the Trustee at which at any particular time its
corporate trust business in connection with this
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Agreement shall be administered, which office at the date of the execution of
this instrument is located at HSBC Bank USA, National Association, 000 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Issuer Services - Xxxxxxx Xxxxx
Mortgage Investors, Inc., MANA Series 2007-F1, or at such other address as the
Trustee may designate from time to time by notice to the Certificateholders, the
Depositor and the Master Servicer and with respect to the Securities
Administrator, for Certificate transfer purposes, Xxxxx Fargo Center, Xxxxx
Xxxxxx xxx Xxxxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000, Attn: Client Service
Manager - MANA 2007-F1, and for all other purposes, 0000 Xxx Xxxxxxxxx Xxxx,
Xxxxxxxx, Xxxxxxxx, 00000, Attn: Corporate Trust Services - MANA 2007-F1.
Corresponding Class or Classes of Certificates: With respect to each REMIC
2 Regular Interest, the Class or Classes of Certificates appearing opposite such
REMIC 2 Regular Interest as described in the Preliminary Statement hereto.
Credit Support: With respect to each Class of Subordinate Certificates
(other than the Class B-3 Certificates), the level of credit support supporting
such Class, expressed as a percentage of the aggregate outstanding Class
Certificate Balance of all Classes of Certificates (other than the Class PO
Certificates). With respect to each Distribution Date, Credit Support for each
such Class will equal in each case the percentage, rounded to two decimal
places, obtained by dividing the aggregate outstanding Class Certificate Balance
immediately prior to such Distribution Date of all Classes of Subordinate
Certificates having higher numerical Class designations than such Class by the
aggregate outstanding Class Certificate Balance of all Classes of Certificates
(other than the Class PO Certificates) immediately prior to such Distribution
Date. For purposes of this defined term, the Class B Certificates shall be
considered as having higher numerical Class designations than the Class M
Certificates.
Credit Support Depletion Date: The first Distribution Date on which the
aggregate Class Certificate Balance of the Subordinate Certificates is reduced
to zero.
Curtailment: Any Principal Prepayment made by a Mortgagor which is not a
Principal Prepayment in Full.
Custodial Agreement: An agreement, dated as of the Closing Date among the
Depositor, the Master Servicer, the Securities Administrator, the Trustee and
the Custodian in substantially the form of Exhibit G hereto.
Custodian: Xxxxx Fargo Bank, N.A., including any successors in interest, or
any successor custodian appointed pursuant to the provisions hereof and of the
Custodial Agreement.
Cut-off Date: March 1, 2007.
Debt Service Reduction: Any reduction of the Monthly Payments which a
Mortgagor is obligated to pay with respect to a Mortgage Loan as a result of any
proceeding under the Bankruptcy Code or any other similar state law or other
proceeding.
Defective Mortgage Loan: A Mortgage Loan replaced or to be replaced by one
or more Substitute Mortgage Loans.
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Deficiency Amount: Any of the Subgroup 1 Deficiency Amount, the Subgroup 2
Deficiency Amount, the Subgroup 3 Deficiency Amount or the Subgroup 4 Deficiency
Amount.
Deficient Valuation: With respect to any Mortgage Loan, a valuation of the
related Mortgaged Property by a court of competent jurisdiction in an amount
less than the then outstanding principal balance of the Mortgage Loan, which
valuation results from a proceeding initiated under the Bankruptcy Code.
Definitive Certificates: As defined in Section 5.06.
Depositor: Xxxxxxx Xxxxx Mortgage Investors, Inc., a Delaware corporation,
or any successor in interest.
Depository: The Depository Trust Company, the nominee of which is Cede &
Co., or any successor thereto.
Depository Participant: A broker, dealer, bank or other financial
institution or other Person for whom from time to time the Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
Designated Depository Institution: A depository institution (commercial
bank, federal savings bank, mutual savings bank or savings and loan association)
or trust company (which may include the Trustee), the deposits of which are
fully insured by the FDIC to the extent provided by law.
Determination Date: With respect to each Mortgage Loan, the Determination
Date as defined in the related Servicing Agreement.
Discount Mortgage Loan: A Mortgage Loan having a Net Mortgage Rate less
than the applicable Remittance Rate.
Disqualified Organization: A "disqualified organization" as defined in
Section 860 E(e)(5) of the Code.
Distribution Account: The trust account or accounts created and maintained
pursuant to Section 4.04, which shall be denominated "Xxxxx Fargo Bank, National
Association, as Securities Administrator for HSBC Bank USA, National
Association, as Trustee f/b/o holders of Xxxxxxx Xxxxx Mortgage Investors, Inc.,
Mortgage Pass-Through Certificates, MANA Series 2007-F1 - Distribution Account."
The Distribution Account shall be an Eligible Account.
Distribution Account Deposit Date: The Business Day prior to each
Distribution Date.
Distribution Date: The 25th day of any month, beginning in April 2007, or,
if such 25th day is not a Business Day, the Business Day immediately following.
Due Date: With respect to each Mortgage Loan, the date in each month on
which its Monthly Payment is due if such due date is the first day of a month
and otherwise is deemed to
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be the first day of the following month or such other date specified in the
related Servicing Agreement.
Due Period: With respect to any Distribution Date and each Mortgage Loan,
the period commencing on the second day of the month preceding the month in
which the Distribution Date occurs and ending at the close of business on the
first day of the month in which the Distribution Date occurs.
Eligible Account: Any of (i) a segregated account maintained with a federal
or state chartered depository institution (A) the short-term obligations of
which are rated A-1 or better by S&P and P-1 by Xxxxx'x at the time of any
deposit therein or (B) insured by the FDIC (to the limits established by such
Corporation), the uninsured deposits (as evidenced in writing by the Rating
Agencies that use of any such account as the Distribution Account will not have
an adverse effect on the then-current ratings assigned to the Classes of
Certificates then rated by the Rating Agencies) in which account are otherwise
secured such that, as evidenced by an Opinion of Counsel (obtained by the Person
requesting that the account be held pursuant to this clause (i)) delivered to
the Securities Administrator prior to the establishment of such account, the
Certificateholders will have a claim with respect to the funds in such account
and a perfected first priority security interest against any collateral (which
shall be limited to Permitted Investments, each of which shall mature not later
than the Business Day immediately preceding the Distribution Date next following
the date of investment in such collateral or the Distribution Date if such
Permitted Investment is an obligation of the institution that maintains the
Distribution Account) securing such funds that is superior to claims of any
other depositors or general creditors of the depository institution with which
such account is maintained, (ii) a segregated trust account or accounts
maintained with a federal or state chartered depository institution or trust
company with trust powers acting in its fiduciary capacity or (iii) a segregated
account or accounts of a depository institution acceptable to the Rating
Agencies (as evidenced in writing by the Rating Agencies that use of any such
account as the Distribution Account will not have an adverse effect on the
then-current ratings assigned to the Classes of the Certificates then rated by
the Rating Agencies). Eligible Accounts may bear interest.
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 would satisfy the requirements of
Prohibited Transaction Exemption 90-29, Exemption Application No. D-8012, 55
Fed. Reg. 21459 (1990), as amended, granted to the Underwriter by the United
States Department of Labor (or any other applicable underwriter's exemption
granted by the United States Department of Labor), except, in relevant part, for
the requirement that the certificates have received a rating at the time of
acquisition that is in one of the three (or four, in the case of a "designated
transaction") highest generic rating categories by at least one of the Rating
Agencies.
ERISA Restricted Certificates: Any of the Class B-1, Class B-2, Class B-3
or Class P Certificates, and any other Certificate, as long as the acquisition
and holding of such Certificate is not covered by and exempt under an
underwriter's exemption.
Event of Default: An event of default described in Section 8.01.
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Excess Liquidation Proceeds: To the extent that such amount is not required
by law to be paid to the related Mortgagor, the amount, if any, by which
Liquidation Proceeds with respect to a Liquidated Mortgage Loan exceed the sum
of (i) the Outstanding Principal Balance of such Mortgage Loan and accrued but
unpaid interest at the related Mortgage Interest Rate through the last day of
the month in which the related Liquidation Date occurs, plus (ii) related
Liquidation Expenses.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Extraordinary Loss: Any Realized Loss or portion thereof caused by or
resulting from:
(i) nuclear or chemical reaction or nuclear radiation or radioactive
or chemical contamination, all whether controlled or uncontrolled and
whether such loss be direct or indirect, proximate or remote;
(ii) hostile or warlike action in time of peace or war, including
action in hindering, combating or defending against an actual, impending or
expected attack by any government or sovereign power, de jure or de facto,
or by any authority maintaining or using military, naval or air forces, or
by military, naval or air forces, or by an agent of any such government,
power, authority or forces;
(iii) any weapon of war employing atomic fission or radioactive forces
whether in time of peace or war, and
(iv) insurrection, rebellion, revolution, civil war, usurped power or
action taken by governmental authority in hindering, combating or defending
against such an occurrence, seizure or destruction under quarantine or
customs regulations, confiscation by order of any government or public
authority, or risks of contraband or illegal transactions or trade.
Extraordinary Trust Fund Expenses: Any amounts reimbursable to the Master
Servicer or the Depositor pursuant to this Agreement, including but not limited
to Sections 4.03, 4.05 and 7.04, any amounts reimbursable to the Trustee and the
Securities Administrator from the Trust Fund pursuant to this Agreement,
including but not limited to Section 9.05, and any other costs, expenses,
liabilities and losses borne by the Trust Fund (exclusive of any cost, expense,
liability or loss that is specific to a particular Mortgage Loan or REO Property
and is taken into account in calculating a Realized Loss in respect thereof) for
which the Trust Fund has not and, in the reasonable good faith judgment of the
Securities Administrator, shall not, obtain reimbursement or indemnification
from any other Person.
Xxxxxx Xxx: Federal National Mortgage Association or any successor thereto.
FDIC: Federal Deposit Insurance Corporation or any successor thereto.
Final Certification: The certification substantially in the form of Exhibit
Two to the Custodial Agreement.
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Fitch: Fitch Inc. or its successor in interest.
Form 8-K Disclosure Information: As defined in Section 3.18(a).
Xxxxxxx Mac: Xxxxxxx Mac, formerly the Federal Home Loan Mortgage
Corporation, or any successor thereto.
Global Certificate: Any Private Certificate registered in the name of the
Depository or its nominee, beneficial interests in which are reflected on the
books of the Depository or on the books of a Person maintaining an account with
such Depository (directly or as an indirect participant in accordance with the
rules of such depository).
Group I Certificates: The Class 1-A1, Class 1-A2, Class A-R and Class IO-1
Certificates.
Group II Certificates: The Class 2-A1, Class 2-A2, Class 2-A3, Class 2-A4,
Class 2-A5, Class 2-A6, Class 2-A7, Class 2-A8, Class 2-A9, Class 2-A10 and
Class IO-2 Certificates.
Group One Class PO Amount: With respect to any Distribution Date, the
applicable PO Percentage of (i) all principal received on or in respect of each
Discount Mortgage Loan in Mortgage Group One (exclusive of any amounts in
respect of any Monthly Payment) during the related Principal Prepayment Period
and (ii) all principal received as part of a Monthly Payment on or in respect of
a Discount Mortgage Loan in Mortgage Group One during the related Due Period.
Group One Mortgage Loans: The Mortgage Loans in Mortgage Group One.
Group One Mortgage Pool Principal Balance: As of any date of determination,
the aggregate of the Principal Balances of each Outstanding Mortgage Loan in
Mortgage Group One on such date of determination less the principal portion of
any Monthly Payment due but not paid with respect to which a Monthly Advance has
not been made.
Group One Remittance Rate: 5.50% per annum.
Group One Stripped Interest Rate: The excess of the weighted average Net
Mortgage Rate of the Group One Mortgage Loans that are Non-Discount Mortgage
Loans over the Group One Remittance Rate.
Group One Subordinated Amount: For any Distribution Date, the excess of the
Group One Non-PO Allocated Amount immediately following the preceding
Distribution Date (or as of the Cut-off Date if there is no preceding
Distribution Date) over the aggregate outstanding Principal Balance of the Group
I Certificates (prior to giving effect to distributions to be made on such
Distribution Date and allocation of losses to be made on such Distribution
Date).
Group Two Class PO Amount: With respect to any Distribution Date, the
applicable PO Percentage of (i) all principal received on or in respect of each
Discount Mortgage Loan in Mortgage Group Two (exclusive of any amounts in
respect of any Monthly Payment) during the
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related Principal Prepayment Period and (ii) all principal received as part of a
Monthly Payment on or in respect of a Discount Mortgage Loan in Mortgage Group
Two during the related Due Period.
Group Two Mortgage Loans: The Mortgage Loans in Mortgage Group Two.
Group Two Mortgage Pool Principal Balance: As of any date of determination,
the aggregate of the Principal Balances of each Outstanding Mortgage Loan in
Mortgage Group Two on such date of determination less the principal portion of
any Monthly Payment due but not paid with respect to which a Monthly Advance has
not been made.
Group Two Non-PO Allocated Amount: At the time of any determination, the
amount derived by (i) multiplying the outstanding Principal Balance of each
Mortgage Loan in Mortgage Group Two on such date of determination by the Non-PO
Percentage with respect to such Mortgage Loan and (ii) summing the results.
Group Two Remittance Rate: 6.00% per annum.
Group Two Stripped Interest Rate: The excess of the weighted average Net
Mortgage Rate of the Group Two Mortgage Loans that are Non-Discount Mortgage
Loans over the Group Two Remittance Rate.
Group Two Subordinated Amount: For any Distribution Date, the excess of the
Group Two Non-PO Allocated Amount immediately following the preceding
Distribution Date (or as of the Cut-off Date, if there is no preceding
Distribution Date) over the aggregate outstanding Principal Balance of the Class
2-A1, Class 2-A2 and Class 2-A3 Certificates (prior to giving effect to
distributions to be made on such Distribution Date and allocation of losses to
be made on such Distribution Date).
Highest Priority: As of any date of determination, the Class of Subordinate
Certificates then outstanding with the earliest priority for payments pursuant
to Section 6.01, in the following order: Class M-1, Class M-2, Class M-3, Class
B-1, Class B-2 and Class B-3 Certificates.
Indemnified Persons: The Trustee, the Master Servicer, the Depositor and
the Securities Administrator and their officers, directors, agents and employees
and, with respect to the Trustee, any separate co-trustee and its officers,
directors, agents and employees.
Independent: When used with respect to any specified Person, any such
Person who (a) is in fact independent of the Depositor, the Master Servicer and
their respective Affiliates, (b) does not have any direct financial interest in
or any material indirect financial interest in the Depositor or the Master
Servicer or any Affiliate thereof, and (c) is not connected with the Depositor
or the Master Servicer or any Affiliate thereof as an officer, employee,
promoter, underwriter, trustee, partner, director or Person performing similar
functions; provided, however, that a Person shall not fail to be Independent of
the Depositor or the Master Servicer or any Affiliate thereof merely because
such Person is the beneficial owner of 1% or less of any class of securities
issued by the Depositor or the Master Servicer or any Affiliate thereof, as the
case may be.
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Index: The index, if any, specified in a Mortgage Note by reference to
which the related Mortgage Interest Rate will be adjusted from time to time.
Individual Certificate: Any Private Certificate registered in the name of
the Holder other than the Depository or its nominee.
IndyMac: IndyMac Bank, F.S.B. or any successor thereto.
IndyMac Assignment Agreement: The Assignment, Assumption and Recognition
Agreement, dated as of March 1, 2007, among IndyMac, the Depositor and the
Seller pursuant to which the IndyMac Servicing Agreement and the rights of the
Seller thereunder (other than the rights to enforce the representations and
warranties with respect to the IndyMac Loans) were assigned to the Depositor for
the benefit of the Certificateholders.
IndyMac Loans: The Mortgage Loans serviced by IndyMac pursuant to the
IndyMac Servicing Agreement.
IndyMac Servicing Agreement: The Master Seller's Warranties and Servicing
Agreement, dated as of May 1, 2006, between IndyMac Bank, F.S.B., as seller, and
MLML, as purchaser, as at any time in effect.
Initial Certification: The certification substantially in the form of
Exhibit One to the Custodial Agreement.
Initial Class Certificate Balance: With respect to any Regular Certificate,
the amount designated "Initial Class Certificate Balance" on the face thereof.
Initial Optional Termination Date: The first Distribution Date following
the date on which the aggregate Stated Principal Balance of the Mortgage Loans
is less than 10% of the aggregate Stated Principal Balance of the Mortgage Loans
as of the Cut-off Date.
Insurance Policy: With respect to any Mortgage Loan, any standard hazard
insurance policy, flood insurance policy or title insurance policy.
Insurance Proceeds: Amounts paid by the insurer under any Insurance Policy
covering any Mortgage Loan or Mortgaged Property other than amounts required to
be paid over to the Mortgagor pursuant to law or the related Mortgage Note or
Security Instrument and other than amounts used to repair or restore the
Mortgaged Property or to reimburse insured expenses.
Interest Adjustment Date: With respect to a Mortgage Loan, the date, if
any, specified in the related Mortgage Note on which the Mortgage Interest Rate
is subject to adjustment.
Interest-Only Certificate: Any of the Class 2-A5, Class IO-1 or Class IO-2
Certificates.
Investor Representation Letter: As defined in Section 5.02(b).
IRS: As defined in Section 9.12.
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Issuing Entity: Xxxxxxx Xxxxx Alternative Note Asset Trust, Series 2007-F1.
Late Collections: With respect to any Mortgage Loan, all amounts received
during any Due Period, whether as late payments of Monthly Payments or as
Liquidation Proceeds, condemnation proceeds, Insurance Proceeds, or with respect
to a disposition of a Mortgaged Property (or stock allocated to a dwelling unit,
in the case of a Co-op Loan) which has been acquired by foreclosure or deed in
lieu of foreclosure or otherwise, which represent late payments or collections
of Monthly Payments due but delinquent for a previous Due Period and not
previously recovered.
Latest Possible Maturity Date: With respect to the Certificates, the
Distribution Date in March 2037.
Liquidated Mortgage Loan: Any defaulted Mortgage Loan (including any REO
Property) as to which the related Servicer has determined that all amounts it
expects to recover from or on account of such Mortgage Loan have been recovered.
Liquidation Date: With respect to any Liquidated Mortgage Loan, the date on
which the related Servicer has certified that such Mortgage Loan has become a
Liquidated Mortgage Loan.
Liquidation Expenses: With respect to a Mortgage Loan in liquidation,
unreimbursed expenses paid or incurred by or for the account of the Master
Servicer or the related Servicer in connection with the liquidation of such
Mortgage Loan and the related Mortgaged Property, such expenses including (a)
property protection expenses, (b) property sales expenses, (c) foreclosure and
sale costs, including court costs and reasonable attorneys' fees, and (d)
similar expenses reasonably paid or incurred in connection with liquidation.
Liquidation Proceeds: With respect to any Mortgage Loan, cash received in
connection with the liquidation of a defaulted Mortgage Loan, whether through
trustee's sale, foreclosure sale or otherwise, and amounts received through
Insurance Proceeds and condemnation proceeds.
Loan-to-Value Ratio: With respect to any Mortgage Loan, the fraction,
expressed as a percentage, the numerator of which is the original principal
balance of the related Mortgage Loan and the denominator of which is the
Original Value of the related Mortgaged Property.
Lockout Certificates: Any of the Class 2-A3 or Class 2-A9 Certificates.
Lower Priority: As of any date of determination and with respect to any
Class of Subordinate Certificates, any other Class of Subordinate Certificates
then outstanding with a later priority for payments pursuant to Section 6.01.
Lower Tier Regular Interests: Any of the REMIC 1 Regular Interests or the
REMIC 2 Regular Interests.
Lower Tier REMIC Interests: Any of the REMIC 1 Interests or the REMIC 2
Interests.
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Lowest Priority: As of any date of determination, the Class of Subordinate
Certificates then outstanding with the latest priority for payments pursuant to
Section 6.01, in the following order: Class B-3, Class B-2, Class B-1, Class
M-3, Class M-2 and Class M-1 Certificates.
Lost Notes: The original Mortgage Notes that have been lost, as indicated
on the Mortgage Loan Schedule.
Majority Certificateholders: The Holders of Certificates evidencing at
least 51% of the Voting Rights.
Master Servicer: Xxxxx Fargo Bank, N.A. including any successors in
interest who meet the qualifications of the Servicing Agreements and this
Agreement, and any successor master servicer appointed hereunder.
Master Servicer Collection Account: The trust account or accounts created
and maintained pursuant to Section 4.02, which shall be denominated "Xxxxx Fargo
Bank, National Association as Master Servicer for HSBC Bank USA, National
Association, as Trustee f/b/o holders of Xxxxxxx Xxxxx Mortgage Investors, Inc.,
Mortgage Pass-Through Certificates, MANA Series 2007-F1 - Master Servicer
Collection Account." The Master Servicer Collection Account shall be an Eligible
Account.
Master Servicing Compensation: The amount due to the Master Servicer
pursuant to Section 3.14.
Maximum Lifetime Mortgage Rate: The maximum level to which a Mortgage
Interest Rate can adjust in accordance with its terms, regardless of changes in
the applicable Index.
Minimum Lifetime Mortgage Rate: The minimum level to which a Mortgage
Interest Rate can adjust in accordance with its terms, regardless of changes in
the applicable Index.
MLML: Xxxxxxx Xxxxx Mortgage Lending, Inc., a Delaware corporation, or any
successor in interest.
Monthly Advance: An advance of principal or interest required to be made by
the applicable Servicer pursuant to the related Servicing Agreement or the
Master Servicer pursuant to Section 6.05.
Monthly Payment: With respect to any Mortgage Loan, the scheduled monthly
payment of principal and interest on such Mortgage Loan which is payable by the
related Mortgagor from time to time under the related Mortgage Note, determined:
(a) after giving effect to (i) any Deficient Valuation and/or Debt Service
Reduction with respect to such Mortgage Loan and (ii) any reduction in the
amount of interest collectible from the related Mortgagor pursuant to the Relief
Act; (b) without giving effect to any extension granted or agreed to by the
related Servicer pursuant to related Servicing Agreement; and (c) on the
assumption that all other amounts, if any, due under such Mortgage Loan are paid
when due.
Monthly Principal: The principal portion of any Monthly Payment.
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Monthly Statement: The statement distributed to Certificateholders pursuant
to Section 6.04.
Moody's: Xxxxx'x Investors Service, Inc. or its successor in interest.
Mortgage: The mortgage, deed of trust or other instrument creating a first
lien on, or first priority security interest in, a Mortgaged Property securing a
Mortgage Note.
Mortgage Component: Each portion of a Mortgage Loan allocated to a Subgroup
pursuant to the definitions of Subgroup 1, Subgroup 2, Subgroup 3 and Subgroup
4, as applicable.
Mortgage File: The mortgage documents listed in Section 2.01(b) pertaining
to a particular Mortgage Loan and any additional documents required to be added
to the Mortgage File pursuant to this Agreement.
Mortgage Group: Pertaining to Mortgage Group One or Mortgage Group Two, as
the case may be.
Mortgage Group One: The Mortgage Loans in the Trust Fund that are
designated in the Mortgage Loan Schedule attached hereto as Exhibit B as
comprising Mortgage Group One.
Mortgage Group One Subordinated Prepayment Percentage: As of any
Distribution Date, the difference between 100% and the Non-PO Group I Prepayment
Percentage.
Mortgage Group Two: The Mortgage Loans in the Trust Fund that are
designated in the Mortgage Loan Schedule attached hereto as Exhibit B as
comprising Mortgage Group Two.
Mortgage Interest Rate: The annual rate at which interest accrues from time
to time on any Mortgage Loan pursuant to the related Mortgage Note, which rate
is equal to the "Mortgage Interest Rate" set forth with respect thereto on the
Mortgage Loan Schedule.
Mortgage Loan: A mortgage loan transferred and assigned to the Trustee
pursuant to Section 2.01 or Section 2.04 and held as a part of the Trust Fund,
as identified in the Mortgage Loan Schedule, including a mortgage loan the
property securing which has become an REO Property.
Mortgage Loan Purchase Agreement: The Mortgage Loan Purchase Agreement,
dated as of March 1, 2007, between the Seller and the Depositor, and all
amendments thereof and supplements thereto.
Mortgage Loan Schedule: The schedule, attached hereto as Exhibit B with
respect to the Mortgage Loans and as amended from time to time to reflect the
repurchase or substitution of Mortgage Loans pursuant to this Agreement.
Mortgage Note: The originally executed note or other evidence of the
indebtedness of a Mortgagor under the related Mortgage Loan.
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Mortgage Pool: The pool of Mortgage Loans, identified on Exhibit B and as
amended from time to time, and any REO Properties acquired in respect thereof.
Mortgaged Property: Land and improvements securing the indebtedness of a
Mortgagor under the related Mortgage Loan or, in the case of REO Property, such
REO Property.
Mortgagor: The obligor on a Mortgage Note.
Net Liquidation Proceeds: As to any Liquidated Mortgage Loan, Liquidation
Proceeds net of (i) Liquidation Expenses which are payable therefrom by the
related Servicer or the Master Servicer in accordance with the related Servicing
Agreement or this Agreement and (ii) unreimbursed advances by the related
Servicer or the Master Servicer and Monthly Advances.
Net Mortgage Rate: With respect to each Mortgage Loan, the Mortgage
Interest Rate in effect from time to time less the Servicing Fee Rate (expressed
as a per annum rate).
Non-Discount Mortgage Loan: A Mortgage Loan having a Net Mortgage Rate
greater than the Remittance Rate.
Non-PO Allocated Amount: Any of the Non-PO Subgroup 1 Allocated Amount, the
Non-PO Subgroup 2 Allocated Amount, the Non-PO Subgroup 3 Allocated Amount and
the Non-PO Subgroup 1 Allocated Amount.
Non-PO Group I Percentage: As of any Distribution Date, a fraction,
expressed as a percentage (which shall never exceed 100%), the numerator of
which is the Non-PO Group I Principal Balance and the denominator of which is
the Group One Non-PO Allocated Amount as of the immediately preceding Due Date.
Non-PO Group II Percentage: As of any Distribution Date, a fraction,
expressed as a percentage (which shall never exceed 100%), the numerator of
which is the Non-PO Group II Principal Balance and the denominator of which is
the Group Two Non-PO Allocated Amount of the immediately preceding Due Date.
Non-PO Percentage: With respect to each Mortgage Loan, the fraction,
expressed as a percentage (but not greater than 100%), the numerator of which
equals the applicable Net Mortgage Rate and the denominator of which equals the
applicable Remittance Rate.
Non-PO Principal Balance: In the case of a Non-Discount Mortgage Loan, the
Stated Principal Balance of such Mortgage Loan and, in the case of a Discount
Mortgage Loan, the product of (i) the Stated Principal Balance of such Mortgage
Loan and (ii) the Non-PO Percentage for such Mortgage Loan.
Non-PO Senior Certificate: Any Senior Certificates other than the Class PO
Certificates.
Non-PO Senior Optimal Principal Amount: Any of the Non-PO Subgroup 1
Optimal Principal Amount, the Non-PO Subgroup 2 Optimal Principal Amount, the
Non-PO Subgroup 3 Optimal Principal Amount or the Non-PO Subgroup 4 Optimal
Principal Amount.
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Non-PO Senior Percentage: Any of the Non-PO Subgroup 1 Percentage, the
Non-PO Subgroup 2 Percentage, the Non-PO Subgroup 3 Percentage or the Non-PO
Subgroup 4 Percentage.
Non-PO Senior Prepayment Percentage: Any of the Non-PO Subgroup 1
Prepayment Percentage, the Non-PO Subgroup 2 Prepayment Percentage, the Non-PO
Subgroup 3 Prepayment Percentage or the Non-PO Subgroup 1 Prepayment Percentage.
Non-PO Senior Principal Balance: Any of the Non-PO Subgroup 1 Principal
Balance, the Non-PO Subgroup 2 Principal Balance, the Non-PO Subgroup 3
Principal Balance or the Non-PO Subgroup 4 Principal Balance.
Non-PO Subgroup 1 Allocated Amount: At the time of any determination, the
amount derived by (i) multiplying the outstanding Principal Balance of each
Mortgage Component in Subgroup 1 on such date of determination (giving effect to
any Monthly Advances but prior to giving effect to any principal prepayments
received with respect to such Mortgage Component that have not been passed
through to Certificateholders) by the Non-PO Percentage with respect to such
Mortgage Component and (ii) summing the results.
Non-PO Subgroup 1 Optimal Principal Amount: With respect to any
Distribution Date, the lesser of (a) the applicable Non-PO Subgroup Principal
Balance and (b) the sum of:
(i) the Non-PO Subgroup 1 Percentage of the applicable Non-PO Percentage of
the principal portion of all Monthly Payments, whether or not received, which
were due during the related Due Period on Subgroup 1 Mortgage Loans which were
outstanding during such Due Period;
(ii) the Non-PO Subgroup 1 Prepayment Percentage of the Non-PO Subgroup 1
Percentage of all Principal Prepayments received on any Subgroup 1 Mortgage
Component during the related Principal Prepayment Period;
(iii) with respect to each Mortgage Component not described in (iv) below,
the Non-PO Subgroup 1 Percentage of the applicable Non-PO Percentage of the
principal portion of all Insurance Proceeds, condemnation awards and any other
cash proceeds from a source other than the applicable Mortgagor, to the extent
required to be deposited in the Master Servicer Collection Account, which were
received during the related Principal Prepayment Period with respect to a
Subgroup 1 Mortgage Loan, net of related unreimbursed Servicing Advances and net
of any portion thereof which, as to any such Mortgage Component, constitutes
Late Collections that have been the subject of a Monthly Advance on any prior
Distribution Date;
(iv) with respect to each Subgroup 1 Mortgage Loan which has become a
Liquidated Mortgage Loan during the preceding calendar month, the lesser of (A)
the Non-PO Subgroup 1 Percentage of the applicable Non-PO Percentage of an
amount equal to the Principal Balance of such Liquidated Mortgage Loan (net of
Monthly Advances with respect to principal) as of the Due Date immediately
preceding the date on which it became a Liquidated Mortgage Loan and (B) the
Non-PO Subgroup 1 Prepayment Percentage of the Non-PO Subgroup 1 Percentage of
the Net Liquidation Proceeds with respect to such liquidated Mortgage Loan (net
of any unreimbursed Monthly Advances);
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(v) with respect to each Subgroup 1 Mortgage Loan repurchased during the
related Principal Prepayment Period, an amount equal to the Non-PO Subgroup 1
Prepayment Percentage of the applicable Non-PO Percentage of the principal
portion of the Purchase Price (net of amounts with respect to which a
distribution of principal has previously been made to the applicable Non-PO
Certificateholders);
(vi) on or after the Credit Support Depletion Date, the excess of the
Non-PO Subgroup 1 Principal Balance (calculated after giving effect to
reductions thereof on such Distribution Date with respect to the amounts
described in (i) to (v) above) over the Non-PO Subgroup 1 Allocated Amount; and
(vii) Subsequent Recoveries.
Non-PO Subgroup 1 Percentage: As of any Distribution Date, a fraction,
expressed as a percentage, the numerator of which is the Non-PO Subgroup 1
Principal Balance and the denominator of which is the Non-PO Subgroup 1
Allocated Amount immediately prior to the Due Date in the month of such
Distribution Date.
Non-PO Subgroup 1 Prepayment Percentage: As of any Distribution Date up to
and including the Distribution Date in March 2012, 100%; as of any Distribution
Date in the first year thereafter, the Non-PO Subgroup 1 Percentage plus 70% of
the applicable Subordinated Percentage for such Distribution Date; as of any
Distribution Date in the second year thereafter, the Non-PO Subgroup 1
Percentage plus 60% of the applicable Subordinated Percentage for such
Distribution Date; as of any Distribution Date in the third year thereafter, the
Non-PO Subgroup 1 Percentage plus 40% of the applicable Subordinated Percentage
for such Distribution Date; as of any Distribution Date in the fourth year
thereafter, the Non-PO Subgroup 1 Percentage plus 20% of the applicable
Subordinated Percentage for such Distribution Date; and as of any Distribution
Date after the fourth year thereafter, the Non-PO Subgroup 1 Percentage;
provided that, if the Non-PO Subgroup 1 Percentage as of any such Distribution
Date is greater than the Non-PO Subgroup 1 Percentage on the first Distribution
Date, the Non-PO Subgroup 1 Prepayment Percentage shall be 100%; and provided
further, however, that whenever the Non-PO Subgroup 1 Percentage equals 0%, the
Non-PO Subgroup 1 Prepayment Percentage shall equal 0%; and provided further
that no reduction of the Non-PO Subgroup 1 Prepayment Percentage below the level
in effect for the most recent period shall occur with respect to any
Distribution Date unless, as of the last day of the month preceding such
Distribution Date, (i) the aggregate outstanding Principal Balance of Mortgage
Components with respect to each of the Subgroups, each taken individually,
delinquent 60 days or more (including for this purpose any Mortgage Components
in foreclosure and Mortgage Components with respect to which the related
Mortgaged Property has been acquired by the Trust Fund) does not exceed 50% of
the related Subordinated Percentage of the Mortgage Pool Principal Balance with
respect to Subgroup 1 as of such date and (ii) cumulative Realized Losses
with respect to any Subgroup, each taken individually, do not exceed (a) 30% of
the related Subordinated Percentage of the Mortgage Pool Principal Balance with
respect to Subgroup 1 if such Distribution Date occurs between and including
April 2012 and March 2013, (b) 35% of the related Original Subordinated
Principal Balance if such Distribution Date occurs between and including April
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2013 and March 2014, (c) 40% of the related Original Subordinated Principal
Balance if such Distribution Date occurs between and including April 2014 and
Xxxxx 0000, (x) 45% of the related Original Subordinated Principal Balance if
such Distribution Date occurs between and including April 2015 and March 2016,
and (e) 50% of the related Original Subordinated Principal Balance if such
Distribution Date occurs during or after April 2016.
Non-PO Subgroup 1 Principal Balance: As of any Distribution Date, (a) the
Non-PO Subgroup 1 Principal Balance for the immediately preceding Distribution
Date less (b) amounts distributed (or deemed distributed) to the Subgroup 1
Certificateholders on such preceding Distribution Date allocable to principal
(including the principal portion of Monthly Advances of the Servicer made
pursuant to Section 6.05 and Realized Losses allocated to the Subgroup 1
Certificates pursuant to Section 6.02); provided that the Non-PO Subgroup 1
Principal Balance on the first Distribution Date shall be the initial Non-PO
Subgroup 1 Principal Balance.
Non-PO Subgroup 1 Principal Payment Rules: With respect to any Distribution
Date, distributions to the Holders of the Subgroup 1 Certificates pursuant to
Section 6.01(b)(ii)(A) shall be made sequentially to the Class A-R Certificate
and then to the Class 1-A1 Certificates until the Class Certificate Balance of
each such Class has been reduced to zero.
Non-PO Subgroup 2 Allocated Amount: At the time of any determination, the
amount derived by (i) multiplying the outstanding Principal Balance of each
Mortgage Component in Subgroup 2 on such date of determination (giving effect to
any Monthly Advances but prior to giving effect to any principal prepayments
received with respect to such Mortgage Component that have not been passed
through to Certificateholders) by the Non-PO Percentage with respect to such
Mortgage Component and (ii) summing the results.
Non-PO Subgroup 2 Optimal Principal Amount: With respect to any
Distribution Date, the lesser of (a) the applicable Non-PO Subgroup Principal
Balance and (b) the sum of:
(i) the Non-PO Subgroup 2 Percentage of the applicable Non-PO Percentage of
the principal portion of all Monthly Payments, whether or not received, which
were due during the related Due Period on Subgroup 2 Mortgage Loans which were
outstanding during such Due Period;
(ii) the Non-PO Subgroup 2 Prepayment Percentage of the Non-PO Subgroup 2
Percentage of all Principal Prepayments received on any Subgroup 2 Mortgage
Component during the related Principal Prepayment Period;
(iii) with respect to each Mortgage Component not described in (iv) below,
the Non-PO Subgroup 2 Percentage of the applicable Non-PO Percentage of the
principal portion of all Insurance Proceeds, condemnation awards and any other
cash proceeds from a source other than the applicable Mortgagor, to the extent
required to be deposited in the Master Servicer Collection Account, which were
received during the related Principal Prepayment Period with respect to a
Subgroup 2 Mortgage Loan, net of related unreimbursed Servicing Advances and net
of any portion thereof which, as to any such Mortgage Component, constitutes
Late Collections that have been the subject of a Monthly Advance on any prior
Distribution Date;
(iv) with respect to each Subgroup 2 Mortgage Loan which has become a
Liquidated Mortgage Loan during the preceding calendar month, the lesser of
(A) the
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Non-PO Subgroup 2 Percentage of the applicable Non-PO Percentage of an
amount equal to the Principal Balance of such Liquidated Mortgage Loan (net of
Monthly Advances with respect to principal) as of the Due Date immediately
preceding the date on which it became a Liquidated Mortgage Loan and (B) the
Non-PO Subgroup 2 Prepayment Percentage of the applicable Non-PO Percentage of
the Net Liquidation Proceeds with respect to such liquidated Mortgage Loan (net
of any unreimbursed Monthly Advances);
(v) with respect to each Subgroup 2 Mortgage Loan repurchased during the
related Principal Prepayment Period, an amount equal to the applicable Non-PO
Prepayment Percentage of the applicable Non-PO Percentage of the principal
portion of the Purchase Price (net of amounts with respect to which a
distribution of principal has previously been made to the applicable Non-PO
Certificateholders);
(vi) on or after the Credit Support Depletion Date, the excess of the
Non-PO Subgroup 2 Principal Balance (calculated after giving effect to
reductions thereof on such Distribution Date with respect to the amounts
described in (i) to (v) above) over the Non-PO Subgroup 2 Allocated Amount; and
(vii) Subsequent Recoveries.
Non-PO Subgroup 2 Percentage: As of any Distribution Date, a fraction,
expressed as a percentage, the numerator of which is the Non-PO Subgroup 2
Principal Balance and the denominator of which is the Non-PO Subgroup 2
Allocated Amount immediately prior to the Due Date in the month of such
Distribution Date.
Non-PO Subgroup 2 Prepayment Percentage: As of any Distribution Date up to
and including the Distribution Date in March 2012, 100%; as of any Distribution
Date in the first year thereafter, the Non-PO Subgroup 2 Percentage plus 70% of
the applicable Subordinated Percentage for such Distribution Date; as of any
Distribution Date in the second year thereafter, the Non-PO Subgroup 2
Percentage plus 60% of the applicable Subordinated Percentage for such
Distribution Date; as of any Distribution Date in the third year thereafter, the
Non-PO Subgroup 2 Percentage plus 40% of the applicable Subordinated Percentage
for such Distribution Date; as of any Distribution Date in the fourth year
thereafter, the Non-PO Subgroup 2 Percentage plus 20% of the applicable
Subordinated Percentage for such Distribution Date; and as of any Distribution
Date after the fourth year thereafter, the applicable Non-PO Percentage;
provided that, if the Non-PO Subgroup 2 Percentage as of any such Distribution
Date is greater than the Non-PO Subgroup 2 Percentage on the first Distribution
Date, the Non-PO Subgroup 2 Prepayment Percentage shall be 100%; and provided
further, however, that whenever the applicable Non-PO Percentage equals 0%, the
Non-PO Subgroup 2 Prepayment Percentage shall equal 0%; and provided further
that no reduction of the Non-PO Subgroup 2 Prepayment Percentage below the level
in effect for the most recent period shall occur with respect to any
Distribution Date unless, as of the last day of the month preceding such
Distribution Date, (i) the aggregate outstanding Principal Balance of Mortgage
Components with respect to each of the Subgroups, each taken individually,
delinquent 60 days or more (including for this purpose any Mortgage Components
in foreclosure and Mortgage Components with respect to which the related
Mortgaged Property has been acquired by the Trust Fund) does not exceed 50% of
the related Subordinated Percentage of the Mortgage Pool Principal Balance with
respect to Subgroup 2 as of
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such date and (ii) cumulative Realized Losses with respect to any Subgroup, each
taken individually, do not exceed (a) 30% of the related Subordinated Percentage
of the Mortgage Pool Principal Balance with respect to Subgroup 2 if such
Distribution Date occurs between and including April 2012 and March 2013, (b)
35% of the related Original Subordinated Principal Balance if such Distribution
Date occurs between and including April 2013 and March 2014, (c) 40% of the
related Original Subordinated Principal Balance if such Distribution Date occurs
between and including April 2014 and Xxxxx 0000, (x) 45% of the related Original
Subordinated Principal Balance if such Distribution Date occurs between and
including April 2015 and March 2016, and (e) 50% of the related Original
Subordinated Principal Balance if such Distribution Date occurs during or after
April 2016.
Non-PO Subgroup 2 Principal Balance: As of any Distribution Date, (a) the
Non-PO Subgroup 2 Principal Balance for the immediately preceding Distribution
Date less (b) amounts distributed (or deemed distributed) to the Subgroup 2
Certificateholders on such preceding Distribution Date allocable to principal
(including the principal portion of Monthly Advances of the Servicer made
pursuant to Section 6.05 and Realized Losses allocated to the Subgroup 2
Certificates pursuant to Section 6.02); provided that the Non-PO Subgroup 2
Principal Balance on the first Distribution Date shall be the initial Non-PO
Subgroup 2 Principal Balance.
Non-PO Subgroup 2 Principal Payment Rules:
With respect to any Distribution Date, distributions to the Holders of the
Subgroup 2 Certificates pursuant to Section 6.01(b)(ii)(B) shall be made to the
Class 1-A2 until the Class Certificate Balance of such Class has been reduced to
zero.
Non-PO Subgroup 3 Allocated Amount: At the time of any determination, the
amount derived by (i) multiplying the outstanding Principal Balance of each
Mortgage Component in Subgroup 3 on such date of determination (giving effect to
any Monthly Advances but prior to giving effect to any principal prepayments
received with respect to such Mortgage Component that have not been passed
through to Certificateholders) by the Non-PO Percentage with respect to such
Mortgage Component and (ii) summing the results.
Non-PO Subgroup 3 Optimal Principal Amount: With respect to any
Distribution Date, the lesser of (a) the applicable Non-PO Subgroup Principal
Balance and (b) the sum of:
(i) the Non-PO Subgroup 3 Percentage of the applicable Non-PO Percentage of
the principal portion of all Monthly Payments, whether or not received, which
were due during the related Due Period on Subgroup 3 Mortgage Loans which were
outstanding during such Due Period;
(ii) the Non-PO Subgroup 3 Prepayment Percentage of the Non-PO Subgroup 3
Percentage of all Principal Prepayments received on any Subgroup 3 Mortgage
Component during the related Principal Prepayment Period;
(iii) with respect to each Mortgage Component not described in (iv) below,
the Non-PO Subgroup 3 Percentage of the applicable Non-PO Percentage of the
principal portion of all Insurance Proceeds, condemnation awards and any other
cash proceeds from a source other than the applicable Mortgagor, to the extent
required to be deposited in the Master Servicer
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Collection Account, which were received during the related Principal Prepayment
Period with respect to a Subgroup 3 Mortgage Loan, net of related unreimbursed
Servicing Advances and net of any portion thereof which, as to any such Mortgage
Component, constitutes Late Collections that have been the subject of an Advance
on any prior Distribution Date;
(iv) with respect to each Subgroup 3 Mortgage Loan which has become a
Liquidated Mortgage Loan during preceding calendar month, the lesser of (A) the
Non-PO Subgroup 3 Percentage of the applicable Non-PO Percentage of an amount
equal to the Principal Balance of such Liquidated Mortgage Loan (net of Monthly
Advances with respect to principal) as of the Due Date immediately preceding the
date on which it became a Liquidated Mortgage Loan and (B) the Non-PO Subgroup 3
Prepayment Percentage of the applicable Non-PO Percentage of the Net Liquidation
Proceeds with respect to such liquidated Mortgage Loan (net of any unreimbursed
Monthly Advances);
(v) with respect to each Subgroup 3 Mortgage Loan repurchased during the
related Principal Prepayment Period, an amount equal to the Non-PO Subgroup 3
Prepayment Percentage of the applicable Non-PO Percentage of the principal
portion of the Purchase Price (net of amounts with respect to which a
distribution of principal has previously been made to the applicable Non-PO
Certificateholders);
(vi) on or after the Credit Support Depletion Date, the excess of the
Non-PO Subgroup 3 Principal Balance (calculated after giving effect to
reductions thereof on such Distribution Date with respect to the amounts
described in (i) to (v) above) over the Non-PO Subgroup 3 Allocated Amount; and
(vii) Subsequent Recoveries.
Non-PO Subgroup 3 Percentage: As of any Distribution Date, a fraction,
expressed as a percentage, the numerator of which is the Non-PO Subgroup 3
Senior Principal Balance and the denominator of which is the Non-PO Subgroup 3
Allocated Amount immediately prior to the Due Date in the month of such
Distribution Date.
Non-PO Subgroup 3 Prepayment Percentage: As of any Distribution Date up to
and including the Distribution Date in March 2012, 100%; as of any Distribution
Date in the first year thereafter, the Non-PO Subgroup 3 Percentage plus 70% of
the applicable Subordinated Percentage for such Distribution Date; as of any
Distribution Date in the second year thereafter, the Non-PO Subgroup 3
Percentage plus 60% of the applicable Subordinated Percentage for such
Distribution Date; as of any Distribution Date in the third year thereafter, the
Non-PO Subgroup 3 Percentage plus 40% of the applicable Subordinated Percentage
for such Distribution Date; as of any Distribution Date in the fourth year
thereafter, the Non-PO Subgroup 3 Percentage plus 20% of the applicable
Subordinated Percentage for such Distribution Date; and as of any Distribution
Date after the fourth year thereafter, the Non-PO Subgroup 3 Percentage;
provided that, if the Non-PO Subgroup 3 Percentage as of any such Distribution
Date is greater than the Non-PO Subgroup 3 Percentage on the first Distribution
Date, the applicable Non-PO Prepayment Percentage shall be 100%; and provided
further, however, that whenever the Non-PO Subgroup 3 Percentage equals 0%, the
Non-PO Subgroup 3 Prepayment Percentage shall equal 0%; and provided further
that no reduction of the Non-PO Subgroup 3 Prepayment Percentage below the level
in effect for the most recent period shall occur with respect to any
Distribution Date unless,
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as of the last day of the month preceding such Distribution Date, (i) the
aggregate outstanding Principal Balance of Mortgage Components with respect to
each of the Subgroups, each taken individually, delinquent 60 days or more
(including for this purpose any Mortgage Components in foreclosure and Mortgage
Components with respect to which the related Mortgaged Property has been
acquired by the Trust Fund) does not exceed 50% of the related Subordinated
Percentage of the Mortgage Pool Principal Balance with respect to Subgroup 3 as
of such date and (ii) cumulative Realized Losses with respect to any Subgroup,
each taken individually, do not exceed (a) 30% of the related Subordinated
Percentage of the Mortgage Pool Principal Balance with respect to Subgroup 3 if
such Distribution Date occurs between and including April 2012 and March 2013,
(b) 35% of the related Original Subordinated Principal Balance if such
Distribution Date occurs between and including April 2013 and March 2014, (c)
40% of the related Original Subordinated Principal Balance if such Distribution
Date occurs between and including April 2014 and Xxxxx 0000, (x) 45% of the
related Original Subordinated Principal Balance if such Distribution Date occurs
between and including April 2015 and March 2016, and (e) 50% of the related
Original Subordinated Principal Balance if such Distribution Date occurs during
or after April 2016.
Non-PO Subgroup 3 Principal Balance: As of any Distribution Date, (a) the
Non-PO Subgroup 3 Principal Balance for the immediately preceding Distribution
Date less (b) amounts distributed (or deemed distributed) to the Subgroup 3
Certificateholders on such preceding Distribution Date allocable to principal
(including the principal portion of Monthly Advances of the Servicer made
pursuant to Section 6.05 and Realized Losses allocated to the Subgroup 3
Certificates pursuant to Section 6.02); provided that the Non-PO Subgroup 3
Principal Balance on the first Distribution Date shall be the initial Non-PO
Subgroup 3 Principal Balance.
Non-PO Subgroup 3 Principal Payment Rules:
With respect to any Distribution Date up to and including the Credit
Support Depletion Date, distributions to the Holders of the Subgroup 3
Certificates pursuant to Section 6.01(b)(ii)(C) shall be made sequentially as
follows:
(i) first, to the Class 2-A3 Certificates up to the Class 2-A3 Lockout
Principal Distribution Amount;
(ii) second, pro rata based on the aggregate principal balance of the Class
2-A1 and Class 2-A2 Certificates and the principal balance of the Class 2-A10
Certificates (i) sequentially to the Class 2-A1 and Class 2-A2 Certificates and
(ii) to the Class 2-A10 Certificates, until the Class Certificate Balance of
each such Class has been reduced to zero; and
(iii) third, to the Class 2-A3 Certificates, until the Class Certificate
Balance of such Class has been reduced to zero.
On any Distribution Date after the Credit Support Depletion Date,
distributions of principal among the classes of the Subgroup 3 Certificates then
outstanding will be made pro rata based upon their respective outstanding
principal balances and not in accordance with the priorities set forth above.
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Non-PO Subgroup 4 Allocated Amount: At the time of any determination, the
amount derived by (i) multiplying the outstanding Principal Balance of each
Mortgage Component in Subgroup 4 on such date of determination (giving effect to
any Monthly Advances but prior to giving effect to any principal prepayments
received with respect to such Mortgage component that have not been passed
through to Certificateholders) by the Non-PO Percentage with respect to such
Mortgage Component and (ii) summing the results.
Non-PO Subgroup 4 Optimal Principal Amount: With respect to any
Distribution Date, the lesser of (a) the applicable Non-PO Subgroup Principal
Balance and (b) the sum of:
(i) the Non-PO Subgroup 4 Percentage of the applicable Non-PO Percentage of
the principal portion of all Monthly Payments, whether or not received, which
were due during the related Due Period on Subgroup 4 Mortgage Loans which were
outstanding during such Due Period;
(ii) the Non-PO Subgroup 4 Prepayment Percentage of the Non-PO Subgroup 4
Percentage of all Principal Prepayments received on any Subgroup 4 Mortgage
Component during the related Principal Prepayment Period;
(iii) with respect to each Mortgage Component not described in (iv) below,
the Non-PO Subgroup 4 Percentage of the applicable Non-PO Percentage of the
principal portion of all Insurance Proceeds, condemnation awards and any other
cash proceeds from a source other than the applicable Mortgagor, to the extent
required to be deposited in the Master Servicer Collection Account, which were
received during the related Principal Prepayment Period with respect to a
Subgroup 4 Mortgage Loan, net of related unreimbursed Servicing Advances and net
of any portion thereof which, as to any such Mortgage Component, constitutes
Late Collections that have been the subject of a Monthly Advance on any prior
Distribution Date;
(iv) with respect to each Subgroup 4 Mortgage Loan which has become a
Liquidated Mortgage Loan during the preceding calendar month, the lesser of (A)
the Non-PO Subgroup 4 Percentage of the applicable Non-PO Percentage of an
amount equal to the Principal Balance of such Liquidated Mortgage Loan (net of
Monthly Advances with respect to principal) as of the Due Date immediately
preceding the date on which it became a Liquidated Mortgage Loan and (B) the
Non-PO Subgroup 4 Prepayment Percentage of the applicable Non-PO Percentage of
the Net Liquidation Proceeds with respect to such liquidated Mortgage Loan (net
of any unreimbursed Monthly Advances);
(v) with respect to each Subgroup 4 Mortgage Loan repurchased during the
related Principal Prepayment Period, an amount equal to the Non-PO Subgroup 4
Prepayment Percentage of the applicable Non-PO Percentage of the principal
portion of the Purchase Price (net of amounts with respect to which a
distribution of principal has previously been made to the applicable Non-PO
Certificateholders);
(vi) on or after the Credit Support Depletion Date, the excess of the
Non-PO Subgroup 4 Principal Balance (calculated after giving effect to
reductions thereof on such Distribution Date with respect to the amounts
described in (i) to (v) above) over the Non-PO Subgroup 4 Allocated Amount; and
(vii) Subsequent Recoveries.
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Non-PO Subgroup 4 Percentage: As of any Distribution Date, a fraction,
expressed as a percentage, the numerator of which is the Non-PO Subgroup 4
Principal Balance and the denominator of which is the Non-PO Subgroup 4
Allocated Amount immediately prior to the Due Date in the month of such
Distribution Date.
Non-PO Subgroup 4 Prepayment Percentage: As of any Distribution Date up to
and including the Distribution Date in March 2012, 100%; as of any Distribution
Date in the first year thereafter, the Non-PO Subgroup 4 Percentage plus 70% of
the applicable Subordinated Percentage for such Distribution Date; as of any
Distribution Date in the second year thereafter, the Non-PO Subgroup 4
Percentage plus 60% of the applicable Subordinated Percentage for such
Distribution Date; as of any Distribution Date in the third year thereafter, the
Non-PO Subgroup 4 Percentage plus 40% of the applicable Subordinated Percentage
for such Distribution Date; as of any Distribution Date in the fourth year
thereafter, the Non-PO Subgroup 4 Percentage plus 20% of the applicable
Subordinated Percentage for such Distribution Date; and as of any Distribution
Date after the fourth year thereafter, the Non-PO Subgroup 4 Percentage;
provided that, if the Non-PO Subgroup 4 Percentage as of any such Distribution
Date is greater than the Non-PO Subgroup 4 Percentage on the first Distribution
Date, the Non-PO Subgroup 4 Prepayment Percentage shall be 100%; and provided
further, however, that whenever the Non-PO Subgroup 4 Percentage equals 0%, the
Non-PO Subgroup 4 Prepayment Percentage shall equal 0%; and provided further
that no reduction of the Non-PO Subgroup 4 Prepayment Percentage below the level
in effect for the most recent period shall occur with respect to any
Distribution Date unless, as of the last day of the month preceding such
Distribution Date, (i) the aggregate outstanding Principal Balance of Mortgage
Components with respect to each of the Subgroups, each taken individually,
delinquent 60 days or more (including for this purpose any Mortgage Components
in foreclosure and Mortgage Components with respect to which the related
Mortgaged Property has been acquired by the Trust Fund) does not exceed 50% of
the related Subordinated Percentage of the Mortgage Pool Principal Balance with
respect to Subgroup 4 as of such date and (ii) cumulative Realized Losses
with respect to any Subgroup, each taken individually, do not exceed (a) 30% of
the related Subordinated Percentage of the Mortgage Pool Principal Balance with
respect to Subgroup 4 if such Distribution Date occurs between and including
April 2012 and March 2013, (b) 35% of the related Original Subordinated
Principal Balance if such Distribution Date occurs between and including April
2013 and March 2014, (c) 40% of the related Original Subordinated Principal
Balance if such Distribution Date occurs between and including April 2014 and
Xxxxx 0000, (x) 45% of the related Original Subordinated Principal Balance if
such Distribution Date occurs between and including April 2015 and March 2016,
and (e) 50% of the related Original Subordinated Principal Balance if such
Distribution Date occurs during or after April 2016.
Non-PO Subgroup 4 Principal Balance: As of any Distribution Date, (a) the
Non-PO Subgroup 4 Principal Balance for the immediately preceding Distribution
Date less (b) amounts distributed (or deemed distributed) to the Subgroup 4
Certificateholders on such preceding Distribution Date allocable to principal
(including the principal portion of Monthly Advances of the Servicer made
pursuant to Section 6.05 and Realized Losses allocated to the Subgroup 4
Certificates pursuant to Section 6.02); provided that the Non-PO Subgroup 4
Principal Balance on the first Distribution Date shall be the initial Non-PO
Subgroup 4 Principal Balance.
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Non-PO Subgroup 4 Principal Payment Rules:
With respect to any Distribution Date up to and including the Credit
Support Depletion Date, distributions to the Holders of the Subgroup 4
Certificates pursuant to Section 6.01(b)(ii)(D) shall be made pro rata as
follows:
(i) to the Class 2-A4 Certificates, the product of (x) the fraction,
expressed as a percentage, of the quotient of (i) the principal balance of the
Class 2-A4 Certificates and (ii) the aggregate amount of the Class 2-A4, Class
2-A6, Class 2-A7, Class 2-A8 and Class 2-A9 Certificates and (y) the Non-PO
Subgroup 4 Optimal Principal Amount until the principal balance of such class
has been reduced to zero; and
(ii) to the Class 2-A6, Class 2-A7, Class 2-A8 and Class 2-A9 Certificates,
the product of (x) the fraction, expressed as a percentage, of the quotient of
(i) the sum of the principal balances of the Class 2-A6, Class 2-A7, Class 2-A8
and Class 2-A9 Certificates and (ii) the aggregate amount of the Class 2-A4,
Class 2-A6, Class 2-A7, Class 2-A8 and Class 2-A9 Certificates and (y) the
Non-PO Subgroup 4 Optimal Principal Amount until the principal balance of such
class has been reduced to zero, sequentially, as follows:
First, to the Class 2-A9 Certificates up to the Class 2-A9 Lockout
Principal Distribution Amount ;
Second, to the Class 2-A7 Certificates, $1,000 until the principal
balance of such class has been reduced to zero;
Third, to the Class 2-A6 Certificates, beginning in October 2007, an
amount equal to $769,500 until the earlier of (i) the Distribution Date on
which the principal balance of the Class 2-A7 Certificates has been reduced
to zero and (ii) the Distribution Date on which the principal balance of
the Class 2-A6 Certificates has been reduced to zero; and
Fourth, sequentially, to the Class 2-A7, Class 2-A6, Class 2-A8 and
Class 2-A9 Certificates, until the principal balance of each such class has
been reduced to zero.
On any Distribution Date after the Credit Support Depletion Date,
distributions of principal among the classes of the Subgroup 4 Certificates then
outstanding will be made pro rata based upon their respective outstanding
principal balances and not in accordance with the priorities set forth above.
Nonrecoverable Advance: With respect to any Mortgage Loan any advance or
Monthly Advance (i) which was previously made or is proposed to be made by the
applicable Servicer, or the Master Servicer as successor Servicer, or the
Trustee as successor Master Servicer and (ii) which, in the good faith judgment
of the applicable Servicer, the Master Servicer or the Trustee, will not or, in
the case of a proposed advance or Monthly Advance, would not, be ultimately
recoverable by the applicable Servicer, the Master Servicer or the Trustee (as
successor Master Servicer) from Liquidation Proceeds, Insurance Proceeds or
future payments on the Mortgage Loan for which such advance or Monthly Advance
was made.
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Offered Certificate: Any Senior Certificate or Offered Subordinate
Certificate issued hereunder.
Offered Subordinate Certificates: The Class M-l, Class M-2 and Class M-3
Certificates.
Officer's Certificate: A certificate signed by the Chairman of the Board,
the Vice Chairman of the Board, the President or a Vice President or Assistant
Vice President or other authorized officer of the Master Servicer or the
Depositor, as applicable, and delivered to the Trustee, as required by this
Agreement.
Opinion of Counsel: A written opinion of counsel who is or are acceptable
to the Trustee and who, unless required to be Independent (an "Opinion of
Independent Counsel"), may be internal counsel for the Master Servicer or the
Depositor.
Optional Termination: The termination hereunder of that portion of the
Trust Fund related to the Certificates pursuant to Section 10.01(a) hereof.
Optional Termination Amount: The amount received by the Securities
Administrator in connection with any purchase of all of the Mortgage Loans and
REO Properties pursuant to Section 10.01(b) hereof.
Optional Termination Price: On any date after the Initial Optional
Termination Date, an amount equal to the sum of (A) the aggregate Stated
Principal Balance of each Mortgage Loan (other than any Mortgage Loan that has
become an REO Property) as of the Distribution Date on which the proceeds of the
Optional Termination are distributed to the Certificateholders, plus accrued
interest thereon at the applicable Mortgage Interest Rate as of the Due Date
preceding the Distribution Date on which the proceeds of the Optional
Termination are distributed to Certificateholders and the fair market value of
any REO Property, plus accrued interest thereon as of the Distribution Date on
which the proceeds of the Optional Termination are distributed to
Certificateholders, (B) any unreimbursed out-of-pocket costs, fees and expenses
and indemnity amounts owed to the Master Servicer, the Trustee or the Securities
Administrator (including any amounts incurred by the Securities Administrator in
connection with conducting the Auction), a Servicer or the Master Servicer and
any unpaid or unreimbursed Servicing Fees, Monthly Advances and Servicing
Advances, (C) any unreimbursed costs, penalties and/or damages incurred by the
Trust Fund in connection with any violation relating to any of the Mortgage
Loans of any predatory or abusive lending law and (D) in the event an Auction
has been conducted, all reasonable fees and expenses incurred by the Securities
Administrator to conduct the Auction.
Original Class IO-1 Notional Amount: The Class Certificate Balance of the
Class IO-1 Certificates on the Closing Date, as set forth opposite such Class in
the Preliminary Statement.
Original Class IO-2 Notional Amount: The Class Certificate Balance of the
Class IO-2 Certificates on the Closing Date, as set forth opposite such Class in
the Preliminary Statement.
Original Credit Support: With respect to any Class of Subordinate
Certificates (other than the Class B-3 Certificates), the level of Credit
Support indicated below:
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Class A: 5.90%
Class M-1: 2.90%
Class M-2: 1.90%
Class M-3: 1.20%
Class B-1: 0.70%
Class B-2: 0.35%
Original Subgroup 1 Principal Balance: $14,203,948.21.
Original Subgroup 2 Principal Balance: $71,177,333.39.
Original Subgroup 3 Principal Balance: $60,882,640.49.
Original Subgroup 4 Principal Balance: $298,640,375.95.
Original Subordinated Principal Balance: The sum of the Subgroup 1
Subordinated Amount, the initial Subgroup 2 Subordinated Amount, the initial
Subgroup 3 Subordinated Amount, or the initial Subgroup 4 Subordinated Amount as
of the Closing Date.
Original Value: The lesser of (i) the Appraised Value or (ii) the sales
price of a Mortgaged Property at the time of origination of a Mortgage Loan,
except in instances where either clauses (i) or (ii) is unavailable, the other
may be used to determine the Original Value, or if both clauses (i) and (ii) are
unavailable, Original Value may be determined from other sources reasonably
acceptable to the Depositor.
Outstanding Mortgage Loan: With respect to any Due Date, a Mortgage Loan
which, prior to such Due Date, was not the subject of a Principal Prepayment in
Full, did not become a Liquidated Mortgage Loan and was not purchased or
replaced.
Outstanding Principal Balance: As of the time of any determination, the
principal balance of a Mortgage Loan remaining to be paid by the Mortgagor, or,
in the case of an REO Property, the principal balance of the related Mortgage
Loan remaining to be paid by the Mortgagor at the time such property was
acquired by the Trust Fund less any Net Liquidation Proceeds with respect
thereto to the extent applied to principal.
Overcollateralized Subgroup: As defined in Section 6.01(b)(x)(B).
Ownership Interest: As to any Certificate, any ownership or security
interest in such Certificate, including any interest in such Certificate as the
Holder thereof and any other interest therein, whether direct or indirect, legal
or beneficial, as owner or as pledgee.
Paying Agent: The Securities Administrator or any successor Paying Agent
appointed by the Securities Administrator.
Percentage Interest: With respect to any Certificate (other than the Class
P Certificates), a fraction, expressed as a percentage, the numerator of which
is the Initial Class Certificate Balance (or Class IO Notional Amount in the
case of the Class IO Certificates) represented by such Certificate and the
denominator of which is the Initial Class Certificate Balance (or Class
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IO Notional Amount in the case of the Class IO Certificates) of the related
Class. With respect to the Class P Certificates, the Percentage Interest
evidenced thereby shall be as specified on the face thereof, or otherwise, be
equal to 100%.
Permitted Investments: Any one or more of the following obligations or
securities held in the name of the Trustee for the benefit of the
Certificateholders (provided that such obligation or security must be a
"permitted investment" within the meaning of such term as provided for in
Section 860G(a)(5) of the Code):
(i) direct obligations of, and obligations the timely payment of which
are fully guaranteed 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;
(ii) (a) demand or time deposits, federal funds or bankers'
acceptances issued by any depository institution or trust company
incorporated under the laws of the United States of America or any state
thereof (including the Trustee or the Master Servicer or its Affiliates
acting in its commercial banking capacity) and subject to supervision and
examination by federal and/or state banking authorities, provided that the
commercial paper and/or the short-term debt rating and/or the long-term
unsecured debt obligations of such depository institution or trust company
at the time of such investment or contractual commitment providing for such
investment have the Applicable Credit Rating or better from each Rating
Agency and (b) any other demand or time deposit or certificate of deposit
that is fully insured by the Federal Deposit Insurance Corporation;
(iii) repurchase obligations with respect to (a) any security
described in clause (i) above or (b) any other security issued or
guaranteed by an 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, in either case entered into with a depository
institution or trust company (acting as principal) described in clause
(ii)(a) above where the Trustee holds the security therefor;
(iv) securities bearing interest or sold at a discount issued by any
corporation (including the Trustee or the Master Servicer or its
Affiliates) incorporated under the laws of the United States of America or
any state thereof that have the Applicable Credit Rating or better from
each Rating Agency at the time of such investment or contractual commitment
providing for such investment; provided, however, that securities issued by
any particular corporation will not be Permitted Investments to the extent
that investments therein will cause the then outstanding principal amount
of securities issued by such corporation and held as part of the Issuing
Entity to exceed 10% of the aggregate Outstanding Principal Balances of all
the Mortgage Loans and Permitted Investments held as part of the Issuing
Entity;
(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 one year after the date of issuance thereof)
having the Applicable Credit Rating or better from each Rating Agency at
the time of such investment;
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(vi) a Reinvestment Agreement issued by any bank, insurance company or
other corporation or entity;
(vii) any other demand, money market or time deposit, obligation,
security or investment as may be acceptable to either Rating Agency as
evidenced in writing by each Rating Agency to the Trustee or Master
Servicer;
(viii) any money market or common trust fund having the Applicable
Credit Rating or better from each Rating Agency (if such fund is rated by
each Rating Agency), including any such fund for which the Trustee or
Master Servicer or any affiliate of the Trustee or Master Servicer acts as
a manager or an advisor; provided, however, that no instrument or security
shall be a Permitted Investment if such instrument or security evidences a
right to receive only interest payments with respect to the obligations
underlying such instrument or if such security provides for payment of both
principal and interest with a yield to maturity in excess of 120% of the
yield to maturity at par or if such instrument or security is purchased at
a price greater than par; and
(ix) units of a taxable money-market portfolio having the highest
rating assigned by each Rating Agency (except if S&P is a Rating Agency,
"AAAm" or "AAAM-G" by S&P) and restricted to obligations issued or
guaranteed by the United States of America or entities whose obligations
are backed by the full faith and credit of the United States of America and
repurchase agreements collateralized by such obligations.
Permitted Transferee: Any Person other than a Disqualified Organization or
an "electing large partnership" (as defined by Section 775 of the Code).
Person: Any individual, corporation, partnership, joint venture,
association, limited liability company, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
PHH: PHH Mortgage Corporation, or any successor thereto.
PHH Assignment Agreement: The Assignment, Assumption and Recognition
Agreement, dated as of March 1, 2007, among PHH Mortgage Corporation, the
Depositor and the Seller pursuant to which the PHH Servicing Agreement and the
rights of the Seller thereunder (other than the rights to enforce the
representations and warranties with respect to the PHH Mortgage Loans) were
assigned to the Depositor for the benefit of the Certificateholders.
PHH Mortgage Loans: The Mortgage Loans serviced by PHH pursuant to the PHH
Servicing Agreement.
PHH Servicing Agreement: The Mortgage Loan Flow Purchase, Sale and
Servicing Agreement, dated as of March 27, 2001, between Xxxxxxx Xxxxx Mortgage
Capital Inc., Xxxxxx'x Gate Residential Mortgage Trust (formerly known as
Cendant Residential Mortgage Trust) and Cendant Mortgage Corporation (as amended
and in effect at any time).
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Physical Certificate: The Residual Certificate.
PO Percentage: With respect to each Mortgage Loan in any Subgroup, a
fraction, expressed as a percentage (but not less than 0%), the numerator of
which will equal the excess, if any, of the applicable Remittance Rate over the
applicable Net Mortgage Rate, and the denominator of which will equal the
applicable Remittance Rate. The PO Percentage will be 0% with respect to
Mortgage Loans for which the Net Mortgage Rate is greater than or equal to the
applicable Remittance Rate.
Pooling and Servicing Agreement: This Pooling and Servicing Agreement
relating to the Mortgage Pass-Through Certificates, MANA Series 2007-F1.
Prepayment Assumption: A rate or rates of prepayment, as described in the
Prospectus Supplement related to the Offered Certificates.
Prepayment Charge: With respect to any Principal Prepayment Period, any
prepayment premium, charge or other amount payable by a Mortgagor in connection
with any Principal Prepayment on the Prepayment Charge Mortgage Loans.
Prepayment Charge Mortgage Loans: Any of the Mortgage Loans that are
subject to existing prepayment premiums.
Prepayment Interest Shortfall: As to any Distribution Date and any Mortgage
Loan (other than a Mortgage Loan relating to an REO Property) that was the
subject of (a) a Principal Prepayment in Full during the related Principal
Prepayment Period, an amount equal to the excess of one month's interest at the
Net Mortgage Rate on the Stated Principal Balance of such Mortgage Loan over the
amount of interest (adjusted to the Net Mortgage Rate) paid by the Mortgagor for
such Principal Prepayment Period to the date of such Principal Prepayment in
Full or (b) a Curtailment during the prior calendar month, an amount equal to
one month's interest at the Net Mortgage Rate on the amount of such Curtailment.
The obligations of the Master Servicer in respect of any Prepayment Interest
Shortfall are set forth in Section 6.06.
Primary Mortgage Insurance Policy: Any primary mortgage guaranty insurance
policy issued in connection with a Mortgage Loan which provides compensation to
a Mortgage Note holder in the event of default by the obligor under such
Mortgage Note or the related Security Instrument, if any or any replacement
policy therefor through the related Accrual Period for such Class relating to a
Distribution Date.
Principal Balance: At the time of any determination, the principal balance
of a Mortgage Loan or Mortgage Component remaining to be paid at the close of
business on the Cut-off Date (after deduction of all principal payments due on
or before the Cut-off Date whether or not paid) (or, in the case of a substitute
Mortgage Loan included in the Trust Fund pursuant to the Mortgage Loan Purchase
Agreement or Section 2.04, the close of business as of the date of substitution)
reduced by all amounts previously distributed to Certificateholders that are
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allocable to payments of principal on such Mortgage Loan or Mortgage Component
(including the principal portion of Monthly Advances of the Servicer made
pursuant to Section 6.05(d)).
Principal Prepayment: Any Principal Prepayment in full or Curtailment or
other recovery of principal on a Mortgage Loan which is received in advance of
its scheduled Due Date to the extent that it is not accompanied by an amount as
to interest representing scheduled interest due on any date or dates in any
month or months subsequent to the month of prepayment, including Insurance
Proceeds and Repurchase Proceeds, but excluding the principal portion of Net
Liquidation Proceeds.
Principal Prepayment in Full: Any Principal Prepayment made by a Mortgagor
of the entire unpaid principal balance of the Mortgage Loan.
Principal Prepayment Period: With respect to principal prepayments in full
(other than with regards to Wilshire) and principal prepayments in part, the
calendar month preceding the month of such Distribution Date, and for Wilshire
and with respect to prepayments in full, the 15th day of the month preceding the
Distribution Date through the 14th of the month of the Distribution Date.
Private Certificates: Any of the Class B-1, Class B-2, Class B-3 and Class
P Certificates.
Prospectus Supplement: The Prospectus Supplement dated March 23, 2007,
relating to the public offering of the Offered Certificates.
Protected Account: An account established and maintained for the benefit of
Certificateholders by each Servicer with respect to the related Mortgage Loans
and with respect to REO Property pursuant to the respective Servicing Agreement.
The Protected Account shall be an Eligible Account.
Purchase Price: With respect to any Mortgage Loan or REO Property to be
purchased pursuant to or as contemplated by Section 2.03 or 10.01, and as
confirmed by an Officers' Certificate from the Master Servicer to the Trustee,
an amount equal to the sum of (i) 100% of the Stated Principal Balance thereof
as of the date of purchase (or such other price as provided in Section 10.01),
(ii) accrued interest on such Stated Principal Balance at the applicable
Mortgage Interest Rate in effect from time to time from the Due Date as to which
interest was last covered by a payment by the Mortgagor or an advance by the
related Servicer or Master Servicer, which payment or advance had as of the date
of purchase been distributed to Certificateholders, through the end of the
calendar month in which the purchase is to be effected less any unreimbursed
Monthly Advances and any unpaid Servicing Fees payable to the purchaser of the
Mortgage Loan and (iii) any costs and damages incurred by the Issuing Entity in
connection with any violation by such Mortgage Loan or REO Property of any
predatory or abusive-lending law.
Qualified Insurer: Any insurance company duly qualified as such under the
laws of the state or states in which the related Mortgaged Property or Mortgaged
Properties is or are located, duly authorized and licensed in such state or
states to transact the type of insurance business in which it is engaged and
approved as an insurer by the Master Servicer, so long as the claims
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paying ability of which is acceptable to the Rating Agencies for pass-through
certificates having the same rating as the Certificates rated by the Rating
Agencies as of the Closing Date.
Rating Agencies: Xxxxx'x and Fitch.
Realized Loss: With respect to a Liquidated Mortgage Loan, the amount by
which the remaining unpaid principal balance of the Mortgage Loan exceeds the
amount of Liquidation Proceeds applied to the principal balance of the related
Mortgage Loan. To the extent the Master Servicer receives Subsequent Recoveries
with respect to any Mortgage Loan, the amount of the Realized Loss with respect
to that Mortgage Loan will be reduced to the extent such recoveries are applied
to reduce the Class Certificate Balance of any Class of Certificates on any
Distribution Date.
Realized Loss Interest Shortfall: As defined in Section 6.07(b).
Record Date: With respect to each Distribution Date and each class of
Offered Certificates, the close of business on the last Business Day of the
month immediately preceding the month in which the related Distribution Date
occurs.
Reference Banks: Those banks (i) with an established place of business in
London, England, (ii) not controlling, under the control of or under common
control with the Depositor or the Securities Administrator, (iii) that have been
designated as such by the Securities Administrator and (iv) that are engaged in
transactions in the London interbank market.
Refinanced Mortgage Loan: Any Mortgage Loan the proceeds of which were not
used to purchase the related Mortgaged Property.
Regular Certificates: Any of the Class 1-A1, Class 1-A2, Class 2-A1, Class
2-A2, Class 2-A3, Class 2-A4, Class 2-A5, Class 2-A6, Class 2-A7, Class 2-A8,
Class 2-A9, Class 2-A10, Class IO-1, Class IO-2, Class PO, Class M-1, Class M-2,
Class M-3, Class B-1, Class B-2 or Class B-3 Certificates.
Regulation AB: Subpart 22.1100 - Asset Backed Securities (Regulation AB),
17 C.F.R. Sections 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.
Reinvestment Agreements: One or more reinvestment agreements, acceptable to
each of the Rating Agencies, from a bank, insurance company or other corporation
or entity (including the Trustee).
Relevant Servicing Criteria: The Servicing Criteria applicable to the
various parties, as set forth on Exhibit K hereto. For clarification purposes,
multiple parties can have responsibility for the same Relevant Servicing
Criteria. With respect to a Servicing Function Participant engaged by the Master
Servicer, the Securities Administrator, the Trustee, the Custodian or a
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Servicer, the term "Relevant Servicing Criteria" may refer to one or more
discrete functions specified in the Relevant Servicing Criteria applicable to
such parties.
Relief Act: The Servicemembers Civil Relief Act, as amended.
Relief Act Mortgage Loan: Any Mortgage Loan as to which the Monthly Payment
thereof has been reduced due to the application of the Relief Act.
REMIC: Each pool of assets in the Trust Fund designated as a REMIC as
described in the Preliminary Statement.
REMIC Interests: Any regular or residual interest in any of REMIC 1, REMIC
2 or the Upper Tier REMIC, as described in the Preliminary Statement.
REMIC Opinion: An Opinion of Counsel to the effect that a contemplated
action will neither adversely affect the status as a REMIC of any REMIC created
hereunder nor subject any such REMIC to any tax under the REMIC Provisions.
REMIC Provisions: The provisions of the federal income tax law relating to
real estate mortgage investment conduits, which appear at Sections 860A through
860G of 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.
REMIC 1: As described in the Preliminary Statement.
REMIC 1 Interest: Each class of interest in REMIC 1 as described in the
Preliminary Statement.
REMIC 1 Regular Interest: Each of the REMIC 1 Interests other than the
Class LT1-R Interest.
REMIC 1 Subordinate Balance Ratio: The ratio among the uncertificated
principal balances of each of the REMIC 1 Interests ending with the designation
"A" that is equal to the ratio among, with respect to each such REMIC 1
Interest, the excess of (x) the aggregate Non-PO Percentage of the Principal
Balance of each of the Mortgage Components in the related Subgroup over (y) the
aggregate Class Certificate Balance of the Certificates in the Certificate
Subgroup related to such Subgroup.
REMIC 2: As described in the Preliminary Statement.
REMIC 2 Interest: Each class of interest in REMIC 2 as described in the
Preliminary Statement.
REMIC 2 Regular Interest: Each of the REMIC 2 Interests other than the
Class LT2-R Interest.
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Remittance Rate: With respect to each of Mortgage Group One and Mortgage
Group Two, the Mortgage Group One Remittance Rate and the Mortgage Group Two
Remittance Rate, respectively.
REO Property: A Mortgaged Property acquired by the Servicer or Master
Servicer on behalf of the Trust Fund through foreclosure or deed-in-lieu of
foreclosure, as described in Section 3.15 in connection with a defaulted
Mortgage Loan.
Reportable Event: As defined in Section 3.18(a).
Reporting Servicer: As defined in Section 3.18(h).
Repurchase Proceeds: The repurchase price in connection with any repurchase
of a Mortgage Loan by the Seller and any cash deposit in connection with the
substitution of a Mortgage Loan.
Request for Release: A request for release in the form attached hereto as
Exhibit D.
Required Insurance Policy: With respect to any Mortgage Loan, any insurance
policy which is required to be maintained from time to time under this Agreement
with respect to such Mortgage Loan.
Residual Certificate: The Class A-R Certificate.
Residual Interest: Not applicable.
Responsible Officer: Any officer assigned to the Corporate Trust Office (or
any successor thereto), including any Vice President, Assistant Vice President,
Trust Officer, any Assistant Secretary, any trust officer or any other officer
of the Trustee or Securities Administrator customarily performing functions
similar to those performed by any of the above designated officers and having
direct responsibility for the administration of this Agreement, and any other
officer of the Trustee or Securities Administrator to whom a matter arising
hereunder may be referred because of such officers familiarity with the subject
matter thereof.
Rule 144A Letter: The certificate to be furnished by each purchaser of a
Private Certificate (which is also a Physical Certificate) which is a Qualified
Institutional Buyer as defined under Rule 144A promulgated under the Securities
Act, substantially in the form set forth as Exhibit F-3 hereto.
S&P: Standard and Poor's, a division of The XxXxxx-Xxxx Companies, Inc., or
its successor in interest.
Xxxxxxxx-Xxxxx Act: The Xxxxxxxx-Xxxxx Act of 2002 and the rules and
regulations of the Commission promulgated thereunder (including any
interpretations thereof by the Commission's staff).
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Xxxxxxxx-Xxxxx Certification: A written certification signed by an officer
of the Master Servicer that complies with (i) the Xxxxxxxx-Xxxxx Act, and (ii)
Exchange Act Rules 13a-14(d) and 15d-14(d), as in effect from time to time;
provided that if, after the Closing Date (a) the Xxxxxxxx-Xxxxx Act is amended,
(b) the Rules referred to in clause (ii) are modified or superseded by any
subsequent statement, rule or regulation of the Commission or any statement of a
division thereof, or (c) any future releases, rules and regulations are
published by the Commission from time to time pursuant to the Xxxxxxxx-Xxxxx
Act, which in any such case affects the form or substance of the required
certification and results in the required certification being, in the reasonable
judgment of the Master Servicer, materially more onerous that then form of the
required certification as of the Closing Date, the Xxxxxxxx-Xxxxx Certification
shall be as agreed to by the Master Servicer and the Depositor following a
negotiation in good faith to determine how to comply with any such new
requirements.
Scheduled Payment: With respect to any Mortgage Loan and any month, the
scheduled payment or payments of principal and interest due during such month on
such Mortgage Loan which either is payable by a Mortgagor in such month under
the related Mortgage Note or, in the case of REO Property, would otherwise have
been payable under the related Mortgage Note.
Scheduled Principal: The principal portion of any Scheduled Payment.
Securities Act: The Securities Act of 1933, as amended.
Securities Administrator: Xxxxx Fargo Bank, N.A., or any successor in
interest, or any successor securities administrator appointed as herein
provided.
Security Agreement: With respect to a Cooperative Loan, the agreement
creating a security interest in favor of the originator in the related
Cooperative Stock.
Security Instrument: A written instrument creating a valid first lien on a
Mortgaged Property securing a Mortgage Note, which may be any applicable form of
mortgage, deed of trust, deed to secure debt or security deed, including any
riders or addenda thereto.
Seller: Xxxxxxx Xxxxx Mortgage Lending, Inc., a Delaware corporation, or
any successor in interest.
Senior Certificates: The Class 1-A1 Certificates, Class 1-A2 Certificates,
Class 2-A1 Certificates, Class 2-A2 Certificates, Class 2-A3 Certificates, Class
2-A4 Certificates, Class 2-A5 Certificates, Class 2-A6 Certificates, Class 2-A7
Certificates, Class 2-A8 Certificates, Class 2-A9 Certificates, Class 2-A10
Certificates Class IO-1 Certificates, Class IO-2 Certificates, Class A-R and
Class PO Certificates.
Servicer: With respect to each Mortgage Loan, CitiMortgage, IndyMac, PHH,
Wachovia or Wilshire as applicable and as specified on the Mortgage Loan
Schedule.
Servicer Remittance Date: With respect to each Mortgage Loan, the date set
forth in the related Servicing Agreement.
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Servicing Advances: All customary, reasonable and necessary "out of pocket"
costs and expenses incurred in the performance by a Servicer of its servicing
obligations, including, but not limited to, the cost of (1) the preservation,
inspection, restoration and protection of a Mortgaged Property, including
without limitation advances in respect of prior liens, real estate taxes and
assessments, (2) any collection, enforcement or judicial proceedings, including
without limitation foreclosures, collections and liquidations, (3) the
conservation, management, sale and liquidation of any REO Property, (4)
executing and recording instruments of satisfaction, deeds of reconveyance,
substitutions of trustees on deeds of trust or Assignments of Mortgage to the
extent not otherwise recovered from the related Mortgagors or payable under the
related Servicing Agreement, (5) correcting errors of prior servicers; costs
and expenses charged to such Servicer by the Trustee; tax tracking; title
research; flood certifications; and lender paid mortgage insurance and
(6)obtaining or correcting any legal documentation required to be included in
the Mortgage Files and reasonably necessary for a Servicer to perform its
obligations under the related Servicing Agreement.
Servicing Agreements: The CitiMortgage Servicing Agreement, IndyMac
Servicing Agreement, PHH Servicing Agreement, Wilshire Servicing Agreement and
Wachovia Servicing Agreement.
Servicing Criteria: The "servicing criteria" set forth in Item 1122(d) of
Regulation AB, as such may be amended from time to time.
Servicing Fee: As to any Mortgage Loan and Distribution Date, an amount
equal to the product of (i) the Stated Principal Balance of such Mortgage Loan
as of the Due Date in the preceding calendar month and (ii) the applicable
Servicing Fee Rate. Such fee shall be payable monthly, computed on the basis of
the same principal amount and period respectively which any related interest
payment on a Mortgage Loan is computed.
Servicing Fee Rate: As to any Mortgage Loan, a per annum rate as set forth
in the Mortgage Loan Schedule.
Servicing Function Participant: Any Sub-Servicer, Subcontractor or any
other Person, engaged by a Servicer, the Custodian, the Master Servicer, the
Paying Agent, the Securities Administrator and the Trustee.
Servicing Rights Owner: With respect to the Wilshire Loans, MLML, or its
transferee or assignee, in its capacity as owner of the servicing rights.
Servicing Officer: Any officer of the Master Servicer involved in, or
responsible for, the administration and servicing of the Mortgage Loans whose
names and specimen signatures appear on a list of servicing officers furnished
to the Trustee by the Master Servicer, as such list may be amended from time to
time.
Startup Day: The Closing Date.
Stated Principal Balance: With respect to any Mortgage Loan and Due Date,
the unpaid principal balance of such Mortgage Loan as of such Due Date, as
specified in the amortization schedule at the time relating thereto (before any
adjustment to such amortization schedule by reason of bankruptcy or similar
proceeding or any moratorium or similar waiver or grace period), after giving
effect to any previous partial prepayments and Liquidation Proceeds received and
to the payment of principal due on such Due Date and to any reduction of the
principal balance of such Mortgage Loan by a bankruptcy court, and irrespective
of any delinquency in payment by the related Mortgagor.
Subgroup: Any of Subgroup 1, Subgroup 2, Subgroup 3 or Subgroup 4, as the
case may be.
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Subgroup 1: As of the Cut-off Date, consists of (a) the Non-PO Percentage
of the Principal Balance of each Mortgage Loan with a Net Mortgage Rate less
than or equal to 5.50% per annum and (b) the portion of the Principal Balance of
each Mortgage Loan with a Net Mortgage Rate greater than 5.50% per annum and
less than or equal to 6.00% per annum allocated as follows:
Net Mortgage Rate - 5.50%
Principal Balance x (1- --------------------------- )
0.50%
Subgroup 1 Certificates: The Class 1-A1 and A-R Certificates.
Subgroup 1 Deficiency Amount: As defined in Section 6.01(b)(iii).
Subgroup 1 Percentage: As of any Distribution Date, the percentage obtained
by dividing the Subgroup 1 Principal Balance by the outstanding principal
balance of the Mortgage Components in Subgroup 1, but not more than 100%.
Subgroup 1 Prepayment Percentage: As of any Distribution Date up to and
including the Distribution Date in March 2012, 100%; as of any Distribution Date
in the first year thereafter, the Subgroup 1 Percentage plus 70% of the Subgroup
1 Subordinated Percentage for such Distribution Date; as of any Distribution
Date in the second year thereafter, the Subgroup 1 Percentage plus 60% of the
Subgroup 1 Subordinated Percentage for such Distribution Date; as of any
Distribution Date in the third year thereafter, the Subgroup 1 Percentage plus
40% of the Subgroup 1 Subordinated Percentage for such Distribution Date; as of
any Distribution Date in the fourth year thereafter, the Subgroup 1 Percentage
plus 20% of the Subgroup 1 Subordinated Percentage for such Distribution Date;
and as of any Distribution Date after the fourth year thereafter, the Subgroup 1
Percentage; provided that, if the Subgroup 1 Percentage as of any such
Distribution Date is greater than the Subgroup 1 Percentage on the first
Distribution Date or any other applicable Subgroup Percentage as of any such
Distribution Date is greater than the applicable Subgroup Percentage on the
first Distribution Date, the Subgroup 1 Prepayment Percentage shall be 100%; and
provided further, however, that whenever the Subgroup 1 Percentage equals 0%,
the Subgroup 1 Prepayment Percentage shall equal 0%; and provided further that
no reduction of the Subgroup 1 Prepayment Percentage below the level in effect
for the most recent period shall occur with respect to any Distribution Date
unless, as of the last day of the month preceding such Distribution Date, (i)
the aggregate outstanding Principal Balance of Mortgage Components with respect
to each of Subgroup 1, Subgroup 2, Subgroup 3, and Subgroup 4, each taken
individually, delinquent 60 days or more (including for this purpose any
Mortgage Loans in foreclosure and Mortgage Loans with respect to which the
related Mortgaged Property has been acquired by the Trust Fund) does not exceed
50% of the Subordinated Percentage of the Principal Balance of the Mortgage
Components with respect to the related Subgroup as of such date and (ii)
cumulative Realized Losses with respect to all such four Subgroups, each taken
individually, do not exceed (a) 30% of the related Original Subordinated
Principal Balance if such Distribution Date occurs in the year beginning with
and including the fifth anniversary of the first Distribution Date, (b) 35% of
the related Original Subordinated Principal Balance if such Distribution Date
occurs in the year beginning with and including the
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sixth anniversary of the first Distribution Date, (c) 40% of the related
Original Subordinated Principal Balance if such Distribution Date occurs in the
year beginning with and including the seventh anniversary of the first
Distribution Date, (d) 45% of the related Original Subordinated Principal
Balance if such Distribution Date occurs in the year beginning with and
including the eighth anniversary of the first Distribution Date, and (e) 50% of
the related Original Subordinated Principal Balance if such Distribution Date
occurs in the year beginning with and including the ninth anniversary of the
first Distribution Date and thereafter.
Subgroup 1 Principal Balance: As of any Distribution Date, (a) the Subgroup
1 Principal Balance for the immediately preceding Distribution Date less (b)
amounts distributed to the Subgroup 1 Certificateholders on such preceding
Distribution Date allocable to principal (including the principal portion of
Monthly Advances of the Servicer made pursuant to Section 6.05(d) and Realized
Losses allocated to the Subgroup 1 Certificates pursuant to Section 6.02) and
any losses allocated to the Subgroup 1 Certificateholders; as adjusted to
reflect any adjustments to the Outstanding Certificate Principal Balance of the
Subgroup 1 Certificates as a result of Subsequent Recoveries; provided that the
Subgroup 1 Principal Balance on the first Distribution Date will be the Original
Subgroup 1 Principal Balance.
Subgroup 1 Remittance Rate: For any Distribution Date, a per annum rate
equal to 5.50%.
Subgroup 1 Subordinated Amount: For any Distribution Date, the excess of
the aggregate Non-PO Percentage of the Stated Principal Balance of the Mortgage
Components in Subgroup 1 over the aggregate Outstanding Certificate Principal
Balance of the Subgroup 1 Certificates (prior to giving effect to distributions
to be made on such Distribution Date and allocation of losses on such
Distribution Date).
Subgroup 1 Subordinated Percentage: As of any Distribution Date, the
difference between 100% and the Subgroup 1 Percentage.
Subgroup 1 Subordinated Prepayment Percentage: As of any Distribution Date,
the difference between 100% and the Subgroup 1 Prepayment Percentage.
Subgroup 2: As of the Cut-off Date, consists of (a) the Non-PO Percentage
of the Principal Balance of each Mortgage Loan with a Net Mortgage Rate less
than or equal to 5.50% per annum and (b) the portion of the Principal Balance of
each Mortgage Loan with a Net Mortgage Rate greater than 5.50% per annum and
less than or equal to 6.00% per annum allocated as follows:
Net Mortgage Rate - 5.50%
Principal Balance x ( ------------------------- )
0.50%
Subgroup 2 Certificates: The Class 1-A2 Certificates.
Subgroup 2 Deficiency Amount: As defined in Section 6.01(b)(iv).
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Subgroup 2 Percentage: As of any Distribution Date, the percentage obtained
by dividing the Subgroup 2 Principal Balance by the outstanding principal
balance of the Mortgage Components in Subgroup 2, but not more than 100%.
Subgroup 2 Prepayment Percentage: As of any Distribution Date up to and
including the Distribution Date in March 2012, 100%; as of any Distribution Date
in the first year thereafter, the Subgroup 2 Percentage plus 70% of the Subgroup
2 Subordinated Percentage for such Distribution Date; as of any Distribution
Date in the second year thereafter, the Subgroup 2 Percentage plus 60% of the
Subgroup 2 Subordinated Percentage for such Distribution Date; as of any
Distribution Date in the third year thereafter, the Subgroup 2 Percentage plus
40% of the Subgroup 2 Subordinated Percentage for such Distribution Date; as of
any Distribution Date in the fourth year thereafter, the Subgroup 2 Percentage
plus 20% of the Subgroup 2 Subordinated Percentage for such Distribution Date;
and as of any Distribution Date after the fourth year thereafter, the Subgroup 2
Percentage; provided that, if the Subgroup 2 Percentage as of any such
Distribution Date is greater than the Subgroup 2 Percentage on the first
Distribution Date or any other applicable Subgroup Percentage as of any such
Distribution Date is greater than the applicable Subgroup Percentage on the
first Distribution Date, the Subgroup 2 Prepayment Percentage shall be 100%; and
provided further, however, that whenever the Subgroup 2 Percentage equals 0%,
the Subgroup 2 Prepayment Percentage shall equal 0%; and provided further that
no reduction of the Subgroup 2 Prepayment Percentage below the level in effect
for the most recent period shall occur with respect to any Distribution Date
unless, as of the last day of the month preceding such Distribution Date, (i)
the aggregate outstanding Principal Balance of Mortgage Components with respect
to each of Subgroup 2, Subgroup 2, Subgroup 3, and Subgroup 4, each taken
individually, delinquent 60 days or more (including for this purpose any
Mortgage Loans in foreclosure and Mortgage Loans with respect to which the
related Mortgaged Property has been acquired by the Trust Fund) does not exceed
50% of the Subordinated Percentage of the Principal Balance of the Mortgage
Components with respect to the related Subgroup as of such date and (ii)
cumulative Realized Losses with respect to all such four Subgroups, each taken
individually, do not exceed (a) 30% of the related Original Subordinated
Principal Balance if such Distribution Date occurs in the year beginning with
and including the fifth anniversary of the first Distribution Date, (b) 35% of
the related Original Subordinated Principal Balance if such Distribution Date
occurs in the year beginning with and including the sixth anniversary of the
first Distribution Date, (c) 40% of the related Original Subordinated Principal
Balance if such Distribution Date occurs in the year beginning with and
including the seventh anniversary of the first Distribution Date, (d) 45% of the
related Original Subordinated Principal Balance if such Distribution Date occurs
in the year beginning with and including the eighth anniversary of the first
Distribution Date, and (e) 50% of the related Original Subordinated Principal
Balance if such Distribution Date occurs in the year beginning with and
including the ninth anniversary of the first Distribution Date and thereafter.
Subgroup 2 Principal Balance: As of any Distribution Date, (a) the Subgroup
2 Principal Balance for the immediately preceding Distribution Date less (b)
amounts distributed to the Subgroup 2 Certificateholders on such preceding
Distribution Date allocable to principal (including the principal portion of
Monthly Advances of the Servicer made pursuant to Section 6.05(d) and Realized
Losses allocated to the Subgroup 2 Certificates pursuant to Section 6.02) and
any losses allocated to the Subgroup 2 Certificateholders; as adjusted to
reflect any adjustments to the Outstanding Certificate Principal Balance of the
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Subgroup 2 Certificates as a result of Subsequent Recoveries; provided that the
Subgroup 2 Principal Balance on the first Distribution Date will be the Original
Subgroup 2 Principal Balance.
Subgroup 2 Remittance Rate: For any Distribution Date, a per annum rate
equal to 6.00%.
Subgroup 2 Subordinated Amount: For any Distribution Date, the excess of
the aggregate Non-PO Percentage of the Stated Principal Balance of the Mortgage
Components in Subgroup 2 over the aggregate Outstanding Certificate Principal
Balance of the Subgroup 2 Certificates (prior to giving effect to distributions
to be made on such Distribution Date and allocation of losses on such
Distribution Date).
Subgroup 2 Subordinated Percentage: As of any Distribution Date, the
difference between 100% and the Subgroup 2 Percentage.
Subgroup 2 Subordinated Prepayment Percentage: As of any Distribution Date,
the difference between 100% and the Subgroup 2 Prepayment Percentage.
Subgroup 3: As of the Cut-off Date, consists of (a) the Non-PO Percentage
of the Principal Balance of each Mortgage Loan with a Net Mortgage Rate less
than or equal to 6.00% per annum and (b) the portion of the Principal Balance of
each Mortgage Loan with a Net Mortgage Rate greater than 6.00% per annum and
less than or equal to 6.25% per annum allocated as follows:
Net Mortgage Rate - 6.00%
Principal Balance x (1- --------------------------- )
0.25%
Subgroup 3 Certificates: The Class 2-A1, Class 2-A2, Class 2-A3 and Class
2-A10 Certificates.
Subgroup 3 Deficiency Amount: As defined in Section 6.01(b)(v).
Subgroup 3 Percentage: As of any Distribution Date, the percentage obtained
by dividing the Subgroup 3 Principal Balance by the outstanding principal
balance of the Mortgage Components in Subgroup 3, but not more than 100%.
Subgroup 3 Prepayment Percentage: As of any Distribution Date up to and
including the Distribution Date in March 2012, 100%; as of any Distribution Date
in the first year thereafter, the Subgroup 3 Percentage plus 70% of the Subgroup
3 Subordinated Percentage for such Distribution Date; as of any Distribution
Date in the second year thereafter, the Subgroup 3 Percentage plus 60% of the
Subgroup 3 Subordinated Percentage for such Distribution Date; as of any
Distribution Date in the third year thereafter, the Subgroup 3 Percentage plus
40% of the Subgroup 3 Subordinated Percentage for such Distribution Date; as of
any Distribution Date in the fourth year thereafter, the Subgroup 3 Percentage
plus 20% of the Subgroup 3 Subordinated Percentage for such Distribution Date;
and as of any Distribution Date after the fourth year
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thereafter, the Subgroup 3 Percentage; provided that, if the Subgroup 3
Percentage as of any such Distribution Date is greater than the Subgroup 3
Percentage on the first Distribution Date or any other applicable Subgroup
Percentage as of any such Distribution Date is greater than the applicable
Subgroup Percentage on the first Distribution Date, the Subgroup 3 Prepayment
Percentage shall be 100%; and provided further, however, that whenever the
Subgroup 3 Percentage equals 0%, the Subgroup 3 Prepayment Percentage shall
equal 0%; and provided further that no reduction of the Subgroup 3 Prepayment
Percentage below the level in effect for the most recent period shall occur with
respect to any Distribution Date unless, as of the last day of the month
preceding such Distribution Date, (i) the aggregate outstanding Principal
Balance of Mortgage Components with respect to each of Subgroup 3, Subgroup 3,
Subgroup 3, and Subgroup 4, each taken individually, delinquent 60 days or more
(including for this purpose any Mortgage Loans in foreclosure and Mortgage Loans
with respect to which the related Mortgaged Property has been acquired by the
Trust Fund) does not exceed 50% of the Subordinated Percentage of the Principal
Balance of the Mortgage Components with respect to the related Subgroup as of
such date and (ii) cumulative Realized Losses with respect to all such four
Subgroups, each taken individually, do not exceed (a) 30% of the related
Original Subordinated Principal Balance if such Distribution Date occurs in the
year beginning with and including the fifth anniversary of the first
Distribution Date, (b) 35% of the related Original Subordinated Principal
Balance if such Distribution Date occurs in the year beginning with and
including the sixth anniversary of the first Distribution Date, (c) 40% of the
related Original Subordinated Principal Balance if such Distribution Date occurs
in the year beginning with and including the seventh anniversary of the first
Distribution Date, (d) 45% of the related Original Subordinated Principal
Balance if such Distribution Date occurs in the year beginning with and
including the eighth anniversary of the first Distribution Date, and (e) 50% of
the related Original Subordinated Principal Balance if such Distribution Date
occurs in the year beginning with and including the ninth anniversary of the
first Distribution Date and thereafter.
Subgroup 3 Principal Balance: As of any Distribution Date, (a) the Subgroup
3 Principal Balance for the immediately preceding Distribution Date less (b)
amounts distributed to the Subgroup 3 Certificateholders on such preceding
Distribution Date allocable to principal (including the principal portion of
Monthly Advances of the Servicer made pursuant to Section 6.05(d) and Realized
Losses allocated to the Subgroup 3 Certificates pursuant to Section 6.02) and
any losses allocated to the Subgroup 3 Certificateholders; as adjusted to
reflect any adjustments to the Outstanding Certificate Principal Balance of the
Subgroup 3 Certificates as a result of Subsequent Recoveries; provided that the
Subgroup 3 Principal Balance on the first Distribution Date will be the Original
Subgroup 3 Principal Balance.
Subgroup 3 Remittance Rate: For any Distribution Date, a per annum rate
equal to 6.00%.
Subgroup 3 Subordinated Amount: For any Distribution Date, the excess of
the aggregate Non-PO Percentage of the Stated Principal Balance of the Mortgage
Components in Subgroup 3 over the aggregate Outstanding Certificate Principal
Balance of the Subgroup 3 Certificates (prior to giving effect to distributions
to be made on such Distribution Date and allocation of losses on such
Distribution Date).
Subgroup 3 Subordinated Percentage: As of any Distribution Date, the
difference between 100% and the Subgroup 3 Percentage.
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Subgroup 3 Subordinated Prepayment Percentage: As of any Distribution Date,
the difference between 100% and the Subgroup 3 Prepayment Percentage.
Subgroup 4: As of the Cut-off Date, consists of (a) the Non-PO Percentage
of the Principal Balance of each Mortgage Loan with a Net Mortgage Rate less
than or equal to 6.00% per annum and (b) the portion of the Principal Balance of
each Mortgage Loan with a Net Mortgage Rate greater than 6.00% per annum and
less than or equal to 6.25% per annum allocated as follows:
Net Mortgage Rate - 6.00%
Principal Balance x ( --------------------------- )
0.25%
Subgroup 4 Certificates: The Class 2-A4, Class 2-A6, Class 2-A7, Class 2-A8
and Class 2-A9 Certificates.
Subgroup 4 Deficiency Amount: As defined in Section 6.01(b)(vi).
Subgroup 4 Percentage: As of any Distribution Date, the percentage obtained
by dividing the Subgroup 4 Principal Balance by the outstanding principal
balance of the Mortgage Components in Subgroup 4, but not more than 100%.
Subgroup 4 Prepayment Percentage: As of any Distribution Date up to and
including the Distribution Date in March 2012, 100%; as of any Distribution Date
in the first year thereafter, the Subgroup 4 Percentage plus 70% of the Subgroup
4 Subordinated Percentage for such Distribution Date; as of any Distribution
Date in the second year thereafter, the Subgroup 4 Percentage plus 60% of the
Subgroup 4 Subordinated Percentage for such Distribution Date; as of any
Distribution Date in the third year thereafter, the Subgroup 4 Percentage plus
40% of the Subgroup 4 Subordinated Percentage for such Distribution Date; as of
any Distribution Date in the fourth year thereafter, the Subgroup 4 Percentage
plus 20% of the Subgroup 4 Subordinated Percentage for such Distribution Date;
and as of any Distribution Date after the fourth year thereafter, the Subgroup 4
Percentage; provided that, if the Subgroup 4 Percentage as of any such
Distribution Date is greater than the Subgroup 4 Percentage on the first
Distribution Date or any other applicable Subgroup Percentage as of any such
Distribution Date is greater than the applicable Subgroup Percentage on the
first Distribution Date, the Subgroup 4 Prepayment Percentage shall be 100%; and
provided further, however, that whenever the Subgroup 4 Percentage equals 0%,
the Subgroup 4 Prepayment Percentage shall equal 0%; and provided further that
no reduction of the Subgroup 4 Prepayment Percentage below the level in effect
for the most recent period shall occur with respect to any Distribution Date
unless, as of the last day of the month preceding such Distribution Date, (i)
the aggregate outstanding Principal Balance of Mortgage Components with respect
to each of Subgroup 4, Subgroup 4, Subgroup 4, and Subgroup 4, each taken
individually, delinquent 60 days or more (including for this purpose any
Mortgage Loans in foreclosure and Mortgage Loans with respect to which the
related Mortgaged Property has been acquired by the Trust Fund) does not exceed
50% of the Subordinated Percentage of the Principal Balance of the Mortgage
Components with respect to the related Subgroup as of such date and (ii)
cumulative Realized Losses with respect to all such four
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Subgroups, each taken individually, do not exceed (a) 30% of the related
Original Subordinated Principal Balance if such Distribution Date occurs in the
year beginning with and including the fifth anniversary of the first
Distribution Date, (b) 35% of the related Original Subordinated Principal
Balance if such Distribution Date occurs in the year beginning with and
including the sixth anniversary of the first Distribution Date, (c) 40% of the
related Original Subordinated Principal Balance if such Distribution Date occurs
in the year beginning with and including the seventh anniversary of the first
Distribution Date, (d) 45% of the related Original Subordinated Principal
Balance if such Distribution Date occurs in the year beginning with and
including the eighth anniversary of the first Distribution Date, and (e) 50% of
the related Original Subordinated Principal Balance if such Distribution Date
occurs in the year beginning with and including the ninth anniversary of the
first Distribution Date and thereafter.
Subgroup 4 Principal Balance: As of any Distribution Date, (a) the
Subgroup 4 Principal Balance for the immediately preceding Distribution Date
less (b) amounts distributed to the Subgroup 4 Certificateholders on such
preceding Distribution Date allocable to principal (including the principal
portion of Monthly Advances of the Servicer made pursuant to Section 6.05(d) and
Realized Losses allocated to the Subgroup 4 Certificates pursuant to
Section 6.02) and any losses allocated to the Subgroup 4 Certificateholders; as
adjusted to reflect any adjustments to the Outstanding Certificate Principal
Balance of the Subgroup 4 Certificates as a result of Subsequent Recoveries;
provided that the Subgroup 4 Principal Balance on the first Distribution Date
will be the Original Subgroup 4 Principal Balance.
Subgroup 4 Remittance Rate: For any Distribution Date, a per annum rate
equal to 6.25%.
Subgroup 4 Subordinated Amount: For any Distribution Date, the excess of
the aggregate Non-PO Percentage of the Stated Principal Balance of the Mortgage
Components in Subgroup 4 over the aggregate Outstanding Certificate Principal
Balance of the Subgroup 4 Certificates (prior to giving effect to distributions
to be made on such Distribution Date and allocation of losses on such
Distribution Date).
Subgroup 4 Subordinated Percentage: As of any Distribution Date, the
difference between 100% and the Subgroup 4 Percentage.
Subgroup 4 Subordinated Prepayment Percentage: As of any Distribution Date,
the difference between 100% and the Subgroup 4 Prepayment Percentage.
Subgroup Remittance Rate: Any of the Subgroup 1 Remittance Rate, Subgroup 2
Remittance Rate, Subgroup 3 Remittance Rate or Subgroup 4 Remittance Rate.
Subcontractor: Any vendor, subcontractor or other Person that is not
responsible for the overall servicing of Mortgage Loans but performs one or more
discrete functions identified in Item 1122(d) of Regulation AB with respect to
Mortgage Loans under the direction or authority of any Servicer (or a
Sub-Servicer of any Servicer), the Master Servicer, the Trustee, the Custodian
or the Securities Administrator.
Subordinate Certificates: The Class M-1, Class M-2, Class M-3, Class B-1,
Class B-2 and Class B-3 Certificates.
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Subordinated Optimal Principal Amount: Generally as of any Distribution
Date, an amount, not in excess of the aggregate outstanding principal balance of
the Subordinate Certificates, equal to (1) the sum of (a) an amount equal to the
applicable Subordinated Percentage of the applicable Non-PO Percentage of the
principal portion of all Scheduled Payments whether or not received, which were
due on the related Due Date on outstanding Mortgage Components in the related
Subgroup as of such Due Date; (b) an amount equal to the applicable Subordinated
Prepayment Percentage of the applicable Non-PO Percentage of all principal
prepayments received during the related Principal Prepayment Period; (c) with
respect to each Mortgage Component not described in (d) below, an amount equal
to the applicable Subordinated Percentage of the applicable Non-PO Percentage of
the sum of the principal portion of all insurance proceeds, condemnation awards
and any other cash proceeds from a source other than the Mortgagor, to the
extent required to be deposited in the Master Servicer Collection Account, which
were received during the related Principal Prepayment Period, net of related
unreimbursed Servicing Advances and net of any portion thereof which, as to any
Mortgage Component, constitutes a late collection with respect to which a
Monthly Advance has previously been made; (d) with respect to each Mortgage
Component of a Mortgage Loan which has become a Liquidated Mortgage Loan during
the related Principal Prepayment Period, an amount equal to the portion (if any)
of the net liquidation proceeds with respect to such Liquidated Mortgage Loan
(net of any unreimbursed Monthly Advances) that was not included in the Class PO
Certificate Distribution Amount or the Non-PO Senior Optimal Principal Amount
with respect to such Distribution Date; (e) Subsequent Recoveries; and (f) with
respect to each Mortgage Component of a Mortgage Loan repurchased during the
related Principal Prepayment Period, an amount equal to the applicable
Subordinated Prepayment Percentage of the applicable Non-PO Percentage of the
principal portion of the purchase price thereof (net of amounts with respect to
which a distribution has previously been made to the Subordinate
Certificateholders), minus (2) the Class PO Shortfall Amount with respect to
such Distribution Date.
Subordinated Percentage: The Subgroup 1 Subordinated Percentage, Subgroup 2
Subordinated Percentage, Subgroup 3 Subordinated Percentage or Subgroup 4
Subordinated Percentage, as the case may be.
Subordinated Prepayment Percentage: The Subgroup 1 Subordinated Prepayment
Percentage, Subgroup 2 Subordinated Prepayment Percentage, Subgroup 3
Subordinated Prepayment Percentage or Subgroup 1 Subordinated Prepayment
Percentage, as the case may be.
Subsequent Recoveries: Any amount recovered by a Servicer or the Master
Servicer (net of reimbursable expenses) with respect to a Liquidated Mortgage
Loan with respect to which a Realized Loss was incurred after the liquidation or
disposition of such Mortgage Loan.
Sub-Servicer: Any Person that services Mortgage Loans on behalf of a
Servicer, and is responsible for the performance (whether directly or through
sub-servicers or Subcontractors) of servicing functions required to be performed
under this Agreement, any related Servicing Agreement or any sub-servicing
agreement that are identified in Item 1122(d) of Regulation AB.
Substitute Mortgage Loan: With respect to any Mortgage Loan, which is
tendered to the Trustee pursuant to the related Servicing Agreement, the
Mortgage Loan Purchase Agreement or
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Section 2.04 of this Agreement, as applicable, in each case, (i) which has an
Outstanding Principal Balance not greater nor materially less than the Mortgage
Loan for which it is to be substituted; (ii) which has a Mortgage Interest Rate
and Net Rate not less than, and not materially greater than, such Mortgage Loan;
(iii) which has a maturity date not materially earlier or later than such
Mortgage Loan and not later than the latest maturity date of any Mortgage Loan;
(iv) which is of the same property type and occupancy type as such Mortgage
Loan; (v) which has a Loan-to-Value Ratio not greater than the Loan-to-Value
Ratio of such Mortgage Loan; (vi) which is current in payment of principal and
interest as of the date of substitution; and (vii) as to which the payment terms
do not vary in any material respect from the payment terms of the Mortgage Loan
for which it is to be substituted.
Tax Matters Person: The Securities Administrator or any successor thereto
or assignee thereof shall serve as tax administrator hereunder and as agent for
the Tax Matters Person. The Holder of the Residual Certificates shall be the Tax
Matters Person for the related REMIC, as more particularly set forth in Section
9.12 hereof.
Transfer: Any direct or indirect transfer or sale of any Ownership Interest
in a certificate.
Transferor Representation Letter: As defined in Section 5.02(b).
Trustee: HSBC Bank USA, National Association, or its successor in interest,
or any successor trustee appointed as herein provided.
Trust Fund: The corpus of the Issuing Entity created pursuant to Article II
of this Agreement.
Undercollateralized Subgroup: As defined in Section 6.01(b)(x)(B).
Underlying Seller: With respect to each Mortgage Loan, IndyMac, Ameriquest
Mortgage Company, Quicken Loans, Inc., The New York Mortgage Corporation and
Weichert, as indicated on the Mortgage Loan Schedule.
Underwriter: Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated.
Uninsured Cause: Any cause of damage to a Mortgaged Property or related REO
Property such that the complete restoration of such Mortgaged Property or
related REO Property is not fully reimbursable by the hazard insurance policies
required to be maintained pursuant the related Servicing Agreement, without
regard to whether or not such policy is maintained.
United States Person: A citizen or resident of the United States, a
corporation or partnership (including an entity treated as a corporation or
partnership for federal income tax purposes) created or organized in, or under
the laws of, the United States or any state thereof or the District of Columbia
(except, in the case of a partnership, to the extent provided in regulations),
provided that, for purposes solely of the Class A-R Certificate, no partnership
or other entity treated as a partnership for United States federal income tax
purposes shall be treated as a United States Person unless all persons that own
an interest in such partnership either directly or through any entity that is
not a corporation for United States federal income tax
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purposes are United States Persons, or an estate whose income is subject to
United States federal income tax regardless of its source, or 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 such United States Persons have the
authority to control all substantial decisions of the trust. To the extent
prescribed in regulations by the Secretary of the Treasury, which have not yet
been issued, a trust which was in existence on August 20, 1996 (other than a
trust treated as owned by the grantor under subpart E of part I of subchapter J
of chapter 1 of the Code), and which was treated as a United States person on
August 20, 1996 may elect to continue to be treated as a United States person
notwithstanding the previous sentence.
Upper Tier REMIC: As described in the Preliminary Statement.
Upper Tier REMIC Regular Interest: Each class of Certificates (other than
the Class A-R and Class P Certificates).
Voting Rights: The portion of the voting rights of all of the Certificates
which is allocated to any Certificate. The Voting Rights allocated among Holders
of such Certificates outstanding shall be the fraction, expressed as a
percentage, the numerator of which is the aggregate Class Certificate Balance of
all the Certificates of such Class then outstanding and the denominator of which
is the aggregate Class Certificate Balance of all the Certificates then
outstanding. 100.00% of all Voting Rights will be allocated among all holders of
the Certificates in proportion to their then outstanding Class Certificate
Balances; provided, however, that any Certificate registered in the name of the
Master Servicer, the Depositor or the Securities Administrator or any of their
respective affiliates shall not be included in the calculation of Voting Rights.
The Class P Certificates shall have no voting rights.
Wachovia: Wachovia Mortgage Corporation.
Wachovia Assignment Agreement: The Assignment, Assumption and Recognition
Agreement, dated as of March 1, 2007, among Wachovia, the Depositor and the
Seller pursuant to which the Wachovia Servicing Agreement and the rights of the
Seller thereunder (other than the rights to enforce the representations and
warranties with respect to the Wachovia Loans) were assigned to the Depositor
for the benefit of the Certificateholders.
Wachovia Loans: The Mortgage Loans serviced by Wachovia pursuant to the
Wachovia Servicing Agreement.
Wachovia Servicing Agreement: The Seller's Purchase, Warranties and
Servicing Agreement, dated as of December 1, 2006, between Wachovia, as seller,
and MLML, as purchaser, as at any time in effect.
Xxxxx Fargo: Xxxxx Fargo Bank, N.A., or any successor thereto.
Wilshire: Wilshire Credit Corporation.
Wilshire Servicing Agreement: The Reconstituted Servicing Agreement, dated
as of March 1, 2007, between Wilshire and the Depositor and acknowledged by
Xxxxx Fargo, as
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securities administrator and master servicer, pursuant to which Wilshire will
service the Wilshire Loans for the benefit of the Certificateholders.
Wilshire Loans: The Mortgage Loans serviced by Wilshire pursuant to the
Wilshire Servicing Agreement.
Section 1.02 Accounting.
Unless otherwise specified herein, for the purpose of any definition or
calculation, whenever amounts are required to be netted, subtracted or added or
any distributions are taken into account such definition or calculation and any
related definitions or calculations shall be determined without duplication of
such functions.
ARTICLE II
CONVEYANCE OF MORTGAGE
LOANS; ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Mortgage Loans to Trustee.
(a) The Depositor concurrently with the execution and delivery of this
Agreement, sells, transfers and assigns to the Issuing Entity without recourse
all its right, title and interest in and to (i) the Mortgage Loans identified in
the Mortgage Loan Schedule, including all interest and principal due with
respect to the Mortgage Loans after the Cut-off Date, but excluding any payments
of principal and interest due on or prior to the Cut-off Date; (ii) such assets
as shall from time to time be credited or are required by the terms of this
Agreement to be credited to the Master Servicer Collection Account, (iii) such
assets relating to the Mortgage Loans as from time to time may be held by the
Servicers in Protected Accounts, the Master Servicer in the Master Servicer
Collection Account and the Securities Administrator in the Distribution Account
for the benefit of the Trustee on behalf of the Certificateholders, (iv) any REO
Property, (v) the Required Insurance Policies and any amounts paid or payable by
the insurer under any Insurance Policy (to the extent the mortgagee has a claim
thereto), (vi) the Mortgage Loan Purchase Agreement to the extent provided in
Subsection 2.03(a), (vii) the rights with respect to the Servicing Agreements as
assigned to the Depositor on behalf of the Certificateholders by the Assignment
Agreements and (viii) any proceeds of the foregoing. Although it is the intent
of the parties to this Agreement that the conveyance of the Depositor's right,
title and interest in and to the Mortgage Loans and other assets in the Trust
Fund pursuant to this Agreement shall constitute a purchase and sale and not a
loan, in the event that such conveyance is deemed to be a loan, it is the intent
of the parties to this Agreement that the Depositor shall be deemed to have
granted to the Trustee a first priority perfected security interest in all of
the Depositor's right, title and interest in, to and under the Mortgage Loans
and other assets in the Trust Fund, and that this Agreement shall constitute a
security agreement under applicable law.
(b) In connection with the above transfer and assignment, the Depositor
hereby deposits with the Trustee or the Custodian, as its agent, the following
documents or instruments
(I) with respect to each Mortgage Loan, other than a Cooperative Loan:
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(i) the original Mortgage Note, endorsed in the following form: "Pay
to the order of HSBC Bank USA, National Association, as Trustee for the
registered holders of the Xxxxxxx Xxxxx Mortgage Investors, Inc., Mortgage
Pass-Through Certificates, Series 2007-F1, without recourse," with all
prior and intervening endorsements showing a complete chain of endorsement
from the originator to the Person so endorsing to the Trustee;
(ii) the original recorded Mortgage or a copy of the Mortgage
certified by the public recording office in which such Mortgage has been
recorded;
(iii) an original Assignment of the Mortgage executed in the following
form: "HSBC Bank USA, National Association, as Trustee for the registered
holders of the Xxxxxxx Xxxxx Mortgage Investors, Inc., Mortgage
Pass-Through Certificates, Series 2007-F1."
(iv) the original recorded Assignment or Assignments of the Mortgage
showing a complete chain of assignment from the originator to the Person
assigning the Mortgage to the Trustee as contemplated by the immediately
preceding clause (iii), if applicable and only to the extent available to
the Depositor with evidence of recording thereon;
(v) the originals of all assumption, modification, consolidation or
extension agreements, with evidence of recording thereon, if any;
(vi) the original of any guarantee executed in connection with the
Mortgage Note;
(vii) the original mortgagee title insurance policy;
(viii) the original of any security agreement, chattel mortgage or
equivalent document executed in connection with the Mortgage; and
(ix) the original power of attorney, if applicable.
and (II) with respect to each Mortgage Loan that is a Cooperative Loan:
(i) the original Mortgage Note, endorsed in the following form: "Pay
to the order of HSBC Bank USA, National Association, as Trustee for the
registered holders of the Xxxxxxx Xxxxx Mortgage Investors, Inc., Mortgage
Pass-Through Certificates, Series 2007-F1, without recourse," with all
prior and intervening endorsements showing a complete chain of endorsement
from the originator to the Person so endorsing to the Trustee;
(ii) the original duly executed assignment of Security Agreement to
the Trustee;
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(iii) the acknowledgment copy of the original executed Form UCC-1 (or
certified copy thereof) with respect to the Security Agreement, and any
required continuation statements;
(iv) the acknowledgment copy of the original executed Form UCC-3 with
respect to the Security Agreement, indicating the Trustee as the assignee
of the secured party;
(v) the stock certificate representing the Cooperative Assets
allocated to the cooperative unit, with a stock power in blank attached;
(vi) the original collateral assignment of the proprietary lease by
Mortgagor to the originator;
(vii) a copy of the recognition agreement;
(viii) if applicable and to the extent available, the original
intervening assignments, including warehousing assignments, if any,
showing, to the extent available, an unbroken chain of the related Mortgage
Loan to the Trustee, together with a copy of the related Form UCC-3 with
evidence of filing thereon; and
(ix) the originals of each assumption, modification or substitution
agreement, if any, relating to the Mortgage Loan;
provided, however, that in lieu of the foregoing, the Depositor may deliver the
following documents, under the circumstances set forth below: (w) the Depositor
may deliver a Mortgage Note pursuant to (a)(i) and (b)(i) endorsed in blank,
provided that the endorsement is completed within 60 days of the Closing Date;
(x) in lieu of the original Mortgage, assignments to the Trustee or its
Custodian, as applicable, or intervening assignments thereof which have been
delivered, are being delivered or will, upon receipt of recording information
relating to the Mortgage required to be included thereon, be delivered to
recording offices for recording and have not been returned to the Depositor in
time to permit their delivery as specified above, the Depositor may deliver a
true copy thereof with a certification by the Depositor on the face of such
copy, substantially as follows: "Certified to be a true and correct copy of the
original, which has been transmitted for recording"; and (y) in lieu of the
Mortgage, assignment to the Trustee or intervening assignments thereof, if the
applicable jurisdiction retains the originals of such documents (as evidenced by
a certification from the Depositor or the Master Servicer, to such effect) the
Depositor may deliver photocopies of such documents containing an original
certification by the judicial or other governmental authority of the
jurisdiction where such documents were recorded; and provided, further, however,
that in the case of Mortgage Loans which 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, may deliver to the Trustee or its Custodian, as applicable,
a certification to such effect and shall deposit all amounts paid in respect of
such Mortgage Loans in the Distribution Account on the Closing Date. The
Depositor shall deliver such original documents (including any original
documents as to which certified copies had previously been delivered) to the
Trustee or its Custodian, as applicable, promptly after they are received. As of
the date hereof, recordation of the assignment of the Mortgage Loans to the
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Trustee or the Custodian, as applicable, is not required in any state by either
Rating Agency to obtain the initial rating on the Certificates (upon which
statement the Master Servicer, the Trustee and the Custodian may each
conclusively rely).
If any original Mortgage Note referred to in Section 2.01(b)(I)(i) or
2.01(b)(II)(x) above cannot be located, the obligations of the Depositor to
deliver such documents shall be deemed to be satisfied upon delivery to the
Trustee or its Custodian, as applicable, of a photocopy of such Mortgage Note,
if available, with a lost note affidavit. If any of the original Mortgage Notes
for which a lost note affidavit was delivered to the Trustee or its Custodian,
as applicable, is subsequently located, such original Mortgage Note shall be
delivered to the Trustee or its Custodian, as applicable, within three Business
Days.
(c) The parties hereto agree that it is not intended that any mortgage loan
be included in the Trust Fund that is, without limitation, a "High Cost Loan" as
defined by the Home Ownership and Equity Protection Act of 1994 or any other
applicable anti-predatory lending laws, including but not limited to (i) a
"High-Cost Home Loan" as defined in the New Jersey Home Ownership Act effective
November 27, 2003, (ii) a "High-Cost Home Loan" as defined in the New Mexico
Home Loan Protection Act effective January 1, 2004, (iii) a "High Cost Home
Mortgage Loan" as defined in the Massachusetts Predatory Home Loan Practices Act
effective November 7, 2004 or (iv) a "High-Cost Home Loan" as defined by the
Indiana High Cost Home Loan Law effective January 1, 2005.
(d) 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 Section 3.12
of this Agreement, and preparation and delivery of the certifications shall be
performed by the Custodian(s) pursuant to the terms and conditions of the
Custodial Agreement(s).
Section 2.02 Acceptance of Mortgage Loans by Trustee.
(a) The Trustee acknowledges the sale, transfer and assignment of the Trust
Fund to it by the Depositor and its receipt thereof, subject to further review
and the exceptions which may be noted pursuant to the procedures described
below, and declares that it, or the Custodian on its behalf, holds the documents
(or certified copies thereof) delivered to it pursuant to Section 2.01, and
declares that it will continue to hold those documents and any amendments,
replacements or supplements thereto and all other assets of the Trust Fund
delivered to it as Trustee in trust for the use and benefit of all present and
future Holders of the Certificates. On or before the Closing Date (or, with
respect to any Substitute Mortgage Loan, within five Business Days after the
receipt by the Trustee or Custodian thereof), the Trustee agrees, for the
benefit of the Certificateholders, to review or cause to be reviewed by the
Custodian on its behalf (under the Custodial Agreement), each Mortgage File
delivered to it and to execute and deliver, or cause to be executed and
delivered, to the Depositor on the Closing Date an Initial Certification. In
conducting such review, the Trustee or Custodian will certify as to each
Mortgage Loan listed in the Mortgage Loan Schedule (other than any Mortgage Loan
paid in full or any Mortgage Loan specifically identified in the exception
report annexed thereto as not being covered by such
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certification), (i) all documents constituting part of such Mortgage File (other
than such documents described in Section 2.01(b)(I)(iii)) required to be
delivered to it pursuant to this Agreement are in its possession, provided that
with respect to the documents described in Section 2.01(b)(I)(v), (vi), (viii)
and (ix) and 2.01(b)(II)(viii) and (ix) to the extent the Trustee or the
Custodian on its behalf has actual knowledge that such documents exist, (ii)
such documents have been reviewed by it and are not torn, mutilated, defaced or
otherwise altered (except if initialed by the obligor) and appear to relate on
their face to such Mortgage Loan, (iii) based on its examination and only as to
the foregoing, the information set forth in the Mortgage Loan Schedule
corresponding to the loan number for the Mortgage Loan, the Mortgagor's name,
including the street address but excluding the zip code, the Mortgage Interest
Rate and the original principal balance of the Mortgage Loan accurately reflects
information set forth in the Mortgage File and (iv) with respect to Mortgage
Loans with a Mortgage Interest Rate subject to adjustment, the gross margin, the
lifetime cap and the periodic cap for such Mortgage Loan. In performing any such
review, the Trustee, or the Custodian, as its agent, may conclusively rely on
the purported due execution and genuineness of any such document and on the
purported genuineness of any signature thereon. Notwithstanding anything to the
contrary in this Agreement, it is herein acknowledged that, in conducting such
review, the Trustee or the Custodian on its behalf is under no duty or
obligation to inspect, review or examine any such documents, instruments,
certificates or other papers to determine whether they are genuine, enforceable,
or appropriate for the represented purpose or whether they have actually been
recorded or that they are other than what they purport to be on their face, or
to determine whether any Person executing any documents is authorized to do so
or whether any signature is genuine.
If the Trustee or the Custodian, as its agent, finds any document
constituting part of the Mortgage File not to have been executed or received, or
to be unrelated to the Mortgage Loans identified in Exhibit B or to appear to be
defective on its face, the Trustee or the Custodian, as its agent, shall
promptly notify the Seller. In accordance with the Mortgage Loan Purchase
Agreement, the Seller shall correct or cure any such defect within ninety (90)
days from the date of notice from the Trustee or the Custodian, as its agent, of
the defect and if the Seller fails to correct or cure the defect within such
period, and such defect materially and adversely affects the interests of the
Certificateholders in the related Mortgage Loan, the Trustee, shall enforce the
Seller's obligation pursuant to the Mortgage Loan Purchase Agreement, within 90
days from the Trustee's or the Custodian's notification, to purchase such
Mortgage Loan at the Purchase Price; provided that, if such defect would cause
the Mortgage Loan to be other than a "qualified mortgage" as defined in Section
860G(a)(3) of the Code, any such cure or repurchase must occur within 90 days
from the date such breach was discovered; provided, however, that if such defect
relates solely to the inability of the Seller to deliver the original Security
Instrument or intervening assignments thereof, or a certified copy because the
originals of such documents, or a certified copy have not been returned by the
applicable jurisdiction, the Seller shall not be required to purchase such
Mortgage Loan if the Seller delivers such original documents or certified copy
promptly upon receipt, but in no event later than 360 days after the Closing
Date. The foregoing repurchase obligation shall not apply in the event that the
Seller cannot deliver such original or copy of any document submitted for
recording to the appropriate recording office in the applicable jurisdiction
because such document has not been returned by such office; provided that the
Seller shall instead deliver a recording receipt of such recording office or, if
such receipt is not available, a certificate confirming that such documents have
been accepted for
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recording, and delivery to the Trustee or the Custodian, as its agent, shall be
effected by the Seller within thirty days of its receipt of the original
recorded document.
(b) No later than 180 days after the Closing Date, the Trustee or the
Custodian, as its agent, will review, for the benefit of the Certificateholders,
the Mortgage Files delivered to it and will execute and deliver or cause to be
executed and delivered to the Depositor a Final Certification. In conducting
such review, the Trustee or the Custodian, as its agent, will certify as to each
Mortgage Loan listed in the Mortgage Loan Schedule (other than any Mortgage Loan
paid in full or any Mortgage Loan specifically identified in the exception
report annexed thereto as not being covered by such certification), that (i) all
documents constituting part of such Mortgage File (other than such documents
described in Section 2.01(b)(I)(v) and (ix)) required to be delivered to it
pursuant to this Agreement are in its possession, provided that with respect to
the documents described in Section 2.01(b)(I)(v), (vi), (viii) and (ix) and
2.01(b)(II)(viii) and (ix) to the extent the Trustee or the Custodian on its
behalf has actual knowledge that such documents exist, (ii) such documents have
been reviewed by it and are not torn, mutilated, defaced or otherwise altered
(except if initialed by the obligor) and appear regular on their face and relate
to such Mortgage Loan, (iii) based on its examination and only as to the
foregoing, the information set forth in the Mortgage Loan Schedule corresponding
to the loan number for the Mortgage Loan, the Mortgagor's name, including the
street address but excluding the zip code, the Mortgage Interest Rate and the
original principal balance of the Mortgage Loan accurately reflects information
set forth in the Mortgage File. In performing any such review, the Trustee, or
the Custodian, as its agent, may conclusively rely on the purported due
execution and genuineness of any such document and on the purported genuineness
of any signature thereon. Notwithstanding anything to the contrary in this
Agreement, it is herein acknowledged that, in conducting such review, the
Trustee or the Custodian on its behalf is under no duty or obligation (i) to
inspect, review or examine any such documents, instruments, certificates or
other papers to determine whether they are genuine, enforceable, or appropriate
for the represented purpose or whether they have actually been recorded or that
they are other than what they purport to be on their face, or to determine
whether any Person executing any documents is authorized to do so or whether any
signature is genuine. If the Trustee or the Custodian, as its agent, finds any
document constituting part of the Mortgage File not to have been executed or
received, or to be unrelated to the Mortgage Loans identified in Exhibit B or to
appear to be defective on its face, the Trustee or the Custodian, as its agent,
shall promptly notify the Seller. In accordance with the Mortgage Loan Purchase
Agreement, the Seller shall correct or cure any such defect within 90 days from
the date of notice from the Trustee of the defect and if the Seller is unable to
cure such defect within such period, and if such defect materially and adversely
affects the interests of the Certificateholders in the related Mortgage Loan,
the Trustee shall enforce the Seller's obligation under the Mortgage Loan
Purchase Agreement to purchase such Mortgage Loan at the Purchase Price,
provided, however, that if such defect relates solely to the inability of the
Seller to deliver the original Security Instrument or intervening assignments
thereof, or a certified copy, because the originals of such documents, or a
certified copy, have not been returned by the applicable jurisdiction, the
Seller shall not be required to purchase such Mortgage Loan, if the Seller
delivers such original documents or certified copy promptly upon receipt, but in
no event later than 360 days after the Closing Date.
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(c) In the event that a Mortgage Loan is purchased by the Seller in
accordance with Subsections 2.02(a) or (b) above, the Seller shall remit to the
Master Servicer the Purchase Price for deposit in the Master Servicer Collection
Account and the Seller shall provide to the Trustee written notification
detailing the components of the Purchase Price. Upon deposit of the Purchase
Price in the Master Servicer Collection Account, the Depositor shall give
written notice thereof to the Trustee and the Custodian and the Trustee or the
Custodian, as its agent (upon receipt of a Request for Release in the form of
Exhibit D attached hereto with respect to such Mortgage Loan), shall release to
the Seller the related Mortgage File and the Trustee shall execute and deliver
all instruments of transfer or assignment, without recourse, furnished to it by
the Seller as are necessary to vest in the Seller title to and rights under the
Mortgage Loan. Such purchase shall be deemed to have occurred on the date on
which the Purchase Price in available funds is received by the Trustee. The
Depositor or Master Servicer shall amend the Mortgage Loan Schedule, to reflect
such repurchase and shall promptly notify the Rating Agencies and the Master
Servicer of such amendment. The obligation of the Seller to repurchase any
Mortgage Loan as to which such a defect in a constituent document exists shall
be the sole remedy respecting such defect available to the Certificateholders or
to the Trustee on their behalf.
Section 2.03 Assignment of Interest in the Mortgage Loan Purchase
Agreement.
(a) The Depositor hereby assigns to the Trustee, on behalf of the
Certificateholders, all of its right, title and interest in the Mortgage Loan
Purchase Agreement, including but not limited to Depositor's rights pursuant to
the Servicing Agreements (noting that the Seller has retained the right in the
event of breach of the representations, warranties and covenants, if any, with
respect to the related Mortgage Loans of the related Servicer under the related
Servicing Agreement to enforce the provisions thereof and to seek all or any
available remedies). The obligations of the Seller to substitute or repurchase,
as applicable, a Mortgage Loan shall be the Trustee's and the
Certificateholders' sole remedy for any breach thereof. At the request of the
Trustee, the Depositor shall take such actions as may be necessary to enforce
the above right, title and interest on behalf of the Trustee and the
Certificateholders or shall execute such further documents as the Trustee may
reasonably require in order to enable the Trustee to carry out such enforcement.
With respect to the representations and warranties described in the Mortgage
Loan Purchase Agreement that are made to the best of the Seller's knowledge, if
it is discovered by any of the Depositor, the Seller, the Master Servicer, the
Securities Administrator or the Trustee that the substance of such
representation and warranty is inaccurate and such inaccuracy materially and
adversely affects the value of the related Mortgage Loan, then notwithstanding
the Seller's lack of knowledge with respect to the substance of such
representation and warranty, such inaccuracy shall be deemed a breach of the
applicable representation or warranty.
(b) If the Depositor, the Master Servicer, Securities Administrator or the
Trustee discovers a breach of any of the representations and warranties set
forth in the Mortgage Loan Purchase Agreement, which breach materially and
adversely affects the value of the interests of Certificateholders or the
Trustee in the related Mortgage Loan, the party discovering the breach shall
give prompt written notice of the breach to the other parties. The Seller,
within 90 days of its discovery or receipt of notice that such breach has
occurred (whichever occurs earlier), shall cure the breach in all material
respects or, subject to the Mortgage Loan Purchase Agreement or Section 2.04 of
this Agreement, as applicable, shall purchase the Mortgage Loan or any property
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acquired with respect thereto from the Trustee; provided, however, that if there
is a breach of any representation set forth in the Mortgage Loan Purchase
Agreement or Section 2.04 of this Agreement, as applicable, and the Mortgage
Loan or the related property acquired with respect thereto has been sold, then
the Seller shall pay, in lieu of the Purchase Price, any excess of the Purchase
Price over the Net Liquidation Proceeds received upon such sale. (If the Net
Liquidation Proceeds exceed the Purchase Price, any excess shall be paid to the
Seller to the extent not required by law to be paid to the borrower.) Any such
purchase by the Seller shall be made by providing an amount equal to the
Purchase Price to the Master Servicer for deposit in the Master Servicer
Collection Account and written notification detailing the components of such
Purchase Price. The Depositor shall notify the Trustee in writing of the deposit
of the Purchase Price and submit to the Trustee or the Custodian, as its agent,
a Request for Release, and the Trustee shall release, or the Trustee shall cause
the Custodian to release, to the Seller the related Mortgage File and the
Trustee shall execute and deliver all instruments of transfer or assignment
furnished to it by the Seller, without recourse, as are necessary to vest in the
Seller title to and rights under the Mortgage Loan or any property acquired with
respect thereto. Such purchase shall be deemed to have occurred on the date on
which the Purchase Price in available funds is received by the Master Servicer.
The Depositor or the Master Servicer shall amend the Mortgage Loan Schedule to
reflect such repurchase and shall promptly notify the Master Servicer and the
Rating Agencies of such amendment. Enforcement of the obligation of the Seller
to purchase (or substitute a Substitute Mortgage Loan for) any Mortgage Loan or
any property acquired with respect thereto (or pay the Purchase Price as set
forth in the above proviso) as to which a breach has occurred and is continuing
shall constitute the sole remedy respecting such breach available to the
Certificateholders or the Trustee on their behalf.
Section 2.04 Substitution of Mortgage Loans. Notwithstanding anything to
the contrary in this Agreement, in lieu of purchasing a Mortgage Loan pursuant
to the Mortgage Loan Purchase Agreement or Sections 2.02 or 2.03 of this
Agreement, the Seller may, no later than the date by which such purchase by the
Seller would otherwise be required, tender to the Trustee a Substitute Mortgage
Loan accompanied by a certificate of an authorized officer of the Seller that
such Substitute Mortgage Loan conforms to the requirements set forth in the
definition of "Substitute Mortgage Loan" in the Mortgage Loan Purchase Agreement
or this Agreement, as applicable; provided, however, that substitution pursuant
to the Mortgage Loan Purchase Agreement or this Section 2.04, as applicable, in
lieu of purchase shall not be permitted after the termination of the two-year
period beginning on the Startup Day; provided, further, that if the breach would
cause the Mortgage Loan to be other than a "qualified mortgage" as defined in
Section 860G(a)(3) of the Code, any such cure or substitution must occur within
90 days from the date the breach was discovered. The Trustee or the Custodian,
as its agent, shall examine the Mortgage File for any Substitute Mortgage Loan
in the manner set forth in Section 2.02(a) and the Trustee or the Custodian, as
its agent, shall notify the Seller, in writing, within five Business Days after
receipt, whether or not the documents relating to the Substitute Mortgage Loan
satisfy the requirements of the third sentence of Subsection 2.02(a). Within two
Business Days after such notification, the Seller shall provide to the
Securities Administrator for deposit in the Distribution Account the amount, if
any, by which the Outstanding Principal Balance as of the next preceding Due
Date of the Mortgage Loan for which substitution is being made, after giving
effect to Scheduled Principal due on such date, exceeds the Outstanding
Principal Balance as of such date of the Substitute Mortgage Loan, after giving
effect to Scheduled Principal due on such
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date, which amount shall be treated for the purposes of this Agreement as if it
were the payment by the Seller of the Purchase Price for the purchase of a
Mortgage Loan by the Seller. After such notification to the Seller and, if any
such excess exists, upon written notification of the receipt of such deposit,
the Trustee shall accept such Substitute Mortgage Loan which shall thereafter be
deemed to be a Mortgage Loan hereunder. In the event of such a substitution,
accrued interest on the Substitute Mortgage Loan for the month in which the
substitution occurs and any Principal Prepayments made thereon during such month
shall be the property of the Issuing Entity and accrued interest for such month
on the Mortgage Loan for which the substitution is made and any Principal
Prepayments made thereon during such month shall be the property of the Seller.
The Scheduled Principal on a Substitute Mortgage Loan due on the Due Date in the
month of substitution shall be the property of the Seller and the Scheduled
Principal on the Mortgage Loan for which the substitution is made due on such
Due Date shall be the property of the Issuing Entity. Upon acceptance of the
Substitute Mortgage Loan (and delivery to the Trustee or Custodian of a Request
for Release for such Mortgage Loan), the Trustee shall release to the Seller the
related Mortgage File related to any Mortgage Loan released pursuant to the
Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as
applicable, and shall execute and deliver all instruments of transfer or
assignment, without recourse, in form as provided to it as are necessary to vest
in the Seller title to and rights under any Mortgage Loan released pursuant to
the Mortgage Loan Purchase Agreement or this Section 2.04, as applicable. The
Seller shall deliver the documents related to the Substitute Mortgage Loan in
accordance with the provisions of the Mortgage Loan Purchase Agreement or
Subsections 2.01(b) and 2.02(b) of this Agreement, as applicable, with the date
of acceptance of the Substitute Mortgage Loan deemed to be the Closing Date for
purposes of the time periods set forth in those Subsections. The representations
and warranties set forth in the Mortgage Loan Purchase Agreement shall be deemed
to have been made by the Seller with respect to each Substitute Mortgage Loan as
of the date of acceptance of such Mortgage Loan by the Trustee. The Master
Servicer shall amend the Mortgage Loan Schedule to reflect such substitution and
shall provide a copy of such amended Mortgage Loan Schedule to the Trustee and
the Rating Agencies.
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 Mortgage Loan shall be made
unless the Securities Administrator and the Trustee shall have 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.
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Section 2.05 Issuance of Certificates. The Trustee acknowledges the
assignment to it on behalf of the Issuing Entity of the Mortgage Loans and the
other assets comprising the Trust Fund and, concurrently therewith, the
Securities Administrator has signed, and countersigned and delivered to the
Depositor, in exchange therefor, Certificates in such authorized denominations
representing such Percentage Interests as the Depositor has requested. The
Trustee agrees that it will hold the Mortgage Loans and such other assets as may
from time to time be delivered to it segregated on the books of the Trustee in
trust for the benefit of the Certificateholders.
Section 2.06 Representations and Warranties Concerning the Depositor. The
Depositor hereby represents and warrants to the Trustee, the Master Servicer and
the Securities Administrator as follows:
(i) the Depositor (a) is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware and
(b) is qualified and in good standing as a foreign corporation to do
business in each jurisdiction where such qualification is necessary, except
where the failure so to qualify would not reasonably be expected to have a
material adverse effect on the Depositor's business as presently conducted
or on the Depositor's ability to enter into this Agreement and to
consummate the transactions contemplated hereby;
(ii) the Depositor has full corporate power to own its property, to
carry on its business as presently conducted and to enter into and perform
its obligations under this Agreement;
(iii) 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; and 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 articles of incorporation or by-laws of
the Depositor, except those conflicts, breaches or defaults which would not
reasonably be expected to have a material adverse effect on the Depositor's
ability to enter into this Agreement and to consummate the transactions
contemplated hereby;
(iv) 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 those
consents, approvals, notices, registrations or other actions as have
already been obtained, given or made;
(v) this Agreement has been duly executed and delivered by the
Depositor and, assuming due authorization, execution and delivery by the
other parties hereto, constitutes a valid and binding obligation of the
Depositor enforceable against it in
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accordance with its terms (subject to applicable bankruptcy and insolvency
laws and other similar laws affecting the enforcement of the rights of
creditors generally);
(vi) there are no actions, suits or proceedings pending or, to the
knowledge of the Depositor, threatened against the Depositor, before or by
any court, administrative agency, arbitrator or governmental body (i) with
respect to any of the transactions contemplated by this Agreement or (ii)
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 the Depositor's
ability to enter into this Agreement or perform its obligations under this
Agreement; and the Depositor is not in default with respect to any order of
any court, administrative agency, arbitrator or governmental body so as to
materially and adversely affect the transactions contemplated by this
Agreement; and
(vii) immediately prior to the transfer and assignment to the Trustee,
each Mortgage Note and each Mortgage were not subject to an assignment or
pledge, and the Depositor had good and marketable title to and was the sole
owner thereof and had full right to transfer and sell such Mortgage Loan to
the Trustee free and clear of any encumbrance, equity, lien, pledge,
charge, claim or security interest.
Section 2.07 Representations and Warranties Concerning the Master Servicer
and Securities Administrator. Xxxxx Fargo Bank, N.A., in its capacity as Master
Servicer and Securities Administrator hereby represents and warrants to the
Seller, the Depositor and the Trustee as follows, as of the Closing Date:
(i) It is a national banking association duly formed, validly existing
and in good standing under the laws of the United States of America and is
duly authorized and qualified to transact any and all business contemplated
by this Agreement to be conducted by the Master Servicer and the Securities
Administrator, to the extent necessary to ensure its ability to master
service the Mortgage Loans in accordance with the terms of this Agreement
and to perform any of its other obligations under this Agreement in
accordance with the terms hereof;
(ii) It has the full corporate power and authority to execute, deliver
and perform, and to enter into and consummate the transactions contemplated
by this Agreement and has duly authorized by all necessary corporate action
on its part the execution, delivery and performance of this Agreement; and
this Agreement, assuming the due authorization, execution and delivery
hereof by the other parties hereto, constitutes its legal, valid and
binding obligation, enforceable against it in accordance with its terms,
except that (a) the enforceability hereof may be limited by bankruptcy,
insolvency, moratorium, receivership and other similar laws relating to
creditors' rights generally and (b) the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to equitable
defenses and to the discretion of the court before which any proceeding
therefor may be brought.
(iii) The execution and delivery of this Agreement by it, the
consummation of any other of the transactions contemplated by this
Agreement, and the fulfillment of or
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compliance with the terms hereof are in its ordinary course of business and
will not (A) result in a material breach of any term or provision of its
charter or by-laws or (B) materially conflict with, result in a material
breach, violation or acceleration of, or result in a material default
under, the terms of any other material agreement or instrument to which it
is a party or by which it may be bound, or (C) constitute a material
violation of any statute, order or regulation applicable to it of any
court, regulatory body, administrative agency or governmental body having
jurisdiction over it; and it is not in breach or violation of any material
indenture or other material agreement or instrument, or in violation of any
statute, order or regulation of any court, regulatory body, administrative
agency or governmental body having jurisdiction over it which breach or
violation may materially impair its ability to perform or meet any of its
obligations under this Agreement.
(iv) No litigation is pending or, to the best of its knowledge,
threatened, against it that would materially and adversely affect the
execution, delivery or enforceability of this Agreement or its ability to
perform any of its other obligations under this Agreement in accordance
with the terms hereof.
(v) No consent, approval, authorization or order of any court or
governmental agency or body is required for its execution, delivery and
performance of, or compliance with, this Agreement or the consummation of
the transactions contemplated hereby, or if any such consent, approval,
authorization or order is required, it has obtained the same.
ARTICLE III
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 3.01 Master Servicer. The Master Servicer shall supervise, monitor
and oversee the obligation of the Servicers to service and administer their
respective Mortgage Loans in accordance with the terms of the applicable
Servicing Agreement and shall have full power and authority to do any and all
things which it may deem necessary or desirable in connection with such master
servicing and administration. In performing its obligations hereunder, the
Master Servicer shall act in a manner consistent with Accepted Master Servicing
Practices. Furthermore, the Master Servicer shall oversee and consult with each
Servicer as necessary from time-to-time to carry out the Master Servicer's
obligations hereunder, shall receive, review and evaluate all reports,
information and other data provided to the Master Servicer by each Servicer and
shall cause each Servicer to perform and observe the covenants, obligations and
conditions to be performed or observed by such Servicer under the applicable
Servicing Agreement. The Master Servicer shall independently and separately
monitor each Servicer's servicing activities with respect to each related
Mortgage Loan, reconcile the results of such monitoring with such information
provided in the previous sentence on a monthly basis and coordinate corrective
adjustments to the Servicers' and Master Servicer's records, and based on such
reconciled and corrected information, the Master Servicer shall provide such
information to the Securities Administrator as shall be necessary in order for
it to prepare the statements specified in Section 6.04, and prepare any other
information and statements required to be forwarded by the Master Servicer
hereunder. The Master Servicer shall reconcile the results of its monitoring
with the
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actual remittances of the Servicers to the Master Servicer Collection Account
pursuant to the applicable Servicing Agreements.
If the Master Servicer and the Securities Administrator are the same
entity, then at any time the Master Servicer is terminated as Master Servicer,
the Securities Administrator shall likewise be removed as securities
administrator.
The Trustee shall furnish the Servicers and the Master Servicer with any
limited powers of attorney and other documents in form acceptable to it
necessary or appropriate to enable the Servicers and the Master Servicer to
service and administer the related Mortgage Loans and REO Property. The Trustee
shall have no liability with respect to the use of any such limited power of
attorney.
The Trustee or the Custodian shall provide access to the records and
documentation in possession of the Trustee or the Custodian regarding the
related Mortgage Loans and REO Property and the servicing thereof to the
Certificateholders, the FDIC, and the supervisory agents and examiners of the
FDIC, such access being afforded only upon reasonable prior written request and
during normal business hours at the office of the Trustee or the Custodian;
provided, however, that, unless otherwise required by law, the Trustee or the
Custodian shall not be required to provide access to such records and
documentation if the provision thereof would violate the legal right to privacy
of any Mortgagor. The Trustee or the Custodian shall allow representatives of
the above entities to photocopy any of the records and documentation and shall
provide equipment for that purpose at a charge that covers the Trustee's or the
Custodian's actual costs.
The Trustee shall execute and deliver to the related Servicer and the
Master Servicer upon request any court pleadings, requests for trustee's sale or
other documents necessary or desirable to (i) the foreclosure or trustee's sale
with respect to a Mortgaged Property; (ii) any legal action brought to obtain
judgment against any Mortgagor on the Mortgage Note or Security Instrument;
(iii) obtain a deficiency judgment against the Mortgagor; or (iv) enforce any
other rights or remedies provided by the Mortgage Note or Security Instrument or
otherwise available at law or equity.
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Section 3.02 REMIC-Related Covenants. For as long as each REMIC shall
exist, the Trustee and the Securities Administrator shall act in accordance
herewith to assure continuing treatment of such REMIC as a REMIC, and the
Trustee and the Securities Administrator shall comply with any directions of the
Depositor, the related Servicer or the Master Servicer to assure such continuing
treatment. In particular, the Trustee shall not (a) sell or permit the sale of
all or any portion of the Mortgage Loans or of any investment of deposits in an
Account unless such sale is as a result of a repurchase of the Mortgage Loans
pursuant to this Agreement or the Trustee has received a REMIC Opinion prepared
at the expense of the Issuing Entity; and (b) other than with respect to a
substitution pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of
this Agreement, as applicable, accept any contribution to any REMIC after the
Startup Day without receipt of a REMIC Opinion.
Section 3.03 Monitoring of Servicers.
(a) The Master Servicer shall be responsible for reporting to the Trustee
and the Depositor the compliance by each Servicer with its duties under the
related Servicing Agreement. In the review of each Servicer's activities, the
Master Servicer may rely upon an officer's certificate of the Servicer with
regard to such Servicer's compliance with the terms of its Servicing Agreement.
In the event that the Master Servicer, in its judgment, determines that a
Servicer should be terminated in accordance with its Servicing Agreement, or
that a notice should be sent pursuant to such Servicing Agreement with respect
to the occurrence of an event that, unless cured, would constitute grounds for
such termination, the Master Servicer shall notify the Depositor and the Trustee
thereof and the Master Servicer shall issue such notice or take such other
action as it deems appropriate.
(b) 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, in the event that a Servicer fails to
perform its obligations in accordance with the related Servicing Agreement,
subject to the preceding paragraph, terminate the rights and obligations of such
Servicer thereunder and act as servicer of the related Mortgage Loans or, if the
Master Servicer is unwilling or unable to act as a Servicer, the Master Servicer
shall cause the Trustee to enter in to a new Servicing Agreement with a
successor Servicer selected by the Master Servicer that is eligible in
accordance with the criteria specified in this Agreement; provided, however, it
is understood and acknowledged by the parties hereto that there will be a period
of transition (not to exceed 90 days) before the actual servicing functions can
be fully transferred to such successor servicer. In either event, 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 subject to Section 3.03(c),
provided that the Master Servicer shall not be required to prosecute or defend
any legal action except to the extent that the Master Servicer shall have
received reasonable indemnity for its costs and expenses in pursuing such
action.
(c) To the extent that the costs and expenses of the Master Servicer
related to any termination of a Servicer, appointment of a successor Servicer or
the transfer and assumption of
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servicing by the Master Servicer with respect to any Servicing Agreement
(including, without limitation, (i) all legal costs and expenses and all due
diligence costs and expenses associated with an evaluation of the potential
termination of a Servicer as a result of an event of default by such Servicer
and (ii) all costs and expenses associated with the complete transfer of
servicing, including all servicing files and all servicing data and the
completion, correction or manipulation of such servicing data as may be required
by the successor servicer to correct any errors or insufficiencies in the
servicing data or otherwise to enable the successor service to service the
Mortgage Loans in accordance with the related Servicing Agreement) are not fully
and timely reimbursed by the terminated Servicer, the Master Servicer shall be
entitled to reimbursement of such costs and expenses from the Master Servicer
Collection Account pursuant to Section 4.03(b).
(d) The Master Servicer shall require each Servicer to comply with the
remittance requirements and other obligations set forth in the related Servicing
Agreement.
(e) If the Master Servicer acts as Servicer, it will not assume liability
for the representations and warranties of such Servicer, if any, that it
replaces.
Section 3.04 Fidelity Bond. The Master Servicer, at its expense, shall
maintain in effect a blanket fidelity bond and an errors and omissions insurance
policy, affording coverage with respect to all directors, officers, employees
and other Persons acting on such Master Servicer's behalf, and covering errors
and omissions in the performance of the Master Servicer's obligations hereunder.
The errors and omissions insurance policy and the fidelity bond shall be in such
form and amount generally acceptable for entities serving as master servicers or
trustees.
Section 3.05 Power to Act; Procedures. The Master Servicer shall master
service the Mortgage Loans and shall have full power and authority, subject to
the REMIC Provisions and the provisions of Article X hereof, to do any and all
things that it may deem necessary or desirable in connection with the master
servicing and administration of the Mortgage Loans, including but not limited to
the power and authority (i) to execute and deliver, on behalf of the
Certificateholders 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 related Servicing Agreement, as applicable; provided,
however, that the Master Servicer shall not (and, consistent with its
responsibilities under Section 3.03, shall not permit any Servicer to) knowingly
or intentionally take any action, or fail to take (or fail to cause to be taken)
any action reasonably within its control and the scope of duties more
specifically set forth herein, that, under the REMIC Provisions, if taken or not
taken, as the case may be, would cause any REMIC created hereunder to fail to
qualify as a REMIC or result in the imposition of a tax upon the Issuing Entity
(including but not limited to the tax on prohibited transactions as defined in
Section 860F(a)(2) of the Code and the tax on contributions to a REMIC set forth
in Section 860G(d) of the Code) unless the Master Servicer has received an
Opinion of Counsel (but not at the expense of the Master Servicer) to the effect
that the contemplated action will not would cause any REMIC created hereunder to
fail to qualify as a
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REMIC or result in the imposition of a tax upon any REMIC created hereunder. The
Trustee shall furnish the Master Servicer, upon written request from a Servicing
Officer, with any limited powers of attorney (in form acceptable to the Trustee)
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, to enable the Master
Servicer to master service and administer the Mortgage Loans and carry out its
duties hereunder, in each case in accordance with Accepted Master Servicing
Practices (and the Trustee shall have no liability for misuse of any such powers
of attorney by the Master Servicer or any Servicer). 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, the
Master Servicer shall join with the Trustee in the appointment of a co-trustee
pursuant to Section 9.11 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.
Section 3.06 Due-on-Sale Clauses; Assumption Agreements. To the extent
provided in the applicable Servicing Agreement, to the extent Mortgage Loans
contain enforceable due-on-sale clauses, the Master Servicer shall cause the
Servicers to enforce such clauses in accordance with the applicable Servicing
Agreement. If applicable law prohibits the enforcement of a due-on-sale clause
or such clause is otherwise not enforced in accordance with the applicable
Servicing Agreement, and, as a consequence, a Mortgage Loan is assumed, the
original Mortgagor may be released from liability in accordance with the
applicable Servicing Agreement.
Section 3.07 Release of Mortgage Files.
(a) Upon becoming aware of the payment in full of any Mortgage Loan, or the
receipt by any Servicer of a notification that payment in full has been escrowed
in a manner customary for such purposes for payment to Certificateholders on the
next Distribution Date, the Servicers or the Master Servicer will, if required
under the applicable Servicing Agreement, promptly furnish to the Custodian, on
behalf of the Trustee, two copies of a certification substantially in the form
of Exhibit D hereto signed by a Servicing Officer or in a mutually agreeable
electronic format which will, in lieu of a signature on its face, originate from
a Servicing Officer (which certification shall include a statement to the effect
that all amounts received in connection with such payment that are required to
be deposited in the Protected Account maintained by the applicable Servicer
pursuant to its Servicing Agreement have been or will be so deposited) and shall
request that the Custodian, on behalf of the Trustee, deliver to the applicable
Servicer the related Mortgage File. Upon receipt of such certification and
request, the Custodian, on behalf of the Trustee, shall promptly, but not later
than three (3) Business Days (or, to the extent that the applicable Servicer
notifies the Seller that a document is not in the Servicer's possession as part
of the servicing file which is needed for purposes of the Servicer complying
with any applicable law, within such
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shorter period as may be necessary to enable the Servicer to comply with such
law), release the related Mortgage File to the applicable Servicer and the
Trustee and Custodian shall have no further responsibility with regard to such
Mortgage File. Upon any such payment in full, each Servicer is authorized, to
give, as agent for the Trustee, as the mortgagee under the Mortgage that secured
the Mortgage Loan, an instrument of satisfaction (or assignment of mortgage
without recourse) regarding the Mortgaged Property subject to the Mortgage,
which instrument of satisfaction or assignment, as the case may be, shall be
delivered to the Person or Persons entitled thereto against receipt therefor of
such payment, it being understood and agreed that no expenses incurred in
connection with such instrument of satisfaction or assignment, as the case may
be, shall be chargeable to the Protected Account.
(b) From time to time and as appropriate for the servicing or foreclosure
of any Mortgage Loan and in accordance with the applicable Servicing Agreement,
the Trustee shall execute such documents as requested and as shall be prepared
and furnished to the Trustee by a Servicer or the Master Servicer and as are
necessary to the prosecution of any such proceedings. In connection with the
foregoing, the Custodian, on behalf of the Trustee, shall, upon the request of a
Servicer or the Master Servicer, and delivery to the Custodian, on behalf of the
Trustee, of two copies of a Request for Release signed by a Servicing Officer
substantially in the form of Exhibit D (or in a mutually agreeable electronic
format which will, in lieu of a signature on its face, originate from a
Servicing Officer), release the related Mortgage File held in its possession or
control to the related Servicer or the Master Servicer, as applicable. Such
trust receipt shall obligate the related Servicer or the Master Servicer to
return the Mortgage File to the Custodian on behalf of the Trustee, when the
need therefor by the Servicer or the Master Servicer no longer exists unless the
Mortgage Loan shall be liquidated, in which case, upon receipt of a certificate
of a Servicing Officer similar to that hereinabove specified, the Mortgage File
shall be released by the Custodian, on behalf of the Trustee, to the related
Servicer or the Master Servicer.
(c) The Servicer shall have no liability for, and shall be excused from,
any non-performance hereunder to the extent such non-performance is solely and
directly caused by the failure of the Custodian to release, in a manner
consistent with the terms of the Custodial Agreement, any Mortgage File, or the
Trustee to release or execute the documents as requested by the Servicer
pursuant to a Request for Release or a request for the execution of documents;
provided, that any such Request for Release or request for the execution of
documents must specify the Mortgage File so requested for release in sufficient
detail, and with sufficient accuracy, to allow the Custodian timely to perform
its obligations under the Custodial Agreement in connection with such Request
for Release or request for the execution of documents. The Custodian shall have
no liability for any costs incurred by the Servicer resulting from any failure
of the Custodian, in connection with any Request for Release or request for the
execution of documents, to deliver any Mortgage File in a manner consistent with
the terms of the Custodial Agreement to the extent such failure is the result of
inaccurate or insufficiently precise information provided to the Custodian in
such Request for Release or request for the execution of documents.
Section 3.08 Documents, Records and Funds in Possession of Master Servicer
To Be Held for Trustee.
(a) The Master Servicer shall transmit and each Servicer (to the extent
required by the related Servicing Agreement) shall transmit to the Trustee or
Custodian such documents and instruments coming into the possession of the
Master Servicer or such Servicer from time to time as are required by the terms
hereof, or in the case of the Servicers, the applicable Servicing Agreement, to
be delivered to the Trustee or Custodian. Any funds received by the Master
Servicer or by a Servicer in respect of any Mortgage Loan or which otherwise are
collected by the Master Servicer or by a Servicer as Liquidation Proceeds 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 Master Servicer Collection Account the Master
Servicing Compensation 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 (to the
extent provided in the applicable Servicing Agreement) shall cause each Servicer
to, provide access to information and documentation regarding the Mortgage Loans
to the Trustee, its agents and accountants at any time upon reasonable request
and during normal business hours, and to Certificateholders that are savings and
loan associations, banks or insurance companies, the Office of Thrift
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Supervision, the FDIC and the supervisory agents and examiners of such Office
and Corporation or examiners of any other federal or state banking or insurance
regulatory authority if so required by applicable regulations of the Office of
Thrift Supervision or other regulatory authority, such access to be afforded
without charge but only upon reasonable request in writing and during normal
business hours at the offices of the Master Servicer designated by it. In
fulfilling such a request, the Master Servicer shall not be responsible for
determining the sufficiency of such information.
(b) All Mortgage Files and funds collected or held by, or under the control
of, the Master Servicer, in respect of any Mortgage Loans, whether from the
collection of principal and interest payments or from Liquidation Proceeds or
Insurance Proceeds, shall be held by the Master 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.
Section 3.09 Standard Hazard Insurance and Flood Insurance Policies.
(a) For each Mortgage Loan, the Master Servicer shall enforce any
obligation of the Servicers under the related Servicing Agreements to maintain
or cause to be maintained standard fire and casualty insurance and, where
applicable, flood insurance, all in accordance with the provisions of the
related Servicing Agreements. It is understood and agreed that such insurance
shall be with insurers meeting the eligibility requirements set forth in the
applicable Servicing Agreement and that no earthquake or other additional
insurance is to be required of any Mortgagor or to be maintained on property
acquired in respect of a defaulted loan, other than pursuant to such applicable
laws and regulations as shall at any time be in force and as shall require such
additional insurance.
(b) Pursuant to Sections 4.01 and 4.02, any amounts collected by the
Servicers or the Master Servicer, under any insurance policies (other than
amounts to be applied to the restoration or repair of the property subject to
the related Mortgage or released to the Mortgagor in accordance with the
applicable Servicing Agreement) shall be deposited into the Master Servicer
Collection Account, subject to withdrawal pursuant to Sections 4.02 and 4.03 in
accordance with the terms and conditions of the related Servicing Agreement. Any
cost incurred by the Master Servicer or any Servicer in maintaining any such
insurance if the Mortgagor defaults in its obligation to do so shall be added to
the amount owing under the Mortgage Loan where the terms of the Mortgage Loan so
permit; provided, however, that the addition of any such cost shall not be taken
into account for purposes of calculating the distributions to be made to
Certificateholders and shall be recoverable by the Master Servicer or such
Servicer pursuant to Sections 4.02 and 4.03.
Section 3.10 Presentment of Claims and Collection of Proceeds. The Master
Servicer shall (to the extent provided in the applicable Servicing Agreement)
cause the related Servicer to, prepare and present on behalf of the Trustee and
the Certificateholders all claims under the Insurance Policies and take such
actions (including the negotiation, settlement, compromise or
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enforcement of the insured's claim) as shall be necessary to realize recovery
under such policies. Any proceeds disbursed to the Master Servicer (or disbursed
to a Servicer and remitted to the Master Servicer) in respect of such policies,
bonds or contracts shall be promptly deposited in the Master Servicer Collection
Account upon receipt, except that any amounts realized that are to be applied to
the repair or restoration of the related Mortgaged Property as a condition
precedent to the presentation of claims on the related Mortgage Loan to the
insurer under any applicable Insurance Policy need not be so deposited (or
remitted).
Section 3.11 Maintenance of the Primary Mortgage Insurance Policies.
(a) The Master Servicer shall not take, or permit any Servicer (to the
extent such action is prohibited under the applicable Servicing Agreement) to
take, any action that would result in noncoverage 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. The Master Servicer
shall use its best reasonable efforts to cause each Servicer (to the extent
required under the related Servicing Agreement) 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 the extent required under the related Servicing Agreement) 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 Mortgage Note and is required
to be kept in force hereunder except 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
the extent required under the related Servicing Agreement) 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
and 4.02, any amounts collected by the Master Servicer or any Servicer under any
Primary Mortgage Insurance Policies shall be deposited in the Master Servicer
Collection Account, subject to withdrawal pursuant to Section 4.03.
Section 3.12 Trustee to Retain Possession of Certain Insurance Policies and
Documents. The Trustee or the Custodian shall retain possession and custody of
the originals (to the extent available) of any 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 its Custodian
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
Custodian upon the execution or receipt thereof the originals of any Primary
Mortgage Insurance Policies, any certificates of renewal, and such other
documents or instruments that constitute
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portions of the Mortgage File that come into the possession of the Master
Servicer from time to time.
Section 3.13 Realization Upon Defaulted Mortgage Loans. The Master Servicer
shall cause each Servicer (to the extent required under the related Servicing
Agreement) to foreclose upon, repossess or otherwise comparably convert the
ownership of Mortgaged Properties securing such of the Mortgage Loans as come
into and continue in default and as to which no satisfactory arrangements can be
made for collection of delinquent payments, all in accordance with the terms and
conditions of the applicable Servicing Agreement.
Section 3.14 Compensation for the Master Servicer. The Master Servicer will
be entitled to all income and gain realized from any investment of funds in the
Master Servicer Collection Account, pursuant to Article IV, for the performance
of its activities hereunder. Servicing compensation in the form of assumption
fees, if any, late payment charges, as collected, if any, or otherwise (but not
including any Prepayment Charge) shall be retained by the applicable Servicer
and shall not be deposited in the Protected 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.
Section 3.15 REO Property.
(a) In the event the Issuing Entity acquires ownership of any REO Property
in respect of any related Mortgage Loan, the deed or certificate of sale shall
be issued to the Trustee, or to its nominee, on behalf of the related
Certificateholders. The Master Servicer shall, to the extent provided in the
applicable Servicing Agreement, cause the applicable Servicer to sell, any REO
Property as expeditiously as possible and in accordance with the provisions of
this Agreement and the related Servicing Agreement, as applicable. Pursuant to
its efforts to sell such REO Property, the Master Servicer shall cause the
applicable Servicer to protect and conserve, such REO Property in the manner and
to the extent required by the applicable Servicing Agreement, in accordance with
the REMIC Provisions and in a manner that does not result in a tax on "net
income from foreclosure property" or cause such REO Property to fail to qualify
as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code.
(b) The Master Servicer shall, to the extent required by the related
Servicing Agreement, cause the applicable Servicer to deposit all funds
collected and received in connection with the operation of any REO Property in
the Protected 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 Monthly Advances and other unreimbursed advances as well as
any unpaid Servicing Fees from Liquidation Proceeds received in connection with
the final disposition of such REO Property; provided, that any such unreimbursed
Monthly Advances as well as any unpaid Servicing Fees may be reimbursed or paid,
as the case may be, prior to final disposition, out of any net rental income or
other net amounts derived from such REO Property.
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(d) To the extent provided in the related Servicing Agreement, the
Liquidation Proceeds from the final disposition of the REO Property, net of any
payment to the Master Servicer and the applicable Servicer as provided above
shall be deposited in the Protected 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 Master Servicer for deposit into the related
Master Servicer Collection Account on the next succeeding Servicer Remittance
Date.
Section 3.16 Annual Statement as to Compliance.
Not later than March 1 of each calendar year (other than the calendar year
during which the Closing Date occurs), each Servicer shall deliver (or otherwise
make available) and each Servicer shall cause any Servicing Function Participant
engaged by it to deliver to the Master Servicer, the Securities Administrator
and the Depositor, an Officer's Certificate in the form attached hereto as
Exhibit P stating, as to each signatory thereof, that (i) a review of the
activities of such signatory during the preceding calendar year, or portion
thereof, and of the performance of such signatory under the related Servicing
Agreement or such other applicable agreement in the case of a Servicing Function
Participant has been made under such officer's supervision, and (ii) to the best
of such officer's knowledge, based on such review, such signatory has fulfilled
all its obligations under this Agreement, the related Servicing Agreement or
such other applicable agreement in all material respects throughout such year or
a 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.
The Master Servicer and the Securities Administrator shall deliver (or
otherwise make available) (and the Trustee, the Master Servicer and Securities
Administrator shall cause any Servicing Function Participant engaged by it to
deliver) to the Depositor and the Securities Administrator on or before March 1
(with a ten-calendar day cure period) of each year, commencing in March 2008, an
Officer's Certificate stating, as to the signer thereof, that (A) a review of
such party's activities during the preceding calendar year or portion thereof
and of such party's performance under this Agreement, or such other applicable
agreement in the case of a Servicing Function Participant, has been made under
such officer's supervision and (B) to the best of such officer's knowledge,
based on such review, such party has fulfilled all its obligations under this
Agreement, or such other applicable agreement in the case of a Servicing
Function Participant, in all material respects throughout such year or portion
thereof, or, if there has been a failure to fulfill any such obligation in any
material respect, specifying each such failure known to such officer and the
nature and status thereof.
The Master Servicer shall include all annual statements of compliance
received by it from each Servicer with its own annual statement of compliance to
be submitted to the Securities Administrator pursuant to this Section. For the
avoidance of doubt, the Master Servicer and the Securities Administrator may
satisfy the requirements of this Section 3.16 by each delivering a single annual
statement of compliance containing all of the information required pursuant to
this Section 3.16.
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In the event the Master Servicer, the Securities Administrator or any
Servicing Function Participant engaged by any such party or the Trustee is
terminated, assigns its rights and obligations under or resigns pursuant to the
terms of this Agreement, or such other applicable agreement in the case of a
Servicing Function Participant, as the case may be, such party shall provide, an
annual statement of compliance pursuant to this Section 3.16 or to such
applicable agreement, as the case may be, notwithstanding any such termination,
assignment or resignation.
Section 3.17 Reports on Assessment of Compliance and Attestation.
(a) Not later than March 1 of each calendar year (other than the calendar
year during which the Closing Date occurs) each Servicer at its own expense,
shall furnish, and shall cause any Servicing Function Participant engaged by it
to furnish (unless in the case of a Subcontractor, such Servicer has notified
the Depositor and the Master Servicer in writing that such compliance statement
is not required for the Subcontractor) to the Master Servicer, the Securities
Administrator and the Depositor an officer's assessment of its compliance with
the Relevant Servicing Criteria during the preceding calendar year as required
by Rules 13a-18 and 15d-18 of the Exchange Act and Item 1122 of Regulation AB
(the "Assessment of Compliance"), which assessment shall contain (A) a statement
by such party of its responsibility for assessing compliance with the Relevant
Servicing Criteria, (B) a statement that such party used the Relevant Servicing
Criteria to assess compliance with the Relevant Servicing Criteria, (C) such
party's assessment of compliance with the Relevant Servicing Criteria as of and
for the fiscal year covered by the Form 10-K required to be filed pursuant to
Section 3.18, 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, which assessment shall be based on
the activities it performs with respect to asset-backed securities transactions
taken as a whole involving such party that are backed by the same asset type as
the Mortgage Loans, 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.
By March 1 (with a ten-calendar day cure period) of each year, commencing
in March 2008, the Master Servicer, the Securities Administrator and the
Custodian each at its own expense, shall furnish or otherwise make available,
and each such party and the Trustee shall cause any Servicing Function
Participant engaged by it to furnish, each at its own expense, to the Securities
Administrator and the Depositor, a report on an assessment of compliance with
the Relevant Servicing Criteria that contains (A) a statement by such party of
its responsibility for assessing compliance with the Relevant Servicing
Criteria, (B) a statement that such party used the Relevant Servicing Criteria
to assess compliance with the Relevant Servicing Criteria, (C) such party's
assessment of compliance with the Relevant Servicing Criteria as of and for the
fiscal year covered by the Form 10-K required to be filed pursuant to Sections
3.18(h), (i), (j) and (k), including, if there has been any material instance of
noncompliance with the Relevant Servicing Criteria, a discussion of each such
failure and the nature and status thereof, and (D) a statement that a registered
public accounting firm has issued an attestation report on such party's
assessment of compliance with the Relevant Servicing Criteria as of and for such
period.
No later than the end of each fiscal year for the Issuing Entity for which
a 10-K is required to be filed, the Master Servicer, the Custodian and the
Trustee shall each forward to the
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Securities Administrator and the Depositor the name of each Servicing Function
Participant engaged by it and what Relevant Servicing Criteria will be addressed
in the report on assessment of compliance prepared by such Servicing Function
Participant (provided, however, that the Master Servicer need not provide such
information to the Securities Administrator so long as the Master Servicer and
the Securities Administrator are the same Person). When the Master Servicer, and
the Securities Administrator (or any Servicing Function Participant engaged by
them or the Trustee) submit their assessments to the Securities Administrator,
such parties will also at such time include the assessment and attestation
pursuant to this Section 3.17 of each Servicing Function Participant engaged by
it.
Promptly after receipt of each report on assessment of compliance, (i) the
Depositor shall review each such report and, if applicable, consult with such
Servicer, the Master Servicer, the Securities Administrator and any Servicing
Function Participant engaged by any such party as to the nature of any material
instance of noncompliance with the Relevant Servicing Criteria by such Servicer
by each such party, and (ii) the Securities Administrator shall confirm that the
assessments individually address the Relevant Servicing Criteria for each party
as set forth on Exhibit K or any similar exhibit set forth in each Servicing
Agreement in respect of each Servicer and notify the Depositor of any
exceptions.
The Master Servicer shall include all annual reports on assessment of
compliance received by it from the Servicers with its own assessment of
compliance to be submitted to the Securities Administrator pursuant to this
Section. For the avoidance of doubt, the Master Servicer and the Securities
Administrator may satisfy the requirements of this Section 3.17 relating to
reports on assessment of compliance by each delivering a single annual report on
assessment of compliance containing all of the information required pursuant to
this Section 3.17.
In the event the Master Servicer, the Securities Administrator or any
Servicing Function Participant engaged by any such party or the Trustee is
terminated, assigns its rights and obligations under or resigns pursuant to the
terms of this Agreement, or any other applicable agreement, as the case may be,
such party shall provide, an assessment of compliance pursuant to this Section
3.17, coupled with an attestation as required in this Section 3.17, or such
applicable agreement notwithstanding any such termination, assignment or
resignation.
(b) Not later than March 1 of each calendar year (other than the calendar
year during which the Closing Date occurs) each Servicer at its own expense,
shall cause, and shall cause any Servicing Function Participant engaged by it to
cause (unless in the case of a Subcontractor, such Servicer has notified the
Depositor and the Master Servicer in writing that such report is not required
for the Subcontractor) a nationally or regionally recognized firm of independent
registered public accountants (who may also render other services to such
Servicer, the Master Servicer or any affiliate thereof) which is a member of the
American Institute of Certified Public Accountants to furnish a report (the
"Accountant's Attestation") to the Master Servicer, the Securities Administrator
and the Depositor to the effect that (i) 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
(ii) on the basis of an examination conducted by such firm in accordance with
standards for attestation engagements
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issued or adopted by the Public Company Accounting Oversight Board, it is
expressing an opinion as to whether such party's compliance with the Relevant
Servicing Criteria was fairly stated in all material respects, or it cannot
express an overall opinion regarding such party's assessment of compliance with
the Relevant Servicing Criteria. In the event that an overall opinion cannot be
expressed, such registered public accounting firm shall state in such report why
it was unable to express such an opinion. Such report must be available for
general use and not contain restricted use language. Such Accountant's
Attestation shall be in accordance with Rules 1-02(a)(3) and 2-02(g) of
Regulation S-X under the Securities Act and the Exchange Act.
By March 1 (with a ten-calendar day cure period) of each year, commencing
in March 2008, the Master Servicer, the Securities Administrator and the
Custodian, each at its own expense, shall cause, and each such party and the
Trustee shall cause any Servicing Function Participant engaged by it to cause,
each at its own expense, a registered public accounting firm (which may also
render other services to the Master Servicer, the Trustee, the Securities
Administrator, or such other Servicing Function Participants, as the case may
be) and that is a member of the American Institute of Certified Public
Accountants to furnish an attestation report to the Securities Administrator and
the Depositor, to the effect that (i) 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 (ii) on
the basis of an examination conducted by such firm in accordance with standards
for attestation engagements issued or adopted by the Public Company Accounting
Oversight Board, it is expressing an opinion as to whether such party's
compliance with the Relevant Servicing Criteria was fairly stated in all
material respects, or it cannot express an overall opinion regarding such
party's assessment of compliance with the Relevant Servicing Criteria. In the
event that an overall opinion cannot be expressed, such registered public
accounting firm shall state in such report why it was unable to express such an
opinion. Such report must be available for general use and not contain
restricted use language.
(c) Promptly after receipt of each assessment of compliance and attestation
report, the Securities Administrator shall confirm that each assessment
submitted pursuant to Section 3.17(a) is coupled with an attestation meeting the
requirements of Section 3.17(b) and notify the Depositor of any exceptions.
The Master Servicer shall include each such attestation furnished to it by
the Servicers with its own attestation to be submitted to the Securities
Administrator pursuant to this Section. For the avoidance of doubt, the Master
Servicer and the Securities Administrator may satisfy the requirements of this
Section 3.17 relating to attestations by each delivering a single attestation
containing all of the information required pursuant to this Section 3.17.
In the event the Master Servicer, the Securities Administrator, the
Custodian, any Servicer or any Servicing Function Participant engaged by any
such party, is terminated, assigns its rights and duties under, or resigns
pursuant to the terms of, this Agreement, or any applicable Custodial Agreement,
Servicing Agreement or sub-servicing agreement, as the case may be, such party
shall cause a registered public accounting firm to provide an attestation
pursuant to this Section 3.17, or such other applicable agreement,
notwithstanding any such termination, assignment or resignation.
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Section 3.18 Periodic Filings.
(a) Within four (4) Business Days after the occurrence of an event
requiring disclosure on Form 8-K (each such event, a "Reportable Event"), and if
requested by the Depositor, the Securities Administrator shall prepare and file
on behalf of the Issuing Entity a Form 8-K, as required by the Exchange Act,
provided that the Depositor shall file the initial Form 8-K in connection with
the issuance of the Certificates. Any disclosure or information related to a
Reportable Event or that is otherwise required to be included on Form 8-K (other
than the initial Form 8-K) ("Form 8-K Disclosure Information") shall be reported
by the parties set forth on Exhibit Q-3 to the Depositor and the Securities
Administrator and directed and approved by the Depositor, and the Securities
Administrator will have no duty or liability for any failure hereunder to
determine or prepare any Form 8-K Disclosure Information or any Form 8-K except
as set forth in the next paragraph.
(b) For so long as the Issuing Entity is subject to the reporting
requirements of the Exchange Act, following the occurrence of a Reportable Event
(A) each party listed on Exhibit Q-3 hereto shall use commercially reasonable
best efforts to provide immediate notice to the Master Servicer, the Securities
Administrator and the Depositor, by fax and by phone or by e-mail and by phone,
(B) each such party shall be required to provide to the Securities Administrator
and the Depositor, to the extent known, in XXXXX-compatible format or in such
other format as agreed upon by the Securities Administrator and such party, the
form and substance of any Form 8-K Disclosure Information if applicable,
together with the form set forth on Exhibit O (the "Additional Disclosure
Notification") by the close of business New York City time on the 2nd Business
Day following the occurrence of such Reportable Event and (C) the Depositor,
shall approve, as to form and substance, or disapprove, as the case may be, the
inclusion of the Form 8-K Disclosure Information on Form 8-K. The Securities
Administrator has no duty under this Agreement to monitor or enforce the
performance by the parties listed on Exhibit Q-3 of their duties under this
paragraph or proactively solicit or procure from such parties any Form 8-K
Disclosure Information. The Depositor will be responsible for any reasonable
fees and expenses assessed or incurred by the Securities Administrator in
connection with including any Form 8-K Disclosure Information on Form 8-K
pursuant to this paragraph.
(c) After preparing the Form 8-K, the Securities Administrator shall, upon
request, forward electronically a copy of the Form 8-K to the Depositor.
Promptly, but no later than the close of business on the third Business Day
after the Reportable Event, the Depositor shall notify the Securities
Administrator in writing (which may be furnished electronically) of any changes
to or approval of such Form 8-K. In the absence of receipt of any written
changes or approval, or if the Depositor does not request a copy of a Form 8-K,
the Securities Administrator shall be entitled to assume that such Form 8-K is
in final form and the Securities Administrator may proceed with the process for
execution and filing of the Form 8-K. A duly authorized representative of the
Master Servicer shall sign each Form 8-K. If a Form 8-K cannot be filed on time
or if a previously filed Form 8-K needs to be amended, the Securities
Administrator will follow the procedures set forth in Section 3.18(n).
(d) Promptly (but no later than one Business Day) after filing with the
Commission, the Securities Administrator will make available on its internet
website a final executed copy of
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each Form 8-K prepared and filed by the Securities Administrator. The parties to
this Agreement acknowledge that the performance by the Master Servicer and the
Securities Administrator of its duties under this Section 3.18 related to the
timely preparation, execution and filing of Form 8-K is contingent upon the
other parties hereto strictly observing all applicable deadlines in the
performance of their duties under this Section 3.18. The Depositor acknowledges
that the performance by the Master Servicer and the Securities Administrator of
its duties under this Section 3.18 related to the timely preparation, execution
and filing of Form 8-K is also contingent upon the Servicers, the Custodian and
any Servicing Function Participant strictly observing deadlines no later than
those set forth in this paragraph that are applicable to the parties to this
Agreement in the delivery to the Securities Administrator of any necessary Form
8-K Disclosure Information pursuant to the related Servicing Agreements, the
Custodial Agreement or any other applicable agreement. Neither the Master
Servicer nor the Securities Administrator shall have any liability for any loss,
expense, damage or claim arising out of or with respect to any failure to
properly prepare, execute and/or timely file such Form 8-K, where such failure
results from the Securities Administrator's inability or failure to obtain or
receive, on a timely basis, any information from any other party hereto or any
Servicer, Custodian or Servicing Function Participant needed to prepare, arrange
for execution or file such Form 8-K.
(e) Within fifteen (15) days after each Distribution Date (subject to
permitted extensions under the Exchange Act), the Securities Administrator
shall, on behalf of the Issuing Entity and in accordance with industry
standards, prepare and file with the Commission via the Electronic Data
Gathering and Retrieval System (XXXXX), a Form 10-D with a copy of the Monthly
Statement for such Distribution Date as an exhibit thereto. Any disclosure in
addition to the Monthly Statement that is required to be included on Form 10-D
("Additional Form 10-D Disclosure") shall be reported by the parties set forth
on Exhibit Q-1 to the Depositor and the Securities Administrator and directed
and approved by the Depositor pursuant to the following paragraph, and the
Securities Administrator will have no duty or liability for any failure
hereunder to determine or prepare any Additional Form 10-D Disclosure except as
set forth in the next paragraph.
(f) As set forth in Exhibit Q-1 hereto, for so long as the Issuing Entity
is subject to the reporting requirements of the Exchange Act, within five (5)
calendar days after the related Distribution Date (i) each party listed on
Exhibit Q-1 hereto shall be required to provide to the Depositor and the
Securities Administrator, to the extent known, in XXXXX-compatible format or in
such other format as agreed upon by the Securities Administrator and such party,
the form and substance of any Additional Form 10-D Disclosure if applicable
together with an Additional Disclosure Notification, and (ii) the Depositor will
approve, as to form and substance, or disapprove, as the case may be, the
inclusion of the Additional Form 10-D Disclosure on Form 10-D. The Securities
Administrator has no duty under this Agreement to monitor or enforce the
performance by the parties listed on Exhibit Q-1 of their duties under this
paragraph or proactively solicit or procure from such parties any Additional
Form 10-D Disclosure Information. The Depositor will be responsible for any
reasonable fees and expenses incurred by the Securities Administrator in
connection with including any Additional Form 10-D Disclosure on Form 10-D
pursuant to this paragraph.
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(g) After preparing the Form 10-D, the Securities Administrator shall, upon
request, forward electronically a copy of the Form 10-D to the Depositor
(provided that such Form 10-D includes any Additional Form 10-D Disclosure).
Within two Business Days after receipt of such copy, but no later than the 12th
calendar day after the Distribution Date, the Depositor shall notify the
Securities Administrator in writing (which may be furnished electronically) of
any changes to or approval of such Form 10-D. In the absence of receipt of any
written changes or approval, or if the Depositor does not request a copy of a
Form 10-D, the Securities Administrator shall be entitled to assume that such
Form 10-D is in final form and the Securities Administrator may proceed with the
process for execution and filing of the Form 10-D. A duly authorized
representative of the Master Servicer shall sign each Form 10-D. If a Form 10-D
cannot be filed on time or if a previously filed Form 10-D needs to be amended,
the Securities Administrator will follow the procedures set forth in Section
3.18(n). Promptly (but not later than one Business Day) after filing with the
Commission, the Securities Administrator will make available on its internet
website a final executed copy of each Form 10-D prepared and filed by the
Securities Administrator. 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." The
Depositor hereby represents to the Securities Administrator that the Depositor
has filed all such required reports during the preceding 12 months and that it
has been subject to such filing requirement for the past 90 days. The Depositor
shall notify the Securities Administrator in writing, no later than the fifth
calendar day after the related Distribution Date with respect to the filing of a
report on Form 10-D, if the answer to the questions should be "no." The
Securities Administrator shall be entitled to rely on such representations in
preparing, executing and/or filing any such Form 10-D. The parties to this
Agreement acknowledge that the performance by the Master Servicer and the
Securities Administrator of its respective duties under this Section 3.18
related to the timely preparation, execution and filing of Form 10-D is
contingent upon the other parties hereto strictly observing all applicable
deadlines in the performance of their duties under this Section 3.18. The
Depositor acknowledges that the performance by the Master Servicer and the
Securities Administrator of its duties under this Section 3.18 related to the
timely preparation, execution and filing of Form 10-D is also contingent upon
the Servicers, the Custodian and any Servicing Function Participant strictly
observing deadlines no later than those set forth in this paragraph that are
applicable to the parties to this Agreement in the delivery to the Securities
Administrator of any necessary Additional Form 10-D Disclosure pursuant to the
related Servicing Agreements, the Custodial Agreement or any other applicable
agreement. Neither the Master Servicer nor the Securities Administrator will
have any liability for any loss, expense, damage or claim arising out of or with
respect to any failure to properly prepare, execute and/or timely file such Form
10-D resulting from the Securities Administrator's inability or failure to
obtain or receive any information needed to prepare, arrange for execution or
file such Form 10-D on a timely basis.
(h) On or prior to the 90th calendar day after the end of the fiscal year
for the Issuing Entity 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 Issuing Entity ends on December 31st of each year) commencing in March 2008,
the Securities Administrator shall, on behalf of the Issuing Entity and in
accordance with industry standards, prepare and file with the Commission via
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XXXXX a Form 10-K with respect to the Issuing Entity. Such Form 10-K shall
include the following items, in each case, as applicable, to the extent they
have been delivered to the Securities Administrator within the applicable time
frames set forth in this Agreement, the related Servicing Agreements and
Custodial Agreement: (i) an annual compliance statement for the Master Servicer,
each Servicer, the Securities Administrator and any Servicing Function
Participant engaged by any such party or the Trustee (together with the
Custodian, each a "Reporting Servicer"), as described in Section 3.16 of this
Agreement, the related Servicing Agreement and the Custodial Agreement;
provided, however, that the Securities Administrator, at its discretion, may
omit from the Form 10-K any annual compliance statement that is not required to
be filed with such Form 10-K pursuant to Regulation AB; (ii)(A) the annual
reports on assessment of compliance with Servicing Criteria for each Reporting
Servicer (unless the Depositor has determined that such compliance statement is
not required by Regulation AB), as described in Section 3.17 of this Agreement,
the related Servicing Agreement and the Custodial Agreement, and (B) if any
Reporting Servicer's report on assessment of compliance with Servicing Criteria
described in Section 3.17 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
in Section 3.17 of this 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; provided, however, that the Securities Administrator, at
its discretion, may omit from the Form 10-K any assessment of compliance or
attestation report described in clause (iii) below that is not required to be
filed with such Form 10-K pursuant to Regulation AB; (iii)(A) the registered
public accounting firm attestation report for each Reporting Servicer, as
described in Section 3.17 of this Agreement, the related Servicing Agreement and
the Custodial Agreement, and (B) if any registered public accounting firm
attestation report described under Section 3.17 of this 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
(iv) a Xxxxxxxx-Xxxxx Certification in the form attached hereto as Exhibit L,
executed by the senior officer in charge of securitizations of the Master
Servicer. Any disclosure or information in addition to (i) through (iv) above
that is required to be included on Form 10-K ("Additional Form 10-K Disclosure")
shall be reported by the parties as set forth in Exhibit Q-2 to the Depositor
and the Securities Administrator and directed and approved by the Depositor
pursuant to the following paragraph and the Securities Administrator will have
no duty or liability for any failure hereunder to determine or prepare any
Additional Form 10-K Disclosure except or set forth in the next paragraph.
(i) As set forth in Exhibit Q-2 hereto, no later than March 1 (with a ten
calendar day cure period) of each year that the Issuing Entity is subject to the
Exchange Act reporting requirements, commencing in March 2008, (i) the parties
listed on Exhibit Q-2 hereto shall be required to provide to the Depositor and
the Securities Administrator, to the extent known, in XXXXX-compatible format or
in such other format as agreed upon by the Securities Administrator and such
party, the form and substance of any Additional Form 10-K Disclosure, if
applicable together with an Additional Disclosure Notification, and (ii) the
Depositor will approve, as to form and substance, or disapprove, as the case may
be, the inclusion of the Additional Form 10-K Disclosure and shall forward such
Additional Form 10-K Disclosure. The
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Securities Administrator has no duty under this Agreement to monitor or enforce
the performance by the parties listed on Exhibit Q-2 of their duties under this
paragraph or proactively solicit or procure from such parties any Additional
Form 10-K Disclosure Information. The Depositor will be responsible for any
reasonable fees and expenses incurred by the Securities Administrator in
connection with including any Additional Form 10-K Disclosure on Form 10-K
pursuant to this paragraph.
(j) After preparing the Form 10-K, the Securities Administrator shall, upon
request, forward electronically a copy of the Form 10-K to the Depositor. Within
three Business Days after receipt of such copy, but no later than March 25th,
the Depositor shall notify the Securities Administrator in writing (which may be
furnished electronically) of any changes to or approval of such Form 10-K. In
the absence of receipt of any written changes or approval, or if the Depositor
does not request a copy of a Form 10-K, the Securities Administrator shall be
entitled to assume that such Form 10-K is in final form and the Securities
Administrator may proceed with the process for execution and filing of the Form
10-K. A senior officer of the Master Servicer in charge of the master servicing
function shall sign the Form 10-K. If a Form 10-K cannot be filed on time or if
a previously filed Form 10-K needs to be amended, the Securities Administrator
will follow the procedures set forth in Section 3.18(n). Promptly (but no later
than one Business Day) after filing with the Commission, the Securities
Administrator will make available on its internet website a final executed copy
of each Form 10-K prepared and filed by the Securities Administrator. Form 10-K
requires the registrant to indicate (by checking "yes" or "no") that it "(1) has
filed all reports required to be filed by Section 13 or 15(d) of the Exchange
Act during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days." The Depositor hereby represents to
the Securities Administrator that the Depositor has filed all such required
reports during the preceding 12 months and that it has been subject to such
filing requirement for the past 90 days. The Depositor shall notify the
Securities Administrator in writing, no later than the 15th calendar day of
March in any year in which the Trust is subject to the reporting requirements of
the Exchange Act, if the answer to the questions should be "no." The Securities
Administrator shall be entitled to rely on such representations in preparing,
executing and/or filing any such Form 10-D. The parties to this Agreement
acknowledge that the performance by the Master Servicer and the Securities
Administrator of its duties under this Section 3.18 related to the timely
preparation, execution and filing of Form 10-K is contingent upon such parties
(and any Servicing Function Participant) strictly observing all applicable
deadlines in the performance of their duties under this Section 3.18, Section
3.16 and Section 3.17. The Depositor acknowledges that the performance by the
Master Servicer and the Securities Administrator of its duties under this
Section 3.18 related to the timely preparation, execution and filing of Form
10-K is also contingent upon the Servicers, the Custodian and any Servicing
Function Participant strictly observing deadlines no later than those set forth
in this paragraph that are applicable to the parties to this Agreement in the
delivery to the Securities Administrator of any necessary Additional Form 10-K
Disclosure, any annual statement of compliance and any assessment of compliance
and attestation pursuant to the related Servicing Agreement, the Custodial
Agreement or any other applicable agreement. Neither the Master Servicer nor the
Securities Administrator shall have any liability for any loss, expense, damage
or claim arising out of or with respect to any failure to properly prepare,
execute and/or timely file such Form 10-K resulting from the Securities
Administrator's inability or failure to obtain or
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receive any information from any other party hereto or any Servicer, Custodian
or Servicing Function Participant needed to prepare, execute or file such Form
10-K.
(k) Each Form 10-K shall include a Xxxxxxxx-Xxxxx Certification, which
shall be in the form attached hereto as Exhibit L. Each Servicer shall sign and
provide, and each of the Servicers, the Master Servicer and the Securities
Administrator shall cause any Servicing Function Participant engaged by it to
sign and provide, to the person who signs the Xxxxxxxx-Xxxxx Certification (the
"Certifying Person") by March 1 (with a ten day cure period) of each year in
which the Issuing Entity is subject to the reporting requirements of the
Exchange Act and otherwise within a reasonable period of time upon request, a
certification (a "Back-Up Certification") (in the form attached hereto as
Exhibit M) 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, the "Certification Parties") can
reasonably rely. The senior officer of the Master Servicer in charge of the
master servicing function shall serve as the Certifying Person on behalf of the
Issuing Entity. Such officer of the Certifying Person can be contacted by e-mail
at xxx.xxx.xxxxxxxxxxxxx@xxxxxxxxxx.xxx or by facsimile at 000-000-0000. In the
event any such party or Servicing Function Participant engaged by any such party
is terminated or resigns pursuant to the terms of this Agreement, or any other
applicable agreement, as the case may be, such party shall provide a Back-Up
Certification to the Master Servicer pursuant to this Section 3.18 with respect
to the period of time it was subject to this Agreement or any other applicable
agreement, as the case may be. Notwithstanding the foregoing, (i) the Master
Servicer and the Securities Administrator shall not be required to deliver a
Back-Up Certification to each other if both are the same Person and the Master
Servicer is the Certifying Person and (ii) the Master Servicer shall not be
obligated to sign the Xxxxxxxx-Xxxxx Certification in the event that it does not
receive any Back-Up Certification required to be furnished to it pursuant to
this section or any Servicing Agreement or Custodial Agreement.
(l) The Securities Administrator shall have no responsibility to file any
items with the Commission other than those specified in this section and the
Master Servicer shall execute any and all Form 10-Ds, 8-Ks and 10-Ks required
hereunder.
(m) On or prior to January 30 of the first year in which the Securities
Administrator is able to do so under applicable law, the Securities
Administrator shall prepare and file a Form 15 Suspension Notification relating
to the automatic suspension of reporting in respect of the Issuing Entity under
the Exchange Act.
(n) In the event that the Securities Administrator is unable to timely file
with the Commission all or any required portion of any Form 8-K, 10-D or 10-K
required to be filed by this Agreement because required disclosure information
was either not delivered to it or delivered to it after the delivery deadlines
set forth in this Agreement or for any other reason, the Securities
Administrator will promptly notify electronically the Depositor of such
inability to make a timely filing with the Commission. In the case of Form 10-D
and 10-K, the parties to this Agreement will cooperate to prepare and file a
Form 12b-25 and a 10-D/A and 10K/A, as applicable, pursuant to Rule 12b-25 of
the Exchange Act. In the case of Form 8-K, the Securities Administrator will,
upon receipt of all required Form 8-K Disclosure Information and upon the
approval and direction of the Depositor, include such disclosure information on
the next
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succeeding Form 10-D to be filed for the Issuing Entity. In the event that any
previously filed Form 8-K, 10-D or 10-K needs to be amended, in connection with
any Additional Form 10-D Disclosure (other than, in the case of Form 10-D, for
the purpose of restating any Monthly Statement), Additional Form 10-K Disclosure
or Form 8-K Disclosure Information, the Securities Administrator will
electronically notify the Depositor and such other parties to the transaction as
are affected by such amendment, and such parties will cooperate to prepare any
necessary 8-K/A, 10-D/A or 10-K/A. Any Form 15, Form 12b-25 or any amendment to
Form 8-K, 10-D or 10-K shall be signed by duly authorized representative or a
senior officer in charge of master servicing, as applicable, of the Master
Servicer. The parties to this Agreement acknowledge that the performance by the
Master Servicer of its duties under this Section 3.18 related to the timely
preparation, execution and filing of Form 15, a Form 12b-25 or any amendment to
Form 8-K, 10-D or 10-K is contingent upon each such party performing its duties
under this Section. Neither the Master Servicer nor the Securities Administrator
shall have any liability for any loss, expense, damage or claim arising out of
or with respect to any failure to properly prepare, execute and/or timely file
any such Form 15, Form 12b-25 or any amendments to Forms 8-K, 10-D or 10-K,
where such failure results from the Securities Administrator's inability or
failure to receive, on a timely basis, any information from any other party
hereto or any Servicer, any Custodian or any Servicing Function Participant
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.
(o) The Depositor and the Securities Administrator agree to use their good
faith efforts to cooperate in complying with the requirements of this Section
3.18.
(p) Each of the parties agrees to provide to the Securities Administrator
such additional information related to such party as the Securities
Administrator may reasonably request, including evidence of the authorization of
the person signing any certificate or statement, financial information and
reports, and such other information related to such party or its performance
hereunder.
(q) Any notice or notification required to be delivered by the Securities
Administrator or Master Servicer to the Depositor pursuant to this Section 3.18,
may be delivered via facsimile to (000) 000-0000, via email to xxxx_xxxx@xx.xxx
or telephonically by calling Xxxx Park at (000) 000-0000.
(r) For the avoidance of doubt, any filings or deliverables required under
this Section 3.18, may be prepared, delivered and filed in a consolidated
manner. The Master Servicer, the Securities Administrator and the Depositor may
satisfy the requirements of this Section 3.18 with a single set of filings and
deliverables addressing the requirements of this Section 3.18.
Section 3.19 Compliance with Regulation AB. Each of the parties hereto
acknowledges and agrees that the purpose of Sections 3.16, 3.17 and 3.18 is to
facilitate compliance by the Depositor with the provisions of Regulation AB, as
such may be amended or clarified from time to time. Therefore, each of the
parties agrees that the parties' obligations hereunder will be supplemented and
modified as necessary to be consistent with any such amendments, interpretive
advice or guidance, convention or consensus among active participants in the
asset-backed securities markets, advice of counsel, or otherwise in respect of
the
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requirements of Regulation AB and the parties shall comply with requests made by
the Depositor for delivery of additional or different information as the
Depositor may determine in good faith is necessary to comply with the provisions
of Regulation AB. Any such supplementation or modification shall be made in
accordance with Section 11.02 without the consent of the Certificateholders, and
may result in a change in the reports filed by the Securities Administrator on
behalf of the Issuing Entity under the Exchange Act.
Section 3.20 Servicing Rights Owner. At the Servicing Rights Owner's
request, Wilshire [shall resign as Servicer of the Wilshire Loans upon the
selection and appointment of a successor servicer by the Servicing Rights Owner;
provided that the Servicing Rights Owner delivers to the Master Servicer, the
Trustee and the Securities Administrator a letter indicating that such successor
servicer designated by the Servicing Rights Owner meets the eligibility
requirements for a successor servicer, including that such successor servicer is
a Qualified Servicer or is CMC. No appointment of a successor servicer hereunder
shall be effective until the Master Servicer shall have consented thereto. Upon
such appointment, at the date specified in such letter such successor servicer
will become a servicer pursuant to the terms of this Agreement.]
ARTICLE IV
ACCOUNTS
Section 4.01 Protected Accounts.
(a) The Master Servicer shall enforce the obligation of each Servicer to
establish and maintain a Protected Account in accordance with the applicable
Servicing Agreement, with records to be kept with respect thereto on a Mortgage
Loan by Mortgage Loan basis, into which accounts shall be deposited within two
Business Days (or as of such other time specified in the related Servicing
Agreement) of receipt all collections of principal and interest on any Mortgage
Loan and with respect to any REO Property received by a Servicer, including
Principal Prepayments, Insurance Proceeds, Liquidation Proceeds, Subsequent
Recoveries and advances made from the Servicer's own funds (less servicing
compensation as permitted by the applicable Servicing Agreement in the case of
the Servicer) and all other amounts to be deposited in the Protected Account.
The Servicer is hereby authorized to make withdrawals from and deposits to the
related Protected Account for purposes required or permitted by this Agreement.
To the extent provided in the related Servicing Agreement, the Protected Account
shall be held in a Designated Depository Institution and segregated on the books
of such institution in the name of the Trustee for the benefit of
Certificateholders.
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(b) To the extent provided in the related Servicing Agreement, amounts on
deposit in a Protected Account may be invested in Permitted Investments in the
name of the Trustee for the benefit of Certificateholders and, except as
provided in the preceding paragraph, not commingled with any other funds, such
Permitted Investments to mature, or to be subject to redemption or withdrawal,
no later than the date on which such funds are required to be withdrawn for
deposit in the Master Servicer Collection Account, and shall be held until
required for such deposit. The income earned from Permitted Investments made
pursuant to this Section 4.01 and any other benefit arising from holding a
Protected Account shall be paid to the related Servicer under the applicable
Servicing Agreement, and the risk of loss of moneys required to be distributed
to the Certificateholders resulting from such investments shall be borne by and
be the risk of the related Servicer, as set forth in the applicable Servicing
Agreement. The related Servicer (to the extent provided in the related Servicing
Agreement) shall deposit the amount of any such loss in the Protected Account
within two Business Days of receipt of notification of such loss but not later
than the second Business Day prior to the Distribution Date on which the moneys
so invested are required to be distributed to the Certificateholders.
(c) To the extent provided in the related Servicing Agreement and subject
to this Article IV, on or before each Servicer Remittance Date, the related
Servicer shall withdraw or shall cause to be withdrawn from the Protected
Accounts and shall immediately deposit or cause to be deposited in the Master
Servicer Collection Account amounts representing the following collections and
payments (other than with respect to principal of or interest on the Mortgage
Loans due on or before the Cut-off Date) with respect to each Mortgage Group:
(i) Monthly Payments on the Mortgage Loans received or any related
portion thereof advanced by such Servicer pursuant to the related Servicing
Agreement which were due on or before the related Due Date, net of the
amount thereof comprising the Servicing Fees;
(ii) Principal Prepayments in Full and any Liquidation Proceeds
received by such Servicer with respect to such Mortgage Loans in the
related Principal Prepayment Period, with interest to the date of
prepayment or liquidation, net of the amount thereof comprising the
Servicing Fees;
(iii) Curtailments received by such Servicer for such Mortgage Loans
in the related Principal Prepayment Period; and
(iv) Any amount to be used as a Monthly Advance.
(d) Withdrawals by the Master Servicer may be made from an Account only to
make remittances as provided in Section 4.01(c), 4.02 and 4.03; to reimburse the
Master Servicer or a Servicer for Monthly Advances which have been recovered by
subsequent collection from the related Mortgagor; to remove amounts deposited in
error; to remove fees, charges or other such amounts deposited on a temporary
basis; or to clear and terminate the account at the termination of this
Agreement in accordance with Section 10.01. As provided in Sections 4.01(c) and
4.02(b) certain amounts otherwise due to the Servicers may be retained by them
as set forth in the related Servicing Agreements and need not be deposited in
the Master Servicer Collection Account.
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Section 4.02 Master Servicer Collection Account.
(a) The Master Servicer shall establish and maintain in the name of the
Trustee, for the benefit of the Certificateholders, the Master Servicer
Collection Account as a segregated trust account or accounts. The Master
Servicer Collection Account may be a sub-account of the Distribution Account.
The Master Servicer will deposit in the Master Servicer Collection Account as
identified by the Master Servicer and as received by the Master Servicer, the
following amounts:
(i) Any amounts withdrawn from a Protected Account or other permitted
account;
(ii) Any Monthly Advance and any Compensating Interest Payments;
(iii) Any Insurance Proceeds, Liquidation Proceeds or Subsequent
Recoveries received by or on behalf of the Master Servicer or which were
not deposited in a Protected Account or other permitted account;
(iv) The repurchase price with respect to any Mortgage Loans
repurchased and all proceeds of any Mortgage Loans or property acquired in
connection with the optional termination of the trust;
(v) Any amounts required to be deposited with respect to losses on
investments of deposits in an Account; and
(vi) Any other amounts received by or on behalf of the Master Servicer
and required to be deposited in the Master Servicer Collection Account
pursuant to this Agreement.
(b) All amounts deposited to the Master Servicer Collection Account shall
be held by the Master Servicer in the name of the Trustee in trust for the
benefit of the Certificateholders in accordance with the terms and provisions of
this Agreement. The requirements for crediting the Master Servicer Collection
Account or the Distribution Account shall be exclusive, it being understood and
agreed that, without limiting the generality of the foregoing, payments in the
nature of (i) prepayment or late payment charges or assumption, tax service,
statement account or payoff, substitution, satisfaction, release and other like
fees and charges and (ii) the items enumerated in Subsections 4.05(a)(i), (ii),
(iii), (iv), (vi), (vii), (viii), (ix), (xi) and (xii) with respect to the
Securities Administrator, need not be credited by the Master Servicer or the
related Servicer to the Distribution Account or the Master Servicer Collection
Account, as applicable. In the event that the Master Servicer shall deposit or
cause to be deposited to the Distribution Account any amount not required to be
credited thereto, the Securities Administrator, upon receipt of a written
request therefor signed by a Servicing Officer of the Master Servicer, shall
promptly transfer such amount to the Master Servicer from the Distribution
Account, any provision herein to the contrary notwithstanding.
(c) The amount at any time credited to the Master Servicer Collection
Account shall be invested, in the name of the Trustee, or its nominee, for the
benefit of the Certificateholders,
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in Permitted Investments as directed by Master Servicer. All Permitted
Investments shall mature or be subject to redemption or withdrawal on or before,
and shall be held until, the next succeeding Distribution Account Deposit Date.
Any and all investment earnings on amounts on deposit in the Master Servicer
Collection Account from time to time shall be for the account of the Master
Servicer. The Master Servicer from time to time shall be permitted to withdraw
or receive distribution of any and all investment earnings from the Master
Servicer Collection Account. The risk of loss of moneys required to be
distributed to the Certificateholders resulting from such investments shall be
borne by and be the risk of the Master Servicer. The Master Servicer shall
deposit the amount of any such loss in the Master Servicer Collection Account
within two Business Days of receipt of notification of such loss but not later
than the second Business Day prior to the Distribution Date on which the moneys
so invested are required to be distributed to the Certificateholders.
Section 4.03 Permitted Withdrawals and Transfers from the Master Servicer
Collection Account.
(a) The Master Servicer will, from time to time on demand of the Master
Servicer, the Trustee or the Securities Administrator, make or cause to be made
such withdrawals or transfers from the Master Servicer Collection Account as the
Master Servicer has designated for such transfer or withdrawal pursuant to the
Servicing Agreements. The Master Servicer may clear and terminate the Master
Servicer Collection Account pursuant to Section 10.01 and remove amounts from
time to time deposited in error.
(b) On an ongoing basis, the Master Servicer shall withdraw from the Master
Servicer Collection Account (i) any expenses recoverable by the Trustee, the
Master Servicer or the Securities Administrator pursuant to this Agreement,
including but not limited to Sections 2.01(b), 3.03, 7.04 and 9.05 and (ii) any
amounts payable to the Master Servicer as set forth in Section 3.14.
(c) In addition, on or before each Distribution Account Deposit Date, the
Master Servicer shall deposit in the Distribution Account (or remit to the
Securities Administrator for deposit therein) any Monthly Advances required to
be made by the Master Servicer with respect to the Mortgage Loans.
(d) No later than 3:00 p.m. New York time on each Distribution Account
Deposit Date, the Master Servicer will transfer the Available Distribution
Amount on deposit in the Master Servicer Collection Account with respect to the
related Distribution Date to the Securities Administrator for deposit in the
Distribution Account.
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Section 4.04 Distribution Account.
(a) The Securities Administrator shall establish and maintain in the name
of the Trustee, for the benefit of the Certificateholders, the Distribution
Account as a segregated trust account or accounts.
(b) All amounts deposited to the Distribution Account shall be held by the
Securities Administrator in the name of the Trustee in trust for the benefit of
the Certificateholders in accordance with the terms and provisions of this
Agreement.
(c) The Distribution Account shall constitute a trust account of the Trust
Fund segregated on the books of the Securities Administrator and held by the
Securities Administrator in trust in its Corporate Trust Office, and the
Distribution Account and the funds deposited therein shall not be subject to,
and shall be protected to the maximum extent permitted by applicable law from,
all claims, liens, and encumbrances of any creditors or depositors of the
Securities Administrator, the Trustee or the Master Servicer (whether made
directly, or indirectly through a liquidator or receiver of the Securities
Administrator, the Trustee or the Master Servicer). The Distribution Account
shall be an Eligible Account. The amount at any time credited to the
Distribution Account shall be (i) fully insured by the FDIC to the maximum
coverage provided thereby or (ii) invested in the name of the Trustee, in such
Permitted Investments selected by the Master Servicer or deposited in demand
deposits with such depository institutions as selected by the Master Servicer,
provided that time deposits of such depository institutions would be a Permitted
Investment. All Permitted Investments shall mature or be subject to redemption
or withdrawal on or before, and shall be held until, the next succeeding
Distribution Date if the obligor for such Permitted Investment is the Master
Servicer or, if such obligor is any other Person, the Business Day preceding
such Distribution Date. All investment earnings on amounts on deposit in the
Distribution Account or benefit from funds uninvested therein from time to time
shall be for the account of the Securities Administrator. The Securities
Administrator shall be permitted to withdraw or receive distribution of any and
all investment earnings from the Distribution Account on each Distribution Date.
If there is any loss on a Permitted Investment or demand deposit, the Securities
Administrator shall deposit such amount in the Distribution Account. With
respect to the Distribution Account and the funds deposited therein, the
Securities Administrator shall take such action as may be necessary to ensure
that the Certificateholders shall be entitled to the priorities afforded to such
a trust account (in addition to a claim against the estate of the Trust) as
provided by 12 U.S.C. Section 92a(e), and applicable regulations pursuant
thereto, if applicable, or any applicable comparable state statute applicable to
state chartered banking corporations.
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Section 4.05 Permitted Withdrawals and Transfers from the Distribution
Account.
(a) The Securities Administrator will, from time to time on demand of the
Master Servicer, make or cause to be made such withdrawals or transfers from the
Distribution Account as the Master Servicer has designated for such transfer or
withdrawal pursuant to the Servicing Agreements for the following purposes
(limited in the case of amounts due the Master Servicer to those not withdrawn
from the Master Servicer Collection Account in accordance with the terms of this
Agreement):
(i) to reimburse the Master Servicer or any Servicer for any Monthly
Advance of its own funds or any advance of such Servicer's own funds, the
right of the Master Servicer or a Servicer to reimbursement pursuant to
this subclause (i) being limited to amounts received on a particular
Mortgage Loan (including, for this purpose, the Purchase Price therefor,
Insurance Proceeds and Liquidation Proceeds) which represent late payments
or recoveries of the principal of or interest on such Mortgage Loan
respecting which such Monthly Advance or advance was made;
(ii) to reimburse the Master Servicer or any Servicer from Insurance
Proceeds or Liquidation Proceeds relating to a particular Mortgage Loan for
amounts expended by the Master Servicer or such Servicer in good faith as a
Servicing Advance in connection with the restoration of the related
Mortgaged Property which was damaged by an Uninsured Cause or in connection
with the liquidation of such Mortgage Loan;
(iii) to reimburse the Master Servicer or any Servicer from Insurance
Proceeds relating to a particular Mortgage Loan for insured expenses
incurred with respect to such Mortgage Loan and to reimburse the Master
Servicer or such Servicer from Liquidation Proceeds from a particular
Mortgage Loan for Liquidation Expenses incurred with respect to such
Mortgage Loan; provided that the Master Servicer shall not be entitled to
reimbursement for Liquidation Expenses with respect to a Mortgage Loan to
the extent that (i) any amounts with respect to such Mortgage Loan were
paid as Excess Liquidation Proceeds pursuant to clause (x) of this
Subsection 4.03 (a) to the Master Servicer; and (ii) such Liquidation
Expenses were not included in the computation of such Excess Liquidation
Proceeds;
(iv) to pay the Master Servicer or any Servicer, as appropriate, from
Liquidation Proceeds or Insurance Proceeds received in connection with the
liquidation of any Mortgage Loan, the amount which it or such Servicer
would have been entitled to receive under subclause (ix) of this Subsection
4.03(a) as servicing compensation on account of each defaulted scheduled
payment on such Mortgage Loan if paid in a timely manner by the related
Mortgagor;
(v) to pay the Master Servicer or any Servicer from the Purchase Price
for any Mortgage Loan, the amount which it or such Servicer would have been
entitled to receive under subclause (ix) of this Subsection 4.03 (a) as
servicing compensation;
(vi) to reimburse the Master Servicer or any Servicer for advances of
funds pursuant to Sections, and the right to reimbursement pursuant to this
subclause being
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limited to amounts received on the related Mortgage Loan (including, for
this purpose, the Purchase Price therefor, Insurance Proceeds and
Liquidation Proceeds) which represent late recoveries of the payments for
which such advances were made;
(vii) to reimburse the Master Servicer or any Servicer for any Monthly
Advance or advance, after a Realized Loss has been allocated with respect
to the related Mortgage Loan if the Monthly Advance or advance has not been
reimbursed pursuant to clauses (i) and (vi);
(viii) to pay the Master Servicer as set forth in Section 3.14;
(ix) to reimburse the Master Servicer for expenses, costs and
liabilities incurred by and reimbursable to it pursuant to this Agreement,
including but not limited to Sections 3.03, 7.04(c) and (d);
(x) to pay to the Master Servicer, as additional servicing
compensation, any Excess Liquidation Proceeds to the extent not retained by
the related Servicer;
(xi) to reimburse or pay any Servicer any such amounts as are due
thereto under the applicable Servicing Agreement and have not been retained
by or paid to the Servicer, to the extent provided in the related Servicing
Agreement;
(xii) to reimburse the Trustee or the Securities Administrator for
expenses, costs and liabilities incurred by or reimbursable to it pursuant
to this Agreement;
(xiii) to remove amounts deposited in error; and
(xiv) to clear and terminate the Distribution Account pursuant to
Section 9.01.
(b) The Master Servicer shall keep and maintain separate accounting, on a
Mortgage Loan by Mortgage Loan basis, for the purpose of accounting for any
reimbursement from the Distribution Account pursuant to subclauses (i) through
(vi), inclusive, and (viii) or with respect to any such amounts which would have
been covered by such subclauses had the amounts not been retained by the Master
Servicer without being deposited in the Distribution Account under Section
4.02(b).
(c) On each Distribution Date, the Securities Administrator shall
distribute the Available Distribution Amount for each Mortgage Group to the
Holders of the Certificates in accordance with Section 6.01.
ARTICLE V
CERTIFICATES
Section 5.01 The Certificates. The Certificates shall be executed by manual
or facsimile signature on behalf of the Securities Administrator by an
authorized officer. Certificates bearing the manual or facsimile signatures of
individuals who were, at the time when such signatures were affixed, authorized
to sign on behalf of the Securities Administrator shall bind the
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Issuing Entity, notwithstanding that such individuals or any of them have ceased
to be so authorized prior to the authentication and delivery of such
Certificates or did not hold such offices at the date of such authentication and
delivery. 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 set forth as attached
hereto executed by the Securities Administrator by manual signature, and such
certificate of authentication upon any Certificate shall be conclusive evidence,
and the only evidence, that such Certificate has been duly authenticated and
delivered hereunder. All Certificates shall be dated the date of their
authentication. On the Closing Date, the Securities Administrator shall
authenticate the Certificates to be issued at the written direction of the
Depositor, or any Affiliate thereof.
Section 5.02 Certificate Register; Registration of Transfer and Exchange of
Certificates.
(a) The Securities Administrator shall maintain, or cause to be maintained
in accordance with the provisions of Section 5.09 hereof, a Certificate Register
for the Trust Fund in which, subject to the provisions of subsections (b) and
(c) below and to such reasonable regulations as it may prescribe, the Securities
Administrator shall provide for the registration of Certificates and of
Transfers and exchanges of Certificates as herein provided. Upon surrender for
registration of Transfer of any Certificate, the Securities Administrator shall
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Certificates of the same Class and of like
aggregate Percentage Interest.
At the option of a Certificateholder, Certificates may be exchanged for
other Certificates of the same Class in authorized denominations and evidencing
the same aggregate Percentage Interest upon surrender of the Certificates to be
exchanged at the office or agency of the Securities Administrator. Whenever any
Certificates are so surrendered for exchange, the Securities Administrator shall
execute, authenticate and deliver the Certificates that the Certificateholder
making the exchange is entitled to receive. Every Certificate presented or
surrendered for registration of Transfer or exchange shall be accompanied by a
written instrument of Transfer in form satisfactory to the Securities
Administrator duly executed by the holder thereof or his attorney duly
authorized in writing.
No service charge to the Certificateholders shall be made for any
registration of Transfer or exchange of Certificates, but payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any Transfer or exchange of Certificates may be required. All
Certificates surrendered for registration of Transfer or exchange shall be
canceled and subsequently destroyed by the Securities Administrator in
accordance with such Securities Administrator's customary procedures.
(b) No Transfer of a Class B, Class P or Class A-R Certificate shall be
made unless such Transfer is made pursuant to an effective registration
statement under the Securities Act and any applicable state securities laws or
is exempt from the registration requirements under the Securities Act and such
state securities laws. In the event that a Transfer is to be made in reliance
upon an exemption from the Securities Act and such laws, in order to assure
compliance with the Securities Act and such laws, the Certificateholder desiring
to effect such Transfer and such Certificateholder's prospective transferee
shall (except with respect to the initial transfer of
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a Class B, Class P or Class A-R Certificate by Xxxxxxx Xxxxx & Co.) each certify
to each Securities Administrator in writing the facts surrounding the Transfer
in substantially the form set forth in Exhibit F-1 (the "Transferor
Representation Letter") and (i) deliver a letter in substantially the form of
either Exhibit F-2 (the "Investor Representation Letter") or Exhibit F-3 (the
"Rule 144A Letter") or (ii) there shall be delivered to the Securities
Administrator an Opinion of Counsel that such Transfer may be made pursuant to
an exemption from the Securities Act, which Opinion of Counsel shall not be an
expense of the Depositor or the Securities Administrator. The Depositor shall
provide to any Holder of a Class B, Class P or Class A-R Certificate and any
prospective transferee designated by any such Holder, information regarding the
related Certificates and the Mortgage Loans and such other information as shall
be necessary to satisfy the condition to eligibility set forth in Rule
144A(d)(4) for Transfer of any such Certificate without registration thereof
under the Securities Act pursuant to the registration exemption provided by Rule
144A. The Securities Administrator shall cooperate with the Depositor in
providing the Rule 144A information referenced in the preceding sentence,
including providing to the Depositor such information in the possession of the
Securities Administrator regarding the Certificates, the Mortgage Loans and
other matters regarding the Trust Fund as the Depositor shall reasonably request
to meet its obligation under the preceding sentence. Each Holder of a Class B,
Class P or Class A-R Certificate desiring to effect such Transfer shall, and
does hereby agree to, indemnify the Depositor and the Securities Administrator
against any liability that may result if the Transfer is not so exempt or is not
made in accordance with such federal and state laws.
No transfer of an ERISA Restricted Certificate or a Class A-R Certificate
will be registered unless the Securities Administrator has received (A) a
representation to the effect that such transferee is not an employee benefit
plan subject to Title I of ERISA, a plan subject to Section 4975 of the Code or
a plan subject to any state, local, federal, non-U.S. or other law substantively
similar to the foregoing provisions of ERISA or the Code ("Similar Law")
(collectively, a "Plan"), and is not directly or indirectly acquiring such
Certificate for, on behalf of, or with any assets of any such Plan, or (B)
solely in the case of an ERISA Restricted Certificate (I) if the Certificate has
been the subject of an ERISA-Qualifying Underwriting, a representation to the
effect that such transferee is an insurance company that is acquiring the
Certificate with assets contained in an "insurance company general account," as
defined in Section V(e) of Prohibited Transaction Class Exemption ("PTCE")
95-60, and the acquisition and holding of the Certificate are covered and exempt
under Sections I and III of PTCE 95-60, or (II) solely in the case of a
Definitive Certificate, an Opinion of Counsel satisfactory to the Securities
Administrator, and upon which the Securities Administrator shall be entitled to
rely, to the effect that the acquisition and holding of such Certificate will
not constitute or result in a nonexempt prohibited transaction under Title I of
ERISA or Section 4975 of the Code, or a violation of Similar Law, and will not
subject the Securities Administrator, the Master Servicer, the Trustee or the
Depositor to any obligation in addition to those expressly undertaken in this
Agreement, which Opinion of Counsel shall not be an expense of the Securities
Administrator, the Master Servicer, the Trustee or the Depositor.
Except in the case of a Definitive Certificate, the representations set
forth in the immediately preceding paragraph of this Subsection 5.02(b), other
than clause (B)(II) in the immediately preceding paragraph, shall be deemed to
have been made to the Securities
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Administrator by the transferee's acceptance of an ERISA Restricted Certificate
or a Class A-R Certificate (or the acceptance by a Certificate Owner of the
beneficial interest in any Class of ERISA Restricted Certificates or a Class A-R
Certificate).
Notwithstanding any other provision herein to the contrary, any purported
transfer of an ERISA Restricted Certificate or a Class A-R Certificate to or on
behalf of a Plan without the delivery to the Securities Administrator of a
representation or an Opinion of Counsel satisfactory to the Securities
Administrator as described above shall be void and of no effect. The Securities
Administrator shall not be under any liability to any Person for any
registration or transfer of any ERISA Restricted Certificate or Class A-R
Certificate that is in fact not permitted by this Section 5.02(b), nor shall the
Trustee or the Securities Administrator be under any liability for making any
payments due on such Certificate to the Holder thereof or taking any other
action with respect to such Holder under the provisions of this Agreement so
long as the transfer was registered by the Securities Administrator in
accordance with the foregoing requirements. The Trustee or the Securities
Administrator shall be entitled, but not obligated, to recover from any Holder
of any ERISA Restricted Certificate or Class A-R Certificate that was in fact a
Plan and that held such Certificate in violation of this Section 5.02(b) all
payments made on such ERISA Restricted Certificate or a Class A-R Certificate at
and after the time it commenced such holding. Any such payments so recovered
shall be paid and delivered to the last preceding Holder of such Certificate
that is not a Plan.
(c) Each Person who has or who acquires any Ownership Interest in a Class
A-R Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions, and
the rights of each Person acquiring any Ownership Interest in a Class A-R
Certificate are expressly subject to the following provisions:
(i) Each Person holding or acquiring any Ownership Interest in a Class
A-R Certificate shall be a Permitted Transferee and shall promptly notify
the Securities Administrator of any change or impending change in its
status as a Permitted Transferee.
(ii) No Ownership Interest in a Class A-R Certificate may be
purchased, transferred or sold, directly or indirectly, except in
accordance with the provisions hereof. No Ownership Interest in a Class A-R
Certificate may be registered on the Closing Date or thereafter
transferred, and the Securities Administrator shall not register the
Transfer of any Class A-R Certificate unless, in addition to the
certificates required to be delivered to the Securities Administrator under
subparagraph (b) above, the Securities Administrator shall have been
furnished with an affidavit (a "Transferee's Letter") of the initial owner
or the proposed transferee in the form attached hereto as Exhibit E-1 and
an affidavit (a "Transferor Certificate") of the proposed transferor in the
form attached hereto as Exhibit E-2. In the absence of a contrary
instruction from the transferor of a Class A-R Certificate, declaration
(11) in Appendix A of the Transferee's Letter may be left blank. If the
transferor requests by written notice to the Securities Administrator prior
to the date of the proposed transfer that one of the two other forms of
declaration (11) in Appendix A of the Transferee's Letter be used, then the
requirements of this Section 5.02(c)(ii) shall not have been satisfied
unless the Transferee's Letter includes such other form of declaration.
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(iii) Each Person holding or acquiring any Ownership Interest in a
Class A-R Certificate shall agree (A) to obtain a Transferee's Letter from
any other Person to whom such Person attempts to Transfer its Ownership
Interest in a Class A-R Certificate, (B) to obtain a Transferee's Letter
from any Person for whom such Person is acting as nominee, trustee or agent
in connection with any Transfer of a Class A-R Certificate and (C) not to
Transfer its Ownership Interest in a Class A-R Certificate or to cause the
Transfer of an Ownership Interest in a Class A-R Certificate to any other
Person if it has actual knowledge that such Person is not a Permitted
Transferee. Further, no transfer, sale or other disposition of any
Ownership Interest in a Class A-R Certificate may be made to a person who
is not a U.S. Person (within the meaning of Section 7701 of the Code)
unless such person furnishes the transferor and the Securities
Administrator with a duly completed and effective Internal Revenue Service
Form W-8ECI (or any successor thereto) and the Securities Administrator
consents to such transfer, sale or other disposition in writing.
(iv) Any attempted or purported Transfer of any Ownership Interest in
a Class A-R Certificate in violation of the provisions of this Section
5.02(c) shall be absolutely null and void and shall vest no rights in the
purported Transferee. If any purported transferee shall become a Holder of
a Class A-R Certificate in violation of the provisions of this Section
5.02(c), then the last preceding Permitted Transferee shall be restored to
all rights as Holder thereof retroactive to the date of registration of
Transfer of such Class A-R Certificate. The Securities Administrator shall
be under no liability to any Person for any registration of Transfer of a
Class A-R Certificate that is in fact not permitted by Section 5.02(b) and
this Section 5.02(c) 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 after receipt of the related Transferee's Letter. The Securities
Administrator shall be entitled but not obligated to recover from any
Holder of a Class A-R Certificate that was in fact not a Permitted
Transferee at the time it became a Holder or, at such subsequent time as it
became other than a Permitted Transferee, all payments made on such Class
A-R Certificate at and after either such time. Any such payments so
recovered by the Securities Administrator shall be paid and delivered by
the Securities Administrator to the last preceding Permitted Transferee of
such Certificate.
(v) At the option of the Holder of the Class A-R Certificate, the
Class LT1-R Interest, the Class LT2-R Interest and the Class UT-R Interest
may be severed and represented by separate certificates; provided, however,
that such separate certification may not occur until the Securities
Administrator receives a REMIC Opinion to the effect that separate
certification in the form and manner proposed would not result in the
imposition of federal tax upon the Issuing Entity or any of the REMICs
provided for in the Pooling and Servicing Agreement or cause any of the
REMICs provided for in the Pooling and Servicing Agreement to fail to
qualify as a REMIC; and provided further, that the provisions of Sections
5.02(b) and (c) will apply to each such separate certificate as if the
separate certificate were a Class A-R Certificate. If, as evidenced by a
REMIC Opinion, it is necessary to preserve the REMIC status of any of the
REMICs provided for in the Pooling and Servicing Agreement, the Class LT1-R
Interest, the Class LT2-R
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Interest and the Class UT-R Interest shall be severed and represented by
separate Certificates.
The restrictions on Transfers of a Class A-R Certificate set forth in this
Section 5.02(c) shall cease to apply (and the applicable portions of the legend
on a Class A-R Certificate may be deleted) with respect to Transfers occurring
after delivery to the Securities Administrator of an Opinion of Counsel, which
Opinion of Counsel shall not be an expense of the Securities Administrator or
the Depositor, to the effect that the elimination of such restrictions will not
cause any of the REMICs provided for herein to fail to qualify as a REMIC at any
time that the Certificates are outstanding or result in the imposition of any
tax on the Issuing Entity, any REMIC provided for herein, a Certificateholder or
another Person. Each Person holding or acquiring any Ownership Interest in a
Class A-R Certificate hereby consents to any amendment of this Agreement that,
based on an Opinion of Counsel furnished to the Securities Administrator, is
reasonably necessary (a) to ensure that the record ownership of, or any
beneficial interest in, a Class A-R Certificate is not transferred, directly or
indirectly, to a Person that is not a Permitted Transferee and (b) to provide
for a means to compel the Transfer of a Class A-R Certificate that is held by a
Person that is not a Permitted Transferee to a Holder that is a Permitted
Transferee.
(d) The transferor of the Class A-R Certificate shall notify the Securities
Administrator in writing upon the transfer of the Class A-R Certificate.
(e) The preparation and delivery of all certificates, opinions and other
writings referred to above in this Section 5.02 shall not be an expense of the
Issuing Entity, the Depositor or the Securities Administrator.
Section 5.03 Mutilated, Destroyed, Lost or Stolen Certificates. If (a) any
mutilated Certificate is surrendered to the Securities Administrator or the
Securities Administrator receives evidence to its satisfaction of the
destruction, loss or theft of any Certificate and of the ownership thereof and
(b) there is delivered to the Securities Administrator such security or
indemnity as may be required by them to save each of them harmless, then, in the
absence of notice to the Securities Administrator that such Certificate has been
acquired by a bona fide purchaser, the Securities Administrator shall execute,
authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Certificate, a new Certificate of like Class, tenor
and Percentage Interest. In connection with the issuance of any new Certificate
under this Section 5.03, the Securities Administrator 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 Securities Administrator) connected therewith. Any replacement
Certificate issued pursuant to this Section 5.03 shall constitute complete and
indefeasible evidence of ownership in the Trust Fund, as if originally issued,
whether or not the lost, stolen or destroyed Certificate shall be found at any
time. All Certificates surrendered to the Securities Administrator under the
terms of this Section 5.03 shall be canceled and destroyed by the Securities
Administrator in accordance with its standard procedures without liability on
its part.
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Section 5.04 Persons Deemed Owners. The Securities Administrator and any
agent of the Securities Administrator may treat the Person in whose name any
Certificate is registered as the owner of such Certificate for the purpose of
receiving distributions as provided in this Agreement and for all other purposes
whatsoever, and neither the Securities Administrator, nor any agent of the
Securities Administrator shall be affected by any notice to the contrary.
Section 5.05 Access to List of Certificateholders' Names and Addresses. If
three or more Certificateholders (a) request such information in writing from
the Securities Administrator, (b) state that such Certificateholders desire to
communicate with other Certificateholders with respect to their rights under
this Agreement or under the Certificates, and (c) provide a copy of the
communication that such Certificateholders propose to transmit or if the
Depositor shall request such information in writing from the Securities
Administrator, then the Securities Administrator shall, within ten Business Days
after the receipt of such request, provide the Depositor or such
Certificateholders at such recipients' expense the most recent list of the
Certificateholders of the Trust Fund held by the Securities Administrator, if
any. The Depositor and every Certificateholder, by receiving and holding a
Certificate, agree that the Securities Administrator shall not be held
accountable by reason of the disclosure of any such information as to the list
of the Certificateholders hereunder, regardless of the source from which such
information was derived.
Section 5.06 Book-Entry Certificates. The Regular 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 by or on behalf of the Depositor. The Book-Entry Certificates shall
initially be registered on the Certificate Register in the name of the
Depository or its nominee, and no Certificate Owner of a Book-Entry Certificate
will receive a definitive certificate representing such Certificate Owner's
interest in such Certificates, except as provided in Section 5.08. Unless and
until definitive, fully registered Certificates ("Definitive Certificates") have
been issued to the Certificate Owners of the Book-Entry Certificates pursuant to
Section 5.08:
(a) the provisions of this Section shall be in full force and effect;
(b) the Depositor and the Securities Administrator may deal with the
Depository and the Depository Participants for all purposes (including the
making of distributions) as the authorized representative of the respective
Certificate Owners of the Book-Entry Certificates;
(c) registration of the Book-Entry Certificates may not be transferred by
the Securities Administrator except to another Depository;
(d) the rights of the respective Certificate Owners of the Book-Entry
Certificates shall be exercised only through the Depository and the Depository
Participants and shall be limited to those established by law and agreements
between the Owners of the Book-Entry Certificates and the Depository and/or the
Depository Participants. Pursuant to the Depository Agreement, unless and until
Definitive Certificates are issued pursuant to Section 5.08, the Depository will
make book-entry transfers among the Depository Participants and receive and
transmit distributions of principal and interest on the related Certificates to
such Depository Participants;
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(e) the Depository may collect its usual and customary fees, charges and
expenses from its Depository Participants;
(f) the Securities Administrator may rely and shall be fully protected in
relying upon information furnished by the Depository with respect to its
Depository Participants; and
(g) to the extent that the provisions of this Section conflict with any
other provisions of this Agreement, the provisions of this Section shall
control.
For purposes of any provision of this Agreement requiring or permitting
actions with the consent of, or at the direction of, Certificateholders
evidencing a specified percentage of the aggregate unpaid principal amount of
any Class of Certificates, such direction or consent may be given by Certificate
Owners (acting through the Depository and the Depository Participants) owning
Book-Entry Certificates evidencing the requisite percentage of principal amount
of such Class of Certificates.
Section 5.07 Notices to Depository. Whenever any notice or other
communication is required to be given to Certificateholders of the Class with
respect to which Book-Entry Certificates have been issued, unless and until
Definitive Certificates shall have been issued to the related Certificate
Owners, the Securities Administrator shall give all such notices and
communications to the Depository.
Section 5.08 Definitive Certificates. If, after Book-Entry Certificates
have been issued with respect to any Certificates, (a) the Depository or the
Depositor advises the Securities Administrator that the Depository is no longer
willing, qualified or able to discharge properly its responsibilities under the
Depository Agreement with respect to such Certificates and the Securities
Administrator or the Depositor is unable to locate a qualified successor, (b)
the Depositor notifies the Securities Administrator and the Depository of its
intent to terminate the book-entry system through the Depository and, upon
receipt of notice of such intent from the Depository, the Certificate Owners of
the Book-Entry Certificates agree to initiate such termination or (c) after the
occurrence and continuation of an Event of Default, Certificate Owners of such
Book-Entry Certificates having not less than 51% of the Voting Rights evidenced
by any Class of Book-Entry Certificates advise the Securities Administrator and
the Depository in writing through the Depository Participants that the
continuation of a book-entry system with respect to Certificates of such Class
through the Depository (or its successor) is no longer in the best interests of
the Certificate Owners of such Class, then the Securities Administrator shall
notify all Certificate Owners of such Book-Entry Certificates, through the
Depository, of the occurrence of any such event and of the availability of
Definitive Certificates to Certificate Owners of such Class requesting the same.
The Depositor shall provide the Securities Administrator with an adequate
inventory of certificates to facilitate the issuance and transfer of Definitive
Certificates. Upon surrender to the Securities Administrator of any such
Certificates by the Depository, accompanied by registration instructions from
the Depository for registration, the Securities Administrator shall authenticate
and deliver such Definitive Certificates. Neither the Depositor nor the
Securities Administrator shall be liable for any delay in delivery of such
instructions and each may conclusively rely on, and shall be protected in
relying on, such instructions. Upon the issuance of such Definitive
Certificates, all references
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herein to obligations imposed upon or to be performed by the Depository shall be
deemed to be imposed upon and performed by the Securities Administrator, to the
extent applicable with respect to such Definitive Certificates and the
Securities Administrator shall recognize the Holders of such Definitive
Certificates as Certificateholders hereunder.
Section 5.09 Maintenance of Office or Agency. The Securities Administrator
will maintain or cause to be maintained at its expense an office or offices or
agency or agencies where Certificates may be surrendered for registration of
transfer or exchange. The Securities Administrator initially designates its
offices at Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000,
Attention: Corporate Trust Services - Xxxxxxx Xxxxx Mortgage Investors Trust,
Series 2007-F1 as offices for such purposes. The Securities Administrator will
give prompt written notice to the Certificateholders of any change in such
location of any such office or agency. For the avoidance of doubt, the
Securities Administrator may satisfy the requirements of this Section 5.09 by
maintaining a single office or agency.
ARTICLE VI
PAYMENTS TO CERTIFICATEHOLDERS
Section 6.01 Distributions. Interest and principal on the Certificates will
be distributed by the Securities Administrator monthly on each Distribution
Date, commencing in April 2007, as instructed by the Master Servicer, in an
aggregate amount equal to the sum of the Available Distribution Amount for such
Distribution Date.
(a) On each Distribution Date, the Securities Administrator shall apply an
amount equal to the Available Distribution Amount in the following order of
priority:
(i) concurrently (A) solely from the Available Distribution Amount
with respect to Mortgage Group One, to the Holders of the Group I
Certificates, all amounts distributable pursuant to (b)(i)(A) through (C)
and (B) solely from the Available Distribution Amount with respect to
Mortgage Group Two, to the Holders of the Group II Certificates, all
amounts distributable pursuant to (b)(i)(C) through (M) below;
(ii) the balance, if any, of the Available Distribution Amount shall
be distributed (A) solely from amounts received with respect to Subgroup 1
(in accordance with the maximum amounts distributable in accordance with
this clause (A)) to the Subgroup 1 Certificateholders in the amounts
distributable pursuant to (b)(ii)(A) below, up to the Non-PO Subgroup 1
Optimal Principal Amount, (B) solely from amounts received with respect to
Subgroup 2 (in accordance with the maximum amounts distributable in
accordance with this clause (B)) to the Subgroup 2 Certificateholders in
the amounts distributable pursuant to (b)(ii)(B) below, up to the Non-PO
Subgroup 2 Optimal Principal Amount, (C) solely from amounts received with
respect to Subgroup 3 (in accordance with the maximum amounts distributable
in accordance with this clause (C)) to the Subgroup 3 Certificateholders in
the amounts distributable pursuant to (b)(ii)(C) below, up to the Non-PO
Subgroup 3 Optimal Principal Amount and (D) solely from amounts received
with respect to Subgroup 4 (in accordance with the maximum amounts
distributable in accordance with this clause (D)) to the Subgroup 4
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Certificateholders in the amounts distributable pursuant to (b)(ii)(D)
below, up to the Non-PO Subgroup 4 Optimal Principal Amount;
(iii) subject to subsection (b) below, to the Class M
Certificateholders, the balance, if any, of the Available Distribution
Amount after making the distributions provided for in paragraphs (i) and
(ii) above, in accordance with, and up to the amount calculated pursuant
to, Section 6.01(c) below;
(iv) subject to subsection (b) below, to the Class B
Certificateholders, the balance, if any, of the Available Distribution
Amount after making the distributions provided for in paragraphs (i)
through (iii) above, in accordance with, and up to the amounts calculated
pursuant to, Section 6.01(d) below; and
(v) to the Class A-R Certificateholders the balance, if any, of the
Available Distribution Amount remaining after the distributions provided
for in paragraphs (i) through (iv) above.
(b) Amounts payable to the Class A Certificateholders on any Distribution
Date shall be distributed as follows:
(i) to the extent the amount available for distribution pursuant to
paragraph (a)(i) above is sufficient:
(A) to the Class 1-A1 Certificateholders, (1) the Class 1-A1
Interest Accrual Amount plus (2) the Class 1-A1 Shortfall from the
preceding Distribution Date;
(B) to the Class 1-A2 Certificateholders, (1) the Class 1-A2
Interest Accrual Amount plus (2) the Class 1-A2 Shortfall from the
preceding Distribution Date;
(C) to the Class IO-1 Certificateholders, the sum of (1) the
Class IO-1 Interest Accrual Amount plus (2) the Class IO-1 Shortfall from
the preceding Distribution Date;
(D) to the Class 2-A1 Certificateholders, (1) the Class 2-A1
Interest Accrual Amount plus (2) the Class 2-A1 Shortfall from the
preceding Distribution Date;
(E) to the Class 2-A2 Certificateholders, (1) the Class 2-A2
Interest Accrual Amount plus (2) the Class 2-A2 Shortfall from the
preceding Distribution Date;
(F) to the Class 2-A3 Certificateholders, (1) the Class 2-A3
Interest Accrual Amount plus (2) the Class 2-A3 Shortfall from the
preceding Distribution Date;
(G) to the Class 2-A4 Certificateholders, (1) the Class 2-A4
Interest Accrual Amount plus (2) the Class 2-A4 Shortfall from the
preceding Distribution Date;
(H) to the Class 2-A5 Certificateholders, (1) the Class 2-A5
Interest Accrual Amount plus (2) the Class 2-A5 Shortfall from the
preceding Distribution Date;
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(I) to the Class 2-A6 Certificateholders, (1) the Class 2-A6
Interest Accrual Amount plus (2) the Class 2-A6 Shortfall from the
preceding Distribution Date;
(J) to the Class 2-A7 Certificateholders, (1) the Class 2-A7
Interest Accrual Amount plus (2) the Class 2-A7 Shortfall from the
preceding Distribution Date;
(K) to the Class 2-A8 Certificateholders, (1) the Class 2-A8
Interest Accrual Amount plus (2) the Class 2-A8 Shortfall from the
preceding Distribution Date;
(L) to the Class 2-A9 Certificateholders, (1) the Class 2-A9
Interest Accrual Amount plus (2) the Class 2-A9 Shortfall from the
preceding Distribution Date;
(M) to the Class 2-A10 Certificateholders, (1) the Class 2-A10
Interest Accrual Amount plus (2) the Class 2-A10 Shortfall from the
preceding Distribution Date;
(N) to the Class IO-2 Certificateholders, (1) the Class IO-2
Interest Accrual Amount plus (2) the Class IO-2 Shortfall from the
preceding Distribution Date.
(ii) concurrently, (A) to the Holders of the Subgroup 1 Certificates,
solely from the portion of the Available Distribution Amount related to
amounts received with respect to Subgroup 1 up to the Non-PO Subgroup 1
Optimal Principal Amount, allocated among the Subgroup 1 Certificates in
accordance with the Non-PO Subgroup 1 Principal Payment Rules, (B) to the
Holders of the Subgroup 2 Certificates, solely from the portion of the
Available Distribution Amount related to amounts received with respect to
Subgroup 2 up to the Non-PO Subgroup 2 Optimal Principal Amount, allocated
among the Subgroup 2 Certificates in accordance with the Non-PO Subgroup 2
Principal Payment Rules, (C) to the Holders of the Subgroup 3 Certificates,
solely from the portion of the Available Distribution Amount related to
amounts received with respect to Subgroup 3 up to the Non-PO Subgroup 3
Optimal Principal Amount, allocated among the Subgroup 3 Certificates in
accordance with the Non-PO Subgroup 3 Principal Payment Rules and (D) to
the Holders of the Subgroup 4 Certificates, solely from the portion of the
Available Distribution Amount related to amounts received with respect to
Subgroup 4 up to the Non-PO Subgroup 4 Optimal Principal Amount, allocated
among the Subgroup 4 Certificates in accordance with the Non-PO Subgroup 4
Principal Payment Rules;
(iii) to the extent that (x) the portion of the Available Distribution
Amount related to the amounts available from Subgroup 1 remaining after
giving effect to the distributions in (b)(i) above is insufficient to
distribute in full to the Holders of the Subgroup 1 Certificates amounts
described in (b)(ii)(A) above (such shortfall, the "Subgroup 1 Deficiency
Amount") and (y) the portion of the Available Distribution Amount related
to amounts available from Subgroup 2 remaining after giving effect to the
distributions in (b)(i) above exceeds the amount required to distribute in
full to the Holders of the Subgroup 2 Certificates the amounts described in
(b)(ii)(B) above, the portion of the Available Distribution Amount related
to amounts available from Subgroup 3 remaining after giving effect to the
distributions in (b)(i) above exceeds the amount required to distribute in
full to the Holders of the Subgroup 3 Certificates the
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amounts described in (b)(ii)(C) above and the portion of the Available
Distribution Amount related to amounts available from Subgroup 4 remaining
after giving effect to the distributions in (b)(i) above exceeds the amount
required to distribute in full to the Holders of the Subgroup 4
Certificates the amounts described in (b)(ii)(D) above, such excess shall
be distributed in reduction of the Subgroup 1 Deficiency Amount;
(iv) to the extent that (x) the portion of the Available Distribution
Amount related to the amounts available from Subgroup 2 remaining after
giving effect to the distributions in (b)(i) above is insufficient to
distribute in full to the Holders of the Subgroup 2 Certificates amounts
described in (b)(ii)(B) above (such shortfall, the "Subgroup 2 Deficiency
Amount") and (y) the portion of the Available Distribution Amount related
to amounts available from Subgroup 1 remaining after giving effect to the
distributions in (b)(i) above exceeds the amount required to distribute in
full to the Holders of the Subgroup 1 Certificates the amounts described in
(b)(ii)(A) above, the portion of the Available Distribution Amount related
to amounts available from Subgroup 3 remaining after giving effect to the
distributions in (b)(i) above exceeds the amount required to distribute in
full to the Holders of the Subgroup 3 Certificates the amounts described in
(b)(ii)(C) above and the portion of the Available Distribution Amount
related to amounts available from Subgroup 4 remaining after giving effect
to the distributions in (b)(i) above exceeds the amount required to
distribute in full to the Holders of the Subgroup 4 Certificates the
amounts described in (b)(ii)(D) above, such excess shall be distributed in
reduction of the Subgroup 2 Deficiency Amount;
(v) to the extent that (x) the portion of the Available Distribution
Amount related to the amounts available from Subgroup 3 remaining after
giving effect to the distributions in (b)(i) above is insufficient to
distribute in full to the Holders of the Subgroup 3 Certificates amounts
described in (b)(ii)(C) above (such shortfall, the "Subgroup 3 Deficiency
Amount") and (y) the portion of the Available Distribution Amount related
to amounts available from Subgroup 1 remaining after giving effect to the
distributions in (b)(i) above exceeds the amount required to distribute in
full to the Holders of the Subgroup 1 Certificates the amounts described in
(b)(ii)(A) above, the portion of the Available Distribution Amount related
to amounts available from Subgroup 2 remaining after giving effect to the
distributions in (b)(i) above exceeds the amount required to distribute in
full to the Holders of the Subgroup 2 Certificates the amounts described in
(b)(ii)(B) above and the portion of the Available Distribution Amount
related to amounts available from Subgroup 4 remaining after giving effect
to the distributions in (b)(i) above exceeds the amount required to
distribute in full to the Holders of the Subgroup 4 Certificates the
amounts described in (b)(ii)(D) above, such excess shall be distributed in
reduction of the Subgroup 3 Deficiency Amount;
(vi) to the extent that (x) the portion of the Available Distribution
Amount related to the amounts available from Subgroup 4 remaining after
giving effect to the distributions in (b)(i) above is insufficient to
distribute in full to the Holders of the Subgroup 4 Certificates amounts
described in (b)(ii)(D) above (such shortfall, the "Subgroup 4 Deficiency
Amount") (y) the portion of the Available Distribution Amount related to
amounts available from Subgroup 1 remaining after giving effect to the
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distributions in (b)(i) above exceeds the amount required to distribute in
full to the Holders of the Subgroup 1 Certificates the amounts described in
(b)(ii)(A) above, the portion of the Available Distribution Amount related
to amounts available from Subgroup 2 remaining after giving effect to the
distributions in (b)(i) above exceeds the amount required to distribute in
full to the Holders of the Subgroup 2 Certificates the amounts described in
(b)(ii)(B) above and the portion of the Available Distribution Amount
related to amounts available from Subgroup 3 remaining after giving effect
to the distributions in (b)(i) above exceeds the amount required to
distribute in full to the Holders of the Subgroup 3 Certificates the
amounts described in (b)(ii)(C) above, such excess shall be distributed in
reduction of the Subgroup 4 Deficiency Amount;
(vii) to the Class PO Component One the portion of the Class PO
Shortfall Amount relating to the Group One Mortgage Loans and to the Class
PO Component Two the portion of the Class PO Shortfall Amount relating to
the Group Two Mortgage Loans; provided, however, that any amount
distributed pursuant to this Section 6.01(b)(vii) shall not cause a further
reduction in the principal balance of the Class PO Component One or Class
PO Component Two Certificates, as applicable;
(viii) If the Available Distribution Amount with respect to Mortgage
Group One is insufficient to make the distributions set forth in paragraphs
(b)(i)(A) and (b)(i)(B) above, the Securities Administrator shall
distribute the Available Distribution Amount with respect to Mortgage Group
One to the Holders of the Group I Certificates pro rata in accordance with
the amounts otherwise distributable to them pursuant to paragraphs
(b)(i)(A) and (b)(i)(B)above. If the Available Distribution Amount with
respect to Mortgage Group Two is insufficient to make the distributions set
forth in paragraphs (b)(i)(C) and (D) above, the Securities Administrator
shall distribute the Available Distribution Amount with respect to the
Holders of the Group II Certificates pro rata in accordance with the
amounts otherwise distributable to them pursuant to paragraphs (b)(i)(C)
and (D) above;
(ix) if amounts available pursuant to paragraphs (iii) through (vi) to
reduce the Subgroup 1 Deficiency Amount, Subgroup 2 Deficiency Amount,
Subgroup 3 Deficiency Amount or Subgroup 4 Deficiency Amount to zero is
insufficient such available amounts will be applied to reduce such
deficiencies pro rata based upon the amount of such Deficiency Amounts. If
such available amounts exceed the amount required to reduce each Deficiency
Amount to zero, amounts shall be applied from each Subgroup pro rata based
up on the applicable amount of excess available pursuant to paragraphs
(iii) through (vi); and
(x) In addition to the foregoing distributions, the Subgroup 1
Certificates, Subgroup 2 Certificates, Subgroup 3 Certificates and Subgroup
4 Certificates will receive additional principal distributions on any
Distribution Date prior to the Credit Support Depletion Date under the
circumstances specified in (A) and (B) below:
(A) On any Distribution Date on or after the date on which the
aggregate Class Certificate Balance of the Subgroup 1 Certificates, the
aggregate Class
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Certificate Balance of the Subgroup 2 Certificates, the aggregate Class
Certificate Balance of the Subgroup 3 Certificates or the aggregate Class
Certificate Balance of the Subgroup 4 Certificates, has been reduced to
zero, all principal (other than the applicable PO Percentage of any
principal received on or in respect of each Discount Mortgage Loan and
limited to amounts in excess of that needed to reduce the aggregate Class
Certificate Balance of the Subgroup 1 Certificates, the aggregate Class
Certificate Balance of the Subgroup 2 Certificates, the aggregate Class
Certificate Balance of the Subgroup 3 Certificates or the aggregate Class
Certificate Balance of the Subgroup 4 Certificates to zero) on the Mortgage
Components in the Subgroup relating to such Class A Certificates that are
no longer outstanding will be distributed as principal to the remaining
Class A Certificates (other than the Class PO Certificates) pro rata, based
on their Class Certificate Balances, in accordance with Section
6.01(b)(ii)(A), Section 6.01(b)(ii)(B), Section 6.01(b)(ii)(C) or Section
6.01(b)(ii)(D), as applicable, in reduction of the Class Certificate
Balances thereof, provided that on such Distribution Date either (a) the
aggregate Subordinated Percentage for such Distribution Date is less than
200% of the initial aggregate Subordinated Percentage, or (b) the average
outstanding Principal Balance of the Mortgage Components in any Subgroup
delinquent 60 days or more over the prior six months, as a percentage of
the corresponding Subgroup 1 Subordinated Amount, Subgroup 2 Subordinated
Amount, Subgroup 3 Subordinated Amount or Subgroup 4 Subordinated Amount,
is greater than or equal to 50%. For purposes of the foregoing, the
"Aggregate Subordinated Percentage" for any Distribution Date is equal to
the aggregate Class Certificate Balance of the Subordinate Certificates
immediately prior to such Distribution Date divided by the aggregate Stated
Principal Balance of all of the Mortgage Loans immediately prior to such
Distribution Date.
(B) If on any Distribution Date on which the aggregate Class
Certificate Balance of the Subgroup 1 Certificates, Subgroup 2
Certificates, Subgroup 3 Certificates or Subgroup 4 Certificates would be
greater than the related outstanding principal balance of the Mortgage
Components in the related Subgroup as of such date (giving effect to any
advances but prior to giving effect to any principal prepayments received
with respect to such Mortgage Loans or Mortgage Components that have not
been passed through to Certificateholders) (the "Undercollateralized
Subgroup"), after giving effect to distributions to be made on such
Distribution Date, the portion of the Available Distribution Amount in
respect of principal on the Mortgage Components in the other Subgroup or
Subgroups (each, an "Overcollateralized Subgroup") otherwise allocable to
the Subordinate Certificates will be distributed to the Classes of Class A
Certificates relating to the Undercollateralized Subgroup (in accordance
with the priorities set forth in Section 6.01(b)(ii)), in reduction of the
principal balances thereof, until the aggregate principal balance of the
Certificates included in the Undercollateralized Subgroup is equal to the
outstanding principal balance of the Mortgage Components in the related
Subgroup as of such date (giving effect to any Monthly Advances but prior
to giving effect to any principal prepayments received with respect to such
Mortgage Components that have not been passed through to the
Certificateholders). Moreover, the Available Distribution Amount with
respect to any Overcollateralized Subgroup will be further reduced (after
distributions of interest to the Class A Certificates included in the
Overcollateralized Subgroup) in an amount equal to one month's interest
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on the amount by which the Undercollateralized Subgroup is
undercollateralized at the Subgroup 1 Remittance Rate (if Subgroup 1 is the
Undercollateralized Subgroup), the Subgroup 2 Remittance Rate (if Subgroup
2 is the Undercollateralized Subgroup), the Subgroup 3 Remittance Rate (if
Subgroup 3 is the Undercollateralized Subgroup) or the Subgroup 4
Remittance Rate (if Subgroup 4 is the Undercollateralized Subgroup), plus
any shortfall of such amounts from prior Distribution Dates; provided,
however, that in no event shall the Available Distribution Amount with
respect to the Overcollateralized Subgroup on any Distribution Date be
reduced by more than the sum of (i) the overcollateralized amount with
respect to the Overcollateralized Subgroup and (ii) interest thereon at the
applicable Remittance Rate. Such amounts will be distributed to the
applicable Classes of Certificates in the priority of interest payable on
such Distribution Date. If two or more Subgroups are Undercollateralized
Subgroups then amounts will be distributed to the Undercollateralized
Subgroups pro rata based upon the amounts of under-collateralization with
respect to each Undercollateralized Subgroup.
(c) Amounts payable on any Distribution Date to the Class M
Certificateholders pursuant to Section 6.01(a)(iii) shall be distributed in the
following priority:
(i) first, to the Class M-1 Certificateholders, up to an amount equal
to (A) the Class M-1 Interest Accrual Amount plus (B) the Class M-1
Shortfall from the preceding Distribution Date plus (C) the pro rata
portion, if any, of the Subordinated Optimal Principal Amount allocable to
the Class M-1 Certificates in accordance with Section 6.01(e) plus (D) any
Carry-over Subordinated Principal Amounts with respect to the Class M-1
Certificates;
(ii) second, to the Class M-2 Certificateholders, up to an amount
equal to (A) the Class M-2 Interest Accrual Amount plus (B) the Class M-2
Shortfall from the preceding Distribution Date plus (C) the pro rata
portion, if any, of the Subordinated Optimal Principal Amount allocable to
the Class M-2 Certificates in accordance with Section 6.01(e) plus (D) any
Carry-over Subordinated Principal Amounts with respect to the Class M-2
Certificates plus (E) any portion of the Subordinated Optimal Principal
Amount allocated to the Class M-1 Certificates in excess of the Class
Certificate Balance of such Class;
(iii) third, to the Class M-3 Certificateholders, up to an amount
equal to (A) the Class M-3 Interest Accrual Amount plus (B) the Class M-3
Shortfall from the preceding Distribution Date plus (C) the pro rata
portion, if any, of the Subordinated Optimal Principal Amount allocable to
the Class M-3 Certificates in accordance with Section 6.01(e) plus (D) any
Carry-over Subordinated Principal Amounts with respect to the Class M-3
Certificates plus (E) any portion of the Subordinated Optimal Principal
Amount allocated to the Class M-2 Certificates in excess of the Class
Certificate Balance of such Class;
(d) Amounts payable on any Distribution Date to the Class B
Certificateholders pursuant to Section 6.01(a)(iv) shall be distributed in the
following priority:
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(i) first, to the Class B-1 Certificateholders, up to an amount equal
to (A) the Class B-1 Interest Accrual Amount plus (B) the Class B-1
Shortfall from the preceding Distribution Date plus (C) the pro rata
portion, if any, of the Subordinated Optimal Principal Amount allocable to
the Class B-1 Certificates in accordance with Section 6.01(e) plus (D) any
Carry-over Subordinated Principal Amounts with respect to the Class B-1
Certificates plus (E) any portion of the Subordinated Optimal Principal
Amount allocated to the Class M Certificates in excess of the Class
Certificate Balance of such Class;
(ii) second, to the Class B-2 Certificateholders, up to an amount
equal to (A) the Class B-2 Interest Accrual Amount plus (B) the Class B-2
Shortfall from the preceding Distribution Date plus (C) the pro rata
portion, if any, of the Subordinated Optimal Principal Amount allocable to
the Class B-2 Certificates in accordance with Section 6.01(e) plus (D) any
Carry-over Subordinated Principal Amounts with respect to the Class B-2
Certificates plus (E) any portion of the Subordinated Optimal Principal
Amount allocated to the Class B-1 Certificates in excess of the Class
Certificate Balance of such Class; and
(iii) third, to the Class B-3 Certificateholders, up to an amount
equal to (A) the Class B-3 Interest Accrual Amount plus (B) the Class B-3
Shortfall from the preceding Distribution Date plus (C) the pro rata
portion, if any, of the Subordinated Optimal Principal Amount allocable to
the Class B-3 Certificates in accordance with Section 6.01(e) plus (D) any
Carry-over Subordinated Principal Amounts with respect to the Class B-3
Certificates plus (E) any portion of the Subordinated Optimal Principal
Amount allocated to the Class B-2 Certificates in excess of the Class
Certificate Balance of such Class.
(e) On each Distribution Date, the Subordinated Optimal Principal Amount
shall be allocated among the Classes of Subordinate Certificates entitled,
pursuant to the next succeeding sentence, to an allocation of principal on such
Distribution Date, pro rata based upon the Class Certificate Balances of all
such Classes so entitled. With respect to the Subordinate Certificates, on each
Distribution Date, principal shall be distributable to (1) any Class of
Subordinate Certificates which has current Credit Support (before giving effect
to any distribution of principal and any Realized Losses allocable on such
Distribution Date) greater than or equal to the Original Credit Support for such
Class; (2) the Class having the lowest numerical class designation of any
outstanding Class of Subordinate Certificates which does not meet the criteria
in (1) above; and (3) the Class B-3 Certificates if all other outstanding
Classes of Subordinate Certificates meet the criteria in (1) above or if no
other Class of Subordinate Certificates is outstanding; provided, however, that
no Class of Subordinate Certificates shall receive any distributions of
principal if any Class of Subordinate Certificates having a lower numerical
class designation than such Class fails to meet the criteria in (1) above. For
purposes of this paragraph, the Class M Certificates shall be deemed to have a
lower numerical class designation than each Class of Class B Certificates.
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Section 6.02 Allocation of Realized Losses.
(a) Prior to each Determination Date, the Servicer shall determine (i) the
total amount of Realized Losses, if any, incurred during the related Principal
Prepayment Period; and (ii) the respective portions of such Realized Losses
allocable to interest and to principal.
(b) The principal portion of any Realized Losses on any Subgroup shall be
allocated as follows: first, to the Class B-3 Certificates until the Class
Certificate Balance of the Class B-3 Certificates has been reduced to zero;
second, to the Class B-2 Certificates until the Class Certificate Balance of the
Class B-2 Certificates has been reduced to zero; third, to Class B-1
Certificates until the Class Certificate Balance of the Class B-1 Certificates
has been reduced to zero; fourth, to the Class M-3 Certificates until the Class
Certificate Balance of the Class M-3 Certificates has been reduced to zero;
fifth, to the Class M-2 Certificates until the Class Certificate Balance of the
Class M-2 Certificates has been reduced to zero; sixth, to the Class M-1
Certificates until the Class Certificate Balance of the Class M-1 Certificates
has been reduced to zero; and seventh, to the Senior Certificates, on a pro rata
basis, allocated first to the Senior Certificates in the related Certificate
Subgroup until the Class Certificate Balance of the Senior Certificates has been
reduced to zero and second to the other Senior Certificates (other than the
Class PO Certificates), pro rata based upon the respective Class Certificate
Balances of such other Senior Certificates until the aggregate Class Principal
Balance of such Senior Certificates have been reduced to zero; provided,
however, that any portion of any Realized Loss that would otherwise be allocated
to the Class 2-A1 and Class 2-A2 Certificates will instead be allocated first to
the Class 2-A10 Certificates; provided further, however, that if a Realized Loss
occurs with respect to a Discount Mortgage Loan (a) the amount of such Realized
Loss equal to the product of (i) the amount of such Realized Loss and (ii) the
applicable PO Percentage with respect to such Discount Mortgage Loan will be
allocated to Class PO Component One (if the Realized Loss occurred with respect
to a Mortgage Component in Subgroup 1) and to Class PO Component Two (if the
Realized Loss occurred with respect to a Mortgage Component in Subgroup 2) and
(b) the remainder of such Realized Loss will be allocated as described above.
The principal portion of any Excess Losses with respect to each Mortgage
Component shall be allocated without priority among (i) all Classes of
Subordinate Certificates and (ii) (a) the Classes of Subgroup 1 Certificates (if
the Excess Loss occurred with respect to a Mortgage Component in Subgroup 1),
(b) the Classes of Subgroup 2 Certificates (if the Excess Loss occurred with
respect to a Mortgage Component in Subgroup 2), (c) the Classes of Subgroup 3
Certificates (if the Excess Loss occurred with respect to a Mortgage Component
in Subgroup 3) or (d) the Classes of Subgroup 4 Certificates (if the Excess Loss
occurred with respect to a Mortgage Component in Subgroup 4) pro rata based upon
their respective Outstanding Certificate Principal Balances. For purposes of the
foregoing sentence, each Class of Subordinate Certificates will be deemed to
have a Certificate Principal Balance (and to accrue interest thereon) equal to
the actual Certificate Principal Balance thereof times a fraction, the numerator
of which is the Subgroup 1 Subordinated Amount (for a loss on Subgroup 1), the
Subgroup 2 Subordinated Amount (for a loss on Subgroup 2), the Subgroup 3
Subordinated Amount (for a loss on Subgroup 3) or the Subgroup 4 Subordinated
Amount (for a loss on Subgroup 4) and the denominator of which is the aggregate
of the Subgroup 1 Subordinated Amount, the Subgroup 2 Subordinated Amount, the
Subgroup 3 Subordinated Amount and the Subgroup 4 Subordinated Amount.
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(c) As used herein, an allocation of a Realized Loss on a "pro rata basis"
among two or more specified Classes of Certificates means an allocation on a pro
rata basis, among the various Classes so specified, to each such Class of
Certificates on the basis of their Class Certificate Balances prior to giving
effect to distributions to be made on such Distribution Date. All Realized
Losses and all other losses allocated to a Class of Certificates hereunder will
be allocated among the Certificates of such Class in proportion to the
Percentage Interests evidenced thereby.
(d) In the event that a recovery is made with respect to any Realized Loss,
the amount of such recovery shall be treated as a Principal Prepayment and
deposited into the Master Servicer Collection Account and distributed on the
applicable Distribution Date.
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Section 6.03 Subordination. The rights of the Class B Certificateholders to
receive distributions in respect of the Class B Certificates on any Distribution
Date shall be subordinated to the rights of the Class A and Class M
Certificateholders to receive distributions in respect of the Class A and Class
M Certificates. The rights of the Class M Certificateholders to receive
distributions in respect of the Class M Certificates on any Distribution Date
shall be subordinated to the rights of the Class A Certificateholders to receive
distributions in respect of the Class A Certificates. The rights of the Class
B-1 Certificateholders to receive distributions in respect of the Class B-1
Certificates on any Distribution Date shall be subordinate to the rights of the
Class A and Class M Certificateholders to receive distributions in respect of
such Class A and Class M Certificates. Each Class of Class B Certificates (other
than the Class B-1 Certificates) is subordinated to the Class A Certificates,
the Class M Certificates and each Class of Class B Certificates having a lower
numerical class designation than such Class of Class B Certificates. The rights
of the Class M-1 Certificateholders to receive distributions in respect of the
Class M-1 Certificates on any Distribution Date shall be subordinate to the
rights of the Class A Certificateholders to receive distributions in respect of
such Class A Certificates. Each Class of Class M Certificates (other than the
Class M-1 Certificates) is subordinated to the Class A Certificates and each
Class of Class M Certificates having a lower numerical class designation than
such Class of Class M Certificates.
Section 6.04 Payments.
(a) On each Distribution Date, other than the final Distribution Date, the
Securities Administrator shall distribute to each Certificateholder of record on
the directly preceding Record Date the Certificateholder's pro rata share of its
Class (based on the aggregate Percentage Interest represented by such Holder's
Certificates) of all amounts required to be distributed on such Distribution
Date to such Class, based solely on information provided to the Securities
Administrator by the Master Servicer. The Securities Administrator shall
calculate the amount to be distributed to each Class and, based on such amounts,
the Securities Administrator shall determine the amount to be distributed to
each Certificateholder. All of the Securities Administrator's calculations of
payments shall be based solely on information provided to the Securities
Administrator by the Master Servicer or the applicable Servicer. The Securities
Administrator shall not be required to confirm, verify or recompute any such
information but shall be entitled to rely conclusively on such information.
(b) Payment of the above amounts to each Certificateholder shall be made
(i) by check mailed to each Certificateholder entitled thereto at the address
appearing in the Certificate Register or (ii) upon receipt by the Securities
Administrator on or before the fifth Business Day preceding the Record Date of
written instructions from a Certificateholder by wire transfer to a United
States dollar account maintained by the payee at any United States depository
institution with appropriate facilities for receiving such a wire transfer;
provided, however, that the final payment in respect of each Class of
Certificates will be made only upon presentation and surrender of such
respective Certificates at the office or agency of the Securities Administrator
specified in the notice to Certificateholders of such final payment.
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Section 6.05 Statements to Certificateholders.
(a) Concurrently with each distribution to Certificateholders, the
Securities Administrator shall make available to the parties hereto and each
Certificateholder via the Securities Administrator's internet website as set
forth below, the following information (such information the "Monthly
Statement"):
(i) the amount of the distribution made on such Distribution Date to
the Holders of each Class of Certificates, separately identified, allocable
to principal;
(ii) the amount of the distribution made on such Distribution Date to
the Holders of each Class of Certificates allocable to interest, separately
identified;
(iii) the aggregate amount the Servicing Fee during the related Due
Period and such other customary information as the Trustee deems necessary
or desirable, or which a Certificateholder reasonably requests, to enable
Certificateholders to prepare their tax returns;
(iv) the aggregate amount of Monthly Advances for the related Due
Period;
(v) the aggregate Stated Principal Balance of each Subgroup at the
close of business at the end of the related Due Period;
(vi) the number, weighted average remaining term to maturity and
weighted average Mortgage Interest Rate of each Subgroup as of the related
Due Date;
(vii) the number and aggregate unpaid principal balance of each
Subgroup (a) one month, two months or three months delinquent on a
contractual basis, (b) as to which foreclosure proceedings have been
commenced and (c) in bankruptcy as of the close of business on the last day
of the calendar month preceding such Distribution Date determined in
accordance with the MBA method;
(viii) with respect to any Mortgage Loan in each Subgroup that became
an REO Property during the preceding calendar month, the Stated Principal
Balance of such Mortgage Loan as of the date it became an REO Property;
(ix) the book value of any REO Property as of the close of business on
the last Business Day of the calendar month preceding the Distribution
Date, and, cumulatively, the total number and cumulative principal balance
of all REO Properties as of the close of business of the last day of the
preceding due period;
(x) the aggregate amount of Principal Prepayments made during the
related Principal Prepayment Period;
(xi) the aggregate amount of Realized Losses incurred during the
related Due Period and the cumulative amount of Realized Losses;
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(xii) the aggregate amount of Extraordinary Trust Fund Expenses
withdrawn from the Master Servicer Collection Account for such Distribution
Date;
(xiii) the Class Certificate Balance or Notional Amount, as
applicable, of each Class of Certificates, after giving effect to the
distributions made on such Distribution Date;
(xiv) the aggregate amount of interest accrued at the related
Certificate Rate with respect to each Class during the related Accrual
Period and the respective portions thereof, if any, remaining unpaid
following the distributions made in respect of such Certificates on such
Distribution Date;
(xv) the aggregate amount of any Prepayment Interest Shortfalls for
such Distribution Date as determined separately for each Subgroup, to the
extent not covered by Compensating Interest Payments by the related
Servicer or the Master Servicer pursuant to the related Servicing Agreement
or Section 6.06;
(xvi) the Available Distribution Amount with respect to each Subgroup;
(xvii) the Certificate Rate for each Class of Certificates for such
Distribution Date; and
(xviii) the aggregate Stated Principal Balance of Mortgage Loans from
each Subgroup purchased by the Seller during the related Due Period and
indicating the Section of this Agreement requiring or allowing the purchase
of each such Mortgage Loan.
The information set forth above shall be calculated or reported, as the
case may be, by the Securities Administrator, based solely on, and to the extent
of, information provided to the Securities Administrator by the Master Servicer.
The Securities Administrator may conclusively rely on such information and shall
not be required to confirm, verify or recalculate any such information.
The Securities Administrator may make available each month, to any
interested party, the Monthly Statement to Certificateholders via the Securities
Administrator's website initially located at "xxx.xxxxxxx.xxx." Assistance in
using the website can be obtained by calling the Securities Administrator's
customer service desk at (000) 000-0000. Parties that are unable to use the
above distribution option are entitled to have a paper copy mailed to them via
first class mail by calling the customer service desk and indicating such. The
Securities Administrator shall have the right to change the way such reports are
distributed in order to make such distribution more convenient and/or more
accessible to the parties, and the Securities Administrator shall provide timely
and adequate notification to all parties regarding any such change.
(b) By January 30 of each year beginning in 2008, if so requested in
writing, the Securities Administrator will furnish such report to each Holder of
the Certificates of record at any time during the prior calendar year as to the
aggregate of amounts reported pursuant to
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subclauses (a)(ii) and (a)(v) above with respect to the Certificates, plus
information with respect to the amount of servicing compensation and such other
customary information as the Securities Administrator may determine to be
necessary and/or to be required by the Internal Revenue Service or by a federal
or state law or rules or regulations to enable such Holders to prepare their tax
returns for such calendar year. Such obligations shall be deemed to have been
satisfied to the extent that substantially comparable information shall be
provided by the Securities Administrator pursuant to the requirements of the
Code.
(c) The Securities Administrator may satisfy the requirements of this
Section 6.05 via a single Monthly Statement, provided that such Monthly
Statement adequately addresses all of the content and delivery requirements
contained in this Section 6.05.
(d) Monthly Advances. If the Monthly Payment on a Mortgage Loan that was
due on a related Due Date and is delinquent other than as a result of
application of the Relief Act and for which the related Servicer was required to
make an advance pursuant to the related Servicing Agreement exceeds the amount
deposited in the Master Servicer Collection Account that will be used for a
Monthly Advance with respect to such Mortgage Loan, the Master Servicer will
deposit in the Master Servicer Collection Account not later than the
Distribution Account Deposit Date immediately preceding the related Distribution
Date an amount equal to such deficiency, net of the Servicing Fee for such
Mortgage Loan, except to the extent the Master Servicer determines any such
Monthly Advance to be nonrecoverable from Liquidation Proceeds, Insurance
Proceeds or future payments on the Mortgage Loan for which such Monthly Advance
was made. If the Master Servicer has not deposited the amount described above as
of the related Distribution Account Deposit Date, the Trustee will, subject to
applicable law and its determination of recoverability, deposit in the Master
Servicer Collection Account not later than the related Distribution Date, an
amount equal to the remaining deficiency as of the Distribution Account Deposit
Date. Subject to the foregoing, the Master Servicer shall continue to make such
Monthly Advances through the date that the related Servicer is required to do so
under its Servicing Agreement. If applicable, on the Distribution Account
Deposit Date, the Master Servicer shall present an Officer's Certificate to the
Securities Administrator (i) stating that the Master Servicer elects not to make
a Monthly Advance in a stated amount and (ii) detailing the reason it deems the
advance to be nonrecoverable.
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Section 6.06 Compensating Interest Payments. The Master Servicer shall
deposit in the Master Servicer Collection Account not later than each
Distribution Account Deposit Date an amount equal to the aggregate amounts
required to be paid by the Servicers under the Servicing Agreements with respect
to subclause (a) of the definition of Prepayment Interest Shortfall with respect
to the Mortgage Loans for the related Distribution Date, and not so paid by the
related Servicers (such amount, the "Compensating Interest Payment"). The Master
Servicer shall not be entitled to any reimbursement of any Compensating Interest
Payment; provided, however, the aggregate compensating interest payments made by
the Master Servicer shall not exceed the Master Servicing Compensation.
Section 6.07 Allocation of Certain Interest Shortfalls.
(a) On any Distribution Date, the excess, if any, of (X) the aggregate
amounts required to be paid by the Servicers under the Servicing Agreements with
respect to subclause (a) of the definition of Prepayment Interest Shortfall with
respect to the Mortgage Loans for the related Distribution Date, and not so paid
by the related Servicers over (Y) the Compensating Interest Payment actually
paid into the Master Servicer Collection Account pursuant to Section 6.06 for
such Distribution Date shall equal the "Compensating Interest Shortfall" with
respect to such Distribution Date. On any Distribution Date, the Compensating
Interest Shortfall shall be allocated pro rata among the outstanding Classes of
Class A, Class M and Class B Certificates based on the amount of interest to
which each such Class would otherwise be paid on such Distribution Date had
there been no such Compensating Interest Shortfall.
(b) On any Distribution Date, the interest portion of any Realized Losses
("Realized Loss Interest Shortfall") shall be allocated to the Class of
Subordinate Certificates then outstanding having the highest numerical class
designation or, if no Class of Subordinate Certificates is then outstanding, to
the Class A Certificates (other than the Class PO Certificates) pro rata among
the outstanding Classes of Class A Certificates (other than the Class PO
Certificates) based on the amount of interest to which each such Class would
otherwise be entitled on such Distribution Date had there been no such Realized
Loss Interest Shortfall.
(c) Any interest shortfall resulting from the Relief Act or any similar
state legislation, as amended shall be allocated pro rata among the outstanding
Classes of Certificates based upon the amount of interest to which each such
Class would otherwise be paid on such Distribution Date.
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ARTICLE VII
THE MASTER SERVICER AND THE DEPOSITOR
Section 7.01 Liabilities of the Master Servicer. The Master Servicer shall
be liable in accordance herewith only to the extent of the obligations
specifically imposed upon and undertaken by the Master Servicer, as the case may
be, herein. The Depositor shall be liable in accordance herewith only to the
extent of the obligations specifically imposed upon and undertaken by the
Depositor.
Section 7.02 Merger or Consolidation of the Master Servicer.
(a) Each of the Master Servicer and the Depositor will keep in full force
and effect its existence, rights and franchises as a corporation under the laws
of the state of its incorporation, and will obtain and preserve its
qualification to do business as a foreign corporation in each jurisdiction in
which such qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, the Certificates or any of the Mortgage Loans
and to perform its duties under this Agreement.
(b) Any Person into which the Master Servicer or the Depositor may be
merged or consolidated, or any corporation resulting from any merger or
consolidation to which the Master Servicer shall be a party, or any Person
succeeding to the business of the Master Servicer, shall be the successor of the
Master Servicer hereunder, without the execution or filing of any paper or
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding.
Section 7.03 Indemnification from the Master Servicer and the Depositor.
(a) The Master Servicer agrees to indemnify the Indemnified Persons for,
and to hold them harmless against, any loss, liability or expense (including
reasonable legal fees and disbursements of counsel) incurred on their part that
may be sustained in connection with, arising out of, or relating to, any claim
or legal action (including any pending or threatened claim or legal action)
relating to this Agreement or the Certificates (i) related to the Master
Servicer's failure to perform its duties in compliance with this Agreement
(except as any such loss, liability or expense shall be otherwise reimbursable
pursuant to this Agreement) or (ii) incurred by reason of the Master Servicer's
willful misfeasance, bad faith or gross negligence in the performance of duties
hereunder or by reason of reckless disregard of obligations and duties
hereunder, provided, in each case, that with respect to any such claim or legal
action (or pending or threatened claim or legal action), the Trustee or the
Securities Administrator shall have given the Master Servicer and the Depositor
written notice of such claim or legal action promptly after the Trustee or the
Securities Administrator shall have received knowledge thereof. This indemnity
shall survive the resignation or removal of the Trustee, Master Servicer or the
Securities Administrator and the termination of this Agreement.
(b) The Depositor will indemnify any Indemnified Person for any loss,
liability or expense of any Indemnified Person not otherwise referred to in
Subsection (a) above.
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Section 7.04 Limitations on Liability of the Master Servicer and Others.
Subject to the obligation of the Master Servicer to indemnify the Indemnified
Persons pursuant to Section 7.03:
(a) Neither the Master Servicer nor any of the directors, officers,
employees or agents of the Master Servicer shall be under any liability to the
Indemnified Persons, the Depositor, the Issuing Entity or the Certificateholders
for taking any action or for refraining from taking any action in good faith
pursuant to this Agreement, or for errors in judgment; provided, however, that
this provision shall not protect the Master Servicer or any such Person against
any breach of warranties or representations made herein or any liability which
would otherwise be imposed by reason of such Person's willful misfeasance, bad
faith or gross negligence in the performance of duties or by reason of reckless
disregard of obligations and duties hereunder.
(b) The Master Servicer and any director, officer, employee or agent of the
Master Servicer may rely in good faith on any document of any kind prima facie
properly executed and submitted by any Person respecting any matters arising
hereunder.
(c) The Master Servicer, the Custodian and any director, officer, employee
or agent of the Master Servicer or the Custodian shall be indemnified by the
Issuing Entity and held harmless thereby against any loss, liability or expense
(including reasonable legal fees and disbursements of counsel) incurred on their
part that may be sustained in connection with, arising out of, or related to,
any claim or legal action (including any pending or threatened claim or legal
action) relating to this Agreement, the Certificates or any Servicing Agreement
(except to the extent that the Master Servicer or the Custodian, as the case may
be, is indemnified by a Servicer thereunder), other than (i) any such loss,
liability or expense related to the Master Servicer's failure to perform its
duties in compliance with this Agreement (except as any such loss, liability or
expense shall be otherwise reimbursable pursuant to this Agreement), or to the
Custodian's failure to perform its duties under the Custodial Agreement,
respectively, or (ii) any such loss, liability or expense incurred by reason of
the Master Servicer's or the Custodian's willful misfeasance, bad faith or gross
negligence in the performance of duties hereunder or under the Custodial
Agreement, as applicable, or by reason of reckless disregard of obligations and
duties hereunder or under the Custodial Agreement, as applicable.
(d) The Master Servicer shall not be under any obligation to appear in,
prosecute or defend any legal action that is not incidental to its duties under
this Agreement and that in its opinion may involve it in any expense or
liability; provided, however, the Master Servicer may in its discretion,
undertake any such action which it may deem necessary or desirable with respect
to this Agreement and the rights and duties of the parties hereto and the
interests of the 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 Issuing Entity, and the Master Servicer
shall be entitled to be reimbursed therefor out of the Master Servicer
Collection Account as provided by Section 4.03. Nothing in this Subsection
7.04(d) shall affect the Master Servicer's obligation to supervise, or to take
such actions as are necessary to ensure, the servicing and administration of the
Mortgage Loans pursuant to Subsection 3.01.
(e) In taking or recommending any course of action pursuant to this
Agreement, unless specifically required to do so pursuant to this Agreement, the
Master Servicer shall not be
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required to investigate or make recommendations concerning potential liabilities
which the Issuing Entity might incur as a result of such course of action by
reason of the condition of the Mortgaged Properties but shall give notice to the
Trustee if it has notice of such potential liabilities.
(f) The Master Servicer shall not be liable for any acts or omissions of
any Servicer, except as otherwise expressly provided herein.
Section 7.05 Master Servicer Not to Resign. Except as provided in Section
7.07, the Master Servicer shall not resign from the obligations and duties
hereby imposed on it except upon a determination that any such duties hereunder
are no longer permissible under applicable law and such impermissibility cannot
be cured. Any such determination permitting the resignation of the Master
Servicer shall be evidenced by an Opinion of Independent Counsel to such effect
delivered to the Trustee. No such resignation by the Master Servicer shall
become effective until MLML or the Trustee or a successor to the Master Servicer
reasonably satisfactory to the Trustee shall have assumed the responsibilities
and obligations of the Master Servicer in accordance with Section 8.02 hereof.
The Trustee shall notify the Rating Agencies of the resignation of the Master
Servicer. If the Master Servicer and the Securities Administrator are the same
entity, then at any time the Master Servicer is terminated as master servicer,
the Securities Administrator shall likewise be removed as securities
administrator.
Section 7.06 Successor Master Servicer. In connection with the appointment
of any successor Master Servicer or the assumption of the duties of the Master
Servicer, MLML or the Trustee may make such arrangements for the compensation of
such successor master servicer out of payments on the Mortgage Loans as MLML or
the Trustee and such successor master servicer shall agree. If the successor
master servicer does not agree that such market value is a fair price, such
successor master servicer shall obtain two quotations of market value from third
parties actively engaged in the servicing of single-family mortgage loans.
Notwithstanding anything herein to the contrary, in no event shall the Trustee
be liable for any Servicing Fee or master servicing fee or for any differential
in the amount of the Servicing Fee or the master servicing fee paid hereunder
and the amount necessary to induce any successor servicer or successor master
servicer to act as successor servicer or successor master servicer, as
applicable, under this Agreement and the transactions set forth or provided
herein.
Section 7.07 Sale and Assignment of Master Servicing. The Master Servicer
may sell and assign its rights and delegate its duties and obligations in its
entirety as Master Servicer under this Agreement; provided, however, that: (i)
the purchaser or transferee accepting such assignment and delegation (a) shall
be a Person which shall be qualified to service mortgage loans for Xxxxxx Xxx or
Xxxxxxx Mac; (b) shall have a net worth of not less than $10,000,000 (unless
otherwise approved by each Rating Agency pursuant to clause (ii) below); (c)
shall be reasonably satisfactory to the Trustee (as evidenced in a writing
signed by the Trustee); and (d) shall execute and deliver to the Trustee an
agreement, in form and substance reasonably satisfactory to the Trustee, which
contains an assumption by such Person of the due and punctual performance and
observance of each covenant and condition to be performed or observed by it as
master servicer under this Agreement, any custodial agreement from and after the
effective date of such agreement; (ii) each Rating Agency shall be given prior
written notice of the identity of
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the proposed successor to the Master Servicer and each Rating Agency's rating of
the Certificates in effect immediately prior to such assignment, sale and
delegation will not be downgraded, qualified or withdrawn as a result of such
assignment, sale and delegation, as evidenced by a letter to such effect
delivered to the Master Servicer and the Trustee; and (iii) the Master Servicer
assigning and selling the master servicing shall deliver to the Trustee an
Officer's Certificate and an Opinion of Independent Counsel, each stating that
all conditions precedent to such action under this Agreement have been completed
and such action is permitted by and complies with the terms of this Agreement.
No such assignment or delegation shall affect any liability of the Master
Servicer arising prior to the effective date thereof.
ARTICLE VIII
DEFAULT
Section 8.01 Events of Default. "Event of Default," wherever used herein,
means any one of the following events (whatever the reason for such Event of
Default and whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body) and
only with respect to the defaulting Master Servicer:
(i) The Master Servicer fails to cause to be deposited in the
Distribution Account any amount so required to be deposited pursuant to
this Agreement, and such failure continues unremedied for a period of three
Business Days after the date upon which written notice of such failure,
requiring the same to be remedied, shall have been given to the Master
Servicer; or
(ii) The Master Servicer fails to observe or perform in any material
respect any other material covenants and agreements set forth in this
Agreement to be performed by it, which covenants and agreements materially
affect the rights of Certificateholders, and such failure continues
unremedied for a period of 60 days after the date on which written notice
of such failure, properly 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 Certificates evidencing Percentage
Interests aggregating not less than 25% of the Trust Fund; or
(iii) There is entered against the Master Servicer a decree or order
by a court or agency or supervisory authority having jurisdiction in the
premises for the appointment of a conservator, receiver or liquidator in
any insolvency, readjustment of debt, marshaling of assets and liabilities
or similar proceedings, or for the winding up or liquidation of its
affairs, and the continuance of any such decree or order is unstayed and in
effect for a period of 60 consecutive days, or an involuntary case is
commenced against the Master Servicer under any applicable insolvency or
reorganization statute and the petition is not dismissed within 60 days
after the commencement of the case; or
(iv) The Master Servicer consents to the appointment of a conservator
or receiver or liquidator in any insolvency, readjustment of debt,
marshaling of assets and liabilities or similar proceedings of or relating
to the Master Servicer or substantially all of its property; or the Master
Servicer admits in writing its inability to pay its debts
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generally as they become due, files a petition to take advantage of any
applicable insolvency or reorganization statute, makes an assignment for
the benefit of its creditors, or voluntarily suspends payment of its
obligations; or
(v) The Master Servicer assigns or delegates its duties or rights
under this Agreement in contravention of the provisions permitting such
assignment or delegation under Sections 7.05 or 7.07; or
(vi) Any failure by the Master Servicer to deliver any information,
report, certification or accountants' letter when and as required under
Section 3.16 or Section 3.17.
In each and every such case, so long as such Event of Default with respect to
the Master Servicer shall not have been remedied, either the Trustee or the
Holders of Certificates evidencing Percentage Interests aggregating not less
than 51% of the Class Certificate Balance of the Certificates, by notice in
writing to the Master Servicer (and to the Trustee if given by such
Certificateholders), with a copy to the Rating Agencies, and with the consent of
the Seller, may terminate all of the rights and obligations (but not the
liabilities) of the Master Servicer under this Agreement and in and to the
Mortgage Loans and/or the REO Property serviced by the Master Servicer and the
proceeds thereof. Upon the receipt by the Master Servicer of the written notice,
all authority and power of the Master Servicer under this Agreement, whether
with respect to the Certificates, the Mortgage Loans, REO Property or under any
other related agreements (but only to the extent that such other agreements
relate to the Mortgage Loans or related REO Property) shall, subject to Section
8.02, automatically and without further action pass to and be vested in the
Trustee pursuant to this Section 8.01; and, without limitation, the Trustee is
hereby authorized and empowered to execute and deliver, on behalf of the Master
Servicer as attorney-in-fact or otherwise, any and all documents and other
instruments and to do or accomplish all other acts or things necessary or
appropriate to effect the purposes of such notice of termination, whether to
complete the transfer and endorsement or assignment of the Mortgage Loans and
related documents, or otherwise. The Master Servicer agrees to cooperate with
the Trustee in effecting the termination of the Master Servicer's rights and
obligations hereunder, including, without limitation, the transfer to the
Trustee of (i) the property and amounts which are then or should be part of the
Issuing Entity or which thereafter become part of the Issuing Entity; and (ii)
originals or copies of all documents of the Master Servicer reasonably requested
by the Trustee to enable it to assume the Master Servicer's duties thereunder.
In addition to any other amounts which are then, or, notwithstanding the
termination of its activities under this Agreement, may become payable to the
Master Servicer under this Agreement, the Master Servicer shall be entitled to
receive, out of any amount received on account of a Mortgage Loan or related REO
Property, that portion of such payments which it would have received as
reimbursement under this Agreement if notice of termination had not been given.
The termination of the rights and obligations of the Master Servicer shall not
affect any obligations incurred by the Master Servicer prior to such
termination.
Section 8.02 Trustee to Act; Appointment of Successor.
(a) Upon the receipt by the Master Servicer of a notice of termination
pursuant to Section 8.01 or an Opinion of Independent Counsel pursuant to
Section 7.05 to the effect that the Master Servicer is legally unable to act or
to delegate its duties to a Person which is legally able to act, the Trustee
shall automatically become the successor in all respects to the Master Servicer
in its capacity under this Agreement and the transactions set forth or provided
for herein and shall
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thereafter be subject to all the responsibilities, duties, liabilities and
limitations on liabilities relating thereto placed on the Master Servicer by the
terms and provisions hereof; provided, however, that MLML shall have the right
to either (a) immediately assume the duties of the Master Servicer or (b) select
a successor master servicer; provided further, however, that the Trustee shall
have no obligation whatsoever with respect to any liability (other than advances
deemed recoverable and not previously made) incurred by the Master Servicer at
or prior to the time of termination. As compensation therefor, the Trustee shall
be entitled to all funds relating to the Mortgage Loans which the Master
Servicer would have been entitled to retain if the Master Servicer had continued
to act hereunder, except for those amounts due the Master Servicer as
reimbursement permitted under this Agreement for advances previously made or
expenses previously incurred. Notwithstanding the above, or anything herein to
the contrary, the Trustee, if it becomes Master Servicer, shall have no
responsibility or obligation (i) to repurchase or substitute any Mortgage Loan,
(ii) for any representation or warranty of the Master Servicer hereunder, and
(iii) for any act or omission of either a predecessor or successor Master
Servicer other than the Trustee. The Trustee may conduct any activity required
of it as Master Servicer hereunder through an Affiliate or through an agent.
Neither the Trustee (as successor Master Servicer) nor any other successor
Master Servicer shall be deemed to be in default hereunder due to any act or
omission of a predecessor Master Servicer, including but not limited to failure
to timely deliver to the Trustee distribution instructions, any funds required
to be deposited to the Trust Fund, or any breach of its duty to cooperate with a
transfer of master servicing. 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
or any failure to perform, or any delay in performing, any duties or
responsibilities hereunder, in either case caused solely by the failure of the
Master Servicer to deliver or provide, or any delay in delivering or providing,
any cash, information, documents or records required to be provided to it by the
Master Servicer. Notwithstanding the above, the Trustee may, if it shall be
unwilling so to act, or shall, if it is legally unable so to act, appoint or
petition a court of competent jurisdiction to appoint, any established housing
and home finance institution which is a Xxxxxx Xxx- or Xxxxxxx Mac-approved
servicer, and with respect to a successor to the Master Servicer only, having a
net worth of not less than $10,000,000 and meeting such other standards for a
successor Master Servicer as are set forth in this Agreement, as the successor
to the Master Servicer hereunder in the assumption of all or any part of the
responsibilities, duties or liabilities of the Master Servicer hereunder.
Pending appointment of a successor to the Master Servicer hereunder, the Trustee
shall act in such capacity as hereinabove provided. In connection with such
appointment and assumption, the Trustee may make such arrangements for the
compensation of such successor out of payments on the Mortgage Loans as it and
such successor shall agree; provided, however, in the event that the provisions
of Section 7.06 shall apply, no such compensation shall be in excess of that
permitted the Trustee under this Subsection 8.02(a), and that such successor
shall undertake and assume the obligations of the Trustee to pay compensation to
any third Person acting as an agent or independent contractor in the performance
of master servicing responsibilities hereunder. The Trustee and such successor
shall take such action, consistent with this Agreement, as shall be necessary to
effectuate any such succession.
(b) If the Trustee shall succeed to any duties of the Master Servicer
respecting the Mortgage Loans as provided herein, it shall do so in a separate
capacity and not in its capacity as
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Trustee and, accordingly, the provisions of Article IX shall be inapplicable to
the Trustee in its duties as the successor to the Master Servicer in the
servicing of the Mortgage Loans (although such provisions shall continue to
apply to the Trustee in its capacity as Trustee); the provisions of Article VII,
however, shall apply to it in its capacity as successor master servicer.
Section 8.03 Notification to Certificateholders. Upon any termination or
appointment of a successor to the Master Servicer, the Trustee shall give prompt
written notice thereof to Certificateholders at their respective addresses
appearing in the Certificate Register and to the Rating Agencies.
Section 8.04 Waiver of Defaults. The Trustee shall transmit by mail to all
Certificateholders, within 60 days after the occurrence of any Event of Default
known to the Trustee, unless such Event of Default shall have been cured, notice
of each such Event of Default hereunder known to the Trustee. The Holders of
Certificates evidencing Percentage Interests aggregating not less than 51% of
the Class Certificate Balance of the Certificates may, on behalf of all
Certificateholders, waive any default by the Master Servicer in the performance
of its obligations hereunder and the consequences thereof, except a default in
the making of or the causing to be made any required distribution on the
Certificates. Upon any such waiver of a past default, such default shall be
deemed to cease to exist, and any Event of Default arising therefrom shall be
deemed to have been timely 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. The Trustee shall
give notice of any such waiver to the Rating Agencies.
Section 8.05 List of Certificateholders. Upon reasonable, prior written
request of three or more Certificateholders of record, for purposes of
communicating with other Certificateholders with respect to their rights under
this Agreement, the Trustee will afford such Certificateholders access during
business hours to the most recent list of Certificateholders held by the
Trustee.
ARTICLE IX
CONCERNING THE TRUSTEE AND
THE SECURITIES ADMINISTRATOR
Section 9.01 Duties of Trustee.
(a) The Trustee, prior to the occurrence of an Event of Default and after
the curing or waiver of all Events of Default which may have occurred, and the
Securities Administrator each undertake to perform such duties and only such
duties as are specifically set forth in this Agreement as duties of the Trustee
and the Securities Administrator, respectively. If an Event of Default has
occurred and has not been cured or waived, the Trustee shall exercise such of
the rights and powers vested in it by this Agreement, and subject to Section
8.02(b) use the same degree of care and skill in their exercise, as a prudent
person would exercise under the circumstances in the conduct of his own affairs.
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(b) Upon receipt of all resolutions, certificates, statements, opinions,
reports, documents, orders or other instruments which are specifically required
to be furnished to the Trustee and the Securities Administrator pursuant to any
provision of this Agreement, the Trustee and the Securities Administrator,
respectively, shall examine them to determine whether they are in the form
required by this Agreement; provided, however, that neither the Trustee nor the
Securities Administrator shall be responsible for the accuracy or content of any
resolution, certificate, statement, opinion, report, document, order or other
instrument furnished by the Master Servicer; provided, further, that neither the
Trustee nor the Securities Administrator shall be responsible for the accuracy
or verification of any calculation provided to it pursuant to this Agreement. If
any such instrument is found not to conform to the requirements of this
Agreement in a material manner, the Trustee shall take such action as it deems
appropriate to have the instrument corrected and if the instrument is not
corrected to its satisfaction, the Trustee will provide notice thereof to the
Certificateholders and take such further action as directed by the
Certificateholders.
(c) On each Distribution Date, the Securities Administrator shall make
monthly distributions and the final distribution to the Certificateholders from
funds in the Distribution Account as provided in Sections 6.01 and 10.01 herein
based solely on the report of the Master Servicer or the Servicers.
(d) No provision of this Agreement shall be construed to relieve the
Trustee or the Securities Administrator from liability for its own negligent
action, its own negligent failure to act or its own willful misconduct;
provided, however, that:
(i) Prior to the occurrence of an Event of Default, and after the
curing or waiver of all such Events of Default which may have occurred, the
duties and obligations of the Trustee and the Securities Administrator
shall be determined solely by the express provisions of this Agreement,
neither the Trustee nor the Securities Administrator shall be liable except
for the performance of their respective duties and obligations as are
specifically set forth in this Agreement, no implied covenants or
obligations shall be read into this Agreement against the Trustee or the
Securities Administrator and, in the absence of bad faith on the part of
the Trustee or the Securities Administrator, respectively, the Trustee or
the Securities Administrator, respectively, may conclusively rely, as to
the truth of the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the Trustee or the
Securities Administrator, respectively, and conforming to the requirements
of this Agreement;
(ii) Neither the Trustee nor the Securities Administrator shall be
liable in its individual capacity for an error of judgment made in good
faith by a Responsible Officer or Responsible Officers of the Trustee or an
officer of the Securities Administrator, respectively, unless it shall be
proved that the Trustee or the Securities Administrator, respectively, was
negligent in ascertaining the pertinent facts;
(iii) Neither the Trustee nor the Securities Administrator shall be
liable with respect to any action taken, suffered or omitted to be taken by
it in good faith in accordance with the directions of the Holders of
Certificates evidencing Percentage
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Interests aggregating not less than 25% of the Class Certificate Balance of
the Certificates, if such action or non-action relates to the time, method
and place of conducting any proceeding for any remedy available to the
Trustee or the Securities Administrator, respectively, or exercising any
trust or other power conferred upon the Trustee or the Securities
Administrator, respectively, under this Agreement;
(iv) The Trustee shall not be required to take notice or be deemed to
have notice or knowledge of any default or Event of Default unless a
Responsible Officer of the Trustee's Corporate Trust Office shall have
actual knowledge thereof. In the absence of such notice, the Trustee may
conclusively assume there is no such default or Event of Default;
(v) The Trustee shall not in any way be liable by reason of any
insufficiency in any Account held by or in the name of Trustee unless it is
determined by a court of competent jurisdiction that the Trustee's gross
negligence or willful misconduct was the primary cause of such
insufficiency (except to the extent that the Trustee is obligor and has
defaulted thereon);
(vi) Anything in this Agreement to the contrary notwithstanding, in no
event shall the Trustee or the Securities Administrator be liable for
special, indirect or consequential loss or damage of any kind whatsoever
(including but not limited to lost profits), even if the Trustee or the
Securities Administrator, respectively, has been advised of the likelihood
of such loss or damage and regardless of the form of action; and
(vii) None of the Securities Administrator, the Depositor, the Master
Servicer, any Servicer or the Trustee shall be responsible for the acts or
omissions of the other, it being understood that this Agreement shall not
be construed to render them partners, joint venturers or agents of one
another.
Neither the Trustee nor the Securities Administrator shall be required to
expend or risk its own funds or otherwise incur financial liability in the
performance of any of its duties hereunder, or in the exercise of any of its
rights or powers, if there is reasonable ground for believing that the repayment
of such funds or 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 or the Securities Administrator to
perform, or be responsible for the manner of performance of, any of the
obligations of the Master Servicer hereunder or under the Servicing Agreements,
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.
(e) All funds received by the Master Servicer and the Securities
Administrator and required to be deposited in the Master Servicer Collection
Account or Distribution Account pursuant to this Agreement will be promptly so
deposited by the Master Servicer and the Securities Administrator.
(f) Except for those actions that the Trustee or the Securities
Administrator is required to take hereunder, neither the Trustee nor the
Securities Administrator shall have any
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obligation or liability to take any action or to refrain from taking any action
hereunder in the absence of written direction as provided hereunder.
Section 9.02 Certain Matters Affecting the Trustee and the Securities
Administrator. Except as otherwise provided in Section 9.01:
(i) The Trustee and the Securities Administrator may rely and shall be
protected in acting or refraining from acting in reliance on any
resolution, certificate of a Depositor, Master Servicer or Servicer,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, appraisal, bond or other
paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(ii) The Trustee and the Securities Administrator may consult with
counsel and any advice of such counsel or any Opinion of Counsel shall be
full and complete authorization and protection with respect to any action
taken or suffered or omitted by it hereunder in good faith and in
accordance with such advice or Opinion of Counsel;
(iii) Neither the Trustee nor the Securities Administrator shall be
under any obligation to exercise any of the trusts or powers vested in it
by this Agreement, other than its obligation to give notices pursuant to
this Agreement, or to institute, conduct or defend any litigation hereunder
or in relation hereto at the request, order or direction of any of the
Certificateholders pursuant to the provisions of this Agreement, unless
such Certificateholders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities which may
be incurred therein or thereby. Nothing contained herein shall, however,
relieve the Trustee of the obligation, upon the occurrence of an Event of
Default of which a Responsible Officer of the Trustee's Corporate Trust
Office has actual knowledge (which has not been cured or waived), subject
to Section 8.02(b), to exercise such of the rights and powers vested in it
by this Agreement, and to use the same degree of care and skill in their
exercise, as a prudent person would exercise under the circumstances in the
conduct of his own affairs;
(iv) Prior to the occurrence of an Event of Default hereunder and
after the curing or waiver of all Events of Default which may have
occurred, neither the Trustee nor the Securities Administrator shall be
liable in its individual capacity for any action taken, suffered or omitted
by it in good faith and believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Agreement;
(v) Neither the Trustee nor the Securities Administrator shall be
bound to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, bond or other paper or document, unless
requested in writing to do so by Holders of Certificates evidencing
Percentage Interests aggregating not less than 25% of the Class Certificate
Balance of the Certificates and provided that the payment within a
reasonable time to the Trustee or the Securities Administrator, as
applicable, of the costs, expenses or liabilities likely to be incurred by
it in the making of such investigation is, in the opinion of the Trustee or
the Securities Administrator, as applicable, reasonably assured to the
Trustee
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or the Securities Administrator, as applicable, by the security afforded to
it by the terms of this Agreement. The Trustee or the Securities
Administrator may require reasonable indemnity against such expense or
liability as a condition to taking any such action. The reasonable expense
of every such examination shall be paid by the Certificateholders
requesting the investigation;
(vi) The Trustee and the Securities Administrator may execute any of
the trusts or powers hereunder or perform any duties hereunder either
directly or through Affiliates, agents or attorneys; provided, however,
that the Trustee may not appoint any agent to perform its custodial
functions with respect to the Mortgage Files or paying agent functions
under this Agreement without the express written consent of the Securities
Administrator, which consent will not be unreasonably withheld. Neither the
Trustee nor the Securities Administrator shall be liable or responsible for
the misconduct or negligence of any of the Trustee's or the Securities
Administrator's agents or attorneys or a custodian or paying agent
appointed hereunder by the Trustee or the Securities Administrator with due
care and, when required, with the consent of the Securities Administrator;
(vii) Should the Trustee or the Securities Administrator deem the
nature of any action required on its part, other than a payment or transfer
under Subsection 4.01(b) or Section 4.02, to be unclear, the Trustee or the
Securities Administrator, respectively, may require prior to such action
that it be provided by the Depositor with reasonable further instructions;
(viii) The right of the Trustee or the Securities Administrator to
perform any discretionary act enumerated in this Agreement shall not be
construed as a duty, and neither the Trustee nor the Securities
Administrator shall be accountable for other than its negligence or willful
misconduct in the performance of any such act;
(ix) Neither the Trustee nor the Securities Administrator shall be
required to give any bond or surety with respect to the execution of the
trust created hereby or the powers granted hereunder, except as provided in
Subsection 9.07; and
(x) Neither the Trustee nor the Securities Administrator shall have
any duty to conduct any affirmative investigation as to the occurrence of
any condition requiring the repurchase of any Mortgage Loan by the Seller
pursuant to this Agreement or the Mortgage Loan Purchase Agreement, as
applicable, or the eligibility of any Mortgage Loan for purposes of this
Agreement.
(xi) Any permissive right of the Trustee hereunder shall not be
construed as a duty.
Section 9.03 Trustee and Securities Administrator Not Liable for
Certificates or Mortgage Loans. The recitals contained herein and in the
Certificates (other than the signature and countersignature of the Securities
Administrator on the Certificates) shall be taken as the statements of the
Depositor, and neither the Trustee nor the Securities Administrator shall have
any responsibility for their correctness. Neither the Trustee nor the Securities
Administrator
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makes any representation as to the validity or sufficiency of the Certificates
(other than the signature and countersignature of the Securities Administrator
on the Certificates) or of any Mortgage Loan except as expressly provided in
Sections 2.02 and 2.05 hereof; provided, however, that the foregoing shall not
relieve the Trustee or the Custodian of the obligation to review the Mortgage
Files pursuant to Sections 2.02 and 2.04. The Securities Administrator's
signature and countersignature (or countersignature of its agent) on the
Certificates shall be solely in its capacity as Securities Administrator of the
Trust Fund and shall not constitute the Certificates an obligation of the
Securities Administrator in any other capacity. Neither the Trustee or the
Securities Administrator shall be accountable for the use or application by the
Depositor of any of the Certificates or of the proceeds of such Certificates, or
for the use or application of any funds paid to the Depositor with respect to
the Mortgage Loans. Subject to the provisions of Section 2.05, neither the
Trustee nor the Securities Administrator shall be responsible for the legality
or validity of this Agreement or any document or instrument relating to this
Agreement, the validity of the execution of this Agreement or of any supplement
hereto or instrument of further assurance, or the validity, priority, perfection
or sufficiency of the security for the Certificates issued hereunder or intended
to be issued hereunder. Neither the Trustee nor the Securities Administrator
shall at any time have any responsibility or liability for or with respect to
the legality, validity and enforceability of any Mortgage or any Mortgage Loan,
or the perfection and priority of any Mortgage or the maintenance of any such
perfection and priority, or for or with respect to the sufficiency of the Trust
Fund or its ability to generate the payments to be distributed to
Certificateholders, under this Agreement. Neither the Trustee nor the Securities
Administrator shall have any 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 9.04 Trustee and Securities Administrator May Own Certificates. The
Trustee and the Securities Administrator in its individual capacity or in any
capacity other than as Trustee hereunder may become the owner or pledgee of any
Certificates with the same rights it would have if it were not Trustee or the
Securities Administrator, as applicable, and may otherwise deal with the parties
hereto.
Section 9.05 Trustee's and Securities Administrator's Fees and Expenses.
The fees and expenses of the Trustee and the Securities Administrator shall be
paid by the Master Servicer in accordance with a side letter agreement. In
addition, the Trustee and the Securities Administrator will be entitled to
recover from the Master Servicer Collection Account pursuant to Section 4.03(b)
all reasonable out-of-pocket expenses, disbursements and advances and the
expenses of the Trustee and the Securities Administrator, respectively, in
connection with any Event of Default, any breach of this Agreement or any claim
or legal action (including any pending or threatened claim or legal action)
incurred or made by the Trustee or the Securities Administrator, respectively,
in the administration of the trusts hereunder (including the reasonable
compensation, expenses and disbursements of its counsel) except any such
expense, disbursement or advance as may arise from its negligence or intentional
misconduct or which is the responsibility of the Certificateholders or the Trust
Fund hereunder. If funds in the Master Servicer Collection Account are
insufficient therefor, the Trustee and the Securities Administrator shall
recover such expenses from the Depositor. Such compensation and
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reimbursement obligation shall not be limited by any provision of law in regard
to the compensation of a trustee of an express trust.
Section 9.06 Eligibility Requirements for Trustee and Securities
Administrator.
(a) The Trustee and any successor Trustee and the Securities Administrator
and any successor Securities Administrator shall during the entire duration of
this Agreement be a state bank or trust company or a national banking
association organized and doing business under the laws of such state or the
United States of America, authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus and undivided profits of at least
$40,000,000 or, in the case of a successor Trustee, $50,000,000, subject to
supervision or examination by federal or state authority and, in the case of the
Trustee, rated "BBB" or higher by S&P and "Aaa1" or higher by Moody's with
respect to their long-term rating and rated "BBB" or higher by S&P and "Baa1" or
higher by Moody's with respect to any outstanding long-term unsecured
unsubordinated debt, and, in the case of a successor Trustee or successor
Securities Administrator other than pursuant to Section 9.10, rated in one of
the two highest long-term debt categories of, or otherwise acceptable to, each
of the Rating Agencies. If the Trustee publishes reports of condition at least
annually, pursuant to law or to the requirements of the aforesaid supervising or
examining authority, then for the purposes of this Section 9.06 the combined
capital and surplus of such corporation shall be deemed to be its total equity
capital (combined capital and surplus) as set forth in its most recent report of
condition so published. In case at any time the Trustee or the Securities
Administrator shall cease to be eligible in accordance with the provisions of
this Section 9.06, the Trustee or the Securities Administrator shall resign
immediately in the manner and with the effect specified in Section 9.08.
(b) In addition, the Securities Administrator (i) may not be an originator,
Master Servicer, Servicer, the Depositor or an affiliate of the Depositor unless
the Securities Administrator is in an institutional trust department of the
relevant entity, (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" by S&P or "A" Moody's. If no successor Securities Administrator shall
have been appointed and shall have accepted appointment within 60 days after the
Securities Administrator ceases to be the Securities Administrator pursuant to
Section 9.08, then the Trustee shall either (i) perform the duties of the
Securities Administrator pursuant to this Agreement until such time as a new
Securities Administrator is appointed or (ii) petition a court of competent
jurisdiction to appoint a successor securities administrator. The Trustee shall
notify the Rating Agencies of any change of Securities Administrator.
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Section 9.07 Insurance. The Securities Administrator, at its own expense,
shall at all times maintain and keep in full force and effect: (i) fidelity
insurance, (ii) theft of documents insurance and (iii) forgery insurance (which
may be collectively satisfied by a "Financial Institution Bond" and/or a
"Bankers' Blanket Bond"). All such insurance shall be in amounts, with standard
coverage and subject to deductibles, as are customary for insurance typically
maintained by banks or their affiliates which act as custodians for
investor-owned mortgage pools. A certificate of an officer of the Securities
Administrator as to the Securities Administrator's compliance with this Section
9.07 shall be furnished to any Certificateholder upon reasonable written
request.
Section 9.08 Resignation and Removal of the Trustee and Securities
Administrator.
(a) The Trustee and the Securities Administrator 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, with a copy to the Rating Agencies. Upon
receiving such notice of resignation, the Depositor shall promptly appoint a
successor Trustee or successor Securities Administrator, as applicable, by
written instrument, in triplicate, one copy of which instrument shall be
delivered to each of the resigning Trustee or Securities Administrator, as
applicable, the successor Trustee or Securities Administrator, as applicable. If
no successor Trustee or Securities Administrator shall have been so appointed
and have accepted appointment within 30 days after the giving of such notice of
resignation, the resigning Trustee or Securities Administrator may petition any
court of competent jurisdiction for the appointment of a successor Trustee or
Securities Administrator. If the Securities Administrator and the Master
Servicer are the same entity, then at any time the Securities Administrator
resigns or is removed as Securities Administrator, the Master Servicer shall
likewise be terminated as Master Servicer.
(b) If at any time the Trustee or the Securities Administrator shall cease
to be eligible in accordance with the provisions of Section 9.06 and shall fail
to resign after written request therefor by the Depositor or if at any time the
Trustee or the Securities Administrator shall become incapable of acting, or
shall be adjudged a bankrupt or insolvent, or a receiver of the Trustee or the
Securities Administrator, as applicable, or of its property shall be appointed,
or any public officer shall take charge or control of the Trustee or the
Securities Administrator, as applicable, or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation, then the Depositor shall
promptly remove the Trustee, or shall be entitled to remove the Securities
Administrator, as applicable, and appoint a successor Trustee or Securities
Administrator, as applicable, by written instrument, in triplicate, one copy of
which instrument shall be delivered to each of the Trustee or Securities
Administrator, as applicable, so removed, the successor Trustee or Securities
Administrator, as applicable.
(c) The Holders of Certificates evidencing Percentage Interests aggregating
not less than 51% of the Trust Fund may at any time remove the Trustee or the
Securities Administrator and appoint a successor Trustee or Securities
Administrator by written instrument or instruments, in quadruplicate, signed by
such Holders or their attorneys-in-fact duly authorized, one complete set of
which instruments shall be delivered to the Depositor, the Trustee, the
Securities Administrator (if the Trustee is removed), the Trustee (if the
Securities Administrator is
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removed), and the Trustee or Securities Administrator so removed and the
successor so appointed.
(d) No resignation or removal of the Trustee or the Securities
Administrator and appointment of a successor Trustee or Securities Administrator
pursuant to any of the provisions of this Section 9.08 shall become effective
except upon appointment of and acceptance of such appointment by the successor
Trustee or Securities Administrator as provided in Section 9.09.
Section 9.09 Successor Trustee and Successor Securities Administrator.
(a) Any successor Trustee or Securities Administrator appointed as provided
in Section 9.08 shall execute, acknowledge and deliver to the Depositor, the
Master Servicer and its predecessor Trustee or Securities Administrator an
instrument accepting such appointment hereunder. The resignation or removal of
the predecessor Trustee or Securities Administrator shall then become effective
and such successor Trustee or Securities Administrator, without any further act,
deed or conveyance, shall become fully vested with all the rights, powers,
duties and obligations of its predecessor hereunder, with like effect as if
originally named as Trustee or Securities Administrator herein. The predecessor
Trustee or Securities Administrator shall after payment of its outstanding fees
and expenses promptly deliver to the successor Trustee or Securities
Administrator, as applicable, all assets and records of the Trust held by it
hereunder, and the Depositor and the predecessor Trustee or Securities
Administrator, as applicable, shall execute and deliver such instruments and do
such other things as may reasonably be required for more fully and certainly
vesting and confirming in the successor Trustee or Securities Administrator, as
applicable, all such rights, powers, duties and obligations.
(b) No successor Trustee or Securities Administrator shall accept
appointment as provided in this Section 9.09 unless at the time of such
acceptance such successor Trustee or Securities Administrator shall be eligible
under the provisions of Section 9.06.
(c) Upon acceptance of appointment by a successor Trustee or Securities
Administrator as provided in this Section 9.09, the successor Trustee or
Securities Administrator shall mail notice of the succession of such Trustee or
Securities Administrator hereunder to all Certificateholders at their addresses
as shown in the Certificate Register and to the Rating Agencies. The Depositor
shall pay the cost of any mailing by the successor Trustee or Securities
Administrator.
Section 9.10 Merger or Consolidation of Trustee or Securities
Administrator. Any state bank or trust company or national banking association
into which the Trustee or the Securities Administrator may be merged or
converted or with which it may be consolidated or any state bank or trust
company or national banking association resulting from any merger, conversion or
consolidation to which the Trustee or the Securities Administrator,
respectively, shall be a party, or any state bank or trust company or national
banking association succeeding to all or substantially all of the corporate
trust business of the Trustee or the Securities Administrator, respectively,
shall be the successor of the Trustee or the Securities Administrator,
respectively, hereunder, provided such state bank or trust company or national
banking association shall be eligible under the provisions of Section 9.06. Such
succession shall be valid without the
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execution or filing of any paper or any further act on the part of any of the
parties hereto, anything herein to the contrary notwithstanding.
Section 9.11 Appointment of Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provisions hereof, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Trust or property constituting the same may at the time be located, the
Depositor and the Trustee acting jointly shall have the power and shall execute
and deliver all instruments to appoint one or more Persons approved by the
Trustee and the Depositor to act as co-trustee or co-trustees, jointly with the
Trustee, or separate trustee or separate trustees, of all or any part of the
Trust, and to vest in such Person or Persons, in such capacity, such title to
the Trust, or any part thereof, and, subject to the other provisions of this
Section 9.11, such powers, duties, obligations, rights and trusts as the
Depositor and the Trustee may consider necessary or desirable.
(b) If the Depositor shall not have joined in such appointment within 15
days after the receipt by it of a written request so to do, the Trustee shall
have the power to make such appointment without the Depositor.
(c) No co-Master Servicer or separate trustee hereunder shall be required
to meet the terms of eligibility as a successor trustee under Section 9.06
hereunder and no notice to Certificateholders of the appointment of
co-trustee(s) or separate trustee(s) shall be required under Section 9.08
hereof.
(d) In the case of any appointment of a co-trustee or separate trustee
pursuant to this Section 9.11, all rights, powers, duties and obligations
conferred or imposed upon the Trustee and required to be conferred on such
co-trustee shall be conferred or imposed upon and exercised or performed by the
Trustee and such separate trustee or co-trustee jointly, except to the extent
that under any law of any jurisdiction in which any particular act or acts are
to be performed (whether as Trustee hereunder or as successor to the Master
Servicer hereunder), the Trustee shall be incompetent or unqualified to perform
such act or acts, in which event such rights, powers, duties and obligations
(including the holding of title to the Trust or any portion thereof in any such
jurisdiction) shall be exercised and performed by such separate trustee or
co-trustee at the direction of the Trustee.
(e) Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the then separate trustees and co-trustees,
as effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article IX. 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.
(f) To the extent not prohibited by law, any separate trustee or co-trustee
may, at any time, request the Trustee, its agent or attorney-in-fact, with full
power and authority, to do any
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lawful act under or with respect to this Agreement on its behalf and in its
name. If any separate trustee or co-trustee shall die, become incapable of
acting, resign or be removed, all of its estates, properties rights, remedies
and trusts shall vest in and be exercised by the Trustee, to the extent
permitted by law, without the appointment of a new or successor Trustee.
(g) No Trustee under this Agreement shall be personally liable by reason of
any act or omission of another Trustee under this Agreement. The Depositor and
the Trustee acting jointly may at any time accept the resignation of or remove
any separate trustee or co-trustee.
Section 9.12 Federal Information Returns and Reports to Certificateholders;
REMIC Administration.
(a) REMIC elections as set forth in the Preliminary Statement shall be made
on Forms 1066 or other appropriate federal tax or information return for the
taxable year ending on the last day of the calendar year in which the
Certificates are issued. The regular interests and residual interest in each
REMIC shall be as designated in the Preliminary Statement.
(b) The Closing Date is hereby designated as the "Startup Day" of each
REMIC within the meaning of section 860G(a)(9) of the Code. The latest possible
maturity date for purposes of Treasury Regulation 1.860G-1(a)(4) will be the
Latest Possible Maturity Date.
(c) The Securities Administrator shall, for federal income tax purposes,
maintain books and records with respect to each REMIC on a calendar year and on
an accrual basis.
(d) The Securities Administrator shall represent the Trust Fund in any
administrative or judicial proceeding relating to an examination or audit by any
governmental taxing authority with respect thereto. The Securities Administrator
shall pay any and all tax-related expenses (not including taxes) of each REMIC,
including but not limited to any professional fees or expenses related to audits
or any administrative or judicial proceedings with respect to such REMIC that
involve the Internal Revenue Service or state tax authorities, but only to the
extent that (i) such expenses are ordinary or routine expenses, including
expenses of a routine audit but not expenses of litigation (except as described
in (ii)); or (ii) such expenses or liabilities (including taxes and penalties)
are attributable to the negligence or willful misconduct of the Securities
Administrator in fulfilling its duties hereunder (including its duties as tax
return preparer). The Securities Administrator shall be entitled to
reimbursement of expenses to the extent provided in clause (i) above from the
Distribution Account, provided, however, the Securities Administrator shall not
be entitled to reimbursement for expenses incurred in connection with the
preparation of tax returns and other reports as required by this Section.
(e) The Securities Administrator shall prepare and file, and the Trustee
shall sign, all of each REMIC's and the Trust Fund's federal and appropriate
state tax and information returns as such REMIC's direct representative. The
expenses of preparing and filing such returns shall be borne by the Securities
Administrator.
(f) The Securities Administrator or its designee shall perform on behalf of
each REMIC all reporting and other tax compliance duties that are the
responsibility of such REMIC
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under the Code, the REMIC Provisions, or other compliance guidance issued by the
Internal Revenue Service or any state or local taxing authority. Among its other
duties, if required by the Code, the REMIC Provisions, or other such guidance,
the Securities Administrator shall provide, upon receipt of additional
reasonable compensation, to the Treasury or other governmental authority such
information as is necessary for the application of any tax relating to the
transfer of a Residual Certificate to any disqualified person or organization
pursuant to Treasury Regulation 1.860E-2(a)(5) and any person designated in
Section 860E(e)(3) of the Code.
(g) The Securities Administrator and the Holders of Certificates shall take
any action or cause any REMIC to take any action necessary to create or maintain
the status of any REMIC as a REMIC under the REMIC Provisions and shall assist
each other as necessary to create or maintain such status. Neither the
Securities Administrator nor the Holder of any Residual Certificate shall
knowingly take any action, cause any REMIC to take any action or fail to take
(or fail to cause to be taken) any action that, under the REMIC Provisions, if
taken or not taken, as the case may be, could (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 Securities Administrator has received a REMIC Opinion (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 Securities Administrator, 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 Securities Administrator has
advised it in writing that an Adverse REMIC Event could occur; provided,
however, that if no Adverse REMIC Event would occur but such action could result
in the imposition of additional taxes on the Residual Certificateholders, no
such Person shall take any such action, or cause any REMIC to take any such
action without the written consent of the Residual Certificateholders.
(h) Each Holder of a Residual Certificate shall pay when due any and all
taxes imposed on the related REMIC by federal or state governmental authorities.
To the extent that such taxes are not paid by a Residual Certificateholder, the
Securities Administrator shall pay any remaining REMIC taxes out of current or
future amounts otherwise distributable to the Holder of the Residual Certificate
in any such REMIC or, if no such amounts are available, out of other amounts
held in the Distribution Account, and shall reduce amounts otherwise payable to
holders of regular interests in any such REMIC, as the case may be.
(i) The Securities Administrator shall prepare and file with the Internal
Revenue Service ("IRS"), on behalf of each REMIC created hereunder, an
application for an employer identification number on IRS Form SS-4 or by any
other acceptable method. The Securities Administrator shall also file a Form
8811 as required. The Securities Administrator, upon receipt from the IRS of the
Notice of Taxpayer Identification Number Assigned, shall upon request promptly
forward a copy of such notice to the Depositor. The Securities Administrator
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shall furnish any other information that is required by the Code and regulations
thereunder to be made available to Certificateholders. The Depositor shall cause
each Servicer to provide the Securities Administrator with such information as
is necessary for the Securities Administrator to prepare such reports.
(j) No additional contributions of assets shall be made to any REMIC,
except as expressly provided in this Agreement.
(k) The Securities Administrator shall not enter into any arrangement by
which any REMIC will receive a fee or other compensation for services.
(l) The Class A-R Holder shall act as "tax matters person" with respect to
each REMIC and irrevocably appoints the Securities Administrator to act as its
agent in such roles.
(m) The Securities Administrator shall prepare or cause to be prepared on
behalf of the Trust Fund, based upon information calculated in accordance with
this Agreement pursuant to instructions given by the Depositor, the Trustee
shall sign, and the Securities Administrator shall file federal tax returns, all
in accordance with Section 9.12 hereof. The Securities Administrator shall
prepare and file, and the Trustee shall sign, 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 Securities Administrator's possession). The Securities Administrator shall
forward copies to the Depositor of all such returns and Form 1099 supplemental
tax information and such other information within the control of the Securities
Administrator as the Depositor may reasonably request in writing, and shall
distribute to each Certificateholder such forms and furnish such information
within the control of the Securities Administrator as are required by the Code
and the REMIC Provisions to be furnished to them, and will prepare and
distribute to Certificateholders Form 1099 (supplemental tax information) (or
otherwise furnish information within the control of the Securities
Administrator) to the extent required by applicable law.
(n) None of the Securities Administrator, the Trustee or the Depositor, as
assignees under this Agreement, shall provide any consent pursuant to this
Agreement or knowingly take any action under this Agreement that would conflict
with or violate the provisions of this Section 9.12.
(o) The parties intend that the portion of the Trust Fund consisting of the
right to receive the payments distributable to the Class P Certificates shall be
treated as a "grantor trust" under the Code, for the benefit of the holders of
the Class P Certificates, and the provisions hereof shall be interpreted
consistently with this intention. In furtherance of such intention, the
Securities Administrator shall (i) furnish or cause to be furnished to the
holders of the Class P Certificates information regarding their allocable share
of the income with respect to such grantor trust and (ii) file or cause to be
filed with the Internal Revenue Service, and the Trustee shall sign, Form 1041
(together with any necessary attachments) and such other forms as may be
applicable.
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(p) Notwithstanding any other provision of this Agreement, the Securities
Administrator shall comply with all federal withholding requirements respecting
payments to Certificateholders of interest or original issue discount on the
Mortgage Loans, that the Securities Administrator reasonably believes are
applicable under the Code. The consent of Certificateholders shall not be
required for such withholding. In the event the Securities Administrator
withholds any amount from interest or original issue discount payments or
advances thereof to any Certificateholder pursuant to federal withholding
requirements, the Securities Administrator shall, together with its monthly
report to such Certificateholders, indicate such amount withheld.
(q) The Trustee and the Securities Administrator agree to indemnify the
Trust Fund and the Depositor for any taxes and costs including, without
limitation, any reasonable attorneys fees imposed on or incurred by the Trust
Fund, the Depositor or the Trustee, as a result of a breach of the Trustee's
covenants and the Securities Administrator's covenants, respectively, set forth
in this Section 9.12; provided, however, such liability and obligation to
indemnify in this paragraph shall not be joint and several and neither the
Trustee nor the Securities Administrator shall be liable or be obligated to
indemnify the Trust Fund for the failure by the other to perform any duty under
this Agreement or the breach by the other of any covenant in this Agreement.
(r) The Securities Administrator covenants and agrees that it shall act as
agent (and the Securities Administrator is hereby appointed to act as agent) of
the Tax Matters Person on behalf of each of the REMICs provided for herein and
that in such capacity it shall: (a) to the extent that they are under its
control conduct the affairs of each of the REMICs provided for herein at all
times that any Certificates are outstanding so as to maintain the status of each
of the REMICs provided for herein as a REMIC under the REMIC Provisions; (b) not
knowingly or intentionally take any action or omit to take any action that would
cause the termination of the REMIC status of any of the REMICs provided for
herein or result in the imposition of tax upon any such REMIC; (c) not knowingly
or intentionally take any action or omit to take any action that would cause the
termination of the grantor trust status under Subpart E, Part I of Subchapter J
of the Code of any of the grantor trusts provided for herein or result in the
imposition of tax upon any such grantor trust; and (d) as and when necessary and
appropriate, represent each of the REMICs provided for herein in any
administrative or judicial proceedings relating to an examination or audit by
any governmental taxing authority, request an administrative adjustment as to
any taxable year of any of the REMICs provided for herein, enter into settlement
agreements with any governmental taxing agency, extend any statute of
limitations relating to any tax item of any of the REMICs provided for herein,
and otherwise act on behalf of each of the REMICs provided for herein in
relation to any tax matter involving any of such REMICs or any controversy
involving the Trust Fund.
(s) Each of the Depositor, the Master Servicer, the Securities
Administrator and the Trustee agrees not to take or omit to take knowingly or
intentionally, any action or omit to take any action that would cause the
termination of the REMIC status of any of the REMICs provided for herein or
result in the imposition of a tax upon any of the REMICs provided for herein.
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(t) For the avoidance of doubt, any returns, records, reports or filings
required under this Section 9.12, may be prepared, maintained and filed in a
consolidated manner that addresses the requirements of the Pooling and Servicing
Agreement taken as a whole.
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ARTICLE X
TERMINATION
Section 10.01 Termination upon Liquidation or Repurchase of all Mortgage
Loans.
(a) Subject to Section 10.03, the obligations and responsibilities of the
Depositor, the Master Servicer, the Securities Administrator and the Trustee
created hereby with respect to that portion of the Trust Fund relating to the
Certificates shall terminate upon the earlier of (a) an Optional Termination and
(b) the later of (i) the maturity or other liquidation of the last Mortgage Loan
remaining in the Trust Fund (or any Monthly Advance with respect thereto) and
the disposition of all REO Property and (ii) the distribution to
Certificateholders of all amounts required to be distributed to them pursuant to
this Agreement, as applicable. In no event shall the trusts created hereby
continue beyond the earlier of (i) 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 and
(ii) the Latest Possible Maturity Date.
(b) On or before the Determination Date following the Initial Optional
Termination Date, the Securities Administrator shall attempt to terminate that
portion of the Trust Fund relating to the Certificates by conducting an auction
of all of the Mortgage Loans and REO Properties via a solicitation of bids from
at least three (3) bidders, each of which shall be a nationally recognized
participant in mortgage finance (the "Auction"). The Depositor and the
Securities Administrator agree to work in good faith to develop bid procedures
in advance of the Initial Optional Termination Date to govern the operation of
the Auction. The Securities Administrator shall be entitled to retain an
investment banking firm and/or other agents in connection with the Auction, the
cost of which shall be included in the Optional Termination Price (unless an
Optional Termination does not occur in which case such costs shall be an expense
of the Issuing Entity). The Securities Administrator shall accept the highest
bid received at the Auction; provided that the amount of such bid equals or
exceeds the Optional Termination Price. The Securities Administrator shall
determine the Optional Termination Price based upon information provided by (i)
the Master Servicer with respect to the amounts described in clauses (A) and (B)
of the definition of "Optional Termination Price" (other than Securities
Administrator's expenses) and (ii) the Depositor with respect to the information
described in clause (C) of the definition of "Optional Termination Price." The
Securities Administrator may conclusively rely upon the information provided to
it in accordance with the immediately preceding sentence and shall not have any
liability for the failure of any party to provide such information.
If an Optional Termination does not occur as a result of the Auction's
failure to achieve the Optional Termination Price, the Master Servicer may, on
any Distribution Date following such Auction, at its option, terminate that
portion of the Trust Fund relating to the Certificates by purchasing all of the
Mortgage Loans and REO Properties at a price equal to the Optional Termination
Price. In connection with such termination, the Optional Termination Price shall
be delivered to the Securities Administrator no later than the Business Day
immediately preceding the related Distribution Date. Notwithstanding anything to
the contrary herein, the Optional Termination Amount paid to the Securities
Administrator by the winning bidder at the Auction
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or by the Master Servicer shall be deposited by the Securities Administrator
directly into the Distribution Account immediately upon receipt. Upon any
termination as a result of an Auction, the Securities Administrator shall, out
of the Optional Termination Amount deposited into the Distribution Account, (x)
pay the Securities Administrator its costs and expenses necessary to conduct the
Auction and any other unreimbursed amounts owing to it and (y) pay to the Master
Servicer or Servicer, the aggregate amount of any unreimbursed out-of-pocket
costs and expenses owed to the Master Servicer or Servicer and any unpaid or
unreimbursed Servicing Fees, Monthly Advances and Servicing Advances.
(c) Notwithstanding anything to the contrary in clause (b) above, in the
event that the Securities Administrator and the Trustee receive the written
opinion of a nationally recognized participant in mortgage finance acceptable to
the Seller that the Mortgage Loans and REO Properties to be included in the
Auction will not be saleable at a price sufficient to achieve the Optional
Termination Price, the Securities Administrator need not conduct the Auction. In
such event, the Master Servicer shall have the option to purchase the Mortgage
Loans and REO Properties at the Optional Termination Price as of the Initial
Optional Termination Date.
Section 10.02 Final Distribution on the Certificates.
If on any Determination Date, (i) the Securities Administrator determines
that there are no Outstanding Mortgage Loans and no other funds or assets in the
Trust Fund relating to the Mortgage Loans other than the funds in the Master
Servicer Collection Account, the Securities Administrator shall send a final
distribution notice promptly to each Certificateholder or (ii) the Securities
Administrator determines that a Class of Certificates shall be retired after a
final distribution on such Class, the Securities Administrator shall notify the
Certificateholders within seven (7) Business Days after such Determination Date
that the final distribution in retirement of such Class of Certificates is
scheduled to be made on the immediately following Distribution Date. Any final
distribution made pursuant to the immediately preceding sentence will be made
only upon presentation and surrender of the Certificates at the office of the
Securities Administrator.
Notice of any partial termination of the Issuing Entity, specifying the
Distribution Date on which Certificateholders may surrender their Certificates
for payment of the final distribution and cancellation, shall be given promptly
by the Securities Administrator by letter to Certificateholders mailed no later
than the last calendar day of the month immediately preceding the month of such
final distribution (or with respect to an Auction, mailed no later than one
Business Day following completion of such Auction). Any such notice shall
specify (a) the Distribution Date upon which final distribution on the
Certificates will be made upon presentation and surrender of Certificates at the
office therein designated, (b) the location of the office or agency at which
such presentation and surrender must be made, and (c) that the Record Date
otherwise applicable to such Distribution Date is not applicable, distributions
being made only upon presentation and surrender of the Certificates at the
office therein specified. The Securities Administrator will give such notice to
each Rating Agency at the time such notice is given to Certificateholders.
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In the event such notice is given, the Master Servicer shall cause all
funds in the Master Servicer Collection Account to be deposited in the
Distribution Account on the Business Day prior to the applicable Distribution
Date in an amount equal to the final distribution in respect of the
Certificates. Upon receipt of written notice of such final deposit with respect
to the Issuing Entity and the receipt by the Trustee, or its Custodian, of a
Request for Release therefor, the Trustee, or its Custodian, shall promptly
release to the Securities Administrator or the Master Servicer, as applicable,
the Mortgage Files for the Mortgage Loans.
Upon presentation and surrender of the Certificates, the Securities
Administrator shall cause to be distributed to Certificateholders of each Class
the amounts allocable to such Certificates held in the Distribution Account in
the order and priority set forth in Section 6.01 hereof on the final
Distribution Date and in proportion to their respective Percentage Interests.
In the event that any affected Certificateholders shall not surrender
Certificates for cancellation within six months after the date specified in the
above-mentioned written notice, the Securities Administrator shall give a second
written notice to the remaining Certificateholders to surrender their
Certificates for cancellation and receive the final distribution with respect
thereto. If within six months after the second notice all the applicable
Certificates shall not have been surrendered for cancellation, the Securities
Administrator may take appropriate steps, or may appoint an agent to take
appropriate steps, to contact the remaining Certificateholders concerning
surrender of their Certificates, and the cost thereof shall be paid out of the
funds and other assets that remain a part of the Issuing Entity. If within one
year after the second notice all Certificates shall not have been surrendered
for cancellation, the Class A-R Certificateholders shall be entitled to all
unclaimed funds and other assets of the Issuing Entity that remain subject
hereto. Upon payment to the Class A-R Certificateholders of such funds and
assets, the Securities Administrator shall have no further duties or obligations
with respect thereto.
Section 10.03 Additional Termination Requirements.
(a) In the event the Securities Administrator or the Master Servicer
exercises its purchase option as provided in Section 10.01, that portion of the
Trust Fund relating to the Mortgage Loans shall be terminated in accordance with
the following additional requirements, unless the Securities Administrator shall
have been furnished with an Opinion of Counsel to the effect that the failure of
the Issuing Entity to comply with the requirements of this Section will not (i)
result in the imposition of taxes on "prohibited transactions" of the Issuing
Entity as defined in Section 860F of the Code or (ii) cause any REMIC
constituting part of the Issuing Entity to fail to qualify as a REMIC at any
time that any Certificates are outstanding:
(i) Within 90 days prior to the final Distribution Date, the
Securities Administrator shall adopt and sign a plan of complete
liquidation of the Issuing Entity as provided to it by the terminating
purchaser, meeting the requirements of a "qualified liquidation" under
Section 860F of the Code and any regulations thereunder; and
(ii) At or after the time of adoption of such a plan of complete
liquidation and at or prior to the final Distribution Date, the Securities
Administrator shall sell all of the assets of the Issuing Entity for cash
pursuant to the terms of the plan of complete liquidation.
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(b) By their acceptance of Certificates, the Holders thereof hereby agree
to appoint the Securities Administrator as their attorney in fact to: (i) adopt
such a plan of complete liquidation (and the Certificateholders hereby appoint
the Securities Administrator as their attorney in fact to sign such plan) as
appropriate and (ii) to take such other action in connection therewith as may be
reasonably required to carry out such plan of complete liquidation all in
accordance with the terms hereof.
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01 Intent of Parties. The parties intend that each REMIC shall
be treated as a REMIC for federal income tax purposes and that the provisions of
this Agreement should be construed in furtherance of this intent.
Section 11.02 Amendment.
(a) This Agreement may be amended from time to time by the Depositor, the
Master Servicer, the Securities Administrator and the Trustee, and without the
consent of any of the Certificateholders to:
(i) to cure any ambiguity or correct any mistake,
(ii) to correct, modify or supplement any provision herein which may
be inconsistent with any other provision herein,
(iii) to add any other provisions with respect to matters or questions
arising under this Agreement, or
(iv) to modify, alter, amend, add to or rescind any of the terms or
provisions contained in this Agreement; provided, however, that, in the
case of clauses (iii) and (iv), such amendment will not, as evidenced by an
Opinion of Counsel addressed to the Securities Administrator to such
effect, adversely affect in any material respect the interests of any
Certificateholder; provided, further, however, that such amendment will be
deemed to not adversely affect in any material respect the interest of any
Holder if the Person requesting such amendment obtains a letter from each
Rating Agency stating that such amendment will not result in a reduction or
withdrawal of its rating of any Class of the Certificates, it being
understood and agreed that any such letter in and of itself will not
represent a determination as to the materiality of any such amendment and
will represent a determination only as to the credit issues affecting any
such rating.
Notwithstanding the foregoing, without the consent of the
Certificateholders, the Depositor, the Master Servicer, the Securities
Administrator and the Trustee may at any time and from time to time amend this
Agreement to modify, eliminate or add to any of its provisions to such extent as
shall be necessary or appropriate to maintain the qualification of any of the
REMICs provided for herein as REMICs under the Code or to avoid or minimize the
risk of the
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imposition of any tax on the Issuing Entity or any of the REMICs
provided for herein pursuant to the Code that would be a claim against the
Issuing Entity at any time prior to the final redemption of the Certificates,
provided that the Trustee and the Securities Administrator shall have been
provided an Opinion of Counsel addressed to the Trustee and the Securities
Administrator, which opinion shall be an expense of the party requesting such
amendment but in any case shall not be an expense of the Trustee and the
Securities Administrator, to the effect that such action is necessary or
appropriate to maintain such qualification or to avoid or minimize the risk of
the imposition of such a tax.
(b) This Agreement may also be amended from time to time by the Master
Servicer, the Depositor, the Securities Administrator and the Trustee, and the
Assignment Agreements may also be amended from time to time by the Master
Servicer and the Trustee, with the consent of the Holders of Certificates
evidencing Percentage Interests aggregating not less than 51% of the Class
Certificate Balance of the Certificates or of the applicable Class or Classes,
if such amendment affects only such Class or Classes, 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
Certificateholders; provided, however, that no such amendment shall (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 Regular Certificate
without the consent of the Holder of such Regular Certificate, or (ii) reduce
the aforesaid percentage of Certificates the Holders of which are required to
consent to any such amendment, without the consent of the Holders of all
Certificates then outstanding. Notwithstanding any contrary provision of this
Agreement, the Trustee shall not consent to any amendment to this Agreement
unless it shall have first received an Opinion of Counsel addressed to the
Trustee, which opinion shall be an expense of the party requesting such
amendment but in any case shall not be an expense of the Trustee, to the effect
that such amendment is permitted hereunder and will not cause the imposition of
any tax on the Issuing Entity, any of the REMICs provided for herein or the
Certificateholders or cause any of the REMICs provided for herein to fail to
qualify as a REMIC at any time that any Certificates are outstanding.
(c) Promptly after the execution of any such amendment, the Securities
Administrator shall furnish a copy of such amendment or written notification of
the substance of such amendment to each Certificateholder, with a copy to the
Rating Agencies.
(d) In the case of an amendment under Section 11.02(b) above, it shall not
be necessary for the Certificateholders to approve the particular form of such
an amendment. Rather, it shall be sufficient if the Certificateholders approve
the substance of the amendment. The manner of obtaining such consents and of
evidencing the authorization of the execution thereof by Certificateholders
shall be subject to such reasonable regulations as the Trustee may prescribe.
(e) Prior to the execution of any amendment to this Agreement, the Trustee
shall be entitled to receive and rely upon an Opinion of Counsel stating that
the execution of such amendment is authorized or permitted by this Agreement and
will not adversely affect the status of any REMIC created hereunder. The Trustee
and the Securities Administrator may, but shall
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not be obligated to, enter into any such amendment which affects the Trustee's
or the Securities Administrator's own respective rights, duties or immunities
under this Agreement.
Section 11.03 Recordation of Agreement. To the extent permitted by
applicable law, this Agreement is subject to recordation in all appropriate
public offices for real property records in all the counties or other comparable
jurisdictions in which any or all of the Mortgaged Properties are situated, and
in any other appropriate public recording office or elsewhere. The Depositor
shall effect such recordation, at the expense of the Issuing Entity upon the
request in writing of a Certificateholder, but only if such direction is
accompanied by an Opinion of Counsel (provided at the expense of the
Certificateholder requesting recordation) to the effect that such recordation
would materially and beneficially affect the interests of the Certificateholders
or is required by law.
Section 11.04 Limitation on Rights of Certificateholders.
(a) The death or incapacity of any Certificateholder shall not terminate
this Agreement or the Issuing Entity, nor entitle such Certificateholder's legal
representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding up of the Issuing Entity, nor
otherwise affect the rights, obligations and liabilities of the parties hereto
or any of them.
(b) Except as expressly provided in this Agreement, no Certificateholders
shall have any right to vote or in any manner otherwise control the operation
and management of the Issuing Entity, 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 establish the Certificateholders from time
to time as partners or members of an association; nor shall any
Certificateholders 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.
(c) No Certificateholder shall have any right by virtue of any provision of
this Agreement to institute any suit, action or proceeding in equity or at law
upon, under or with respect to this Agreement against the Depositor, the
Securities Administrator, the Master Servicer or any successor to any such
parties unless (i) such Certificateholder previously shall have given to the
Trustee a written notice of a continuing default, as herein provided, (ii) the
Holders of Certificates evidencing Percentage Interests aggregating not less
than 51% of the Trust Fund shall have made written request upon the Trustee to
institute such action, suit or proceeding in its own name as Trustee hereunder
and shall have offered to the Trustee such reasonable indemnity as it may
require against the costs and expenses and liabilities to be incurred therein or
thereby, and (iii) the Trustee, for 60 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.
(d) No one or more Certificateholders shall have any right by virtue of any
provision of this Agreement to affect the rights of any other Certificateholders
or to obtain or seek to obtain priority or preference over any other such
Certificateholder, or to enforce any right under this Agreement, except in the
manner herein provided and for the equal, ratable and common benefit of all
Certificateholders. For the protection and enforcement of the provisions of this
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Section 11.04, each and every Certificateholder and the Trustee shall be
entitled to such relief as can be given either at law or in equity.
Section 11.05 Acts of Certificateholders.
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Agreement to be given or taken by
Certificateholders may be embodied in and evidenced by one or more instruments
of substantially similar tenor signed by such Certificateholders in person or by
an agent duly appointed in writing. Except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
are delivered to the Trustee and, where it is expressly required, to the
Depositor. Proof of execution of any such instrument or of a writing appointing
any such agent shall be sufficient for any purpose of this Agreement and
conclusive in favor of the Trustee and the Depositor, if made in the manner
provided in this Section 11.05.
(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 a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is by
a signer acting in a capacity other than his or her individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his or her
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 (notwithstanding any notation of
ownership or other writing on such Certificates, except an endorsement in
accordance with Section 5.02 made on a Regular Certificate presented in
accordance with Section 5.04) shall be proved by the Certificate Register, and
neither the Trustee, the Securities Administrator, the Depositor, the Master
Servicer nor any successor to any such parties shall be affected by any notice
to the contrary.
(d) Any request, demand, authorization, direction, notice, consent, waiver
or other action of the holder of any Regular Certificate shall bind every future
holder of the same Regular Certificate and the holder of every Regular
Certificate issued upon the registration of transfer or exchange thereof, if
applicable, or in lieu thereof with respect to anything done, omitted or
suffered to be done by the Trustee, the Securities Administrator, the Depositor,
the Master Servicer or any successor to any such party in reliance thereon,
whether or not notation of such action is made upon such Certificates.
(e) In determining whether the Holders of the requisite percentage of
Certificates evidencing Percentage Interests have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Certificates
owned by the Trustee, the Securities Administrator, the Depositor, the Master
Servicer or any Affiliate thereof shall be disregarded, except as otherwise
provided in Section 11.02(b) and except that, in determining whether the
Securities Administrator or the Trustee shall be protected in relying upon any
such request, demand, authorization, direction, notice, consent or waiver, only
Certificates which a Responsible Officer
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of the Trustee knows to be so owned shall be so disregarded. Certificates which
have been pledged in good faith to the Trustee, the Securities Administrator,
the Depositor, the Master Servicer or any Affiliate thereof may be regarded as
outstanding if the pledgor establishes to the satisfaction of the Securities
Administrator the pledgor's right to act with respect to such Certificates and
that the pledgor is not an Affiliate of the Trustee, the Securities
Administrator, the Depositor, or the Master Servicer, as the case may be.
Section 11.06 Governing Law. THIS AGREEMENT AND THE CERTIFICATES SHALL BE
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE
TO ITS CONFLICT OF LAWS RULES AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 11.07 Notices. All demands and notices hereunder shall be in
writing and shall be deemed given when delivered at (including delivery by
facsimile) or mailed by registered mail, return receipt requested, postage
prepaid, or by recognized overnight courier, to (i) in the case of the
Depositor, 000 Xxxxx Xxxxxx, 4 World Financial Center, New York, New York 10080,
Attention: Vice President-Servicing, telecopier number: (000) 000-0000, or to
such other address as may hereafter be furnished to the other parties hereto in
writing; (ii) in the case of the Trustee, at its Corporate Trust Office, or such
other address as may hereafter be furnished to the other parties hereto in
writing; (iii) in the case of the Master Servicer or Securities Administrator,
Xxxxx Fargo Bank, N.A., X.X. Xxx 00, Xxxxxxxx, Xxxxxxxx 00000, Attention: Client
Service Manager MANA Series 2007-F1, or, in the case of overnight deliveries,
0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000-0000, Attention: Client
Service Manager MANA Series 2007-F1, facsimile no.: (000) 000-0000, or such
other address as may hereafter be furnished to the other parties hereto in
writing; (iv) in the case of the Custodian, Xxxxx Fargo Bank, N.A., 0000 00xx
Xxxxxx Xxxxxxxxx, XX 0031, Xxxxxxxxxxx, Xxxxxxxxx 00000, Attention: MANA Series
2007-F1; or such other address as may hereafter be furnished to the other
parties hereto in writing; or (v) in the case of the Rating Agencies, Xxxxx'x
Investors Service, Inc., 00 Xxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000
and Fitch, Inc., Xxx Xxxxx Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000. Any notice
delivered to the Depositor, the Trustee, the Securities Administrator or the
Master Servicer under this Agreement shall be effective only upon receipt. Any
notice required or permitted to be mailed to a Certificateholder, unless
otherwise provided herein, shall be given by first-class mail, postage prepaid,
at the address of such Certificateholder 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 when mailed, whether or not the
Certificateholder receives such notice.
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 severed 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.
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Section 11.09 Successors and Assigns. The provisions of this Agreement
shall be binding upon and inure to the benefit of the respective successors and
assigns of the parties hereto.
Section 11.10 Article and Section Headings. The article and section
headings herein are for convenience of reference only, and shall not limit or
otherwise affect the meaning hereof.
Section 11.11 Counterparts. This Agreement may be executed in two or more
counterparts each of which when so executed and delivered shall be an original
but all of which together shall constitute one and the same instrument.
Section 11.12 Notice to Rating Agencies. The article and section headings
herein are for convenience of reference only, and shall not limited or otherwise
affect the meaning hereof. The Trustee shall promptly provide notice to each
Rating Agency with respect to each of the following of which it has actual
knowledge:
1. Any material change or amendment to this Agreement or the Servicing
Agreements;
2. The occurrence of any Event of Default that has not been cured;
3. The resignation or termination of the Trustee, the Master Servicer or
the Securities Administrator;
4. The repurchase or substitution of Mortgage Loans;
5. The final payment to Certificateholders; and
6. Any change in the location of the Master Servicer Collection Account or
the Distribution Account.
Section 11.13 Third Party Rights. The Custodian shall be deemed third
party beneficiaries of this Agreement regarding provisions related to
indemnifying the Custodian so long as the Custodian remains custodian under the
Custodial Agreement.
ARTICLE XII
REMIC ADMINISTRATION
Section 12.01 [Reserved].
Section 12.02 Prohibited Transactions and Activities. Neither the Depositor
nor the Securities Administrator 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 X of this Agreement, (iv) a substitution
pursuant to Article II of this Agreement or (v) a repurchase of Mortgage Loans
pursuant to Article II of this Agreement, nor acquire any assets for any REMIC,
nor sell or dispose of any investments in the Distribution 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,
-154-
substitution, or acceptance will not (a) affect adversely the status of any such
REMIC as a REMIC or of the interests therein other than the Residual Certificate
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 any such REMIC to be subject to any tax including a
tax on prohibited transactions or prohibited contributions pursuant to the REMIC
Provisions.
Section 12.03 Indemnification with Respect to Prohibited Transactions or
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 Securities Administrator of
its duties and obligations set forth herein, the Securities Administrator shall
indemnify the Certificateholders of the related Residual Certificate against any
and all losses, claims, damages, liabilities or expenses ("Losses") resulting
from such negligence; provided, however, that the Securities Administrator shall
not be liable for any such Losses attributable to the action or inaction of the
Depositor or the Holder of the Residual Certificate, nor for any such Losses
resulting from misinformation provided by any of the foregoing parties on which
the Securities Administrator has relied. Notwithstanding the foregoing, however,
in no event shall the Trustee or the Securities Administrator have any liability
(1) for any action or omission that is taken in accordance with and in
compliance with the express terms of, or which is expressly permitted by the
terms of, this Agreement or the Mortgage Loan Purchase Agreement, (2) for any
Losses other than arising out of malfeasance, willful misconduct or negligent
performance by the Securities Administrator with respect to its duties and
obligations set forth herein, and (3) for any special or consequential damages
to Certificateholders of the related Residual Certificate (in addition to
payment of principal and interest on the Certificates).
Section 12.04 REO Property.
(a) Notwithstanding any other provision of this Agreement, the Securities
Administrator shall not, except to the extent provided in this Agreement for
which the Securities Administrator is obligated to perform, knowingly permit any
Servicer to rent, lease, otherwise earn income or take any other action 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 Servicer has provided to the Securities
Administrator an Opinion of Counsel concluding that, under the REMIC Provisions,
such action would not adversely affect the status of any REMIC as a REMIC and
any income generated for any REMIC by the REO Property would not result in the
imposition of a tax upon such REMIC.
(b) The Depositor shall cause each Servicer (to the extent provided in the
applicable Servicing Agreement) to make reasonable efforts to sell any REO
Property for its fair market value. In any event, however, the Depositor shall,
or shall cause the Servicer (to the extent provided in this Agreement) to,
dispose of any REO Property within three years of its acquisition by the Issuing
Entity unless the Depositor or such Servicer (on behalf of the Issuing Entity)
has
-155-
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 the Depositor, acting on behalf of the Trustee hereunder,
shall, or shall cause the Servicer to, continue to attempt to sell the REO
Property for its fair market value for such period longer than three years as
such extension permits (the "Extended Period"). If such an extension has not
been received and the Depositor or the Servicer, acting on behalf of the Issuing
Entity hereunder, is unable to sell the REO Property within 33 months after its
acquisition by the Issuing Entity or if such an extension, has been received and
the Depositor or the Servicer is unable to sell the REO Property within the
period ending three months before the close of the Extended Period, the
Depositor shall cause the Servicer, before the end of the three year period or
the Extended Period, as applicable, to (i) purchase such REO Property at a price
equal to the REO Property's fair market value or (ii) auction the REO Property
to the highest bidder (which may be the 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.
-156-
IN WITNESS WHEREOF, the Depositor, the Trustee, the Master Servicer and the
Securities Administrator have caused their names to be signed hereto by their
respective officers thereunto duly authorized as of the day and year first above
written.
XXXXXXX XXXXX MORTGAGE
INVESTORS, INC.,
as Depositor
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
HSBC BANK USA, NATIONAL ASSOCIATION,
as Trustee
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
XXXXX FARGO BANK, N.A.,
as Master Servicer
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
XXXXX FARGO BANK, N.A.,
as Securities Administrator
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
EXHIBIT A-1
FORM OF CLASS [_-A_][M-_][PO][IO-_] CERTIFICATE
[Intentionally Omitted]
X-0-0
XXXXXXX X-0
FORM OF CLASS [B-_] [RULE 144A] [REG S] CERTIFICATE
[Intentionally Omitted]
X-0-0
XXXXXXX X-0
FORM OF CLASS A-R CERTIFICATE
[Intentionally Omitted]
X-0-0
XXXXXXX X-0
FORM OF CLASS P CERTIFICATE
[INTENTIONALLY OMITTED]
A-4-1
EXHIBIT B
MORTGAGE LOAN SCHEDULE
(PROVIDED UPON REQUEST)
B-1
EXHIBIT C
[RESERVED]
C-1
EXHIBIT D
REQUEST FOR RELEASE OF DOCUMENTS
To: Xxxxx Fargo Bank, N.A.
0000 00xx Xxxxxx X.X.
Xxxxxxxxxxx Xxxxxxxxx 00000
Attn: ______________________
Re: Custodial Agreement, dated as of March 26, 2007, among HSBC Bank USA,
National Association, Xxxxxxx Xxxxx Mortgage Investors, Inc. and Xxxxx
Fargo Bank, N.A.
In connection with the administration of the Mortgage Loans held by you as
Custodian for the Owner pursuant to the above-captioned Custodial Agreement, we
request the release, and hereby acknowledge receipt, of the Custodian's Mortgage
File for the Mortgage Loan described below, for the reason indicated.
Mortgage Loan Number:
Mortgagor Name, Address & Zip Code:
Reason for Requesting Documents (check one):
___ 1. Mortgage Paid in full
___ 2. Foreclosure
___ 3. Substitution
___ 4. Other Liquidation (Repurchases, etc.)
___ 5. Nonliquidation Reason:_______________________
By:
------------------------------------
(authorized signer)
Issuer:
--------------------------------
Address:
-------------------------------
-------------------------------
Date:
----------------------------------
D-1
Custodian
Xxxxx Fargo Bank, N.A.
Please acknowledge the execution of the above request by your
signature and date below:
Please acknowledge the execution of the above request by your
signature and date below:
------------------------------------- --------------------------
Signature Date
Documents returned to
Custodian:
------------------------------------- --------------------------
Custodian Date
D-2
EXHIBIT E-1
FORM OF TRANSFEREE'S LETTER AND AFFIDAVIT
[DATE]
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Services - Xxxxxxx Xxxxx Alternative Note Asset
Trust, Series 2007-F1
Ladies and Gentlemen:
We propose to purchase Xxxxxxx Xxxxx Alternative Note Asset Trust,
Series 2007-F1 Mortgage Pass-Through Certificates, Class A-R, described in the
Prospectus Supplement, dated March 23, 2007, and the Prospectus, dated March 22,
2007. Capitalized terms used but not defined herein shall have the meanings
assigned to them in the Pooling and Servicing Agreement, dated March 1, 2007,
relating to this issuance of the Xxxxxxx Xxxxx Alternative Note Asset Trust,
Series 2007-F1 Mortgage Pass-Through Certificates (the "Pooling and servicing
Agreement").
1. We certify that (a) we are not a disqualified organization and (b)
we are not purchasing such Class A-R Certificate on behalf of a disqualified
organization; for this purpose the term "disqualified organization" means the
United States, any state or political subdivision thereof, any foreign
government, any international organization, any agency or instrumentality of any
of the foregoing (except any entity treated as other than an instrumentality of
the foregoing for purposes of Section 168(h)(2)(D) of the Internal Revenue Code
of 1986, as amended (the "Code")), any organization (other than a cooperative
described in Section 521 of the Code) that is exempt from taxation under the
Code (unless such organization is subject to tax on excess inclusions) and any
organization that is described in Section 1381(a)(2)(C) of the Code. We
understand that any breach by us of this certification may cause us to be liable
for an excise tax imposed upon transfers to disqualified organizations.
2. We certify that (a) we have historically paid our debts as they
became due, (b) we intend, and believe that we will be able, to continue to pay
our debts as they become due in the future, (c) we understand that, as
beneficial owner of the Class A-R Certificate, we may incur tax liabilities in
excess of any cash flows generated by the Class A-R Certificate, and (d) we
intend to pay any taxes associated with holding the Class A-R Certificate as
they become due and (e) we will not cause income from the Class A-R Certificate
to be attributable to a foreign permanent establishment or fixed base (within
the meaning of an applicable income tax treaty) of ours or another U.S.
taxpayer.
E-1-1
3. We acknowledge that we will be the beneficial owner of the Class
A-R Certificate and:(1)
__________ The Class A-R Certificate will be registered in our name.
__________ The Class A-R Certificate will be held in the name of our
nominee, _________________, which is not a disqualified
organization.
4. We certify that we are not an employee benefit plan subject to
Title I of the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), a plan subject to Section 4975 of the Code or a plan subject to
federal, state, local, non-U.S. or other law substantively similar to the
foregoing provisions of ERISA or the Code (each, a "Plan"), and are not directly
or indirectly acquiring the Class A-R Certificate on behalf of or with any
assets of a Plan.
5. We certify that (i) we are a U.S. person or (ii) we will hold the
Class A-R Certificate in connection with the conduct of a trade or business
within the United States and have furnished the transferor and the Securities
Administrator with a duly completed and effective Internal Revenue Service Form
W-8ECI or successor form at the time and in the manner required by the Code; for
this purpose the term "U.S. person" means a citizen or resident of the United
States, a corporation, or partnership (unless, in the case of a partnership,
Treasury regulations are adopted that provide otherwise) created or organized in
or under the laws of the United States, any State thereof or the District of
Columbia, including an entity treated as a corporation or partnership for
federal income tax purposes, an estate whose income is subject to United States
federal income tax regardless of the source of its income, or 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 such U.S. persons have the authority
to control all substantial decisions of the trust (or, to the extent provided in
applicable Treasury regulations, certain trusts in existence on August 20, 1996
which are eligible to elect to be treated as U.S. Persons. We agree that any
breach by us of this certification shall render the transfer of any interest in
the Class A-R Certificate to us absolutely null and void and shall cause no
rights in the Class A-R Certificate to vest in us.
6. We agree that in the event that at some future time we wish to
transfer any interest in the Class A-R Certificate, we will transfer such
interest in the Class A-R Certificate only (a) to a transferee that (i) is not a
disqualified organization and is not purchasing such interest in the Class A-R
Certificate on behalf of a disqualified organization, (ii) is a U.S. person or
will hold the Class A-R Certificate in connection with the conduct of a trade or
business within the United States and will furnish us and the Securities
Administrator with a duly completed and effective Internal Revenue Service Form
W-8ECI or successor form at the time and in the manner required by the Code and
(iii) has delivered to the Securities Administrator a letter in the form of this
letter (including the affidavit appended hereto) and, we will provide the
Securities Administrator a written statement substantially in the form of
Exhibit E-2 to the Pooling and Servicing Agreement.
----------
(1) Place a check next to the appropriate choice and if necessary fill in the
name of the Transferee's nominee.
E-1-2
7. We hereby designate _______________________ as our fiduciary to act
as the tax matters person for each of the REMICs provided for in the Pooling and
Servicing Agreement in which the Class A-R Certificate represents the residual
interest.
Very truly yours,
----------------------------------------
[Purchaser]
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Accepted as of __________ __, 200__
XXXXXXX XXXXX MORTGAGE INVESTORS,
INC.
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
E-1-3
APPENDIX A
Affidavit pursuant to (i) Section 860E(e)(4) of the Internal
Revenue Code of 1986, as amended, and (ii) certain provisions of the
Pooling and Servicing Agreement
Under penalties of perjury, the undersigned declares that the following is true:
1. He or she is an officer of _________________________ (the
"Investor"),
2. the Investor's Employer Identification number is __________,
3. the Investor is not a "disqualified organization" (as defined
below), has no plan or intention of becoming a disqualified
organization, and is not acquiring any of its interest in the
Xxxxxxx Xxxxx Alternative Note Asset Trust, Series 2007-F1
Mortgage Pass-Through Certificates, Class A-R Certificate on
behalf of a disqualified organization or any other entity,
4. unless Xxxxxxx Xxxxx Mortgage Investors, Inc. ("MLMI") has
consented to the transfer to the Investor, the Investor is a
"U.S. person" (as defined below),
5. that no purpose of the transfer is to avoid or impede the
assessment or collection of tax,
6. the Investor has historically paid its debts as they became due,
7. the Investor intends, and believes that it will be able, to
continue to pay its debts as they become due in the future,
8. the Investor understands that, as beneficial owner of the Class
A-R Certificate, it may incur tax liabilities in excess of any
cash flows generated by the Class A-R Certificate,
9. the Investor intends to pay any taxes associated with holding the
Class A-R Certificate as they become due,
10. the Investor consents to any amendment of the Pooling and
Servicing Agreement that shall be deemed necessary by MLMI (upon
advice of counsel) to constitute a reasonable arrangement to
ensure that the Class A-R Certificate will not be owned directly
or indirectly by a disqualified organization, and
11. IF BRACKETED, THE FOLLOWING CERTIFICATIONS ARE INAPPLICABLE [the
transfer is not a direct or indirect transfer of the Class A-R
Certificate to a foreign permanent establishment or fixed base
(within the meaning of an applicable income tax treaty) of the
Investor,
E-1-4
and as to each of the residual interests represented by the Class
A-R Certificate, the present value of the anticipated tax
liabilities associated with holding such residual interest does
not exceed the sum of:
A. the present value of any consideration given to the Investor
to acquire such residual interest;
B. the present value of the expected future distributions on
such residual interest; and
C. the present value of the anticipated tax savings associated
with holding such residual interest as the related REMIC
generates losses.
For purposes of this declaration, (i) the Investor is assumed to pay
tax at a rate equal to the highest rate of tax specified in Section
11(b)(1) of the Code, but the tax rate specified in Section
55(b)(1)(B) of the Code may be used in lieu of the highest rate
specified in Section 11(b)(1) of the Code if the Investor has been
subject to the alternative minimum tax under Section 55 of the Code in
the preceding two years and will compute its taxable income in the
current taxable year using the alternative minimum tax rate, and (ii)
present values are computed using a discount rate equal to the Federal
short-term rate prescribed by Section 1274(d) of the Code for the
month of the transfer and the compounding period used by the
Investor;]
[(11) (A) at the time of the transfer, and at the close of each of the
Investor's two fiscal years preceding the Investor's fiscal year of
transfer, the Investor's gross assets for financial reporting purposes
exceed $100 million and its net assets for financial reporting
purposes exceed $10 million; and
(B) the Investor is an eligible corporation as defined in Treasury
regulations Section 1.860E-1(c)(6)(i) and has agreed in writing that
any subsequent transfer of the Class A-R Certificate will be to
another eligible corporation in a transaction that satisfies Treasury
regulation Sections 1.860E-1(c)(4)(i), 1.860E-1(c)(4)(ii),
1.860E-1(c)(4)(iii) and 1.860E-1(c)(5) and such transfer will not be a
direct or indirect transfer to a foreign permanent establishment
(within the meaning of an applicable income tax treaty) of a domestic
corporation.
For purposes of this declaration, the gross and net assets of the Investor do
not include any obligation of any related person as defined in Treasury
regulation Section 1.860E-1(c)(6)(ii) or any other asset if a principal purpose
for holding or acquiring the other asset is to permit the Investor to make this
declaration or to satisfy the requirements of Treasury regulation Section
1.860E-1(c)(5)(i).]
E-1-5
(12) The Investor will not cause income from the Class A-R Certificate to be
attributable to a foreign permanent establishment or fixed base (within the
meaning of an applicable income tax treaty) of the Investor or another U.S.
taxpayer.
For purpose of this affidavit, the term "disqualified organization" means the
United States, any state or political subdivision thereof, any foreign
government, any international organization, any agency or instrumentality of any
of the foregoing (except any entity treated as other than an instrumentality of
the foregoing for purposes of Section 168(h)(2)(D) of the Internal Revenue Code
of 1986, as amended (the "Code")), any organization (other than a cooperative
described in Section 521 of the Code) that is exempt from taxation under the
Code (unless such organization is subject to tax on excess inclusions) and any
organization that is described in Section 1381(a)(2)(C) of the Code and the term
"U.S. Person" means a citizen or resident of the United States, a corporation or
partnership (unless, in the case of a partnership, Treasury regulations are
adopted that provide otherwise) created or organized in or under the laws of the
United States, any state thereof or the District of Columbia, including an
entity treated as a corporation or partnership for federal income tax purposes,
an estate whose income is subject to Unites States federal income tax regardless
of its source, or a trust if a court within the United States is able to
exercise primary supervision over the administration of such trust, and one or
more such U.S. Persons have the authority to control all substantial decisions
of such trust, (or, to the extent provided in applicable Treasury regulations,
certain trusts in existence on August 20, 1996 which are eligible to elect to be
treated as U.S. Persons).
E-1-6
IN WITNESS WHEREOF, the Investor has caused this instrument to be executed on
its behalf, pursuant to authority of its Board of Directors, by its
_____________ this ___ day of ______________, 20__.
[INVESTOR]
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
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 to me 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
-------------------------------------
COUNTY OF
---------------------------
STATE OF
----------------------------
My commission expires the _____ day of __________ 20__.
E-1-7
EXHIBIT E-2
FORM OF TRANSFEROR CERTIFICATE
[DATE]
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Attention: Corporate Trust Services - Xxxxxxx Xxxxx Alternative Note Asset
Trust, Series 2007-F1
Re: Xxxxxxx Xxxxx Alternative Note Asset Trust, Series 2007-F1
_______________________ (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
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 the
Class A-R Certificate referred to in the attached affidavit. 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,
----------------------------------------
[Transferor]
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
E-2-1
EXHIBIT F-1
FORM OF TRANSFEROR REPRESENTATION LETTER
______________, 200___
Xxxxxxx Xxxxx Mortgage Investors, Inc.
000 Xxxxx Xxxxxx
4 World Financial Center, 10th Floor
New York, New York 10080
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Re: Xxxxxxx Xxxxx Alternative Note Asset Trust, Series 2007-F1
Mortgage Pass-Through Certificates
Ladies and Gentlemen:
In connection with the sale by ___________ (the "Seller") to ________ (the
"Purchaser") of $_________ Initial Certificate Principal Balance of Xxxxxxx
Xxxxx Alternative Note Asset Trust, Series 2007-F1 Mortgage Pass-Through
Certificates, Class _____ (the "Certificates"), issued pursuant to the Pooling
and Servicing Agreement (the "Pooling and Servicing Agreement"), dated as of
March 1, 2007, among Xxxxxxx Xxxxx Mortgage Investors, Inc., as depositor (the
"Depositor"), Xxxxx Fargo Bank, N.A., as master servicer (in such capacity, the
"Master Servicer") and securities administrator (in such capacity, the
"Securities Administrator"), and HSBC Bank USA, National Association, as trustee
(the "Trustee"). The Seller hereby certifies, represents and warrants to, and
covenants with, the Depositor and the Securities Administrator that:
Neither the Seller nor anyone acting on its behalf has (a) offered,
pledged, sold, disposed of or otherwise transferred any Certificate, any
interest in any Certificate or any other similar security to any person in any
manner, (b) has solicited any offer to buy or to accept a pledge, disposition or
other transfer of any Certificate, any interest in any Certificate or any other
similar security from any person in any manner, (c) has otherwise approached or
negotiated with respect to any Certificate, any interest in any Certificate or
any other similar security with any person in any manner, (d) has made any
general solicitation by means of general advertising or in any other manner, or
(e) has taken any other action, that (as to any of (a) through (d) above) would
constitute a distribution of the Certificates under the Securities Act of 1933
(the "Act"), that would render the disposition of any Certificate a violation of
Section 5 of the Act or any state securities law, or that would require
registration or qualification pursuant thereto. The Seller will
F-1-1
not act in any manner set forth in the foregoing sentence with respect to any
Certificate. The Seller has not and will not sell or otherwise transfer any of
the Certificates, except in compliance with the provisions of the Pooling and
Servicing Agreement.
Very truly yours,
----------------------------------------
(Seller)
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
F-1-2
EXHIBIT F-2
FORM OF INVESTOR REPRESENTATION LETTER (NON-RULE 144A)
__________, 200__
Xxxxxxx Xxxxx Mortgage Investors, Inc.
000 Xxxxx Xxxxxx
4 World Financial Center, 10th Floor
New York, New York 10080
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Re: Xxxxxxx Xxxxx Alternative Note Asset Trust, Series 2007-F1
Mortgage Pass-Through Certificates, Class [___]
Ladies and Gentlemen:
In connection with our acquisition of the above Certificates we certify
that (a) we understand that the Certificates are not being registered under the
Securities Act of 1933, as amended (The "Act"), or any state securities laws and
are being transferred to us in a transaction that is exempt from the
registration requirements of the Act and any such laws, (b) we are an
institutional "accredited investor," as defined in Regulation D under the Act,
and have such knowledge and experience in financial and business matters that we
are capable of evaluating the merits and risks of investments in the
Certificates, (c) we have had the opportunity to ask questions of and receive
answers from the Depositor concerning the purchase of the Certificates and all
matters relating thereto or any additional information deemed necessary to our
decision to purchase the Certificates, (d) solely in the case of an ERISA
Restricted Certificate, we (i) are not an employee benefit plan or arrangement
subject to Title I of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), a plan subject to Section 4975 of the Internal Revenue Code
of 1986, as amended (the "Code") or a plan subject to any provisions under any
federal, state, local, non-U.S. or other laws or regulations that are
substantively similar to foregoing provisions of ERISA or the Code ("Similar
Law") (collectively, a "Plan"), and are not directly or indirectly acquiring
this Certificate for, on behalf of or with any assets of any such Plan, (ii) if
the Certificate has been the subject of an ERISA-Qualifying Underwriting, are an
insurance company that is acquiring the Certificate with assets of an "insurance
company general account" as defined in Section V(E) of Prohibited Transaction
Class Exemption ("PTCE") 95-60, and the acquisition and holding of the
Certificate are covered and exempt under Sections I and III of PTCE 95-60, or
(iii) solely in the case of a Definitive Certificate, shall deliver herewith an
Opinion of Counsel satisfactory to the Securities Administrator, and upon which
the Securities Administrator shall be entitled to rely, to the effect that the
acquisition and holding of this certificate by the transferee will not result in
a nonexempt prohibited transaction under ERISA or the Code, or a violation of
Similar Law, and will not subject the Depositor, the Master Servicer, the
Securities Administrator or the Trustee to any obligation in addition to those
F-2-1
undertaken by such entities in the Pooling and Servicing Agreement, which
Opinion of Counsel shall not be an expense of the Depositor, the Master
Servicer, the Securities Administrator or the Trustee, (e) we are acquiring the
Certificates for investment for our own account and not with a view to any
distribution of such Certificates (but without prejudice to our right at all
times to sell or otherwise dispose of the Certificates in accordance with clause
(g) below), (f) we have not offered or sold any Certificates to, or solicited
offers to buy any Certificates from, any person, or otherwise approached or
negotiated with any person with respect thereto, or taken any other action which
would result in a violation of Section 5 of the Act, and (g) we will not sell,
transfer or otherwise dispose of any Certificates unless (1) such sale, transfer
or other disposition is made pursuant to an effective registration statement
under the Act or is exempt from such registration requirements, and if
requested, we will at our expense provide an opinion of counsel satisfactory to
the addressees of this Certificate that such sale, transfer or other disposition
may be made pursuant to an exemption from the Act, (2) The purchaser or
transferee of such Certificate has executed and delivered to you a certificate
to substantially the same effect as this certificate, and (3) The purchaser or
transferee has otherwise complied with any conditions for transfer set forth in
the Pooling and Servicing Agreement.
Very truly yours,
----------------------------------------
Print Name of Transferee
By:
------------------------------------
Authorized Officer
F-2-2
EXHIBIT F-3
FORM OF RULE 144A LETTER
____________, 200[ ]
Xxxxxxx Xxxxx Mortgage Investors, Inc.
4 World Financial Center
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Re: Xxxxxxx Xxxxx Alternative Note Asset Trust, Series 2007-F1
Mortgage Pass-Through Certificates, Class [___]
Ladies and Gentlemen:
In connection with our acquisition of the above Certificates we certify
that (a) we understand that the Certificates are not being registered under the
Securities Act of 1933, as amended (The "Act"), or any state securities laws and
are being transferred to us in a transaction that is exempt from the
registration requirements of the Act and any such laws, (b) we have such
knowledge and experience in financial and business matters that we are capable
of evaluating the merits and risks of investments in the Certificates, (c) we
have had the opportunity to ask questions of and receive answers from the
Depositor concerning the purchase of the Certificates and all matters relating
thereto or any additional information deemed necessary to our decision to
purchase the Certificates, (d) solely in the case of an ERISA Restricted
Certificate, we (i) are not an employee benefit plan or arrangement subject to
Title I of the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), a plan subject to Section 4975 of the Internal Revenue Code of 1986,
as amended (the "Code") or a plan subject to any provisions under any federal,
state, local, non-U.S. or other laws or regulations that are substantively
similar to foregoing provisions of ERISA or the Code ("Similar Law")
(collectively, a "Plan"), and are not directly or indirectly acquiring this
Certificate for, on behalf of or with any assets of any such Plan, (ii) if the
Certificate has been the subject of an ERISA-Qualifying Underwriting, are an
insurance company that is acquiring the Certificate with assets of an "insurance
company general account" as defined in Section V(E) of Prohibited Transaction
Class Exemption ("PTCE") 95-60, and the acquisition and holding of the
Certificate are covered and exempt under Sections I and III of PTCE 95-60, or
(iii) solely in the case of a Definitive Certificate, shall deliver herewith an
Opinion of Counsel satisfactory to the Securities Administrator, and upon which
the Securities Administrator shall be entitled to rely, to the effect that the
acquisition and holding of this certificate by the transferee will not result in
a nonexempt prohibited transaction under ERISA or the Code, or a violation of
Similar Law, and will not subject the Depositor, the Master Servicer, the
Securities Administrator or the Trustee to any obligation in addition to those
undertaken by such entities in the Pooling and Servicing Agreement, which
Opinion of Counsel
F-3-1
shall not be an expense of the Depositor, the Master Servicer, the Securities
Administrator or the Trustee, (e) we have not, nor has anyone acting on our
behalf offered, transferred, pledged, sold or otherwise disposed of the
Certificates, any interest in the Certificates or any other similar security to,
or solicited any offer to buy or accept a transfer, pledge or other disposition
of the Certificates, any interest in the Certificates or any other similar
security from, or otherwise approached or negotiated with respect to the
Certificates, any interest in the Certificates or any other similar security
with, any person in any manner, or made any general solicitation by means of
general advertising or in any other manner, or taken any other action, that
would constitute a distribution of the Certificates under the Act or that would
render the disposition of the Certificates a violation of Section 5 of the Act
or require registration pursuant thereto, nor will act, nor has authorized or
will authorize any person to act, in such manner with respect to the
Certificates, (f) we are a "qualified institutional buyer" as that term is
defined in Rule 144A under the Act ("Rule 144A") and have completed either of
the forms of certification to that effect attached hereto as Annex 1 or Annex 2,
(g) we are aware that the sale to us is being made in reliance on Rule 144A, and
(h) we are acquiring the Certificates for our own account or for resale pursuant
to Rule 144A and further, understand that such Certificates may be resold,
pledged or transferred only (A) to a person reasonably believed to be a
qualified institutional buyer that purchases for its own account or for the
account of a qualified institutional buyer to whom notice is given that the
resale, pledge or transfer is being made in reliance on Rule 144A, or (B)
pursuant to another exemption from registration under the Act.
Very truly yours,
----------------------------------------
Print Name of Transferee
By:
------------------------------------
Authorized Officer
F-3-2
ANNEX I TO EXHIBIT F-3
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees Other Than Registered Investment Companies]
The undersigned (The "Buyer") hereby certifies as follows to the parties
listed in the Rule 144A Transferee Certificate to which this certification
relates with respect to the Certificates described therein:
1. As indicated below, The undersigned is the President, Chief Financial
Officer, Senior Vice President or other executive officer of the Buyer.
2. In connection with purchases by the Buyer, The Buyer is a "qualified
institutional buyer" as that term is defined in Rule 144A under the Securities
Act of 1933, as amended ("Rule 144A") because (i) The Buyer owned and/or
invested on a discretionary basis $___________(1) in securities (except for the
1 excluded securities referred to below) as of the end of the Buyer's most
recent fiscal year (such amount being calculated in accordance with Rule 144A
and (ii) The Buyer satisfies the criteria in the category marked below.
___ Corporation, etc. The Buyer is a corporation (other than a bank,
savings and loan association or similar institution), Massachusetts or similar
business trust, partnership, or charitable organization described in Section
501(c)(3) of the Internal Revenue Code of 1986, as amended.
___ Bank. The Buyer (a) is a national bank or banking institution organized
under the laws of any State, territory or the District of Columbia, The business
of which is substantially confined to banking and is supervised by the State or
territorial banking commission or similar official or is a foreign bank or
equivalent institution, and (b) has an audited net worth of at least $25,000,000
as demonstrated in its latest annual financial statements, a copy of which is
attached hereto.
___ Savings and Loan. The Buyer (a) is a savings and loan association,
building and loan association, cooperative bank, homestead association or
similar institution, which is supervised and examined by a State or Federal
authority having supervision over any such institutions or is a foreign savings
and loan association or equivalent institution and (b) has an audited net worth
of at least $25,000,000 as demonstrated in its latest annual financial
statements, a copy of which is attached hereto.
___ Broker-dealer. The Buyer is a dealer registered pursuant to Section 15
of the Securities Exchange Act of 1934.
----------
(1) Buyer must own and/or invest on a discretionary basis at least $100,000,000
in securities unless Buyer is a dealer, and, in that case, Buyer must own
and/or invest on a discretionary basis at least $10,000,000 in securities.
F-3-3
___ Insurance Company. The Buyer is an insurance company whose primary and
predominant business activity is the writing of insurance or the reinsuring of
risks underwritten by insurance companies and which is subject to supervision by
the insurance commissioner or a similar official or agency of a State, territory
or the District of Columbia.
___ State or Local Plan. The Buyer is a plan established and maintained by
a State, its political subdivisions, or any agency or instrumentality of the
State or its political subdivisions, for the benefit of its employees.
___ ERISA Plan. The Buyer is an employee benefit plan within the meaning of
Title I of the Employee Retirement Income Security Act of 1974.
___ Investment Advisor. The Buyer is an investment advisor registered under
the Investment Advisors Act of 1940.
___ Small Business Investment Company. Buyer is a small business investment
company licensed by the U.S. Small Business Administration under Section 301(c)
or (d) of the Small Business Investment Act of 1958.
___ Business Development Company. Buyer is a business development company
as defined in Section 202(a)(22) of the Investment Advisors Act of 1940.
3. The term "securities" as used herein does not include (i) securities of
issuers that are affiliated with the Buyer, (ii) securities that are part of an
unsold allotment to or subscription by the Buyer, if the Buyer is a dealer,
(iii) securities issued or guaranteed by the U.S. or any instrumentality
thereof, (iv) bank deposit notes and certificates of deposit, (v) loan
participations, (vi) repurchase agreements, (vii) securities owned but subject
to a repurchase agreement and (viii) currency, interest rate and commodity
swaps.
4. For purposes of determining the aggregate amount of securities owned
and/or invested on a discretionary basis by the Buyer, The Buyer used the cost
of such securities to the Buyer and did not include any of the securities
referred to in the preceding paragraph, except (i) where the Buyer reports its
securities holdings in its financial statements on the basis of their market
value, and (ii) no current information with respect to the cost of those
securities has been published. If clause (ii) in the preceding sentence applies,
The securities may be valued at market. Further, in determining such aggregate
amount, The Buyer may have included securities owned by subsidiaries of the
Buyer, but only if such subsidiaries are consolidated with the Buyer in its
financial statements prepared in accordance with generally accepted accounting
principles and if the investments of such subsidiaries are managed under the
Buyer's direction. However, such securities were not included if the Buyer is a
majority-owned, consolidated subsidiary of another enterprise and the Buyer is
not itself a reporting company under the Securities Exchange Act of 1934, as
amended.
5. The Buyer acknowledges that it is familiar with Rule 144A and
understands that the seller to it and other parties related to the Certificates
are relying and will continue to rely on the statements made herein because one
or more sales to the Buyer may be in reliance on Rule 144A.
F-3-4
6. Until the date of purchase of the Rule 144A Securities, The Buyer will
notify each of the parties to which this certification is made of any changes in
the information and conclusions herein. Until such notice is given, The Buyer's
purchase of the Certificates will constitute a reaffirmation of this
certification as of the date of such purchase. In addition, if the Buyer is a
bank or savings and loan is provided above, The Buyer agrees that it will
furnish to such parties updated annual financial statements promptly after they
become available.
----------------------------------------
Print Name of Buyer
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Date:
----------------------------------
F-3-5
ANNEX II TO EXHIBIT F-3
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees That are Registered Investment Companies]
The undersigned (The "Buyer") hereby certifies as follows to the parties
listed in the Rule 144A Transferee Certificate to which this certification
relates with respect to the Certificates described therein:
1. As indicated below, The undersigned is the President, Chief
Financial Officer or Senior Vice President of the Buyer or, if the Buyer is a
"qualified institutional buyer" as that term is defined in Rule 144A under the
Securities Act of 1933, as amended ("Rule 144A") because Buyer is part of a
Family of Investment Companies (as defined below), is such an officer of the
Adviser.
2. In connection with purchases by Buyer, The Buyer is a "qualified
institutional buyer" as defined in SEC Rule 144A because (i) The Buyer is an
investment company registered under the Investment Company Act of 1940, as
amended and (ii) as marked below, The Buyer alone, or the Buyer's Family of
Investment Companies, owned at least $100,000,000 in securities (other than the
excluded securities referred to below) as of the end of the Buyer's most recent
fiscal year. For purposes of determining the amount of securities owned by the
Buyer or the Buyer's Family of Investment Companies, the cost of such securities
was used, except (i) where the Buyer or the Buyer's Family of Investment
Companies reports its securities holdings in its financial statements on the
basis of their market value, and (ii) no current information with respect to the
cost of those securities has been published. If clause (ii) in the preceding
sentence applies, The securities may be valued at market.
___ The Buyer owned $___________ in securities (other than the excluded
securities referred to below) as of the end of the Buyer's most recent fiscal
year (such amount being calculated in accordance with Rule 144A).
___ The Buyer is part of a Family of Investment Companies which owned in
the aggregate $___________ in securities (other than the excluded securities
referred to below) as of the end of the Buyer's most recent fiscal year (such
amount being calculated in accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein means two
or more registered investment companies (or series thereof) that have the same
investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Buyer or are part of the
Buyer's Family of Investment Companies, (ii) securities issued or guaranteed by
the U.S. or any instrumentality thereof, (iii) bank deposit notes and
certificates of deposit, (iv) loan participations, (v) repurchase agreements,
F-3-6
(vi) securities owned but subject to a repurchase agreement and (vii) currency,
interest rate and commodity swaps.
5. The Buyer is familiar with Rule 144A and understands that the
parties listed in the Rule 144A Transferee Certificate to which this
certification relates are relying and will continue to rely on the statements
made herein because one or more sales to the Buyer will be in reliance on Rule
144A. In addition, The Buyer will only purchase for the Buyer's own account.
6. Until the date of purchase of the Certificates, The undersigned
will notify the parties listed in the Rule 144A Transferee Certificate to which
this certification relates of any changes in the information and conclusions
herein. Until such notice is given, The Buyer's purchase of the Certificates
will constitute a reaffirmation of this certification by the undersigned as of
the date of such purchase.
----------------------------------------
Print Name of Buyer or Adviser
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
IF AN ADVISER:
----------------------------------------
Print Name of Buyer
Date:
----------------------------------
F-3-7
EXHIBIT G
FORM OF CUSTODIAL AGREEMENT
THIS CUSTODIAL AGREEMENT (as amended and supplemented from time to
time, the "Agreement"), dated as of March 26, 2007, by and among HSBC BANK USA,
NATIONAL ASSOCIATION, as trustee (including its successors under the Pooling and
Servicing Agreement defined below, the "Trustee"), XXXXXXX XXXXX MORTGAGE
INVESTORS, INC., as company (together with any successor in interest, the
"Company"), XXXXX FARGO BANK, N.A., as securities administrator and master
servicer (together with any successor in interest or successor under the Pooling
and Servicing Agreement referred to below, the "Master Servicer") and XXXXX
FARGO BANK, N.A., as custodian (together with any successor in interest or any
successor appointed hereunder, the "Custodian").
WITNESSETH THAT:
WHEREAS, the Company, the Master Servicer and the Trustee have entered
into a Pooling and Servicing Agreement, dated as of March 1, 2007, relating to
the issuance of Xxxxxxx Xxxxx Alternative Note Asset Trust, Series 2007-F1
Mortgage Pass-Through Certificates, (as amended and supplemented from time to
time, the "Pooling and Servicing Agreement"); and
WHEREAS, the Custodian has agreed to act as agent for the Trustee for
the purposes of receiving and holding certain documents and other instruments
delivered by the Company or the Master Servicer under the Pooling and Servicing
Agreement and the Servicers under their respective Servicing Agreements, all
upon the terms and conditions and subject to the limitations hereinafter set
forth;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements hereinafter set forth, the Trustee, the Company, the
Master Servicer and the Custodian hereby agree as follows:
I.
DEFINITIONS
Capitalized terms used in this Agreement and not defined herein shall
have the meanings assigned in the Pooling and Servicing Agreement, unless
otherwise required by the context herein.
II.
CUSTODY OF MORTGAGE DOCUMENTS
A. Custodian to Act as Agent: Acceptance of Mortgage Files,
Attestations and Assessments of Compliance.
1. The Custodian, as the duly appointed agent of the Trustee for these
purposes, acknowledges (subject to any exceptions noted in the Initial
Certification referred to in Section 2.3(a)) receipt of the Mortgage Files
relating to the Mortgage Loans identified on the schedule
G-1
attached hereto (the "Mortgage Files") and declares that it holds and will hold
such Mortgage Files as agent for the Trustee, in trust, for the use and benefit
of all present and future Certificateholders.
2. On or before March 1st of each calendar year, beginning with March
1, 2008, the Custodian shall, at its own expense, cause a firm of independent
public accountants (who may also render other services to Custodian), that is a
member of the American Institute of Certified Public Accountants, to furnish to
the Company and the Master Servicer a report to the effect that such firm
attests to, and reports on, the assessment made by such asserting party pursuant
to Section 2.01(c) below, which report shall be made in accordance with
standards for attestation engagements issued or adopted by the Public Company
Accounting Oversight Board.
3. On or before March 1st of each calendar year, beginning with March
1, 2008, the Custodian shall deliver to the Company and the Master Servicer a
report regarding its assessment of compliance with the servicing criteria
identified in Exhibit Three attached hereto, as of and for the period ending the
end of the fiscal year ending no later than December 31 of the year prior to the
year of delivery of the report, with respect to asset-backed security
transactions taken as a whole in which the Custodian is performing any of the
servicing criteria specified in Exhibit Three and that are backed by the same
asset type backing such asset-backed securities. Each such report shall include
(a) a statement of the party's responsibility for assessing compliance with the
servicing criteria applicable to such party, (b) a statement that such party
used the criteria identified in Item 1122(d) of Regulation AB (Section
229.1122(d)) to assess the compliance with the applicable servicing criteria,
(c) disclosure of any material instance of noncompliance identified by such
party, and (d) a statement that a registered public accounting firm has issued
an attestation report on such party's assessment of compliance with the
applicable servicing criteria, which report shall be delivered by the Custodian
as provided in this Section 2.01(c). However, the Custodian's obligation to
provide a report on assessment of compliance or an attestation with respect to
itself and with respect to any Subcontractor shall be suspended in any year in
which the Issuing Entity's reporting obligations under the Exchange Act are
suspended.
4. The Custodian has not and shall not engage any Subcontractor which
is "participating in the servicing function" within the meaning of Item 1122 of
Regulation AB, unless such Subcontractor agrees to provide in any year in which
a Form 10-K will be filed by the Trust., no later than March 1st of such year,
an assessment and a statement of registered public accounting firm certifying
its compliance with the applicable servicing criteria in Item 1122(d) of
Regulation AB as of and for the period ending the end of the fiscal year ending
no later than December 31 of the year prior to the year of delivery of the
report. "Subcontractor" as used herein means 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 functions identified in
Item 1122(d) of Regulation AB with respect to the Mortgage Loans under the
direction or authority of the Custodian.
5. The Custodian agrees to indemnify the Company, the Master Servicer,
the Trust Fund and each of their respective directors, officers, employees and
agents and hold each of them harmless from and against any losses, damages,
penalties, fines, forfeitures, legal fees and
G-2
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 of any
Subcontractor in violation of Section 2.01(d) or any failure by the Custodian to
deliver any information, report, certification, accountants' letter or other
material when and as required under this Agreement, including any report under
Sections 2.01(b) or 2.01(c).
B. Reserved.
C. Review of Mortgage Files.
1. On or prior to the Closing Date, the Custodian agrees, for the
benefit of Certificateholders, to review, in accordance with the provisions of
Section 2.02 of the Pooling and Servicing Agreement, each such document, and
shall deliver to the Trustee an Initial Certification in the form annexed hereto
as Exhibit One evidencing receipt (subject to any exceptions noted therein) of a
Mortgage File for each of the Mortgage Loans listed on the Schedule attached
hereto (the "Mortgage Loan Schedule") and certifying that all such documents
have been executed and received and that such documents relate to the Mortgage
Loans identified on the Mortgage Loan Schedule, except for any exceptions listed
on Schedule A attached to such Initial Certification. The Custodian shall be
under no duty or obligation to inspect, review or examine said documents,
instruments, certificates or other papers to determine that the same are
genuine, enforceable, or appropriate for the represented purpose or that they
have actually been recorded or that they are other than what they purport to be
on their face.
2. Not later than 180 days after the Closing Date, the Custodian shall
review the Mortgage Files as provided in Section 2.02 of the Pooling and
Servicing Agreement and deliver to the Trustee a Final Certification in the form
annexed hereto as Exhibit Two evidencing the completeness of the Mortgage Files
(subject to any exceptions noted therein).
3. In reviewing the Mortgage Files as provided herein and in the
Pooling and Servicing Agreement, the Custodian shall make no representation as
to and shall not be responsible to verify (i) the validity, legality,
enforceability, due authorization, recordability, sufficiency or genuineness of
any of the documents included in any Mortgage File or (ii) the collectibility,
insurability, effectiveness or suitability of any of the documents in any
Mortgage File.
Upon receipt of written request from the Trustee, the Custodian shall
as soon as practicable supply the Trustee with a list of all of the documents
relating to the Mortgage Loans then contained in the Mortgage Files.
D. Notification of Breaches of Representations and Warranties. Upon
discovery by the Custodian of a breach of any representation or warranty made by
the Company as set forth in the Pooling and Servicing Agreement with respect to
a Mortgage Loan relating to a Mortgage File, the Custodian shall give prompt
written notice to the Company, the related Servicer and the Trustee.
E. Custodian to Cooperate: Release of Mortgage Files. Upon receipt of
written notice from a Servicer or the Master Servicer that the Mortgage Loan
Seller has repurchased a Mortgage Loan pursuant to Article II of the Pooling and
Servicing Agreement, and that the
G-3
purchase price therefor has been deposited in the Master Servicer Collection
Account or the Distribution Account, then the Custodian agrees to promptly
release to the Mortgage Loan Seller the related Mortgage File.
Upon the Custodian's receipt of a request for release (a "Request for
Release") substantially in the form of Exhibit D to the Pooling and Servicing
Agreement signed by a Servicing Officer of the related Servicer stating that it
has received payment in full of a Mortgage Loan or that payment in full will be
escrowed in a manner customary for such purposes, the Custodian agrees promptly
and no later than three (3) Business Days to release to such Servicer the
related Mortgage File. The Company shall deliver to the Custodian and the
Custodian agrees to accept the Mortgage Note and other documents constituting
the Mortgage File with respect to any Substitute Mortgage Loan.
From time to time as is appropriate for the servicing or foreclosure
of any Mortgage Loan, including, for this purpose, collection under any Primary
Mortgage Insurance Policy, the related Servicer shall deliver to the Custodian a
Request for Release signed by a Servicing Officer requesting that possession of
all of the Mortgage File be released to such Servicer and certifying as to the
reason for such release and that such release will not invalidate any insurance
coverage provided in respect of the Mortgage Loan under any of the Insurance
Policies. Upon receipt of the foregoing, the Custodian promptly shall deliver
the Mortgage File to such Servicer. The related Servicer shall cause each
Mortgage File or any document therein so released to be returned to the
Custodian when the need therefore by such Servicer no longer exists, unless (i)
the Mortgage Loan has been liquidated and the Liquidation Proceeds relating to
the Mortgage Loan have been deposited in the Master Servicer Collection Account
or the Distribution Account or (ii) the Mortgage File or such document has been
delivered 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 related Servicer has delivered to the Custodian 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.
At any time that a Servicer is required to deliver to the Custodian a
Request for Release, such Servicer shall deliver two copies of the Request for
Release if delivered in hard copy or such Servicer may furnish such Request for
Release electronically to the Custodian, in which event the Servicing Officer
transmitting the same shall be deemed to have signed the Request for Release. In
connection with any Request for Release of a Mortgage File because of a
repurchase of a Mortgage Loan, the related Servicer shall send to the Trustee an
assignment of mortgage, without recourse, representation or warranty from the
Trustee to the Mortgage Loan Seller and the related Mortgage Note which shall be
endorsed without recourse, representation or warranty by the Trustee and the
Trustee shall forward such documents to the Mortgage Loan Seller. In connection
with any Request for Release of a Mortgage File because of the payment in full
of a Mortgage Loan, the related Servicer shall send to the Trustee a certificate
of satisfaction or other similar instrument to be executed by or on behalf of
the Trustee and returned to such Servicer.
G-4
F. Assumption Agreements. In the event that any assumption agreement
or substitution of liability agreement is entered into with respect to any
Mortgage Loan subject to this Agreement in accordance with the terms and
provisions of the Pooling and Servicing Agreement, the Master Servicer, to the
extent provided in the related Servicing Agreement, shall cause the related
Servicer to notify the Custodian that such assumption or substitution agreement
has been completed by forwarding to the Custodian the original of such
assumption or substitution agreement, which shall be added to the related
Mortgage File and, for all purposes, shall be considered a part of such Mortgage
File to the same extent as all other documents and instruments constituting
parts thereof.
III.
CONCERNING THE CUSTODIAN
A. Custodian a Bailee and Agent of the Trustee. With respect to each
Mortgage Note, Mortgage and other documents constituting each Mortgage File
which are delivered to the Custodian, the Custodian is exclusively the bailee
and agent of the Trustee and has no instructions to hold any Mortgage Note or
Mortgage for the benefit of any person other than the Trustee and the
Certificateholders and undertakes to perform such duties and only such duties as
are specifically set forth in this Agreement. Except upon compliance with the
provisions of Section 2.5 of this Agreement, no Mortgage Note, Mortgage or
Mortgage File shall be delivered by the Custodian to the Company, the Servicer
or the Master Servicer or otherwise released from the possession of the
Custodian.
B. Reserved.
C. Custodian May Own Certificates. The Custodian in its individual or
any other capacity may become the owner or pledgee of Certificates with the same
rights it would have if it were not Custodian.
D. Master Servicer to Pay Custodian's Fees and Expenses. The Master
Servicer covenants and agrees to pay to the Custodian from time to time, and the
Custodian shall be entitled to, reasonable compensation for all services
rendered by it in the exercise and performance of any of the powers and duties
hereunder of the Custodian, and the Master Servicer will pay or reimburse the
Custodian upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Custodian in accordance with any of the
provisions of this Agreement (including the reasonable compensation and the
expenses and disbursements of its counsel and of all persons not regularly in
its employ), except any such expense, disbursement or advance as may arise from
its negligence or bad faith or to the extent that such cost or expense is
indemnified by the Company pursuant to the Pooling and Servicing Agreement.
E. Custodian May Resign; Trustee May Remove Custodian. The Custodian
may resign from the obligations and duties hereby imposed upon it as such
obligations and duties relate to its acting as Custodian of the Mortgage Loans.
Upon receiving such notice of resignation, the Trustee shall either take custody
of the Mortgage Files itself and give prompt notice thereof to the Company, the
Master Servicer and the Custodian, or promptly appoint a successor Custodian by
written instrument, in duplicate, one copy of which instrument shall be
delivered to the resigning Custodian and one copy to the successor Custodian. If
the Trustee shall
G-5
not have taken custody of the Mortgage Files and no successor Custodian shall
have been so appointed and have accepted appointment within 30 days after the
giving of such notice of resignation, the resigning Custodian may petition any
court of competent jurisdiction for the appointment of a successor Custodian.
The Trustee may remove the Custodian at any time with the consent of
the Master Servicer. In such event, the Trustee shall appoint, or petition a
court of competent jurisdiction to appoint, a successor Custodian hereunder. Any
successor Custodian shall be a depository institution subject to supervision or
examination by federal or state authority, shall be able to satisfy the other
requirements contained in Section 3.7 and shall be unaffiliated with the
Servicer or the Company.
Any resignation or removal of the Custodian and appointment of a
successor Custodian pursuant to any of the provisions of this Section 3.5 shall
become effective upon acceptance of appointment by the successor Custodian. The
Trustee shall give prompt notice to the Company and the Master Servicer of the
appointment of any successor Custodian. No successor Custodian shall be
appointed by the Trustee without the prior approval of the Company and the
Master Servicer.
F. Merger or Consolidation of Custodian. Any Person into which the
Custodian may be merged or converted or with which it may be consolidated, or
any Person resulting from any merger, conversion or consolidation to which the
Custodian shall be a party, or any Person succeeding to the business of the
Custodian, shall be the successor of the Custodian 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.
G. Representations of the Custodian. The Custodian hereby represents
that it is a depository institution subject to supervision or examination by a
federal or state authority, has a combined capital and surplus of at least
$15,000,000 and is qualified to do business in the jurisdictions in which it
will hold any Mortgage File.
IV.
MISCELLANEOUS PROVISIONS
A. Notices. All notices, requests, consents, demands and other
communications required under this Agreement or pursuant to any other instrument
or document delivered hereunder shall be in writing and, unless otherwise
specifically provided, may be delivered personally, by telegram or telex, or by
registered or certified mail, postage prepaid, return receipt requested, at the
addresses specified on the signature page hereof (unless changed by the
particular party whose address is stated herein by similar notice in writing),
in which case the notice will be deemed delivered when received.
B. Amendments. No modification or amendment of or supplement to this
Agreement shall be valid or effective unless the same is in writing and signed
by all parties hereto, and neither the Company, the Master Servicer nor the
Trustee shall enter into any amendment hereof except as permitted by the Pooling
and Servicing Agreement. The Trustee
G-6
shall give prompt notice to the Custodian of any amendment or supplement to the
Pooling and Servicing Agreement and furnish the Custodian with written copies
thereof.
C. GOVERNING LAW. THIS AGREEMENT SHALL BE DEEMED A CONTRACT MADE UNDER
THE LAWS OF THE STATE OF NEW YORK AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
D. Recordation of Agreement. To the extent permitted by applicable
law, this Agreement is subject to recordation in all appropriate public offices
for real property records in all the counties or other comparable jurisdictions
in which any or all of the properties subject to the Mortgages are situated, and
in any other appropriate public recording office or elsewhere, such recordation
to be effected by the Company and at the Trust's expense on direction by the
Trustee, but only upon direction accompanied by an Opinion of Counsel (which
shall be at the expense of the party requesting such recordation and in no event
at the expense of the Trustee) reasonably satisfactory to the Company to the
effect that the failure to effect such recordation is likely to materially and
adversely affect the interests of the Certificateholders.
For the purpose of facilitating the recordation of this Agreement as
herein provided and for other purposes, this Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be an original, and such counterparts shall constitute but one and
the same instrument.
E. 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.
F. Third Party Rights. Wilshire Credit Corporation shall be deemed a
third-party beneficiary of this Agreement to the same extent as if it were a
party hereto, and shall have the right to enforce the provisions of this
Agreement.
G-7
IN WITNESS WHEREOF, this Agreement is executed as of the date first
above written.
Address: HSBC BANK USA, NATIONAL
ASSOCIATION, as Trustee
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000 By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Address: XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000 By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Address: XXXXX FARGO BANK, N.A.,
as Master Servicer
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000-0000 By:
------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Assistant Vice President
Address: XXXXX FARGO BANK, N.A.,
as Custodian
0000 00xx Xxxxxx Xxxxxxxxx, XX 0031
Xxxxxxxxxxx, XX 00000 By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
G-8
EXHIBIT ONE
FORM OF CUSTODIAN INITIAL CERTIFICATION
___________, 200__
Xxxxxxx Xxxxx Mortgage Investors, Inc.
000 Xxxxx Xxxxxx
4 World Financial Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
HSBC Bank USA, National Association
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Re: Pooling and Servicing Agreement, dated as of March 1, 2007, among
Xxxxxxx Xxxxx Mortgage Investors, Inc., as depositor, Xxxxx Fargo
Bank, N.A., as master servicer and securities administrator, and HSBC
Bank USA, National Association, as trustee, Mortgage Pass-Through
Certificates, Series 2007-F1
Ladies and Gentlemen:
Attached is the Custodian's preliminary exception report delivered in
accordance with Section 2.02 of the referenced Pooling and Servicing Agreements
(the "Pooling and Servicing Agreement"). Capitalized terms used but not
otherwise defined herein shall have the meanings set forth in the Pooling and
Servicing Agreement.
The Custodian has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
Pooling and Servicing Agreement. The Custodian makes no representations as to
(i) the validity, legality, sufficiency, enforceability or genuineness of any of
the documents contained in the Mortgage File pertaining to the Mortgage Loans
identified on the Mortgage Loan Schedule, (ii) the collectability, insurability,
effectiveness or suitability of any such Mortgage Loan or (iii) the existence of
any assumption, modification, written assurance, or substitution agreement, with
respect to any Mortgage File if no such documents appear in the Mortgage File
delivered to the Custodian.
XXXXX FARGO BANK, N.A.,
as Custodian
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
G-9
EXHIBIT TWO
FORM OF CUSTODIAN FINAL CERTIFICATION
____________, 2007
Xxxxxxx Xxxxx Mortgage Investors, Inc.
000 Xxxxx Xxxxxx
4 World Financial Center, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
--------------------
HSBC Bank USA, National Association
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Re: The Pooling and Servicing Agreement, dated as of March 1, 2007, among
Xxxxxxx Xxxxx Mortgage Investors, Inc., as depositor, Xxxxx Fargo
Bank, N.A., as master servicer and securities administrator and HSBC
Bank USA, National Association, as trustee, Mortgage Pass-Through
Certificates, Series 2007-F1
Ladies and Gentlemen:
In accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreements, the undersigned, hereby certifies that, except as noted on
the Schedule of Exceptions attached hereto, for each Mortgage Loan listed on the
Mortgage Loan Schedule (other than any Mortgage Loan paid in full or listed on
the attachment hereto), it has received a complete Mortgage File which includes
the documents required to be included in the Mortgage File as set forth in each
Pooling and Servicing Agreement.
The undersigned has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
above-referenced Pooling and Servicing Agreements. The undersigned makes no
representation as to: (i) the validity, legality, sufficiency, enforceability or
genuineness of any documents contained in any Mortgage File for any of the
Mortgage Loans listed on the Mortgage Loan Schedule to each Pooling and
Servicing Agreement, (ii) the collectability, insurability, effectiveness or
suitability of any such Mortgage Loan or (iii) whether any Mortgage File should
include any flood insurance policy, any rider, addends, surety or guaranty
agreement, power of attorney, buy down agreement, assumption agreement,
modification agreement, written assurance or substitution agreement.
G-10
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the above-captioned Pooling and Servicing
Agreements.
XXXXX FARGO BANK, N.A.,
as Custodian
By:
------------------------------------
Name:
----------------------------------
G-11
EXHIBIT THREE
FORM OF CERTIFICATION REGARDING SERVICING CRITERIA TO BE ADDRESSED IN REPORT ON
ASSESSMENT COMPLIANCE
The assessment of compliance to be delivered by Xxxxx Fargo Bank shall address,
at a minimum, the criteria identified below as "Applicable Servicing Criteria":
SERVICING CRITERIA APPLICABLE
------------------------------------------------------------------- SERVICING
REFERENCE CRITERIA CRITERIA
---------------- ------------------------------------------------ ----------
GENERAL SERVICING CONSIDERATIONS
1122(d)(1)(i) Policies and procedures are instituted to
monitor any performance or other triggers and
events of default in accordance with the
transaction agreements.
1122(d)(1)(ii) If any material servicing activities are
outsourced to third parties, policies and
procedures are instituted to monitor the third
party's performance and compliance with such
servicing activities.
1122(d)(1)(iii) Any requirements in the transaction agreements
to maintain a back-up servicer for the mortgage
loans are maintained.
1122(d)(1)(iv) A fidelity bond and errors and omissions policy
is in effect on the party participating in the
servicing function throughout the reporting
period in the amount of coverage required by and
otherwise in accordance with the terms of the
transaction agreements.
CASH COLLECTION AND ADMINISTRATION
1122(d)(2)(i) Payments on mortgage loans are deposited into
the appropriate custodial bank accounts and
related bank clearing accounts no more than two
business days following receipt, or such other
number of days specified in the transaction
agreements.
1122(d)(2)(ii) Disbursements made via wire transfer on behalf
of an obligor or to an investor are made only by
authorized personnel.
1122(d)(2)(iii) Advances of funds or guarantees regarding
collections, cash flows or distributions, and
any interest or other fees charged for such
advances, are made, reviewed and approved as
specified in the transaction agreements.
1122(d)(2)(iv) The related accounts for the transaction, such
as cash reserve accounts or accounts established
as a form of overcollateralization, are
separately maintained (e.g., with respect to
commingling of cash) as set forth in the
transaction agreements.
1122(d)(2)(v) Each custodial account is maintained at a
federally insured depository institution as set
forth in the transaction agreements. For
purposes of this criterion, "federally insured
depository institution" with respect to a
foreign financial institution means a foreign
financial institution that meets the
requirements of Rule 13k-1(b)(1) of the
Securities Exchange Act.
1122(d)(2)(vi) Unissued checks are safeguarded so as to prevent
unauthorized access.
1122(d)(2)(vii) Reconciliations are prepared on a monthly basis
for all asset-backed securities related bank
accounts, including custodial accounts and
related bank clearing accounts. These
reconciliations are (A) mathematically accurate;
(B) prepared within 30 calendar days after the
bank statement cutoff date, or such other number
of days specified in the transaction agreements;
(C) reviewed and approved by someone other than
the person who prepared the reconciliation; and
(D) contain explanations for reconciling items.
These reconciling items are resolved within 90
calendar days of their original identification,
or such other number of days specified in the
transaction agreements.
G-12
SERVICING CRITERIA APPLICABLE
------------------------------------------------------------------- SERVICING
REFERENCE CRITERIA CRITERIA
---------------- ------------------------------------------------ ----------
INVESTOR REMITTANCES AND REPORTING
1122(d)(3)(i) Reports to investors, including those to be
filed with the Commission, are maintained in
accordance with the transaction agreements and
applicable Commission requirements.
Specifically, such reports (A) are prepared in
accordance with timeframes and other terms set
forth in the transaction agreements; (B) provide
information calculated in accordance with the
terms specified in the transaction agreements;
(C) are filed with the Commission as required by
its rules and regulations; and (D) agree with
investors' or the trustee's records as to the
total unpaid principal balance and number of
mortgage loans serviced by the Servicer.
1122(d)(3)(ii) Amounts due to investors are allocated and
remitted in accordance with timeframes,
distribution priority and other terms set forth
in the transaction agreements.
1122(d)(3)(iii) Disbursements made to an investor are posted
within two business days to the Servicer's
investor records, or such other number of days
specified in the transaction agreements.
1122(d)(3)(iv) Amounts remitted to investors per the investor
reports agree with cancelled checks, or other
form of payment, or custodial bank statements.
POOL ASSET ADMINISTRATION
1122(d)(4)(i) Collateral or security on mortgage loans is X
maintained as required by the transaction
agreements or related mortgage loan documents.
1122(d)(4)(ii) Mortgage loan and related documents are X
safeguarded as required by the transaction
agreements.
1122(d)(4)(iii) Any additions, removals or substitutions to the
asset pool are made, reviewed and approved in
accordance with any conditions or requirements
in the transaction agreements.
1122(d)(4)(iv) Payments on mortgage loans, including any
payoffs, made in accordance with the related
mortgage loan documents are posted to the
Servicer's obligor records maintained no more
than two business days after receipt, or such
other number of days specified in the
transaction agreements, and allocated to
principal, interest or other items (e.g.,
escrow) in accordance with the related mortgage
loan documents.
1122(d)(4)(v) The Servicer's records regarding the mortgage
loans agree with the Servicer's records with
respect to an obligor's unpaid principal
balance.
1122(d)(4)(vi) Changes with respect to the terms or status of
an obligor's mortgage loans (e.g., loan
modifications or re-agings) are made, reviewed
and approved by authorized personnel in
accordance with the transaction agreements and
related pool asset documents.
1122(d)(4)(vii) Loss mitigation or recovery actions (e.g.,
forbearance plans, modifications and deeds in
lieu of foreclosure, foreclosures and
repossessions, as applicable) are initiated,
conducted and concluded in accordance with the
timeframes or other requirements established by
the transaction agreements.
1122(d)(4)(viii) Records documenting collection efforts are
maintained during the period a mortgage loan is
delinquent in accordance with the transaction
agreements. Such records are maintained on at
least a monthly basis, or such other period
specified in the transaction agreements, and
describe the entity's activities in monitoring
delinquent mortgage loans including, for
example, phone calls, letters and payment
rescheduling plans in cases where delinquency is
deemed temporary (e.g., illness or
unemployment).
1122(d)(4)(ix) Adjustments to interest rates or rates of return
for mortgage loans with variable rates are
computed based on the related mortgage loan
documents.
G-13
SERVICING CRITERIA APPLICABLE
------------------------------------------------------------------- SERVICING
REFERENCE CRITERIA CRITERIA
---------------- ------------------------------------------------ ----------
1122(d)(4)(x) Regarding any funds held in trust for an obligor
(such as escrow accounts): (A) such funds are
analyzed, in accordance with the obligor's
mortgage loan documents, on at least an annual
basis, or such other period specified in the
transaction agreements; (B) interest on such
funds is paid, or credited, to obligors in
accordance with applicable mortgage loan
documents and state laws; and (C) such funds are
returned to the obligor within 30 calendar days
of full repayment of the related mortgage loans,
or such other number of days specified in the
transaction agreements.
1122(d)(4)(xi) Payments made on behalf of an obligor (such as
tax or insurance payments) are made on or before
the related penalty or expiration dates, as
indicated on the appropriate bills or notices
for such payments, provided that such support
has been received by the servicer at least 30
calendar days prior to these dates, or such
other number of days specified in the
transaction agreements.
1122(d)(4)(xii) Any late payment penalties in connection with
any payment to be made on behalf of an obligor
are paid from the servicer's funds and not
charged to the obligor, unless the late payment
was due to the obligor's error or omission.
1122(d)(4)(xiii) Disbursements made on behalf of an obligor are
posted within two business days to the obligor's
records maintained by the servicer, or such
other number of days specified in the
transaction agreements.
1122(d)(4)(xiv) Delinquencies, charge-offs and uncollectible
accounts are recognized and recorded in
accordance with the transaction agreements.
1122(d)(4)(xv) Any external enhancement or other support,
identified in Item 1114(a)(1) through (3) or
Item 1115 of Regulation AB, is maintained as set
forth in the transaction agreements.
G-14
EXHIBIT H
[RESERVED]
H-1
EXHIBIT I-1
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
CITIMORTGAGE, INC.
(PROVIDED UPON REQUEST)
I-1-1
EXHIBIT I-2
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
INDYMAC BANK, F.S.B.
(PROVIDED UPON REQUEST)
I-2-1
EXHIBIT I-3
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
PHH MORTGAGE CORPORATION
(PROVIDED UPON REQUEST)
I-3-1
EXHIBIT I-4
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
WACHOVIA MORTGAGE CORPORATION
(PROVIDED UPON REQUEST)
I-4-1
EXHIBIT I-5
RECONSTITUTED SERVICING AGREEMENT
WILSHIRE CREDIT CORPORATION
(PROVIDED UPON REQUEST)
I-5-1
EXHIBIT J
MORTGAGE LOAN PURCHASE AGREEMENT
SEE EXHIBIT 99.1
J-1
EXHIBIT K
SERVICING CRITERIA TO BE ADDRESSED
IN ASSESSMENT OF COMPLIANCE
(RMBS UNLESS OTHERWISE NOTED)
KEY: X - obligation
WHERE THERE ARE MULTIPLE CHECKS FOR CRITERIA THE ATTESTING PARTY WILL IDENTIFY
IN ITS MANAGEMENT ASSERTION THAT IT IS ATTESTING ONLY TO THE PORTION OF THE
DISTRIBUTION CHAIN IT IS RESPONSIBLE FOR IN THE RELATED TRANSACTION AGREEMENTS.
CAPITALIZED TERMS USED HEREIN BUT NOT DEFINED HEREIN SHALL HAVE THE MEANINGS
ASSIGNED TO THEM IN THE POOLING AND SERVICING AGREEMENT, DATED AS OF MARCH 1,
2007, AMONG XXXXXXX XXXXX MORTGAGE INVESTORS, INC., AS DEPOSITOR, XXXXX FARGO
BANK, N.A., AS MASTER SERVICER AND SECURITIES ADMINISTRATOR, AND HSBC BANK USA,
NATIONAL ASSOCIATION, AS TRUSTEE.
SECURITIES MASTER
REG AB REFERENCE SERVICING CRITERIA ADMINISTRATOR SERVICER
---------------- -------------------------------------------- ------------- --------
GENERAL SERVICING CONSIDERATIONS
1122(d)(1)(i) Policies and procedures are instituted to X X
monitor any performance or other triggers
and events of default in accordance with the
transaction agreements.
1122(d)(1)(ii) If any material servicing activities are X X
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 N/A N/A
agreements to maintain a back-up servicer
for the Pool Assets are maintained.
1122(d)(1)(iv) A fidelity bond and errors and omissions X
policy is in effect on the party
participating in the servicing function
throughout the reporting period in the
amount of coverage required by and
otherwise in accordance with the terms
of the transaction agreements.
CASH COLLECTION AND ADMINISTRATION
1122(d)(2)(i) Payments on pool assets are deposited into X X
the appropriate custodial bank accounts and
related bank clearing accounts no more than
two business days following receipt, or such
other number of days specified in the
transaction agreements.
1122(d)(2)(ii) Disbursements made via wire transfer on X X
behalf of an obligor or to an investor are
made only by authorized personnel.
1122(d)(2)(iii) Advances of funds or guarantees regarding X
collections, cash flows or distributions,
and any interest or other fees charged for
such advances, are made, reviewed and
approved as specified in the transaction
agreements.
1122(d)(2)(iv) The related accounts for the transaction, X X
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.
K-1
SECURITIES MASTER
REG AB REFERENCE SERVICING CRITERIA ADMINISTRATOR SERVICER
---------------- -------------------------------------------- ------------- --------
1122(d)(2)(v) Each custodial account is maintained at a X X
federally insured depository institution as
set forth in the transaction agreements. For
purposes of this criterion, "federally
insured depository institution" with respect
to a foreign financial institution means a
foreign financial institution that meets the
requirements of Rule 13k-1(b)(1) of the
Securities Exchange Act.
1122(d)(2)(vi) Unissued checks are safeguarded so as to
prevent unauthorized access.
1122(d)(2)(vii) Reconciliations are prepared on a monthly X X
basis for all asset-backed securities
related bank accounts, including custodial
accounts and related bank clearing accounts.
These reconciliations are (A) mathematically
accurate; (B) prepared within 30 calendar
days after the bank statement cutoff date,
or such other number of days specified in
the transaction agreements; (C) reviewed and
approved by someone other than the person
who prepared the reconciliation; and (D)
contain explanations for reconciling items.
These reconciling items are resolved within
90 calendar days of their original
identification, or such other number of days
specified in the transaction agreements.
INVESTOR REMITTANCES AND REPORTING
1122(d)(3)(i) Reports to investors, including those to be X X
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.
1122(d)(3)(ii) Amounts due to investors are allocated and X X
remitted in accordance with timeframes,
distribution priority and other terms set
forth in the transaction agreements.
1122(d)(3)(iii) Disbursements made to an investor are posted X X
within two business days to the Servicer's
investor records, or such other number of
days specified in the transaction
agreements.
1122(d)(3)(iv) Amounts remitted to investors per the X X
investor reports agree with cancelled
checks, or other form of payment, or
custodial bank statements.
POOL ASSET ADMINISTRATION
1122(d)(4)(i) Collateral or security on 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.
K-2
SECURITIES MASTER
REG AB REFERENCE SERVICING CRITERIA ADMINISTRATOR SERVICER
---------------- -------------------------------------------- ------------- --------
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.
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.
1122(d)(4)(vii) Loss mitigation or recovery actions (e.g.,
forbearance plans, modifications and deeds
in lieu of foreclosure, foreclosures and
repossessions, as applicable) are initiated,
conducted and concluded in accordance with
the timeframes or other requirements
established by the transaction agreements.
1122(d)(4)(viii) Records documenting collection efforts are
maintained during the period a 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.
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.
K-3
SECURITIES MASTER
REG AB REFERENCE SERVICING CRITERIA ADMINISTRATOR SERVICER
---------------- -------------------------------------------- ------------- --------
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 X
accounts are recognized and recorded in
accordance with the transaction
agreements.
1122(d)(4)(xv) Any external enhancement or other support,
identified in Item 1114(a)(1) through (3) or
Item 1115 of Regulation AB, is maintained as
set forth in the transaction agreements.
K-4
EXHIBIT L
XXXXXXXX-XXXXX CERTIFICATION
[DATE]
Xxxxxxx Xxxxx Mortgage Investors, Inc.
000 Xxxxx Xxxxxx
4 World Financial Center, 10th Floor
New York, New York 10080
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Re: Xxxxxxx Xxxxx Alternative Note Asset Trust, Series 2007-F1
I, [identify the certifying individual], certify that:
1. I have reviewed the report on Form 10-K and all reports on Form
10-D required to be filed in respect of the period covered by this report on
Form 10-K of Xxxxxxx Xxxxx Alternative Note Asset Trust, Series 0000-X0 (xxx
"Xxxxxxxx Xxx periodic reports");
2. Based on my knowledge, the Exchange Act periodic reports, taken as
a whole, do not contain any untrue statement of a material fact or omit to state
a material fact necessary to make the statements made, in light of the
circumstances under which such statements were made, not misleading with respect
to the period covered by this report;
3. Based on my knowledge, all of the distribution, servicing and other
information required to be provided under Form 10-D for the period covered by
this report is included in the Exchange Act periodic reports;
4. [I am responsible for reviewing the activities performed by the
servicer(s) and based on my knowledge and the compliance review(s) conducted in
preparing the servicer compliance statement(s) required in this report under
Item 1123 of Regulation AB, and except as disclosed in the Exchange Act periodic
reports, the servicer(s) [has/have] fulfilled [its/their] obligations under the
servicing agreement(s) in all material respects; and]
5. All of the reports on assessment of compliance with servicing
criteria for ABS and their related attestation reports on assessment of
compliance with servicing criteria for asset-backed securities required to be
included in this report in accordance with Item 1122 of Regulation AB and
Exchange Act Rules 13a-18 and 15d-18 have been included as an exhibit to this
report, except as otherwise disclosed in this report. Any material instances of
noncompliance described in such reports have been disclosed in this report on
Form 10-K.
L-1
[In giving the certifications above, I have reasonably relied on
information provided to me by the following unaffiliated parties [name of
servicer, sub-servicer, co-servicer, depositor or trustee].]
Date:
-------------------------------
----------------------------------------
[Signature]
----------------------------------------
[Title]
L-2
EXHIBIT M
FORM OF BACK-UP XXXXXXXX-XXXXX CERTIFICATION
Xxxxxxx Xxxxx Mortgage Investors, Inc.
000 Xxxxx Xxxxxx
4 World Financial Center, 10th Floor
New York, New York 10080
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Re: Xxxxxxx Xxxxx Alternative Note Asset Trust, Series 2007-F1
[__________], the [__________] of [__________] (the "Company") hereby
certifies to the Depositor, the Master Servicer and the Securities
Administrator, and each of their officers, directors and affiliates that:
(1) I have reviewed [the servicer compliance statement of the Company
provided in accordance with Item 1123 of Regulation AB (the "Compliance
Statement"),] the report on assessment of the Company's compliance with the
Servicing Criteria set forth in Item 1122(d) of Regulation AB (the "Servicing
Criteria"), provided in accordance with Rules 13a-18 and 15d-18 under the
Securities Exchange Act of 1934, as amended (the "Exchange Act") and Item 1122
of Regulation AB (the "Servicing Assessment"), the registered public accounting
firm's attestation report provided in accordance with Rules 13a-18 and 15d-18
under the Exchange Act and Section 1122(b) of Regulation AB (the "Attestation
Report"), and all servicing reports, officer's certificates and other
information relating to the servicing of the Mortgage Loans by the Company
during 200[ ] that were delivered by the Company to any of the Depositor, the
Master Servicer and the Trustee pursuant to the Agreement (collectively, the
"Company Servicing Information");
(2) Based on my knowledge, the Company Servicing Information, taken as
a whole, does not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements made, in the light of the
circumstances under which such statements were made, not misleading with respect
to the period of time covered by the Company Servicing Information;
(3) Based on my knowledge, all of the Company Servicing Information
required to be provided by the Company under the Agreement has been provided to
the Depositor, the Master Servicer and the Securities Administrator;
(4) I am responsible for reviewing the activities performed by
[__________] as [__________] under the [__________] (the "Agreement"), and based
on my knowledge [and the compliance review conducted in preparing the Compliance
Statement] and except as disclosed in [the Compliance Statement,] the Servicing
Assessment or the Attestation Report, the Company has fulfilled its obligations
under the Agreement in all material respects; and
M-1
(5) [The Compliance Statement required to be delivered by the Company
pursuant to the Agreement, and] [The] [the] Servicing Assessment and Attestation
Report required to be provided by the Company and [by any Subservicer or
Subcontractor] pursuant to the Agreement, have been provided to the Depositor,
the Master Servicer and the Securities Administrator. Any material instances of
noncompliance described in such reports have been disclosed to the Depositor,
the Master Servicer and the Securities Administrator. Any material instance of
noncompliance with the Servicing Criteria has been disclosed in such reports.
Capitalized terms used but not defined herein have the meanings
ascribed to them in the Pooling and Servicing Agreement, dated as of March 1,
2007, among Xxxxxxx Xxxxx Mortgage Investors, Inc., as depositor (the
"Depositor"), Xxxxx Fargo Bank, N.A., as master servicer (in such capacity, the
"Master Servicer") and securities administrator (in such capacity, the
"Securities Administrator"), and HSBC Bank USA, National Association, as trustee
(the "Trustee").
[__________]
as [__________]
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Date:
----------------------------------
M-2
EXHIBIT N
[RESERVED]
N-1
EXHIBIT O
ADDITIONAL DISCLOSURE NOTIFICATION
Xxxxxxx Xxxxx Mortgage Investors, Inc.
000 Xxxxx Xxxxxx
4 World Financial Center, 10th Floor
New York, New York 10080
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
RE: Xxxxxxx Xxxxx Alternative Note Asset Trust, Series 2007-F1
**Additional Form [10-D][10-K][8-K] Disclosure** Required
Ladies and Gentlemen:
In accordance with Section [3.18(b)] of the Pooling and Servicing
Agreement, dated as of March 1, 2007, among Xxxxxxx Xxxxx Mortgage Investors,
Inc., as depositor, Xxxxx Fargo Bank, N.A., as master servicer and securities
administrator, and HSBC Bank USA, National Association, 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:
---------------------------------
O-1
EXHIBIT P
FORM OF ITEM 1123 CERTIFICATION OF SERVICER
[DATE]
Xxxxxxx Xxxxx Mortgage Investors, Inc.
000 Xxxxx Xxxxxx
4 World Financial Center, 10th Floor
New York, New York 10080
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Re: Xxxxxxx Xxxxx Alternative Note Asset Trust, Series 2007-F1 Mortgage
Pass-Through Certificates
I, [identify name of certifying individual], [title of certifying individual] of
[name of servicing company] (the "Servicer"), hereby certify that:
(1) A review of the activities of the Servicer during the preceding
calendar year and of the performance of the Servicer under the [related
servicing agreement] (the "Servicing Agreement") has been made under my
supervision; and
(2) To the best of my knowledge, based on such review, the Servicer
has fulfilled all its obligations under the related Servicing Agreement in all
material respects throughout such year or a portion thereof[, or, if there has
been a failure to fulfill any such obligation in any material respect, I have
specified below each such failure known to me and the nature and status
thereof].
Date:
-------------------------------
[Servicer]
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
P-1
EXHIBIT Q-1
ADDITIONAL FORM 10-D DISCLOSURE
ADDITIONAL FORM 10-D DISCLOSURE
------------------------------------------------------------------------------------
ITEM ON FORM 10-D PARTY RESPONSIBLE
---------------------------------------- -----------------------------------------
ITEM 1: DISTRIBUTION AND POOL
PERFORMANCE INFORMATION
Information included in the [Monthly Master Servicer
Statement] Servicer
Securities Administrator
Any information required by 1121 which Depositor
is NOT included on the [Monthly
Statement]
ITEM 2: LEGAL PROCEEDINGS
Any legal proceeding pending against the
following entities or their respective
property, that is material to
Certificateholders, including any
proceeding known to be contemplated by
governmental authorities:
- Issuing Entity (Trust Fund) Trustee, Master Servicer, Securities
Administrator and Depositor
- Sponsor (Seller) Seller (if a party to the Pooling and
Servicing Agreement) or Depositor
- Depositor Depositor
- Trustee Trustee
- Securities Administrator Securities Administrator
- Master Servicer Master Servicer
- Custodian Custodian
- 1110(b) Originator Depositor
- Any 1108(a)(2) Servicer (other than Servicer
the Master Servicer or Securities
Administrator)
- Any other party contemplated by Depositor
1100(d)(1)
ITEM 3: SALE OF SECURITIES AND USE OF Depositor
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.
Q-1-1
ADDITIONAL FORM 10-D DISCLOSURE
------------------------------------------------------------------------------------
ITEM ON FORM 10-D PARTY RESPONSIBLE
---------------------------------------- -----------------------------------------
ITEM 4: DEFAULTS UPON SENIOR SECURITIES Securities Administrator
Trustee
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)
ITEM 5: SUBMISSION OF MATTERS TO A VOTE Securities Administrator
OF SECURITY HOLDERS Trustee
Information from Item 4 of Part II of
Form 10-Q
ITEM 6: SIGNIFICANT OBLIGORS OF POOL Depositor
ASSETS
Item 1112(b) - Significant Obligor
Financial Information*
* 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 Depositor
threshold
- Requesting required financial Depositor
information (including any required
accountants' consent to the use
thereof) or effecting incorporation
by reference
Item 1115(b) - Derivative Counterparty
Financial Information*
- Determining current maximum Depositor
probable exposure
- Determining current significance Depositor
percentage
- Requesting required financial Depositor
information (including any required
accountants' consent to the use
thereof) or effecting incorporation
by reference
* 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.
2
ADDITIONAL FORM 10-D DISCLOSURE
------------------------------------------------------------------------------------
ITEM ON FORM 10-D PARTY RESPONSIBLE
---------------------------------------- -----------------------------------------
ITEM 8: OTHER INFORMATION Any party responsible for the applicable
Form 8-K Disclosure item
Disclose any information required to be
reported on Form 8-K during the period
covered by the Form 10-D but not
reported
ITEM 9: EXHIBITS
Monthly Statement to Certificateholders Securities Administrator
Exhibits required by Item 601 of Depositor
Regulation S-K, such as material
agreements
3
EXHIBIT Q-2
ADDITIONAL FORM 10-K DISCLOSURE
ADDITIONAL FORM 10-K DISCLOSURE
------------------------------------------------------------------------------------------------------------------
ITEM ON FORM 10-K PARTY RESPONSIBLE
--------------------------------------------------------- ------------------------------------------------------
ITEM 1B: UNRESOLVED STAFF COMMENTS Depositor
ITEM 9B: OTHER INFORMATION Any party responsible for disclosure items on Form 8-K
Disclose any information required to be reported on Form
8-K during the fourth quarter covered by the Form 10-K
but not reported
ITEM 15: EXHIBITS, FINANCIAL STATEMENT Securities Administrator
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-K
if 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 Depositor
any required accountants' consent to the use thereof) or
effecting incorporation by reference
* This information need only be reported on the Form 10-K
if updated information is required pursuant to the Item.
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 Depositor
any required accountants' consent to the use thereof) or
effecting incorporation by reference
* This information need only be reported on the Form 10-K
if updated information is required pursuant to the Item.
REG AB ITEM 1117: LEGAL PROCEEDINGS
Any legal proceeding pending against the following
entities or their respective property, that is material
to Certificateholders, including any proceeding known to
be contemplated by
1
ADDITIONAL FORM 10-K DISCLOSURE
------------------------------------------------------------------------------------------------------------------
ITEM ON FORM 10-K PARTY RESPONSIBLE
--------------------------------------------------------- ------------------------------------------------------
governmental authorities:
- Issuing Entity (Trust Fund) Trustee, Master Servicer, Securities Administrator and
Depositor
- Sponsor (Seller) Seller (if a party to the Pooling and Servicing
Agreement) or Depositor
- Depositor Depositor
- Trustee Trustee
- Securities Administrator Securities Administrator
- Master Servicer Master Servicer
- Custodian Custodian
- 1110(b) Originator Depositor
- Any 1108(a)(2) Servicer (other than the Master Servicer Servicer
or Securities Administrator)
- Any other party contemplated by 1100(d)(1) Depositor
REG AB ITEM 1119: AFFILIATIONS AND RELATIONSHIPS
Whether (a) the Sponsor (Seller), Depositor or Issuing Depositor as to (a)
Entity is an affiliate of the following parties, and (b) Sponsor/Seller as to (a)
to the extent known and material, any of the following
parties are affiliated with one another:
- Master Servicer Master Servicer
- Securities Administrator Securities Administrator
- Trustee Trustee
- Any other 1108(a)(3) servicer Servicer
- Any 1110 Originator Depositor/Sponsor
- Any 1112(b) Significant Obligor Depositor/Sponsor
- Any 1114 Credit Enhancement Provider Depositor/Sponsor
- Any 1115 Derivate Counterparty Provider Depositor/Sponsor
- Any other 1101(d)(1) material party Depositor/Sponsor
Whether there are any "outside the ordinary course Depositor as to (a)
business arrangements" other than would be obtained in an Sponsor/Seller as to (a)
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:
- Master Servicer Master Servicer
- Securities Administrator Securities Administrator
- Trustee Depositor
- Any other 1108(a)(3) servicer Servicer
- Any 1110 Originator Depositor/Sponsor
- Any 1112(b) Significant Obligor Depositor/Sponsor
- Any 1114 Credit Enhancement Provider Depositor/Sponsor
2
ADDITIONAL FORM 10-K DISCLOSURE
------------------------------------------------------------------------------------------------------------------
ITEM ON FORM 10-K PARTY RESPONSIBLE
--------------------------------------------------------- ------------------------------------------------------
- Any 1115 Derivate Counterparty Provider Depositor/Sponsor
- Any other 1101(d)(1) material party Depositor/Sponsor
Whether there are any specific relationships involving Depositor as to (a)
the transaction or the pool assets between (a) the Sponsor/Seller as to (a)
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:
- Master Servicer Master Servicer
- Securities Administrator Securities Administrator
- Trustee Depositor
- Any other 1108(a)(3) servicer Servicer
- Any 1110 Originator Depositor/Sponsor
- Any 1112(b) Significant Obligor Depositor/Sponsor
- Any 1114 Credit Enhancement Provider Depositor/Sponsor
- Any 1115 Derivate Counterparty Provider Depositor/Sponsor
- Any other 1101(d)(1) material party Depositor/Sponsor
3
EXHIBIT Q-3
FORM 8-K DISCLOSURE INFORMATION
FORM 8-K DISCLOSURE INFORMATION
--------------------------------------------------------------------------------
ITEM ON FORM 8-K PARTY RESPONSIBLE
----------------------------------------------------- ------------------------
ITEM 1.01- ENTRY INTO A MATERIAL DEFINITIVE AGREEMENT All parties
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
ITEM 1.02- TERMINATION OF A MATERIAL DEFINITIVE All parties
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.
ITEM 1.03- BANKRUPTCY OR RECEIVERSHIP Depositor
Disclosure is required regarding the bankruptcy or
receivership, with respect to any of the following:
- Sponsor (Seller) Depositor/Sponsor
(Seller)
- Depositor Depositor
- Master Servicer Master Servicer
- Affiliated Servicer Servicer
- Other Servicer servicing 20% or more of the pool Servicer
assets at the time of the report
- Other material servicers Servicer
- Trustee Trustee
- Securities Administrator Securities Administrator
- Significant Obligor Depositor
- Credit Enhancer (10% or more) Depositor
- Derivative Counterparty Depositor
Q-3-1
FORM 8-K DISCLOSURE INFORMATION
--------------------------------------------------------------------------------
ITEM ON FORM 8-K PARTY RESPONSIBLE
----------------------------------------------------- ------------------------
- Custodian Custodian
ITEM 2.04- TRIGGERING EVENTS THAT ACCELERATE OR Depositor
INCREASE A DIRECT FINANCIAL OBLIGATION OR AN Master Servicer
OBLIGATION UNDER AN OFF-BALANCE SHEET ARRANGEMENT Securities Administrator
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.
ITEM 3.03- MATERIAL MODIFICATION TO RIGHTS OF Securities Administrator
SECURITY HOLDERS Trustee
Depositor
Disclosure is required of any material modification
to documents defining the rights of
Certificateholders, including the Pooling and
Servicing Agreement.
ITEM 5.03- AMENDMENTS OF ARTICLES OF INCORPORATION Depositor
OR BYLAWS; CHANGE OF FISCAL YEAR
Disclosure is required of any amendment "to the
governing documents of the issuing entity".
ITEM 6.01- ABS INFORMATIONAL AND COMPUTATIONAL Depositor
MATERIAL
ITEM 6.02- CHANGE OF SERVICER OR SECURITIES Master Servicer/
ADMINISTRATOR Securities Administrator
/Depositor/Servicer/
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.
Reg AB disclosure about any new servicer or master Servicer/Master Servicer
servicer is also required. /Depositor
Reg AB disclosure about any new Trustee is also Trustee
required.
ITEM 6.03- CHANGE IN CREDIT ENHANCEMENT OR EXTERNAL Depositor/Securities
SUPPORT Administrator
Covers termination of any enhancement in manner other
than by its terms, the addition of an enhancement, or
a material change in the
Q-3-2
FORM 8-K DISCLOSURE INFORMATION
--------------------------------------------------------------------------------
ITEM ON FORM 8-K PARTY RESPONSIBLE
----------------------------------------------------- ------------------------
enhancement provided. Applies to external credit
enhancements as well as derivatives.
Reg AB disclosure about any new enhancement provider Depositor
is also required.
ITEM 6.04- FAILURE TO MAKE A REQUIRED DISTRIBUTION Securities Administrator
Trustee
ITEM 6.05- SECURITIES ACT UPDATING DISCLOSURE Depositor
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.
If there are any new servicers or originators Depositor
required to be disclosed under Regulation AB as a
result of the foregoing, provide the information
called for in Items 1108 and 1110 respectively.
ITEM 7.01- REG FD DISCLOSURE All parties
ITEM 8.01- OTHER EVENTS Depositor
Any event, with respect to which information is not
otherwise called for in Form 8-K, that the registrant
deems of importance to certificateholders.
ITEM 9.01- FINANCIAL STATEMENTS AND EXHIBITS Responsible party for
reporting/disclosing the
financial statement or
exhibit
Q-3-3
