STRUCTURED ASSET SECURITIES CORPORATION, as Depositor, AURORA LOAN SERVICES LLC, as Master Servicer, WELLS FARGO BANK, N.A., as Securities Administrator, CLAYTON FIXED INCOME SERVICES INC., as Credit Risk Manager, and U.S. BANK NATIONAL ASSOCIATION,...
EXECUTION
STRUCTURED
ASSET SECURITIES CORPORATION, as Depositor,
AURORA
LOAN SERVICES LLC, as Master Servicer,
XXXXX
FARGO BANK, N.A., as
Securities
Administrator,
XXXXXXX
FIXED INCOME SERVICES INC., as
Credit
Risk Manager,
and
U.S.
BANK
NATIONAL ASSOCIATION, as Trustee
___________________________
Dated
as
of March 1, 2007
___________________________
STRUCTURED
ASSET SECURITIES CORPORATION
MORTGAGE
PASS-THROUGH CERTIFICATES
SERIES
2007-WF1
TABLE
OF
CONTENTS
Page
|
ARTICLE
I DEFINITIONS
|
17
|
|
|
Section
1.01.
|
Definitions.
|
17
|
|
Section
1.02.
|
Calculations
Respecting Mortgage Loans.
|
62
|
|
Section
1.03.
|
Calculations
Respecting Accrued Interest.
|
62
|
|
ARTICLE
II DECLARATION OF TRUST; ISSUANCE OF CERTIFICATES
|
63
|
|
|
Section
2.01.
|
Creation
and Declaration of Trust Fund; Conveyance of Mortgage
Loans.
|
63
|
|
Section
2.02.
|
Acceptance
of Trust Fund by Trustee: Review of Documentation for Trust
Fund.
|
67
|
|
Section
2.03.
|
Representations
and Warranties of the Depositor.
|
68
|
|
Section
2.04.
|
Discovery
of Breach.
|
70
|
|
Section
2.05.
|
Repurchase,
Purchase or Substitution of Mortgage Loans.
|
71
|
|
Section
2.06.
|
Grant
Clause.
|
72
|
|
ARTICLE
III THE CERTIFICATES
|
73
|
|
|
Section
3.01.
|
The
Certificates.
|
73
|
|
Section
3.02.
|
Registration.
|
75
|
|
Section
3.03.
|
Transfer
and Exchange of Certificates.
|
75
|
|
Section
3.04.
|
Cancellation
of Certificates.
|
81
|
|
Section
3.05.
|
Replacement
of Certificates.
|
82
|
|
Section
3.06.
|
Persons
Deemed Owners.
|
82
|
|
Section
3.07.
|
Temporary
Certificates.
|
82
|
|
Section
3.08.
|
Appointment
of Paying Agent.
|
83
|
|
Section
3.09.
|
Book-Entry
Certificates.
|
84
|
|
ARTICLE
IV ADMINISTRATION OF THE TRUST FUND
|
86
|
|
|
Section
4.01.
|
Collection
Account.
|
86
|
|
Section
4.02.
|
Application
of Funds in the Collection Account.
|
88
|
|
Section
4.03.
|
Reports
to Certificateholders.
|
90
|
|
Section
4.04.
|
Certificate
Account.
|
94
|
|
Section
4.05.
|
Securities
Administration Account.
|
95
|
|
ARTICLE
V DISTRIBUTIONS TO HOLDERS OF CERTIFICATES
|
98
|
|
|
Section
5.01.
|
Distributions
Generally.
|
98
|
|
Section
5.02.
|
Distributions
from the Certificate Account.
|
99
|
|
Section
5.03.
|
Allocation
of Losses.
|
112
|
|
Section
5.04.
|
Advances
by Master Servicer, Servicer and Securities Administrator.
|
113
|
|
Section
5.05.
|
Compensating
Interest Payments.
|
114
|
|
Section
5.06.
|
Basis
Risk Reserve Fund.
|
114
|
|
Section
5.07.
|
Supplemental
Interest Trust.
|
115
|
|
Section
5.08.
|
Rights
of Swap Counterparty.
|
118
|
i
|
Section
5.09.
|
Termination
Receipts.
|
118
|
|
ARTICLE
VI CONCERNING THE TRUSTEE AND THE SECURITIES ADMINISTRATOR; EVENTS
OF
DEFAULT
|
121
|
|
|
Section
6.01.
|
Duties
of Trustee and Securities Administrator.
|
121
|
|
Section
6.02.
|
Certain
Matters Affecting the Trustee and the Securities
Administrator.
|
124
|
|
Section
6.03.
|
Trustee
and Securities Administrator Not Liable for Certificates.
|
125
|
|
Section
6.04.
|
Trustee
and the Securities Administrator May Own Certificates.
|
126
|
|
Section
6.05.
|
Eligibility
Requirements for Trustee and Securities Administrator.
|
126
|
|
Section
6.06.
|
Resignation
and Removal of Trustee and the Securities Administrator.
|
127
|
|
Section
6.07.
|
Successor
Trustee and Successor Securities Administrator.
|
128
|
|
Section
6.08.
|
Merger
or Consolidation of Trustee or the Securities
Administrator.
|
129
|
|
Section
6.09.
|
Appointment
of Co-Trustee, Separate Trustee or Custodian.
|
129
|
|
Section
6.10.
|
Authenticating
Agents.
|
131
|
|
Section
6.11.
|
Indemnification
of Trustee and Securities Administrator.
|
132
|
|
Section
6.12.
|
Fees
and Expenses of Securities Administrator, Trustee and
Custodian.
|
133
|
|
Section
6.13.
|
Collection
of Monies.
|
133
|
|
Section
6.14.
|
Events
of Default; Trustee To Act; Appointment of Successor.
|
134
|
|
Section
6.15.
|
Additional
Remedies of Trustee Upon Event of Default.
|
138
|
|
Section
6.16.
|
Waiver
of Defaults.
|
139
|
|
Section
6.17.
|
Notification
to Holders.
|
139
|
|
Section
6.18.
|
Directions
by Certificateholders and Duties of Trustee During Event of
Default.
|
139
|
|
Section
6.19.
|
Action
Upon Certain Failures of the Master Servicer and Upon Event of
Default.
|
140
|
|
Section
6.20.
|
Preparation
of Tax Returns and Other Reports.
|
140
|
|
Section
6.21.
|
Reporting
Requirements of the Commission
|
147
|
|
Section
6.22.
|
No
Merger.
|
148
|
|
Section
6.23.
|
Indemnification
by the Securities Administrator.
|
148
|
|
ARTICLE
VII PURCHASE OF MORTGAGE LOANS AND TERMINATION OF THE TRUST
FUND
|
149
|
|
|
Section
7.01.
|
Purchase
of Mortgage Loans; Termination of Trust Fund Upon Purchase or
Liquidation
of All Mortgage Loans; Purchase of Lower Tier REMIC 1 Uncertificated
Regular Interests.
|
149
|
|
Section
7.02.
|
Procedure
Upon Termination of Trust Fund or Purchase of Lower Tier REMIC
1
Uncertificated Regular Interests.
|
152
|
|
Section
7.03.
|
Additional
Trust Fund Termination Event or Purchase of the Lower Tier REMIC
1
Uncertificated Regular Interests.
|
154
|
|
Section
7.04.
|
Optional
Repurchase Right.
|
155
|
|
ARTICLE
VIII RIGHTS OF CERTIFICATEHOLDERS
|
156
|
|
|
Section
8.01.
|
Limitation
on Rights of Holders.
|
156
|
|
Section
8.02.
|
Access
to List of Holders.
|
157
|
|
Section
8.03.
|
Acts
of Holders of Certificates.
|
157
|
ii
|
ARTICLE
IX ADMINISTRATION AND SERVICING OF MORTGAGE LOANS; CREDIT RISK
MANAGER
|
159
|
|
|
Section
9.01.
|
Duties
of the Master Servicer.
|
159
|
|
Section
9.02.
|
Master
Servicer Fidelity Bond and Master Servicer Errors and Omissions
Insurance
Policy.
|
159
|
|
Section
9.03.
|
Master
Servicer’s Financial Statements and Related Information.
|
160
|
|
Section
9.04.
|
Power
to Act; Procedures.
|
160
|
|
Section
9.05.
|
Enforcement
of Servicer’s and Master Servicer’s Obligations.
|
162
|
|
Section
9.06.
|
Collection
of Taxes, Assessments and Similar Items.
|
163
|
|
Section
9.07.
|
Termination
of Servicing Agreement; Successor Servicers.
|
164
|
|
Section
9.08.
|
Master
Servicer Liable for Enforcement.
|
165
|
|
Section
9.09.
|
No
Contractual Relationship Between the Servicer and Trustee or
Depositor.
|
165
|
|
Section
9.10.
|
Assumption
of Servicing Agreement by Securities Administrator.
|
165
|
|
Section
9.11.
|
Due-on-Sale
Clauses; Assumption Agreements.
|
166
|
|
Section
9.12.
|
Release
of Mortgage Files.
|
166
|
|
Section
9.13.
|
Documents,
Records and Funds in Possession of Master Servicer to be Held
for
Trustee.
|
167
|
|
Section
9.14.
|
Representations
and Warranties of the Master Servicer.
|
168
|
|
Section
9.15.
|
Opinion.
|
171
|
|
Section
9.16.
|
Standard
Hazard and Flood Insurance Policies.
|
171
|
|
Section
9.17.
|
Presentment
of Claims and Collection of Proceeds.
|
171
|
|
Section
9.18.
|
Maintenance
of the Primary Mortgage Insurance Policies.
|
172
|
|
Section
9.19.
|
Trustee
To Retain Possession of Certain Insurance Policies and
Documents.
|
172
|
|
Section
9.20.
|
[Reserved]
|
172
|
|
Section
9.21.
|
Compensation
to the Master Servicer.
|
173
|
|
Section
9.22.
|
REO
Property.
|
173
|
|
Section
9.23.
|
Notices
to the Depositor and the Securities Administrator
|
174
|
|
Section
9.24.
|
Reports
to the Trustee.
|
174
|
|
Section
9.25.
|
Assessment
of Compliance and Attestation Reports.
|
175
|
|
Section
9.26.
|
Annual
Statement of Compliance with Applicable Servicing
Criteria.
|
176
|
|
Section
9.27.
|
Merger
or Consolidation.
|
177
|
|
Section
9.28.
|
Resignation
of Master Servicer.
|
177
|
|
Section
9.29.
|
Assignment
or Delegation of Duties by the Master Servicer.
|
177
|
|
Section
9.30.
|
Limitation
on Liability of the Master Servicer and Others.
|
178
|
|
Section
9.31.
|
Indemnification;
Third-Party Claims.
|
179
|
|
Section
9.32.
|
Special
Servicing of Delinquent Mortgage Loans.
|
179
|
|
Section
9.33.
|
Alternative
Index.
|
180
|
|
Section
9.34.
|
Duties
of the Credit Risk Manager.
|
180
|
|
Section
9.35.
|
Limitation
Upon Liability of the Credit Risk Manager.
|
182
|
|
Section
9.36.
|
Indemnification
by the Credit Risk Manager.
|
182
|
|
Section
9.37.
|
Removal
of Credit Risk Manager.
|
182
|
|
ARTICLE
X REMIC ADMINISTRATION
|
184
|
|
|
Section
10.01.
|
REMIC
Administration.
|
184
|
|
Section
10.02.
|
Prohibited
Transactions and Activities.
|
187
|
|
Section
10.03.
|
Indemnification
with Respect to Certain Taxes and Loss of REMIC Status.
|
187
|
iii
|
Section
10.04.
|
REO
Property.
|
188
|
|
ARTICLE
XI MISCELLANEOUS PROVISIONS
|
189
|
|
|
Section
11.01.
|
Binding
Nature of Agreement; Assignment.
|
189
|
|
Section
11.02.
|
Entire
Agreement.
|
189
|
|
Section
11.03.
|
Amendment.
|
189
|
|
Section
11.04.
|
Voting
Rights.
|
191
|
|
Section
11.05.
|
Provision
of Information.
|
191
|
|
Section
11.06.
|
Governing
Law.
|
192
|
|
Section
11.07.
|
Notices.
|
192
|
|
Section
11.08.
|
Severability
of Provisions.
|
192
|
|
Section
11.09.
|
Indulgences;
No Waivers.
|
193
|
|
Section
11.10.
|
Headings
Not To Affect Interpretation.
|
193
|
|
Section
11.11.
|
Benefits
of Agreement.
|
193
|
|
Section
11.12.
|
Special
Notices to the Rating Agencies and any NIMS Insurer.
|
193
|
|
Section
11.13.
|
Conflicts.
|
194
|
|
Section
11.14.
|
Counterparts.
|
194
|
|
Section
11.15.
|
Transfer
of Servicing.
|
194
|
ATTACHMENTS
|
Exhibit
A
|
Forms
of Certificates
|
|
Exhibit
B-1
|
Form
of Initial Certification
|
|
Exhibit
B-2
|
Form
of Interim Certification
|
|
Exhibit
B-3
|
Form
of Final Certification
|
|
Exhibit
B-4
|
Form
of Endorsement
|
|
Exhibit
C
|
Request
for Release of Documents and Receipt
|
|
Exhibit
D-l
|
Form
of Residual Certificate Transfer Affidavit (Transferee)
|
|
Exhibit
D-2
|
Form
of Residual Certificate Transfer Affidavit (Transferor)
|
|
Exhibit
E
|
Name
of Servicing Agreement
|
|
Exhibit
F
|
Form
of Rule 144A Transfer Certificate
|
|
Exhibit
G
|
Form
of Purchaser’s Letter for Institutional Accredited
Investors
|
|
Exhibit
H
|
Form
of ERISA Transfer Affidavit
|
|
Exhibit
I
|
Monthly
Remittance Advice
|
|
Exhibit
J
|
Monthly
Electronic Data Transmission
|
|
Exhibit
K
|
Name
of Custodial Agreement
|
|
Exhibit
L
|
Name
of Credit Risk Management Agreement
|
|
Exhibit
M-1
|
Form
of Transfer Certificate for Transfer from Restricted Global Security
to
Regulation S Global Security
|
|
Exhibit
M-2
|
Form
of Transfer Certificate for Transfer from Regulation S Global
Security to
Restricted Global Security
|
|
Exhibit
N
|
Interest
Rate Cap Agreement
|
|
Exhibit
O
|
Swap
Agreement
|
|
Exhibit
P-1
|
Additional
Form 10-D Disclosure
|
|
Exhibit
P-2
|
Additional
Form 10-K Disclosure
|
|
Exhibit
P-3
|
Additional
Form 8-K Disclosure
|
iv
|
Exhibit
P-4
|
Additional
Disclosure Notification
|
|
Exhibit
Q-1
|
Form
of Back-Up Xxxxxxxx-Xxxxx Certification
|
|
Exhibit
Q-2
|
Form
of Back-Up Xxxxxxxx-Xxxxx Certification to be Provided by the
Paying
Agent
|
|
Exhibit
Q-3
|
Form
of Back-Up Xxxxxxxx-Xxxxx Certification to be Provided by the
Securities
Administrator
|
|
Exhibit
R-1
|
Form
of Watch List Report
|
|
Exhibit
R-2
|
Form
of Loss Severity Report
|
|
Exhibit
R-3
|
Form
of Mortgage Insurance Claims Report
|
|
Exhibit
R-4
|
Form
of Prepayment Charges Report
|
|
Exhibit
R-5
|
Form
of Analytics Report
|
|
Exhibit
S
|
Servicing
Criteria to be Addressed in Report on Assessment of
Compliance
|
|
Exhibit
T
|
[Reserved]
|
|
Exhibit
U
|
Form
of Certification to be Provided by the Credit Risk
Manager
|
|
Exhibit
V
|
Transaction
Parties
|
|
Exhibit
W
|
Form
of Call Option Notice
|
|
Exhibit
X
|
Form
of Purchaser Call Option Notice
|
|
Schedule
A
|
Mortgage
Loan Schedule (by Mortgage Pool)
|
|
Schedule
B
|
First
Payment Default Mortgage Loans
|
v
This
TRUST AGREEMENT, dated as of March 1, 2007 (the “Agreement”), is by and among
STRUCTURED ASSET SECURITIES CORPORATION, a Delaware corporation, as depositor
(the “Depositor”), U.S. BANK NATIONAL ASSOCIATION, as trustee (the “Trustee”),
AURORA LOAN SERVICES LLC, as master servicer (the “Master Servicer”), XXXXXXX
FIXED INCOME SERVICES INC., a Colorado corporation, as credit risk manager
(the
“Credit Risk Manager”), and XXXXX FARGO BANK, N.A., as securities administrator
(the “Securities Administrator”).
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 property being conveyed
by
it to the Trustee hereunder for inclusion in the Trust Fund. On the Closing
Date, the Depositor will acquire the Certificates from the Trust Fund, as
consideration for its transfer to the Trust Fund of the Mortgage Loans and
the
other property constituting the Trust Fund. The Depositor has duly authorized
the execution and delivery of this Agreement to provide for the conveyance
to
the Trustee of the Mortgage Loans and the other property constituting the
Trust
Fund. All covenants and agreements made by the Seller in the Mortgage Loan
Sale
Agreement and by the Depositor, the Master Servicer, the Securities
Administrator and the Trustee herein with respect to the Mortgage Loans and
the
other property constituting the Trust Fund are for the benefit of the Holders
from time to time of the Certificates and, to the extent provided herein,
any
NIMS Insurer, the Swap Counterparty and the Cap Counterparty. The Depositor,
the
Trustee, the Master Servicer, the Credit Risk Manager and the Securities
Administrator are entering into this Agreement, and the Trustee is accepting
the
Trust Fund created hereby, for good and valuable consideration, the receipt
and
sufficiency of which are hereby acknowledged.
As
provided herein, an election shall be made that the Trust Fund (exclusive
of (i)
the Swap Agreement, (ii) the Swap Account, (iii) the right to receive and
the
obligation to pay Basis Risk Shortfalls and Unpaid Basis Risk Shortfalls,
(iv)
the Basis Risk Reserve Fund, (v) the Supplemental Interest Trust, (vi) the
Interest Rate Cap Agreement, (vii) the Interest Rate Cap Account, (viii)
any FPD
Premium, (ix) any Servicer Prepayment Charge Payment Amounts or amounts in
respect of Prepayment Charges paid by the Seller as a result of a breach
of a
representation or warranty pursuant to Section 2.03(b) and (x) the obligation
to
pay Class I Shortfalls (collectively, the “Excluded Trust Assets”)) be treated
for federal income tax purposes as comprising four real estate mortgage
investment conduits under Section 860D of the Code (each a “REMIC” or, in the
alternative “REMIC 1,” “REMIC 2,” “REMIC 3,” and “REMIC 4” (REMIC 4 also being
referred to as the “Upper Tier REMIC”)). Any inconsistencies or ambiguities in
this Agreement or in the administration of this Agreement shall be resolved
in a
manner that preserves the validity of such REMIC elections.
Each
Certificate, other than the Class R and Class LT-R Certificates, represents
ownership of a regular interest in the Upper Tier REMIC for purposes of the
REMIC Provisions. In addition, each Certificate, other than the Class R,
Class
LT-R, Class X and Class P Certificates, represents (i) the right to receive
payments with respect to any Basis Risk Shortfalls and Unpaid Basis Risk
Shortfalls and (ii) the obligation to pay Class I Shortfalls. The Class LT-R
Certificate represents ownership of the sole Class of residual interest in
REMIC 1. The Class R Certificate represents ownership of the sole Class of
residual interest in each of REMIC 2, REMIC 3, and the Upper Tier REMIC for
purposes of the REMIC Provisions.
The
Upper
Tier REMIC shall hold as its assets the uncertificated Lower Tier Interests
in
REMIC 3, other than the Class LT3-R interest, and each such Lower Tier Interest
is hereby designated as a regular interest in REMIC 3 for purposes of the
REMIC
Provisions. REMIC 3 shall hold as its assets the uncertificated Lower Tier
Interests in REMIC 2, other than the Class LT2-R interest, and each such
Lower Tier Interest is hereby designated as a regular interest in REMIC 2.
REMIC 2 shall hold as its assets the uncertificated Lower Tier Interests
in
REMIC 1, and each such Lower Tier Interest is hereby designated as a regular
interest in REMIC 1. REMIC 1 shall hold as its assets the property of the
Trust
Fund other than the Lower Tier Interests in REMIC 1, REMIC 2, and REMIC 3
and the Excluded Trust Assets.
The
startup day for each REMIC created hereby for purposes of the REMIC Provisions
is the Closing Date. In addition, for purposes of the REMIC Provisions, the
latest possible maturity date for each regular interest in each REMIC created
hereby is the Latest Possible Maturity Date.
REMIC
1:
REMIC
1
shall issue one uncertificated interest in respect of each Mortgage Loan
held by
the Trust Fund on the Closing Date, each of which is hereby designated as
a
regular interest in REMIC 1 (the “REMIC 1 Regular Interests”). REMIC 1 shall
also issue the Class LT-R Certificate, which shall represent the sole class
of
residual interest in REMIC 1. Each REMIC 1 Regular Interest shall have an
initial principal balance equal to the Scheduled Principal Balance of the
Mortgage Loan to which it relates and shall bear interest at a per annum
rate
equal to the Net Mortgage Rate of such Mortgage Loan. In the event a Qualified
Substitute Mortgage Loan is substituted for such Mortgage Loan (the “Original
Mortgage Loan”), no amount of interest payable on such Qualifying Substitute
Mortgage Loan shall be distributed on such REMIC 1 Regular Interest at a
rate in
excess of the Net Mortgage Rate of the Original Mortgage Loan.
On
each
Distribution Date, the Trustee shall first pay or charge as an expense of
REMIC
1 all expenses of the Trust Fund for such Distribution Date, other than any
expenses in respect of the Swap Agreement.
On
each
Distribution Date the Trustee shall distribute the aggregate Interest Remittance
Amount (net of expenses described in the preceding paragraph) with respect
to
each of the Lower Tier Interests in REMIC 1 based on the above-described
interest rates.
On
each
Distribution Date, the Trustee shall distribute the aggregate Principal
Remittance Amount among the Lower Tier Interests in REMIC 1 in accordance
with
the amount of the Principal Remittance Amount attributable to the Mortgage
Loan
corresponding to each such Lower Tier Interest in REMIC 1. All losses on
the
Mortgage Loans shall be allocated among the Lower Tier Interests in REMIC
1 in
the same manner that principal distributions are allocated.
On
each
Distribution Date, the Trustee shall distribute the Prepayment Charges collected
during the preceding Prepayment Period, in the case of Principal Prepayments
in
full, or during the related Collection Period, in the case of Principal
Prepayments in part, to the Lower Tier Interest in REMIC 1 corresponding
to the
Mortgage Loan with respect to which such amounts were received.
2
REMIC
2:
The
following table sets forth the designations, principal balances and interest
rates for each interest in REMIC 2, each of which (other than the Class LT2-R
Lower Tier Interest) is hereby designated as a regular interest in REMIC
2 (the
“REMIC 2 Regular Interests”):
|
Class
Designation
|
Initial
Principal
Balance
|
Interest
Rate
|
||
|
LT2-A
|
$
39,527,170.01
|
(1)
|
||
|
LT2-F1
|
$
12,182,000.00
|
(2)
|
||
|
LT2-V1
|
$
12,182,000.00
|
(3)
|
||
|
LT2-F2
|
$
11,822,000.00
|
(2)
|
||
|
LT2-V2
|
$
11,822,000.00
|
(3)
|
||
|
LT2-F3
|
$
11,473,000.00
|
(2)
|
||
|
LT2-V3
|
$
11,473,000.00
|
(3)
|
||
|
LT2-F4
|
$
11,134,000.00
|
(2)
|
||
|
LT2-V4
|
$
11,134,000.00
|
(3)
|
||
|
LT2-F5
|
$
10,806,000.00
|
(2)
|
||
|
LT2-V5
|
$
10,806,000.00
|
(3)
|
||
|
LT2-F6
|
$
10,485,500.00
|
(2)
|
||
|
LT2-V6
|
$
10,485,500.00
|
(3)
|
||
|
LT2-F7
|
$
10,176,000.00
|
(2)
|
||
|
LT2-V7
|
$
10,176,000.00
|
(3)
|
||
|
LT2-F8
|
$
9,876,000.00
|
(2)
|
||
|
LT2-V8
|
$
9,876,000.00
|
(3)
|
||
|
LT2-F9
|
$
9,583,000.00
|
(2)
|
||
|
LT2-V9
|
$
9,583,000.00
|
(3)
|
||
|
LT2-F10
|
$
9,301,000.00
|
(2)
|
||
|
LT2-V10
|
$
9,301,000.00
|
(3)
|
||
|
LT2-F11
|
$
9,066,000.00
|
(2)
|
||
|
LT2-V11
|
$
9,066,000.00
|
(3)
|
||
|
LT2-F12
|
$
11,235,000.00
|
(2)
|
||
|
LT2-V12
|
$
11,235,000.00
|
(3)
|
||
|
LT2-F13
|
$
11,150,000.00
|
(2)
|
||
|
LT2-V13
|
$
11,150,000.00
|
(3)
|
||
|
LT2-F14
|
$
11,023,000.00
|
(2)
|
||
|
LT2-V14
|
$
11,023,000.00
|
(3)
|
||
|
LT2-F15
|
$
10,938,500.00
|
(2)
|
||
|
LT2-V15
|
$
10,938,500.00
|
(3)
|
||
|
LT2-F16
|
$
10,726,000.00
|
(2)
|
||
|
LT2-V16
|
$
10,726,000.00
|
(3)
|
||
|
LT2-F17
|
$
10,599,500.00
|
(2)
|
||
|
LT2-V17
|
$
10,599,500.00
|
(3)
|
3
|
Class
Designation
|
Initial
Principal
Balance
|
Interest
Rate
|
||
|
LT2-F18
|
$
10,386,500.00
|
(2)
|
||
|
LT2-V18
|
$
10,386,500.00
|
(3)
|
||
|
LT2-F19
|
$
10,218,000.00
|
(2)
|
||
|
LT2-V19
|
$
10,218,000.00
|
(3)
|
||
|
LT2-F20
|
$
10,005,500.00
|
(2)
|
||
|
LT2-V20
|
$
10,005,500.00
|
(3)
|
||
|
LT2-F21
|
$
9,751,500.00
|
(2)
|
||
|
LT2-V21
|
$
9,751,500.00
|
(3)
|
||
|
LT2-F22
|
$
9,496,500.00
|
(2)
|
||
|
LT2-V22
|
$
9,496,500.00
|
(3)
|
||
|
LT2-F23
|
$
32,814,500.00
|
(2)
|
||
|
LT2-V23
|
$
32,814,500.00
|
(3)
|
||
|
LT2-F24
|
$
17,637,000.00
|
(2)
|
||
|
LT2-V24
|
$
17,637,000.00
|
(3)
|
||
|
LT2-F25
|
$
15,389,500.00
|
(2)
|
||
|
LT2-V25
|
$
15,389,500.00
|
(3)
|
||
|
LT2-F26
|
$
11,701,500.00
|
(2)
|
||
|
LT2-V26
|
$
11,701,500.00
|
(3)
|
||
|
LT2-F27
|
$
9,157,500.00
|
(2)
|
||
|
LT2-V27
|
$
9,157,500.00
|
(3)
|
||
|
LT2-F28
|
$
7,250,000.00
|
(2)
|
||
|
LT2-V28
|
$
7,250,000.00
|
(3)
|
||
|
LT2-F29
|
$
5,808,500.00
|
(2)
|
||
|
LT2-V29
|
$
5,808,500.00
|
(3)
|
||
|
LT2-F30
|
$
4,748,500.00
|
(2)
|
||
|
LT2-V30
|
$
4,748,500.00
|
(3)
|
||
|
LT2-F31
|
$
3,857,500.00
|
(2)
|
||
|
LT2-V31
|
$
3,857,500.00
|
(3)
|
||
|
LT2-F32
|
$
3,180,000.00
|
(2)
|
||
|
LT2-V32
|
$
3,180,000.00
|
(3)
|
||
|
LT2-F33
|
$
3,010,000.00
|
(2)
|
||
|
LT2-V33
|
$
3,010,000.00
|
(3)
|
||
|
LT2-F34
|
$
2,840,500.00
|
(2)
|
||
|
LT2-V34
|
$
2,840,500.00
|
(3)
|
||
|
LT2-F35
|
$
2,713,000.00
|
(2)
|
||
|
LT2-V35
|
$
2,713,000.00
|
(3)
|
||
|
LT2-F36
|
$
2,586,500.00
|
(2)
|
||
|
LT2-V36
|
$
2,586,500.00
|
(3)
|
||
|
LT2-F37
|
$
2,459,000.00
|
(2)
|
||
|
LT2-V37
|
$
2,459,000.00
|
(3)
|
||
|
LT2-F38
|
$
2,332,000.00
|
(2)
|
||
|
LT2-V38
|
$
2,332,000.00
|
(3)
|
||
|
LT2-F39
|
$
2,247,000.00
|
(2)
|
||
|
LT2-V39
|
$
2,247,000.00
|
(3)
|
4
|
Class
Designation
|
Initial
Principal
Balance
|
Interest
Rate
|
||
|
LT2-F40
|
$
2,077,500.00
|
(2)
|
||
|
LT2-V40
|
$
2,077,500.00
|
(3)
|
||
|
LT2-F41
|
$
2,035,000.00
|
(2)
|
||
|
LT2-V41
|
$
2,035,000.00
|
(3)
|
||
|
LT2-F42
|
$
1,907,500.00
|
(2)
|
||
|
LT2-V42
|
$
1,907,500.00
|
(3)
|
||
|
LT2-F43
|
$
1,823,000.00
|
(2)
|
||
|
LT2-V43
|
$
1,823,000.00
|
(3)
|
||
|
LT2-F44
|
$
1,738,500.00
|
(2)
|
||
|
LT2-V44
|
$
1,738,500.00
|
(3)
|
||
|
LT2-F45
|
$
1,610,500.00
|
(2)
|
||
|
LT2-V45
|
$
1,610,500.00
|
(3)
|
||
|
LT2-F46
|
$
1,569,000.00
|
(2)
|
||
|
LT2-V46
|
$
1,569,000.00
|
(3)
|
||
|
LT2-F47
|
$
1,484,000.00
|
(2)
|
||
|
LT2-V47
|
$
1,484,000.00
|
(3)
|
||
|
LT2-F48
|
$
1,441,500.00
|
(2)
|
||
|
LT2-V48
|
$
1,441,500.00
|
(3)
|
||
|
LT2-F49
|
$
1,314,000.00
|
(2)
|
||
|
LT2-V49
|
$
1,314,000.00
|
(3)
|
||
|
LT2-F50
|
$
1,272,000.00
|
(2)
|
||
|
LT2-V50
|
$
1,272,000.00
|
(3)
|
||
|
LT2-F51
|
$
1,229,500.00
|
(2)
|
||
|
LT2-V51
|
$
1,229,500.00
|
(3)
|
||
|
LT2-F52
|
$
1,145,000.00
|
(2)
|
||
|
LT2-V52
|
$
1,145,000.00
|
(3)
|
||
|
LT2-F53
|
$
1,102,000.00
|
(2)
|
||
|
LT2-V53
|
$
1,102,000.00
|
(3)
|
||
|
LT2-F54
|
$
1,060,000.00
|
(2)
|
||
|
LT2-V54
|
$
1,060,000.00
|
(3)
|
||
|
LT2-F55
|
$
975,000.00
|
(2)
|
||
|
LT2-V55
|
$
975,000.00
|
(3)
|
||
|
LT2-F56
|
$
975,000.00
|
(2)
|
||
|
LT2-V56
|
$
975,000.00
|
(3)
|
||
|
LT2-F57
|
$
890,500.00
|
(2)
|
||
|
LT2-V57
|
$
890,500.00
|
(3)
|
||
|
LT2-F58
|
$
848,000.00
|
(2)
|
||
|
LT2-V58
|
$
848,000.00
|
(3)
|
||
|
LT2-F59
|
$
826,500.00
|
(2)
|
||
|
LT2-V59
|
$
826,500.00
|
(3)
|
||
|
LT2-F60
|
$
775,500.00
|
(2)
|
||
|
LT2-V60
|
$
775,500.00
|
(3)
|
||
|
LT2-F61
|
$
737,500.00
|
(2)
|
5
|
Class
Designation
|
Initial
Principal
Balance
|
Interest
Rate
|
||
|
LT2-V61
|
$
737,500.00
|
(3)
|
||
|
LT2-F62
|
$
701,500.00
|
(2)
|
||
|
LT2-V62
|
$
701,500.00
|
(3)
|
||
|
LT2-F63
|
$
666,500.00
|
(2)
|
||
|
LT2-V63
|
$
666,500.00
|
(3)
|
||
|
LT2-F64
|
$
634,000.00
|
(2)
|
||
|
LT2-V64
|
$
634,000.00
|
(3)
|
||
|
LT2-F65
|
$
602,000.00
|
(2)
|
||
|
LT2-V65
|
$
602,000.00
|
(3)
|
||
|
LT2-F66
|
$
572,500.00
|
(2)
|
||
|
LT2-V66
|
$
572,500.00
|
(3)
|
||
|
LT2-F67
|
$
544,500.00
|
(2)
|
||
|
LT2-V67
|
$
544,500.00
|
(3)
|
||
|
LT2-F68
|
$
517,000.00
|
(2)
|
||
|
LT2-V68
|
$
517,000.00
|
(3)
|
||
|
LT2-F69
|
$
492,000.00
|
(2)
|
||
|
LT2-V69
|
$
492,000.00
|
(3)
|
||
|
LT2-F70
|
$
467,500.00
|
(2)
|
||
|
LT2-V70
|
$
467,500.00
|
(3)
|
||
|
LT2-F71
|
$
8,997,500.00
|
(2)
|
||
|
LT2-V71
|
$
8,997,500.00
|
(3)
|
||
|
LT2-R
|
(4)
|
(4)
|
___________________________
|
(1)
|
For
any Distribution Date (and the related Accrual Period) the interest
rate
for the Class LT2-A Interest shall be the Net WAC Rate.
|
|
(2)
|
For
any Distribution Date (and the related Accrual Period) the interest
rate
for each of these Lower Tier Interests shall be the lesser of (i)
the
REMIC Swap Rate for such Distribution Date, and (ii) the product
of (a)
the Net WAC Rate and (b) 2.
|
|
(3)
|
For
any Distribution Date (and the related Accrual Period) the interest
rate
for each of these Lower Tier Interests shall be the excess, if
any, of (i)
the product of (a) the Net WAC Rate and (b) 2, over (ii) the REMIC
Swap
Rate for such Distribution Date.
|
|
(4)
|
The
Class LT2-R interest shall not have a principal amount and shall
not bear
interest. The Class LT2-R nterest is hereby designated as the sole
class
of residual interest in REMIC 2.
|
On
each Distribution Date, the Trustee shall distribute the aggregate Interest
Remittance Amount for the two Mortgage Pools (net of the expenses paid by
REMIC
1) with respect to each of the Lower Tier Interests in REMIC 2 based on the
above-described interest rates.
On
each Distribution Date, the Trustee shall distribute the aggregate Principal
Remittance Amount with respect to the Mortgage Loans with respect to the
Lower
Tier Interests in REMIC 2, first to the Class LT2-A Interest until its principal
balance is reduced to zero, and then sequentially, to the other Lower Tier
Interests in REMIC 2 in ascending order of their numerical class designation,
and, with respect to each pair of classes having the same numerical designation,
in equal amounts to each such class, until the principal balance of each
such
class is reduced to zero. All losses on the Mortgage Loans shall be allocated
among the Lower Tier Interests in REMIC 2 in the same manner that principal
distributions are allocated.
6
On
each Distribution Date, the Trustee shall distribute the Prepayment Charges
collected during the preceding Prepayment Period, to the Class LT2-F71 Lower
Tier Interest.
REMIC
3:
The
following table sets forth the designations, principal balances and interest
rates for each interest in REMIC 3, each of which (other than the Class LT3-R
interest) is hereby designated as a regular interest in REMIC 3 (the “REMIC 3
Regular Interests”):
|
REMIC
3
Lower
Tier
Class
Designation
|
REMIC
3
Lower
Tier
Interest
Rate
|
Initial
Class
Principal
Amount
|
Corresponding
Class of Certificate(s)
|
|||
|
Class
LT3-A1
|
(1)
|
(3)
|
A1
|
|||
|
Class
LT3-A2
|
(1)
|
(3)
|
A2
|
|||
|
Class
LT3-A3
|
(1)
|
(3)
|
A3
|
|||
|
Class
LT3-A4
|
(1)
|
(3)
|
A4
|
|||
|
Class
LT3-A5
|
(1)
|
(3)
|
A5
|
|||
|
Class
LT3-A6
|
(1)
|
(3)
|
A6
|
|||
|
Class
LT3-M1
|
(1)
|
(3)
|
M1
|
|||
|
Class
LT3-M2
|
(1)
|
(3)
|
M2
|
|||
|
Class
LT3-M3
|
(1)
|
(3)
|
M3
|
|||
|
Class
LT3-M4
|
(1)
|
(3)
|
M4
|
|||
|
Class
LT3-M5
|
(1)
|
(3)
|
M5
|
|||
|
Class
LT3-M6
|
(1)
|
(3)
|
M6
|
|||
|
Class
LT3-M7
|
(1)
|
(3)
|
M7
|
|||
|
Class
LT3-M8
|
(1)
|
(3)
|
M8
|
|||
|
Class
LT3-M9
|
(1)
|
(3)
|
M9
|
|||
|
Class
LT3-B1
|
(1)
|
(3)
|
B1
|
|||
|
Class
LT3-B2
|
(1)
|
(3)
|
B2
|
|||
|
Class
LT3-B3
|
(1)
|
(3)
|
B3
|
|||
|
Class
LT3-P
|
(1)
|
(3)
|
P
|
|||
|
Class
LT3-Q
|
(1)
|
(4)
|
N/A
|
|||
|
Class
LT3-IO
|
(2)
|
(2)
|
N/A
|
|||
|
Class
LT3-R
|
(5)
|
(5)
|
R
|
___________________________
|
(1)
|
For
any Distribution Date (and the related Accrual Period) the interest
rate
for each of these Lower Tier Interests in REMIC 3 is a per annum
rate
equal to the weighted average of the interest rates on the Lower
Tier
Interests in REMIC 2 for such Distribution Date, provided,
however, that
for any Distribution Date on which the Class LT3-IO Interest is
entitled
to a portion of the interest accruals on a Lower Tier Interest
in REMIC 2
having an “F” in its class designation, as described in footnote two
below, such weighted average shall be computed by first subjecting
the
rate on such Lower Tier Interest in REMIC 2 to a cap equal to Swap
LIBOR
for such Distribution Date.
|
7
|
(2)
|
The
Class LT3-IO is an interest only class that does not have a principal
balance. For only those Distribution Dates listed in the first
column in
the table below, the Class LT3-IO shall be entitled to interest
accrued on
the Lower Tier Interest in REMIC 2 listed in the second column
in the
table below at a per annum rate equal to the excess, if any, of
(i) the
interest rate for such Lower Tier Interest in REMIC 2 for such
Distribution Date over (ii) Swap LIBOR for such Distribution
Date.
|
|
Distribution
Dates
|
REMIC
2
Class Designation
|
|
2
|
Class
LT2-F1
|
|
2-3
|
Class
LT2-F2
|
|
2-4
|
Class
LT2-F3
|
|
2-5
|
Class
LT2-F4
|
|
2-6
|
Class
LT2-F5
|
|
2-7
|
Class
LT2-F6
|
|
2-8
|
Class
LT2-F7
|
|
2-9
|
Class
LT2-F8
|
|
2-10
|
Class
LT2-F9
|
|
2-11
|
Class
LT2-F10
|
|
2-12
|
Class
LT2-F11
|
|
2-13
|
Class
LT2-F12
|
|
2-14
|
Class
LT2-F13
|
|
2-15
|
Class
LT2-F14
|
|
2-16
|
Class
LT2-F15
|
|
2-17
|
Class
LT2-F16
|
|
2-18
|
Class
LT2-F17
|
|
2-19
|
Class
LT2-F18
|
|
2-20
|
Class
LT2-F19
|
|
2-21
|
Class
LT2-F20
|
|
2-22
|
Class
LT2-F21
|
|
2-23
|
Class
LT2-F22
|
|
2-24
|
Class
LT2-F23
|
|
2-25
|
Class
LT2-F24
|
|
2-26
|
Class
LT2-F25
|
|
2-27
|
Class
LT2-F26
|
|
2-28
|
Class
LT2-F27
|
|
2-29
|
Class
LT2-F28
|
|
2-30
|
Class
LT2-F29
|
|
2-31
|
Class
LT2-F30
|
|
2-32
|
Class
LT2-F31
|
|
2-33
|
Class
LT2-F32
|
|
2-34
|
Class
LT2-F33
|
|
2-35
|
Class
LT2-F34
|
|
2-36
|
Class
LT2-F35
|
|
2-37
|
Class
LT2-F36
|
|
2-38
|
Class
LT2-F37
|
|
2-39
|
Class
LT2-F38
|
|
2-40
|
Class
LT2-F39
|
|
2-41
|
Class
LT2-F40
|
|
2-42
|
Class
LT2-F41
|
|
2-43
|
Class
LT2-F42
|
|
2-44
|
Class
LT2-F43
|
|
2-45
|
Class
LT2-F44
|
|
2-46
|
Class
LT2-F45
|
|
2-47
|
Class
LT2-F46
|
|
2-48
|
Class
LT2-F47
|
|
2-49
|
Class
LT2-F48
|
|
2-50
|
Class
LT2-F49
|
8
|
Distribution
Dates
|
REMIC
2
Class Designation
|
|
2-52
|
Class
LT2-F51
|
|
2-53
|
Class
LT2-F52
|
|
2-54
|
Class
LT2-F53
|
|
2-55
|
Class
LT2-F54
|
|
2-56
|
Class
LT2-F55
|
|
2-57
|
Class
LT2-F56
|
|
2-58
|
Class
LT2-F57
|
|
2-59
|
Class
LT2-F58
|
|
2-60
|
Class
LT2-F59
|
|
2-61
|
Class
LT2-F60
|
|
2-62
|
Class
LT2-F61
|
|
2-63
|
Class
LT2-F62
|
|
2-64
|
Class
LT2-F63
|
|
2-65
|
Class
LT2-F64
|
|
2-66
|
Class
LT2-F65
|
|
2-67
|
Class
LT2-F66
|
|
2-68
|
Class
LT2-F67
|
|
2-69
|
Class
LT2-F68
|
|
2-70
|
Class
LT2-F69
|
|
2-71
|
Class
LT2-F70
|
|
2-72
|
Class
LT2-F71
|
|
(3)
|
This
interest shall have an initial class principal amount equal to
one-half of
the initial Class Principal Amount of its Corresponding Class of
Certificates.
|
|
(4)
|
This
interest shall have an initial class principal amount equal to
the excess
of (i) the Aggregate Pool Balance as of the Cut-off Date, over
(ii) the
aggregate initial class principal amount of each other regular
interest in
REMIC 3.
|
|
(5)
|
The
Class LT3-R interest is the sole class of residual interests in
REMIC 3.
It does not have an interest rate or a principal
balance.
|
On
each Distribution Date, interest shall be distributed on the Lower Tier
Interests in REMIC 3 based on the above-described interest rates,
provided, however,
that interest that accrues on the Class LT3-Q Interest shall be deferred
in an
amount equal to one-half of the increase, if any, in the Overcollateralization
Amount for such Distribution Date. Any interest so deferred shall itself
bear
interest at the interest rate for the Class LT3-Q Interest. An amount equal
to
the interest so deferred shall be distributed as additional principal on
the
other Lower Tier Interests in REMIC 3 having a principal balance in the manner
described under priority (a) below.
On
each Distribution Date principal shall be distributed, and Realized Losses
shall
be allocated, among the Lower Tier Interests in REMIC 3 in the following
order
of priority:
(a)
First, to the Class LT3-A1, Class LT3-A2, Class LT3-A3, Class LT3-A4, Class
LT3-A5, Class LT3-A6, Class LT3-M1, Class LT3-M2, Class LT3-M3, Class LT3-M4,
Class LT3-M5, Class LT3-M6, Class LT3-M7, Class LT3-M8 and Class LT3-M9,
Class
LT3-B1, Class LT3-B2, Class LT3-B3 Interests, and Class LT3-P Interests until
the principal balance of each such Lower Tier Interest equals one-half of
the
Class Principal Amount of the Corresponding Class of Certificates immediately
after such Distribution Date; and
9
(b)
Second, to the Class LT3-Q Interest, any remaining amounts.
On
each Distribution Date, the Trustee shall be deemed to have distributed the
Prepayment Charges passed through with respect to the Class LT2-F71 Lower
Tier
Interest in REMIC 2 on such Distribution Date to the Class LT3-Q
Interest.
The
Certificates:
The
following table sets forth (or describes) the Class designation, Certificate
Interest Rate, initial Class Principal Amount and minimum denomination for
each
Class of Certificates comprising interests in the Trust Fund created hereunder.
|
Class
Designation
|
Certificate
Interest
Rate
|
Initial
Class
Principal
Amount
|
Minimum
Denominations
|
|||||
|
Class
A1
|
(1)
|
$
|
199,253,000
|
$
|
25,000
|
|||
|
Class
A2
|
(2)
|
$
|
169,041,000
|
$
|
25,000
|
|||
|
Class
A3
|
(3)
|
$
|
28,807,000
|
$
|
25,000
|
|||
|
Class
A4
|
(4)
|
$
|
68,527,000
|
$
|
25,000
|
|||
|
Class
A5
|
(5)
|
$
|
27,452,000
|
$
|
25,000
|
|||
|
Class
A6
|
(6)
|
$
|
199,252,000
|
$
|
25,000
|
|||
|
Class
M1
|
(7)
|
$
|
31,373,000
|
$
|
100,000
|
|||
|
Class
M2
|
(8)
|
$
|
19,926,000
|
$
|
100,000
|
|||
|
Class
M3
|
(9)
|
$
|
13,567,000
|
$
|
100,000
|
|||
|
Class
M4
|
(10)
|
$
|
13,143,000
|
$
|
100,000
|
|||
|
Class
M5
|
(11)
|
$
|
12,719,000
|
$
|
100,000
|
|||
|
Class
M6
|
(12)
|
$
|
9,327,000
|
$
|
100,000
|
|||
|
Class
M7
|
(13)
|
$
|
8,903,000
|
$
|
100,000
|
|||
|
Class
M8
|
(14)
|
$
|
8,479,000
|
$
|
100,000
|
|||
|
Class
M9
|
(15)
|
$
|
6,360,000
|
$
|
100,000
|
|||
|
Class
B1
|
(16)
|
$
|
5,935,000
|
$
|
100,000
|
|||
|
Class
B2
|
(17)
|
$
|
5,088,000
|
$
|
100,000
|
|||
|
Class
B3
|
(18)
|
$
|
8,478,000
|
$
|
100,000
|
|||
|
Class
X
|
(19)
|
(19)
|
10%
|
|||||
|
Class
R
|
(20)
|
(20)
|
100%
|
|||||
|
Class
P
|
(21)
|
$
|
100
(22)
|
10%
|
||||
|
Class
LT-R
|
(23)
|
(23)
|
100%
|
|||||
|
(1)
|
The
Certificate Interest Rate with respect to any Distribution Date
(and the
related Accrual Period) for the Class A1 Certificates is the per
annum
rate equal to the lesser of (i) LIBOR plus 0.210% and (ii) with
respect to
any Distribution Date on which the Class Principal Amounts of the
Group 2
Senior Certificates are outstanding, the Pool 1 Net Funds Cap for
such
Distribution Date or, after the Distribution Date on which the
Class
Principal Amounts of the Group 2 Senior Certificates are reduced
to zero,
the Subordinate Net Funds Cap for such Distribution Date;
provided,
that if the Mortgage Loans and related property are not purchased
pursuant
to Section 7.01(b) on the Initial Optional Termination Date, then
with
respect to each subsequent Distribution Date the per annum rate
calculated
pursuant to clause (i) above with respect to the Class A1 Certificates
will be LIBOR plus 0.420%. For purposes of the REMIC Provisions,
each
reference to a Net Funds Cap in clause (ii) of the preceding sentence
shall be deemed to be a reference to the REMIC 3 Net Funds Cap;
therefore,
on any Distribution Date on which the Certificate Interest Rate
for the
Class A1 Certificates exceeds the REMIC 3 Net Funds Cap, interest
accruals
based on such excess shall be treated as having been paid from
the Basis
Risk Reserve Fund or the Supplemental Interest Trust, as applicable;
on
any Distribution Date on which the Certificate Interest Rate on
the Class
A1 Certificates is based on a Net Funds Cap, the amount of interest
that
would have accrued on the Class A1 Certificates if the REMIC 3
Net Funds
Cap were substituted for the Net Funds Cap shall be treated as
having been
paid by the Class A1 Certificateholders to the Supplemental Interest
Trust, all pursuant to and as further provided in Section 10.01(n)
hereof.
|
10
|
(2)
|
The
Certificate Interest Rate with respect to any Distribution Date
(and the
related Accrual Period) for the Class A2 Certificates is the per
annum
rate equal to the lesser of (i) LIBOR plus 0.090% and (ii) with
respect to
any Distribution Date on which the Class Principal Amounts of the
Group 1
Senior Certificates are outstanding, the Pool 2 Net Funds Cap for
such
Distribution Date or, after the Distribution Date on which the
Class
Principal Amounts of the Group 1 Senior Certificates have been
reduced to
zero, the Subordinate Net Funds Cap for such Distribution
Date;
provided,
that if the Mortgage Loans and related property are not purchased
pursuant
to Section 7.01(b) on the Initial Optional Termination Date, then
with
respect to each subsequent Distribution Date the per annum rate
calculated
pursuant to clause (i) above with respect to the Class A2 Certificates
will be LIBOR plus 0.180%. For purposes of the REMIC Provisions,
each
reference to a Net Funds Cap in clause (ii) of the preceding sentence
shall be deemed to be a reference to the REMIC 3 Net Funds Cap;
therefore,
on any Distribution Date on which the Certificate Interest Rate
for the
Class A2 Certificates exceeds the REMIC 3 Net Funds Cap, interest
accruals
based on such excess shall be treated as having been paid from
the Basis
Risk Reserve Fund or the Supplemental Interest Trust, as applicable;
on
any Distribution Date on which the Certificate Interest Rate on
the Class
A2 Certificates is based on a Net Funds Cap, the amount of interest
that
would have accrued on the Class A2 Certificates if the REMIC 3
Net Funds
Cap were substituted for the Net Funds Cap shall be treated as
having been
paid by the Class A2 Certificateholders to the Supplemental Interest
Trust, all pursuant to and as further provided in Section 10.01(n)
hereof.
|
|
(3)
|
The
Certificate Interest Rate with respect to any Distribution Date
(and the
related Accrual Period) for the Class A3 Certificates is the per
annum
rate equal to the lesser of (i) LIBOR plus 0.160% and (ii) with
respect to
any Distribution Date on which the Class Principal Amounts of the
Group 1
Senior Certificates are outstanding, the Pool 2 Net Funds Cap for
such
Distribution Date or, after the Distribution Date on which the
Class
Principal Amounts of the Group 1 Senior Certificates are reduced
to zero,
the Subordinate Net Funds Cap for such Distribution Date;
provided,
that if the Mortgage Loans and related property are not purchased
pursuant
to Section 7.01(b) on the Initial Optional Termination Date, then
with
respect to each subsequent Distribution Date the per annum rate
calculated
pursuant to clause (i) above with respect to the Class A3 Certificates
will be LIBOR plus 0.320%. For purposes of the REMIC Provisions,
each
reference to a Net Funds Cap in clause (ii) of the preceding sentence
shall be deemed to be a reference to the REMIC 3 Net Funds Cap;
therefore,
on any Distribution Date on which the Certificate Interest Rate
for the
Class A3 Certificates exceeds the REMIC 3 Net Funds Cap, interest
accruals
based on such excess shall be treated as having been paid from
the Basis
Risk Reserve Fund or the Supplemental Interest Trust, as applicable;
on
any Distribution Date on which the Certificate Interest Rate on
the Class
A3 Certificates is based on a Net Funds Cap, the amount of interest
that
would have accrued on the Class A3 Certificates if the REMIC 3
Net Funds
Cap were substituted for the Net Funds Cap shall be treated as
having been
paid by the Class A3 Certificateholders to the Supplemental Interest
Trust, all pursuant to and as further provided in Section 10.01(n)
hereof.
|
|
(4)
|
The
Certificate Interest Rate with respect to any Distribution Date
(and the
related Accrual Period) for the Class A4 Certificates is the per
annum
rate equal to the lesser of (i) LIBOR plus 0.200% and (ii) with
respect to
any Distribution Date on which the Class Principal Amounts of the
Group 1
Senior Certificates are outstanding, the Pool 2 Net Funds Cap for
such
Distribution Date or, after the Distribution Date on which the
Class
Principal Amounts of the Group 1 Senior Certificates are reduced
to zero,
the Subordinate Net Funds Cap for such Distribution Date;
provided,
that if the Mortgage Loans and related property are not purchased
pursuant
to Section 7.01(b) on the Initial Optional Termination Date, then
with
respect to each subsequent Distribution Date the per annum rate
calculated
pursuant to clause (i) above with respect to the Class A4 Certificates
will be LIBOR plus 0.400%. For purposes of the REMIC Provisions,
the
reference to a Net Funds Cap in clause (ii) of the preceding sentence
shall be deemed to be a reference to the REMIC 3 Net Funds Cap;
therefore,
on any Distribution Date on which the Certificate Interest Rate
for the
Class A4 Certificates exceeds the REMIC 3 Net Funds Cap, interest
accruals
based on such excess shall be treated as having been paid from
the Basis
Risk Reserve Fund or the Supplemental Interest Trust, as applicable;
on
any Distribution Date on which the Certificate Interest Rate on
the Class
A4 Certificates is based on a Net Funds Cap, the amount of interest
that
would have accrued on the Class A4 Certificates if the REMIC 3
Net Funds
Cap were substituted for the Net Funds Cap shall be treated as
having been
paid by the Class A4 Certificateholders to the Supplemental Interest
Trust, all pursuant to and as further provided in Section 10.01(n)
hereof.
|
11
|
(5)
|
The
Certificate Interest Rate with respect to any Distribution Date
(and the
related Accrual Period) for the Class A5 Certificates is the per
annum
rate equal to the lesser of (i) LIBOR plus 0.310% and (ii) with
respect to
any Distribution Date on which the Class Principal Amounts of the
Group 1
Senior Certificates are outstanding, the Pool 2 Net Funds Cap for
such
Distribution Date or, after the Distribution Date on which the
Class
Principal Amounts of the Group 1 Senior Certificates have been
reduced to
zero, the Subordinate Net Funds Cap for such Distribution
Date;
provided,
that if the Mortgage Loans and related property are not purchased
pursuant
to Section 7.01(b) on the Initial Optional Termination Date, then
with
respect to each subsequent Distribution Date the per annum rate
calculated
pursuant to clause (i) above with respect to the Class A5 Certificates
will be LIBOR plus 0.620%. For purposes of the REMIC Provisions,
each
reference to a Net Funds Cap in clause (ii) of the preceding sentence
shall be deemed to be a reference to the REMIC 3 Net Funds Cap;
therefore,
on any Distribution Date on which the Certificate Interest Rate
for the
Class A5 Certificates exceeds the REMIC 3 Net Funds Cap, interest
accruals
based on such excess shall be treated as having been paid from
the Basis
Risk Reserve Fund or the Supplemental Interest Trust, as applicable;
on
any Distribution Date on which the Certificate Interest Rate on
the Class
A5 Certificates is based on a Net Funds Cap, the amount of interest
that
would have accrued on the Class A5 Certificates if the REMIC 3
Net Funds
Cap were substituted for the Net Funds Cap shall be treated as
having been
paid by the Class A5 Certificateholders to the Supplemental Interest
Trust, all pursuant to and as further provided in Section 10.01(n)
hereof.
|
|
(6)
|
The
Certificate Interest Rate with respect to any Distribution Date
(and the
related Accrual Period) for the Class A6 Certificates is the per
annum
rate equal to the lesser of (i) LIBOR plus 0.210% and (ii) with
respect to
any Distribution Date on which the Class Principal Amounts of the
Group 2
Senior Certificates are outstanding, the Pool 1 Net Funds Cap for
such
Distribution Date or, after the Distribution Date on which the
Class
Principal Amounts of the Group 2 Senior Certificates have been
reduced to
zero, the Subordinate Net Funds Cap for such Distribution
Date;
provided,
that if the Mortgage Loans and related property are not purchased
pursuant
to Section 7.01(b) on the Initial Optional Termination Date, then
with
respect to each subsequent Distribution Date the per annum rate
calculated
pursuant to clause (i) above with respect to the Class A6 Certificates
will be LIBOR plus 0.420%. For purposes of the REMIC Provisions,
each
reference to a Net Funds Cap in clause (ii) of the preceding sentence
shall be deemed to be a reference to the REMIC 3 Net Funds Cap;
therefore,
on any Distribution Date on which the Certificate Interest Rate
for the
Class A6 Certificates exceeds the REMIC 3 Net Funds Cap, interest
accruals
based on such excess shall be treated as having been paid from
the Basis
Risk Reserve Fund or the Supplemental Interest Trust, as applicable;
on
any Distribution Date on which the Certificate Interest Rate on
the Class
A6 Certificates is based on a Net Funds Cap, the amount of interest
that
would have accrued on the Class A6 Certificates if the REMIC 3
Net Funds
Cap were substituted for the Net Funds Cap shall be treated as
having been
paid by the Class A6 Certificateholders to the Supplemental Interest
Trust, all pursuant to and as further provided in Section 10.01(n)
hereof.
|
|
(7)
|
The
Certificate Interest Rate with respect to any Distribution Date
(and the
related Accrual Period) for the Class M1 Certificates is the per
annum
rate equal to the lesser of (i) LIBOR plus 0.440% and (ii) the
Subordinate
Net Funds Cap for such Distribution Date; provided,
that
if the Mortgage Loans and related property are not purchased pursuant
to
Section 7.01(b) on the Initial Optional Termination Date, then
with
respect to each subsequent Distribution Date the per annum rate
calculated
pursuant to clause (i) above with respect to the Class M1 Certificates
will be LIBOR plus 0.660%. For purposes of the REMIC Provisions,
the
reference to “Subordinate Net Funds Cap” in clause (ii) of the preceding
sentence shall be deemed to be a reference to the REMIC 3 Net Funds
Cap;
therefore, on any Distribution Date on which the Certificate Interest
Rate
for the Class M1 Certificates exceeds the REMIC 3 Net Funds Cap,
interest
accruals based on such excess shall be treated as having been paid
from
the Basis Risk Reserve Fund or the Supplemental Interest Trust,
as
applicable; on any Distribution Date on which the Certificate Interest
Rate on the Class M1 Certificates is based on the Net Funds Cap,
the
amount of interest that would have accrued on the Class M1 Certificates
if
the REMIC 3 Net Funds Cap were substituted for the Subordinate
Net Funds
Cap shall be treated as having been paid by the Class M1
Certificateholders to the Supplemental Interest Trust, all pursuant
to and
as further provided in Section 10.01(n) hereof.
|
12
|
(8)
|
The
Certificate Interest Rate with respect to any Distribution Date
(and the
related Accrual Period) for the Class M2 Certificates is the per
annum
rate equal to the lesser of (i) LIBOR plus 0.490% and (ii) the
Subordinate
Net Funds Cap for such Distribution Date; provided,
that
if the Mortgage Loans and related property are not purchased pursuant
to
Section 7.01(b) on the Initial Optional Termination Date, then
with
respect to each subsequent Distribution Date the per annum rate
calculated
pursuant to clause (i) above with respect to the Class M2 Certificates
will be LIBOR plus 0.735%. For purposes of the REMIC Provisions,
the
reference to “Subordinate Net Funds Cap” in clause (ii) of the preceding
sentence shall be deemed to be a reference to the REMIC 3 Net Funds
Cap;
therefore, on any Distribution Date on which the Certificate Interest
Rate
for the Class M2 Certificates exceeds the REMIC 3 Net Funds Cap,
interest
accruals based on such excess shall be treated as having been paid
from
the Basis Risk Reserve Fund or the Supplemental Interest Trust,
as
applicable; on any Distribution Date on which the Certificate Interest
Rate on the Class M2 Certificates is based on the Subordinate Net
Funds
Cap, the amount of interest that would have accrued on the Class
M2
Certificates if the REMIC 3 Net Funds Cap were substituted for
the
Subordinate Net Funds Cap shall be treated as having been paid
by the
Class M2 Certificateholders to the Supplemental Interest Trust,
all
pursuant to and as further provided in Section 10.01(n)
hereof.
|
|
(9)
|
The
Certificate Interest Rate with respect to any Distribution Date
(and the
related Accrual Period) for the Class M3 Certificates is the per
annum
rate equal to the lesser of (i) LIBOR plus 0.670% and (ii) the
Subordinate
Net Funds Cap for such Distribution Date; provided,
that
if the Mortgage Loans and related property are not purchased pursuant
to
Section 7.01(b) on the Initial Optional Termination Date, then
with
respect to each subsequent Distribution Date the per annum rate
calculated
pursuant to clause (i) above with respect to the Class M3 Certificates
will be LIBOR plus 1.005%. For purposes of the REMIC Provisions,
the
reference to “Subordinate Net Funds Cap” in clause (ii) of the preceding
sentence shall be deemed to be a reference to the REMIC 3 Net Funds
Cap;
therefore, on any Distribution Date on which the Certificate Interest
Rate
for the Class M3 Certificates exceeds the REMIC 3 Net Funds Cap,
interest
accruals based on such excess shall be treated as having been paid
from
the Basis Risk Reserve Fund or the Supplemental Interest Trust,
as
applicable; on any Distribution Date on which the Certificate Interest
Rate on the Class M3 Certificates is based on the Subordinate Net
Funds
Cap, the amount of interest that would have accrued on the Class
M3
Certificates if the REMIC 3 Net Funds Cap were substituted for
the
Subordinate Net Funds Cap shall be treated as having been paid
by the
Class M3 Certificateholders to the Supplemental Interest Trust,
all
pursuant to and as further provided in Section 10.01(n)
hereof.
|
|
(10)
|
The
Certificate Interest Rate with respect to any Distribution Date
(and the
related Accrual Period) for the Class M4 Certificates is the per
annum
rate equal to the lesser of (i) LIBOR plus 1.000% and (ii) the
Subordinate
Net Funds Cap for such Distribution Date; provided,
that
if the Mortgage Loans and related property are not purchased pursuant
to
Section 7.01(b) on the Initial Optional Termination Date, then
with
respect to each subsequent Distribution Date the per annum rate
calculated
pursuant to clause (i) above with respect to the Class M4 Certificates
will be LIBOR plus 1.500%. For purposes of the REMIC Provisions,
the
reference to “Subordinate Net Funds Cap” in clause (ii) of the preceding
sentence shall be deemed to be a reference to the REMIC 3 Net Funds
Cap;
therefore, on any Distribution Date on which the Certificate Interest
Rate
for the Class M4 Certificates exceeds the REMIC 3 Net Funds Cap,
interest
accruals based on such excess shall be treated as having been paid
from
the Basis Risk Reserve Fund or the Supplemental Interest Trust,
as
applicable; on any Distribution Date on which the Certificate Interest
Rate on the Class M4 Certificates is based on the Subordinate Net
Funds
Cap, the amount of interest that would have accrued on the Class
M4
Certificates if the REMIC 3 Net Funds Cap were substituted for
the
Subordinate Net Funds Cap shall be treated as having been paid
by the
Class M4 Certificateholders to the Supplemental Interest Trust,
all
pursuant to and as further provided in Section 10.01(n) hereof.
|
|
(11)
|
The
Certificate Interest Rate with respect to any Distribution Date
(and the
related Accrual Period) for the Class M5 Certificates is the per
annum
rate equal to the lesser of (i) LIBOR plus 1.150% and (ii) the
Subordinate
Net Funds Cap for such Distribution Date; provided,
that
if the Mortgage Loans and related property are not purchased pursuant
to
Section 7.01(b) on the Initial Optional Termination Date, then
with
respect to each subsequent Distribution Date the per annum rate
calculated
pursuant to clause (i) above with respect to the Class M5 Certificates
will be LIBOR plus 1.725%. For purposes of the REMIC Provisions,
the
reference to “Subordinate Net Funds Cap” in clause (ii) of the preceding
sentence shall be deemed to be a reference to the REMIC 3 Net Funds
Cap;
therefore, on any Distribution Date on which the Certificate Interest
Rate
for the Class M5 Certificates exceeds the REMIC 3 Net Funds Cap,
interest
accruals based on such excess shall be treated as having been paid
from
the Basis Risk Reserve Fund or the Supplemental Interest Trust,
as
applicable; on any Distribution Date on which the Certificate Interest
Rate on the Class M5 Certificates is based on the Subordinate Net
Funds
Cap, the amount of interest that would have accrued on the Class
M5
Certificates if the REMIC 3 Net Funds Cap were substituted for
the
Subordinate Net Funds Cap shall be treated as having been paid
by the
Class M5 Certificateholders to the Supplemental Interest Trust,
all
pursuant to and as further provided in Section 10.01(n) hereof.
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13
|
(12)
|
The
Certificate Interest Rate with respect to any Distribution Date
(and the
related Accrual Period) for the Class M6 Certificates is the per
annum
rate equal to the lesser of (i) LIBOR plus 1.500% and (ii) the
Subordinate
Net Funds Cap for such Distribution Date; provided,
that
if the Mortgage Loans and related property are not purchased pursuant
to
Section 7.01(b) on the Initial Optional Termination Date, then
with
respect to each subsequent Distribution Date the per annum rate
calculated
pursuant to clause (i) above with respect to the Class M6 Certificates
will be LIBOR plus 2.250%. For purposes of the REMIC Provisions,
the
reference to “Subordinate Net Funds Cap” in clause (ii) of the preceding
sentence shall be deemed to be a reference to the REMIC 3 Net Funds
Cap;
therefore, on any Distribution Date on which the Certificate Interest
Rate
for the Class M6 Certificates exceeds the REMIC 3 Net Funds Cap,
interest
accruals based on such excess shall be treated as having been paid
from
the Basis Risk Reserve Fund or the Supplemental Interest Trust,
as
applicable; on any Distribution Date on which the Certificate Interest
Rate on the Class M6 Certificates is based on the Subordinate Net
Funds
Cap, the amount of interest that would have accrued on the Class
M6
Certificates if the REMIC 3 Net Funds Cap were substituted for
the
Subordinate Net Funds Cap shall be treated as having been paid
by the
Class M6 Certificateholders to the Supplemental Interest Trust,
all
pursuant to and as further provided in Section 10.01(n) hereof.
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|
(13)
|
The
Certificate Interest Rate with respect to any Distribution Date
(and the
related Accrual Period) for the Class M7 Certificates is the per
annum
rate equal to the lesser of (i) LIBOR plus 2.500% and (ii) the Subordinate
Net Funds Cap for such Distribution Date; provided,
that
if the Mortgage Loans and related property are not purchased pursuant
to
Section 7.01(b) on the Initial Optional Termination Date, then
with
respect to each subsequent Distribution Date the per annum rate
calculated
pursuant to clause (i) above with respect to the Class M7 Certificates
will be LIBOR plus 3.750%. For purposes of the REMIC Provisions,
the
reference to “Subordinate Net Funds Cap” in clause (ii) of the preceding
sentence shall be deemed to be a reference to the REMIC 3 Net Funds
Cap;
therefore, on any Distribution Date on which the Certificate Interest
Rate
for the Class M7 Certificates exceeds the REMIC 3 Net Funds Cap,
interest
accruals based on such excess shall be treated as having been paid
from
the Basis Risk Reserve Fund or the Supplemental Interest Trust,
as
applicable; on any Distribution Date on which the Certificate Interest
Rate on the Class M7 Certificates is based on the Subordinate Net
Funds
Cap, the amount of interest that would have accrued on the Class
M7
Certificates if the REMIC 3 Net Funds Cap were substituted for
the
Subordinate Net Funds Cap shall be treated as having been paid
by the
Class M7 Certificateholders to the Supplemental Interest Trust,
all
pursuant to and as further provided in Section 10.01(n) hereof.
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|
(14)
|
The
Certificate Interest Rate with respect to any Distribution Date
(and the
related Accrual Period) for the Class M8 Certificates is the per
annum
rate equal to the lesser of (i) LIBOR plus 2.500% and (ii) the
Subordinate
Net Funds Cap for such Distribution Date; provided,
that
if the Mortgage Loans and related property are not purchased pursuant
to
Section 7.01(b) on the Initial Optional Termination Date, then
with
respect to each subsequent Distribution Date the per annum rate
calculated
pursuant to clause (i) above with respect to the Class M8 Certificates
will be LIBOR plus 3.750%. For purposes of the REMIC Provisions,
the
reference to “Subordinate Net Funds Cap” in clause (ii) of the preceding
sentence shall be deemed to be a reference to the REMIC 3 Net Funds
Cap;
therefore, on any Distribution Date on which the Certificate Interest
Rate
for the Class M8 Certificates exceeds the REMIC 3 Net Funds Cap,
interest
accruals based on such excess shall be treated as having been paid
from
the Basis Risk Reserve Fund or the Supplemental Interest Trust,
as
applicable; on any Distribution Date on which the Certificate Interest
Rate on the Class M8 Certificates is based on the Subordinate Net
Funds
Cap, the amount of interest that would have accrued on the Class
M8
Certificates if the REMIC 3 Net Funds Cap were substituted for
the
Subordinate Net Funds Cap shall be treated as having been paid
by the
Class M8 Certificateholders to the Supplemental Interest Trust,
all
pursuant to and as further provided in Section 10.01(n)
hereof.
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14
|
(15)
|
The
Certificate Interest Rate with respect to any Distribution Date
(and the
related Accrual Period) for the Class M9 Certificates is the per
annum
rate equal to the lesser of (i) LIBOR plus 2.500% and (ii) the
Subordinate
Net Funds Cap for such Distribution Date; provided,
that if the Mortgage Loans and related property are not purchased
pursuant
to Section 7.01(b) on the Initial Optional Termination Date, then
with
respect to each subsequent Distribution Date the per annum rate
calculated
pursuant to clause (i) above with respect to the Class M9 Certificates
will be LIBOR plus 3.750%. For purposes of the REMIC Provisions,
the
reference to “Subordinate Net Funds Cap” in clause (ii) of the preceding
sentence shall be deemed to be a reference to the REMIC 3 Net Funds
Cap;
therefore, on any Distribution Date on which the Certificate Interest
Rate
for the Class M9 Certificates exceeds the REMIC 3 Net Funds Cap,
interest
accruals based on such excess shall be treated as having been paid
from
the Basis Risk Reserve Fund or the Supplemental Interest Trust,
as
applicable; on any Distribution Date on which the Certificate Interest
Rate on the Class M9 Certificates is based on the Subordinate Net
Funds
Cap, the amount of interest that would have accrued on the Class
M9
Certificates if the REMIC 3 Net Funds Cap were substituted for
the
Subordinate Net Funds Cap shall be treated as having been paid
by the
Class M9 Certificateholders to the Supplemental Interest Trust,
all
pursuant to and as further provided in Section 10.01(n)
hereof.
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|
(16)
|
The
Certificate Interest Rate with respect to any Distribution Date
(and the
related Accrual Period) for the Class B1 Certificates is the per
annum
rate equal to the lesser of (i) LIBOR plus 2.500% and (ii) the
Subordinate
Net Funds Cap for such Distribution Date; provided,
that if the Mortgage Loans and related property are not purchased
pursuant
to Section 7.01(b) on the Initial Optional Termination Date, then
with
respect to each subsequent Distribution Date the per annum rate
calculated
pursuant to clause (i) above with respect to the Class B1 Certificates
will be LIBOR plus 3.750%. For purposes of the REMIC Provisions,
the
reference to “Subordinate Net Funds Cap” in clause (ii) of the preceding
sentence shall be deemed to be a reference to the REMIC 3 Net Funds
Cap;
therefore, on any Distribution Date on which the Certificate Interest
Rate
for the Class B1 Certificates exceeds the REMIC 3 Net Funds Cap,
interest
accruals based on such excess shall be treated as having been paid
from
the Basis Risk Reserve Fund or the Supplemental Interest Trust,
as
applicable; on any Distribution Date on which the Certificate Interest
Rate on the Class B1 Certificates is based on the Subordinate Net
Funds
Cap, the amount of interest that would have accrued on the Class
B1
Certificates if the REMIC 3 Net Funds Cap were substituted for
the
Subordinate Net Funds Cap shall be treated as having been paid
by the
Class B1 Certificateholders to the Supplemental Interest Trust,
all
pursuant to and as further provided in Section 10.01(n)
hereof.
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|
(17)
|
The
Certificate Interest Rate with respect to any Distribution Date
(and the
related Accrual Period) for the Class B2 Certificates is the per
annum
rate equal to the lesser of (i) LIBOR plus 2.500% and (ii) the
Subordinate
Net Funds Cap for such Distribution Date; provided,
that if the Mortgage Loans and related property are not purchased
pursuant
to Section 7.01(b) on the Initial Optional Termination Date, then
with
respect to each subsequent Distribution Date the per annum rate
calculated
pursuant to clause (i) above with respect to the Class B2 Certificates
will be LIBOR plus 3.750%. For purposes of the REMIC Provisions,
the
reference to “Subordinate Net Funds Cap” in clause (ii) of the preceding
sentence shall be deemed to be a reference to the REMIC 3 Net Funds
Cap;
therefore, on any Distribution Date on which the Certificate Interest
Rate
for the Class B2 Certificates exceeds the REMIC 3 Net Funds Cap,
interest
accruals based on such excess shall be treated as having been paid
from
the Basis Risk Reserve Fund or the Supplemental Interest Trust,
as
applicable; on any Distribution Date on which the Certificate Interest
Rate on the Class B2 Certificates is based on the Subordinate Net
Funds
Cap, the amount of interest that would have accrued on the Class
B2
Certificates if the REMIC 3 Net Funds Cap were substituted for
the
Subordinate Net Funds Cap shall be treated as having been paid
by the
Class B2 Certificateholders to the Supplemental Interest Trust,
all
pursuant to and as further provided in Section 10.01(n)
hereof.
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|
(18)
|
The
Certificate Interest Rate with respect to any Distribution Date
(and the
related Accrual Period) for the Class B3 Certificates is the per
annum
rate equal to the lesser of (i) LIBOR plus 2.500% and (ii) the
Subordinate
Net Funds Cap for such Distribution Date; provided,
that if the Mortgage Loans and related property are not purchased
pursuant
to Section 7.01(b) on the Initial Optional Termination Date, then
with
respect to each subsequent Distribution Date the per annum rate
calculated
pursuant to clause (i) above with respect to the Class B3 Certificates
will be LIBOR plus 3.750%. For purposes of the REMIC Provisions,
the
reference to “Subordinate Net Funds Cap” in clause (ii) of the preceding
sentence shall be deemed to be a reference to the REMIC 3 Net Funds
Cap;
therefore, on any Distribution Date on which the Certificate Interest
Rate
for the Class B3 Certificates exceeds the REMIC 3 Net Funds Cap,
interest
accruals based on such excess shall be treated as having been paid
from
the Basis Risk Reserve Fund or the Supplemental Interest Trust,
as
applicable; on any Distribution Date on which the Certificate Interest
Rate on the Class B3 Certificates is based on the Subordinate Net
Funds
Cap, the amount of interest that would have accrued on the Class
B3
Certificates if the REMIC 3 Net Funds Cap were substituted for
the
Subordinate Net Funds Cap shall be treated as having been paid
by the
Class B3 Certificateholders to the Supplemental Interest Trust,
all
pursuant to and as further provided in Section 10.01(n)
hereof.
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15
|
(19)
|
For
purposes of the REMIC Provisions, Class X shall have an initial
principal
balance of $12,295,070.01, and the right to receive distributions
of such
amount represents a regular interest in the Upper Tier REMIC. The
Class X
Certificate shall also comprise two notional components, each of
which
represents a regular interest in the Upper Tier REMIC. The first
such
component has a notional balance that will at all times equal the
aggregate of the Class Principal Amounts of the Lower Tier Interests
in
REMIC 3, and, for each Distribution Date (and the related Accrual
Period)
this notional component shall bear interest at a per annum rate
equal to
the excess, if any, of (i) (a) the weighted average of the interest
rates
on the Lower Tier Interests in REMIC 3 (other than any interest-only
regular interest) minus (b) the Credit Risk Manager’s Fee Rate, over (ii)
the Adjusted Lower Tier WAC. The second notional component represents
the
right to receive all distributions in respect of the Class LT3-IO
Interest
in REMIC 3 (the “Class LT4-I” interest). In addition, for purposes of the
REMIC Provisions, the Class X Certificate shall represent beneficial
ownership of (i) the Basis Risk Reserve Fund; (ii) the Supplemental
Interest Trust, including the Swap Agreement, the Swap Account,
the
Interest Rate Cap Agreement and the Interest Rate Cap Account,
and (iii)
an interest in the notional principal contracts described in Section
10.01(n) hereof.
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(20)
|
The
Class R Certificate will be issued without a Certificate Principal
Amount
and will not bear interest at a stated rate. The Class R Certificate
represents ownership of the residual interest in the Upper Tier
REMIC, as
well as ownership of the Class LT2-R Interest and Class LT3-R Interest.
The Class R Certificate will be issued as a single Certificate
evidencing
the entire Percentage Interest in such
Class.
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(21)
|
The
Class P Certificates shall not bear interest at a stated rate.
Prepayment
Charges paid with respect to the Mortgage Loans shall be paid to
the
Holders of the Class P Certificates as provided in Section 5.02(i).
For
purposes of the REMIC Provisions, Class P shall represent a regular
interest in the Upper Tier REMIC.
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(22)
|
The
Class P Certificates will have an initial Class P Principal Amount
of
$100.
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|
(23)
|
The
Class LT-R Certificate will be issued without a Class Principal
Amount and
will not bear interest at a stated rate. The Class LT-R Certificate
represents ownership of the residual interest in REMIC 1. The Class
LT-R
Certificate will be issued as a single Certificate evidencing the
entire
Percentage Interest in such Class.
|
As
of the
Cut-off Date, the Mortgage Loans had an aggregate Scheduled Principal Balance
of
$847,925,170.01.
In
consideration of the mutual agreements herein contained, the Depositor, the
Seller, the Credit Risk Manager, the Master Servicer, the Securities
Administrator and the Trustee hereby agree as follows:
16
ARTICLE
I
DEFINITIONS
Section
1.01. Definitions.
The
following words and phrases, unless the context otherwise requires, shall
have
the following meanings:
10-K
Filing Deadline:
As
defined in Section 6.20(e)(i).
Accepted
Servicing Practices:
With
respect to any Mortgage Loan, as applicable, either (x) those customary mortgage
servicing practices of prudent mortgage servicing institutions that service
or
master service mortgage loans of the same type and quality as such Mortgage
Loan
in the jurisdiction where the related Mortgaged Property is located, to the
extent applicable to the Trustee or the Master Servicer, or (y) as provided
in
the Servicing Agreement, to the extent applicable to the Servicer.
Accountant:
A
person engaged in the practice of accounting who (except when this Agreement
provides that an Accountant must be Independent) may be employed by or
affiliated with the Depositor or an Affiliate of the Depositor.
Accrual
Period:
With
respect to each Class of LIBOR Certificates and any Distribution Date, the
period beginning on the Distribution Date in the calendar month immediately
preceding the month in which the related Distribution Date occurs (or, in
the
case of the first Distribution Date, beginning on March 25, 2007) and ending
on
the day immediately preceding the related Distribution Date, as calculated
in
accordance with Section 1.03. With respect to each Class of Lower Tier Interest
and any Distribution Date, the calendar month preceding such Distribution
Date.
Act:
As
defined in Section 3.03(c).
Additional
Collateral:
None.
Additional
Form 10-D Disclosure:
As
defined in Section 6.20(d)(i).
Additional
Form 10-K Disclosure:
As
defined in Section 6.20(e)(i).
Additional
Servicer:
Each
Affiliate of the Servicer that Services any of the Mortgage Loans and each
Person who is not an Affiliate of the Servicer, who Services 10% or more
of the
Mortgage Loans.
Additional
Termination Event:
As
defined in the Swap Agreement.
Adjustable
Rate Mortgage Loan:
Any
Mortgage Loan as to which the related Mortgage Note provides for the adjustment
of the Mortgage Rate applicable thereto.
17
Adjusted
Lower Tier WAC:
For any
Distribution Date (and the related Accrual Period), an amount equal to (i)
two,
multiplied by (ii) the weighted average of the interest rates for such
Distribution Date for the Class LT3-A1, Class LT3-A2, Class LT3-A3, Class
LT3-A4, Class LT3-A5, Class LT3-A6, Class LT3-M1, Class LT3-M2, Class LT3-M3,
Class LT3-M4, Class LT3-M5, Class LT3-M6, Class LT3-M7, Class LT3-M8, Class
LT3-M9, Class LT3-B1, Class LT3-B2, Class LT3-B3, Class LT3-P and Class LT3-Q
Interests, weighted in proportion to their Class Principal Amounts as of
the
beginning of the related Accrual Period and computed by subjecting the rate
on
the Class LT3-Q Interest to a cap of 0.00%, and by subjecting the rate on
each
of the Class LT3-A1, Class LT3-A2, Class LT3-A3, Class LT3-A4, Class LT3-A5,
Class LT3-A6, Class LT3-M1, Class LT3-M2, Class LT3-M3, Class LT3-M4, Class
LT3-M5, Class LT3-M6, Class LT3-M7, Class LT3-M8, Class LT3-M9, Class LT3-B1,
Class LT3-B2 and Class LT3-B3 Interests to a cap that corresponds to the
Certificate Interest Rate (determined by substituting the REMIC 3 Net Funds
Cap
for the applicable Net Funds Cap) for the Corresponding Class of Certificates
multiplied by the quotient of (a) the actual number of days in the Accrual
Period, divided by (b) 30.
Advance:
With
respect to a Mortgage Loan other than a Simple Interest Mortgage Loan, an
advance of the aggregate of payments (other than Balloon Payments) of principal
and interest (net of the Servicing Fee) on one or more Mortgage Loans that
were
due on a Due Date in the related Collection Period and not received as of
the
close of business on the related Determination Date, required to be made
by or
on behalf of the Master Servicer and the Servicer (or by the Securities
Administrator as successor to the Master Servicer) pursuant to Section 5.04,
but
only to the extent that such amount is expected, in the reasonable judgment
of
the Master Servicer or Servicer (or by the Securities Administrator as successor
to the Master Servicer), to be recoverable from collections or recoveries
in
respect of such Mortgage Loans. With respect to a Simple Interest Mortgage
Loan,
an advance of an amount equal to the interest accrual on such Simple Interest
Mortgage Loan through the related Due Date but not received as of the close
of
business on the related Distribution Date (net of the Servicing Fee) required
to
be made by or on behalf of the Master Servicer or the Servicer (or by the
Securities Administrator as successor to the Master Servicer) pursuant to
Section 5.04, but only to the extent that such amount is expected, in the
reasonable judgment of the Master Servicer or Servicer (or by the Securities
Administrator as successor to the Master Servicer), to be recoverable from
collections or recoveries in respect of such Simple Interest Mortgage
Loans.
Adverse
REMIC Event:
Either
(i) the loss of status as a REMIC, within the meaning of Section 860D of
the
Code, for any group of assets identified as a REMIC in the Preliminary Statement
to this Agreement, or (ii) the imposition of any tax, including the tax imposed
under Section 860F(a)(1) of the code on prohibited transactions and the tax
imposed under Section 860G(d) of the code on certain contributions to a REMIC,
on any REMIC created hereunder to the extent such tax would be payable from
assets held as part of the Trust Fund.
Affected
Party:
As
defined in the Swap Agreement.
Affiliate:
With
respect to any specified Person, any other Person controlling or controlled
by
or under common control with such specified Person. For the purposes of this
definition, “control” when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract
or
otherwise; and the terms “controlling” and “controlled” have meanings
correlative to the foregoing.
18
Aggregate
Overcollateralization Release Amount:
With
respect to any Distribution Date, the lesser of (x) the aggregate of the
Principal Remittance Amounts for each Mortgage Pool for such Distribution
Date
and (y) the amount, if any, by which (i) the Overcollateralization Amount
for
such date, calculated for this purpose on the basis of the assumption that
100%
of the aggregate Principal Remittance Amounts for such Distribution Date
is
applied on such date in reduction of the aggregate Certificate Principal
Amount
of the Certificates, exceeds (ii) the Targeted Overcollateralization Amount
for
such Distribution Date.
Aggregate
Pool Balance:
As of
any date of determination, the aggregate of the Pool Balances of Pool 1 and
Pool
2 on such date.
Aggregate
Voting Interests:
The
aggregate of the Voting Interests of all the Certificates under this
Agreement.
Agreement:
This
Trust Agreement and all amendments and supplements hereto.
Anniversary
Year:
The
one-year period beginning on the Closing Date and ending on the first
anniversary thereof, and each subsequent one-year period beginning on the
day
after the end of the preceding Anniversary Year and ending on next succeeding
anniversary of the Closing Date.
Applied
Loss Amount:
With
respect to any Distribution Date, the amount, if any, by which (x) the aggregate
Certificate Principal Amount of the LIBOR Certificates, after giving effect
to
distributions of principal on such Distribution Date and all Realized Losses
incurred with respect to the Mortgage Loans during the related Collection
Period, but before giving effect to any application of the Applied Loss Amount
with respect to such date, exceeds (y) the Aggregate Pool Balance for such
Distribution Date.
Appraised
Value:
With
respect to any Mortgage Loan, the amount set forth in an appraisal made in
connection with the origination of such Mortgage Loan as the value of the
related Mortgaged Property.
Assignment
and Assumption Agreement:
The
Assignment and Assumption Agreement dated as of March 1, 2007 between Xxxxxx
Brothers Bank FSB and the Seller.
Assignment
of Mortgage:
An
assignment of the Mortgage, notice of transfer or equivalent instrument,
in
recordable form, sufficient under the laws of the jurisdiction wherein the
related Mortgaged Property is located to reflect the sale of the Mortgage
to the
Trustee, which assignment, notice of transfer or equivalent instrument may
be in
the form of one or more blanket assignments covering the Mortgage Loans secured
by Mortgaged Properties located in the same jurisdiction, if permitted by
law;
provided,
however,
that
neither the Custodian nor the Trustee shall be responsible for determining
whether any such assignment is in recordable form.
Aurora:
Aurora
Loan Services LLC, a Delaware limited liability company.
19
Authenticating
Agent:
Any
authenticating agent appointed by the Trustee pursuant to Section
6.10.
Authorized
Officer:
Any
Person who may execute an Officer’s Certificate on behalf of the
Depositor.
B1
Principal Distribution Amount:
With
respect to any Distribution Date on or after the Stepdown Date and as long
as a
Trigger Event is not in effect with respect to such Distribution Date, the
amount, if any, by which (x) the sum of (i) the aggregate of the Class Principal
Amounts of the Senior Certificates and the Class M1, Class M2, Class M3,
Class
M4, Class M5, Class M6, Class M7, Class M8 and Class M9 Certificates, in
each
case after giving effect to distributions on such Distribution Date and (ii)
the
Class Principal Amount of the Class B1 Certificates immediately prior to
such
Distribution Date exceeds (y) the B1 Target Amount for such Distribution
Date.
B1
Target Amount:
With
respect to any Distribution Date, an amount equal to the lesser of (a) the
product of (i) 93.90% and (ii) the Aggregate Pool Balance for such Distribution
Date determined as of the last day of the related Collection Period and (b)
the
amount, if any, by which (i) the Aggregate Pool Balance for such Distribution
Date determined as of the last day of the related Collection Period exceeds
(ii)
the Overcollateralization Floor.
B2
Principal Distribution Amount:
With
respect to any Distribution Date on or after the Stepdown Date and as long
as a
Trigger Event is not in effect with respect to such Distribution Date, the
amount, if any, by which (x) the sum of (i) the aggregate of the Class Principal
Amounts of the Senior Certificates and the Class M1, Class M2, Class M3,
Class
M4, Class M5, Class M6, Class M7, Class M8, Class M9 and Class B1 Certificates,
in each case after giving effect to distributions on such Distribution Date
and
(ii) the Class Principal Amount of the Class B2 Certificates immediately
prior
to such Distribution Date exceeds (y) the B2 Target Amount for such Distribution
Date.
B2
Target Amount:
With
respect to any Distribution Date, an amount equal to the lesser of (a) the
product of (i) 95.10% and (ii) the Aggregate Pool Balance for such Distribution
Date determined as of the last day of the related Collection Period and (b)
the
amount, if any, by which (i) the Aggregate Pool Balance for such Distribution
Date determined as of the last day of the related Collection Period exceeds
(ii)
the Overcollateralization Floor.
B3
Principal Distribution Amount:
With
respect to any Distribution Date on or after the Stepdown Date and as long
as a
Trigger Event is not in effect with respect to such Distribution Date, the
amount, if any, by which (x) the sum of (i) the aggregate of the Class Principal
Amounts of the Senior Certificates and the Class M1, Class M2, Class M3,
Class
M4, Class M5, Class M6, Class M7, Class M8, Class M9, Class B1 and Class
B2
Certificates, in each case after giving effect to distributions on such
Distribution Date and (ii) the Class Principal Amount of the Class B3
Certificates immediately prior to such Distribution Date exceeds (y) the
B3
Target Amount for such Distribution Date.
B3
Target Amount:
With
respect to any Distribution Date, an amount equal to the lesser of (a) the
product of (i) 97.10% and (ii) the Aggregate Pool Balance for such Distribution
Date determined as of the last day of the related Collection Period and (b)
the
amount, if any, by which (i) the Aggregate Pool Balance for such Distribution
Date determined as of the last day of the related Collection Period exceeds
(ii)
the Overcollateralization Floor.
20
Back-Up
Certification:
As
defined in Section 6.20(e)(iv).
Balloon
Mortgage Loan:
Any
Mortgage Loan having an original term to maturity that is shorter than its
amortization schedule, and a final Scheduled Payment that is disproportionately
large in comparison to other Scheduled Payments.
Balloon
Payment:
The
final Scheduled Payment in respect of a Balloon Mortgage Loan.
Bankruptcy:
As to
any Person, the making of an assignment for the benefit of creditors, the
filing
of a voluntary petition in bankruptcy, adjudication as a bankrupt or insolvent,
the entry of an order for relief in a bankruptcy or insolvency proceeding,
the
seeking of reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar relief, or seeking, consenting to or acquiescing in
the
appointment of a trustee, receiver or liquidator, dissolution, or termination,
as the case may be, of such Person pursuant to the provisions of either the
Bankruptcy Code or any other similar state laws.
Bankruptcy
Code:
The
United States Bankruptcy Code of 1986, as amended.
Basis
Risk Payment:
With
respect to any Distribution Date, the sum of (i) any Basis Risk Shortfall
for
such Distribution Date, (ii) any Unpaid Basis Risk Shortfall from previous
Distribution Dates and (iii) any Required Reserve Fund Deposit for such
Distribution Date. The amount of the Basis Risk Payment for any Distribution
Date cannot exceed the amount of Monthly Excess Cashflow otherwise available
for
distribution pursuant to Section 5.02(f)(iv) of this Agreement.
Basis
Risk Reserve Fund:
A fund
created as part of the Trust Fund pursuant to Section 5.06 of this Agreement
but
which is not an asset of any of the REMICs.
Basis
Risk Shortfall:
With
respect to any Distribution Date and any Class of LIBOR Certificates, the
amount, if any, by which (x) the amount of interest calculated at the
Certificate Interest Rate applicable to such Class for such Distribution
Date,
determined without regard to the Pool 1 Net Funds Cap, the Pool 2 Net Funds
Cap
or the Subordinate Net Funds Cap, as applicable, for such date, but subject
to a
cap equal to the applicable Maximum Interest Rate for such date, exceeds
(y) the
amount of interest calculated at the Pool 1 Net Funds Cap, the Pool 2 Net
Funds
Cap or the Subordinate Net Funds Cap, as applicable.
Benefit
Plan Opinion:
An
Opinion of Counsel satisfactory to the Depositor and the Trustee to the effect
that any proposed transfer of Certificates will not (i) cause the assets
of the
Trust Fund to be regarded as “plan assets” for purposes of the Plan Asset
Regulations or (ii) give rise to any fiduciary duty on the part of the Depositor
or the Trustee, respectively.
Bid
Due Date:
As
defined in Section 7.01(d).
Bid
Holder:
As
defined in Section 7.01(d).
21
Bid
Month:
As
defined in Section 7.01(d).
Bid
Price:
As
defined in Section 7.01(d).
Book-Entry
Certificates:
Beneficial interests in Certificates designated as “Book-Entry Certificates” in
this Agreement, ownership and transfers of which shall be evidenced or made
through book entries by a Clearing Agency as described in Section 3.09;
provided
that after
the
occurrence of a condition whereupon book-entry registration and transfer
are no
longer permitted and Definitive Certificates are to be issued to Certificate
Owners, such Book-Entry Certificates shall no longer be “Book-Entry
Certificates.” As of the Closing Date, each Class of LIBOR Certificates
constitutes Book-Entry Certificates.
Business
Day:
Any day
other than (i) a Saturday or a Sunday, (ii) a day on which banking institutions
in New York, New York or, if other than New York, the city in which the
Corporate Trust Office of the Trustee is located, or the States of Maryland,
Massachusetts, Minnesota or Colorado are closed, or (iii) with respect to
any
Servicer Remittance Date or any Servicer reporting date, the States specified
in
the definition of “Business Day” in the Servicing Agreement, are authorized or
obligated by law or executive order to be closed.
Call
Option Holder:
At any
date of determination, each holder of any NIM Residual Securities (if any
such
NIM Residual Securities have been issued and are outstanding), or if no NIM
Securities are outstanding, each Holder of a Class X Certificate.
Call
Option Notice:
As
defined in Section 7.01(d).
Cap
Counterparty:
The
counterparty to the Supplemental Interest Trust under the Interest Rate Cap
Agreement, and any successor in interest or assigns. Initially, the Cap
Counterparty shall be Swiss Re Financial Products Corporation.
Cap
Replacement Receipts:
As
defined in Section 5.09(b).
Cap
Replacement Receipts Account:
As
defined in Section 5.09(b).
Cap
Termination Payment:
Upon
the designation of an “Early Termination Date” as defined in the Interest Rate
Cap Agreement, the payment required to be made by the Cap Counterparty to
the
Supplemental Interest Trust pursuant to the terms of the Interest Rate Cap
Agreement, and any unpaid amounts due on previous Interest Rate Cap Payment
Dates and accrued interest thereon as provided in the Interest Rate Cap
Agreement, as calculated by the Cap Counterparty and furnished to the Trustee
and the Securities Administrator.
Cap
Termination Receipts:
As
defined in Section 5.09(b).
Cap
Termination Receipts Account:
As
defined in Section 5.09(b).
Carryforward
Interest:
With
respect to any Class of LIBOR Certificates and any Distribution Date, the
sum of
(i) the amount, if any, by which (x) the sum of (A) Current Interest for
such
Class for the immediately preceding Distribution Date and (B) any unpaid
Carryforward Interest for such Class from previous Distribution Dates exceeds
(y) the amount distributed in respect of interest on such Class on such
immediately preceding Distribution Date, and (ii) interest on such amount
for
the related Accrual Period at the applicable Certificate Interest
Rate.
22
Certificate:
Any one
of the certificates signed and countersigned by the Trustee in substantially
the
forms attached hereto as Exhibit A.
Certificate
Account:
The
account maintained by the Trustee in accordance with the provisions of Section
4.04.
Certificate
Interest Rate:
With
respect to each Class of Certificates and any Distribution Date, the applicable
per annum rate set forth or described under the heading “The Certificates” in
the Preliminary Statement hereto.
Certificate
Owner:
With
respect to a Book-Entry Certificate, the Person who is the owner of such
Book-Entry Certificate, as reflected on the books of the Clearing Agency,
or on
the books of a Person maintaining an account with such Clearing Agency (directly
or as an indirect participant, in accordance with the rules of such Clearing
Agency).
Certificate
Principal Amount:
With
respect to any LIBOR Certificate, the initial Certificate Principal Amount
thereof on the Closing Date, less the amount of all principal distributions
previously distributed with respect to such Certificate and, in the case
of the
Subordinate Certificates, any Applied Loss Amount previously allocated to
such
Certificate; provided,
however,
that on
each Distribution Date on which a Subsequent Recovery is distributed, the
Certificate Principal Amount of any Class of Subordinate Certificates whose
Certificate Principal Amount has previously been reduced by application of
Applied Loss Amounts will be increased, sequentially, in order of seniority,
by
an amount (to be applied pro
rata
to all
Certificates of such Class) equal to the lesser of (1) any Deferred Amount
for
each such Class immediately prior to such Distribution Date and (2) the total
amount of any Subsequent Recovery distributed on such Distribution Date to
Certificateholders, after application for this purpose to any more senior
Classes of Certificates. The Class X, Class R and Class LT-R Certificates
are
issued without Certificate Principal Amounts. The Class P Certificates are
issued with an initial Class P Principal Amount of $100.
Certificate
Register
and
Certificate
Registrar:
The
register maintained and the registrar appointed pursuant to Section
3.02.
Certificateholder:
The
meaning provided in the definition of “Holder.”
Certification
Parties:
As
defined in Section 6.20(e)(iv).
Certifying
Person:
As
defined in Section 6.20(e)(iv).
Civil
Relief Act:
The
Servicemembers Civil Relief Act, as amended, or any similar state or local
statute.
Class:
All
Certificates, in the case of REMIC 4, all interests bearing the same class
designation, and, in the case of REMIC 1, REMIC 2 and REMIC 3, all Lower
Tier
Interests, bearing the same class designation.
23
Class
B Certificates:
Collectively, the Class B1, Class B2 and Class B3 Certificates.
Class
I Shortfalls:
As
defined in Section 10.01(n) hereof. For purposes of clarity, the Class I
Shortfall for any Distribution Date shall equal the amount payable to the
Swap
Counterparty on such Distribution Date in excess of the amount payable on
the
Class LT4-I interest in the Upper Tier REMIC on such Distribution Date, all
as
further provided in Section 10.01(n) hereof.
Class
LT-R Certificate:
Each
Class LT-R Certificate executed by the Trustee, and authenticated and delivered
by the Certificate Registrar, substantially in the form annexed hereto as
Exhibit A and evidencing the ownership of the residual interest in REMIC
1.
Class
M Certificates:
Collectively, the Class M1, Class M2, Class M3, Class M4, Class M5, Class
M6,
Class M7, Class M8 and Class M9 Certificates.
Class
Notional Amount:
Not
applicable.
Class
P Principal Amount:
As of
the Closing Date, $100.
Class
Principal Amount:
With
respect to any Class of LIBOR Certificates and any date of determination,
the
aggregate of the Certificate Principal Amounts of all Certificates of such
Class
on such date. With respect to the Class X, Class P, Class LT-R and Class
R
Certificates, zero. With respect to any Lower Tier Interest, the initial
Class
Principal Amount as shown or described in the table set forth in the Preliminary
Statement to this Agreement for the issuing REMIC, as reduced by principal
distributed with respect to such Lower Tier Interest and Realized Losses
allocated to such Lower Tier Interest.
Class
R Certificate:
Each
Class R Certificate executed by the Trustee, and authenticated and delivered
by
the Certificate Registrar, substantially in the form annexed hereto as Exhibit
A
and evidencing the ownership of the Class LT2-R Interest, Class LT3-R Interest
and the residual interest in the Upper Tier REMIC.
Class
X Distributable Amount:
With
respect to any Distribution Date, the amount of interest that has accrued
on the
Class X Notional Balance, as described in the Preliminary Statement, but
that
has not been distributed prior to such date. In addition, such amount shall
include the initial Overcollateralization Amount of $12,295,070.01
($12,295,170.01 less $100 of such amount allocated to the Class P Certificates)
to the extent such amount has not been distributed on an earlier Distribution
Date as part of the Aggregate Overcollateralization Release Amount.
Class
X Notional Balance:
With
respect to any Distribution Date (and the related Accrual Period) the aggregate
principal balance of the regular interests in REMIC 3 as specified in the
Preliminary Statement hereto.
Clearing
Agency:
An
organization registered as a “clearing agency” pursuant to Section 17A of the
Exchange Act. As of the Closing Date, the Clearing Agency shall be The
Depository Trust Company.
24
Clearing
Agency Participant:
A
broker, dealer, bank, other financial institution or other Person for whom
from
time to time a Clearing Agency effects book-entry transfers and pledges of
securities deposited with the Clearing Agency.
Clearstream:
Clearstream Banking Luxembourg, and any successor thereto.
Closing
Date:
March
30, 2007.
Code:
The
Internal Revenue Code of 1986, as amended, and as it may be further amended
from
time to time, any successor statutes thereto, and applicable U.S. Department
of
Treasury regulations issued pursuant thereto in temporary or final
form.
Collateral
Account:
The
account maintained by the Trustee in accordance with the provisions of Section
5.07(c).
Collection
Account:
A
separate account established and maintained by the Master Servicer pursuant
to
Section 4.01.
Collection
Period:
With
respect to any Distribution Date, the period commencing on the second day
of the
calendar month immediately preceding the calendar month in which such
Distribution Date occurs and ending on the first day of the calendar month
in
which such Distribution Date occurs.
Commission
The
United States Securities and Exchange Commission.
Commitment
Letter:
The
Commitment Letter for WFHM 2006-MO6, dated May 22, 2006, of Xxxxx Fargo Bank,
N.A., as Seller, to Xxxxxx Brothers Bank, FSB, as Purchaser.
Compensating
Interest Payment:
With
respect to any Distribution Date, an amount equal to the aggregate amount
of any
Prepayment Interest Shortfalls required to be paid by the Servicer with respect
to such Distribution Date. The Master Servicer shall not be responsible for
making any Compensating Interest Payment.
Controlling
Person:
With
respect to any Person, any other Person who “controls” such Person within the
meaning of the Securities Act.
Conventional
Loan:
A
Mortgage Loan that is not insured by the United States Federal Housing
Administration or guaranteed by the United States Department of Veterans
Affairs.
Cooperative
Corporation:
The
entity that holds title (fee or an acceptable leasehold estate) to the real
property and improvements constituting the Cooperative Property and which
governs the Cooperative Property, which Cooperative Corporation must qualify
as
a Cooperative Housing Corporation under Section 216 of the Code.
Cooperative
Loan:
Any
Mortgage Loan secured by Cooperative Shares and a Proprietary
Lease.
25
Cooperative
Loan Documents:
As to
any Cooperative Loan, (i) the Cooperative Shares, together with a stock power
in
blank; (ii) the original executed Security Agreement and the assignment of
the
Security Agreement endorsed in blank; (iii) the original executed Proprietary
Lease and the assignment of the Proprietary Lease endorsed in blank; (iv)
the
original executed Recognition Agreement and the assignment of the Recognition
Agreement (or a blanket assignment of all Recognition Agreements) endorsed
in
blank; (v) the executed UCC-1 financing statement with evidence of recording
thereon, which has been filed in all places required to perfect the security
interest in the Cooperative Shares and the Proprietary Lease; and (vi) executed
UCC-3 financing statements (or copies thereof) or other appropriate UCC
financing statements required by state law, evidencing a complete and unbroken
line from the mortgagee to the Trustee with evidence of recording thereon
(or in
a form suitable for recordation).
Cooperative
Property:
The
real property and improvements owned by the Cooperative Corporation, that
includes the allocation of individual dwelling units to the holders of the
Cooperative Shares of the Cooperative Corporation.
Cooperative
Shares:
Shares
issued by a Cooperative Corporation.
Cooperative
Unit:
A
single-family dwelling located in a Cooperative Property.
Corporate
Trust Office:
The
principal corporate trust office of the Trustee at which, at any particular
time, its corporate trust business shall be administered, which office at
the
date hereof is located at Xxx Xxxxxxx Xxxxxx, 0xx Xxxxx, Xxxxxx, XX 00000,
Attention: Structured Finance - SASCO 2007-WF1; provided that for purposes
of
presentment or surrender of the Certificates and for final payment thereon,
the
Trustee’s Corporate Trust Office shall be 00 Xxxxxxxxxxx Xxxxxx, Xx. Xxxx,
Xxxxxxxxx 00000.
Corresponding
Class:
The
Class of Certificates that corresponds to a Class of interests in REMIC 3
or
REMIC 4, as provided in the Preliminary Statement.
Credit
Risk Management Agreement:
The
credit risk management agreement dated as of the Closing Date, entered into
by
the Servicer and the Credit Risk Manager, identified on Exhibit L attached
hereto.
Credit
Risk Manager:
Xxxxxxx
Fixed Income Services Inc., a Colorado corporation, and its successors and
assigns.
Credit
Risk Manager’s Fee:
As to
any Distribution Date and each Mortgage Loan, an amount equal to the product
of
(a) one-twelfth, (b) the Credit Risk Manager’s Fee Rate and (c) the Scheduled
Principal Balance of such Mortgage Loan as of the first day of the related
Collection Period.
Credit
Risk Manager’s Fee Rate:
0.009%
per annum.
Credit
Support Annex:
The
credit support annex to the Swap Agreement and Interest Rate Cap Agreement
dated
as of March 30, 2007, between the Trustee, on behalf of the Supplemental
Interest Trust, the Swap Counterparty and the Cap Counterparty.
26
Cumulative
Loss Trigger Event:
A
Cumulative Loss Trigger Event shall have occurred with respect to any
Distribution Date if the fraction, expressed as a percentage, obtained by
dividing (x) the aggregate amount of cumulative Realized Losses incurred
on the
Mortgage Loans from the Cut-off Date through the last day of the related
Collection Period by (y) the Cut-off Date Balance exceeds the applicable
percentages described below with respect to such Distribution Date:
|
Distribution
Date
|
Loss
Percentage
|
|
April
2009 through March 2010
|
1.30%
for the first month, plus
an
additional 1/12th
of
1.60% for each month thereafter
|
|
April
2010 through March 2011
|
2.90%
for the first month, plus
an
additional 1/12th
of
1.65% for each month thereafter
|
|
April
2011 through March 2012
|
4.55%
for the first month, plus
an
additional 1/12th
of
1.35% for each month thereafter
|
|
April
2012 through March 2013
|
5.90%
for the first month, plus
an
additional 1/12th
of
0.70% for each month thereafter
|
|
April
2013 and thereafter
|
6.60%
|
Current
Interest:
With
respect to any Class of LIBOR Certificates and any Distribution Date, the
aggregate amount of interest accrued at the applicable Certificate Interest
Rate
during the related Accrual Period on the Class Principal Amount of such Class
immediately prior to such Distribution Date.
Custodial
Account:
Any
custodial account (other than an Escrow Account) established and maintained
by
the Servicer pursuant to the Servicing Agreement.
Custodial
Agreement:
The
custodial agreement identified on Exhibit K hereto, and any custodial agreement
subsequently executed by the Trustee and acknowledged by the Master Servicer
substantially in the form thereof.
Custodial
Compensation:
The
transactional fees or charges (exclusive of the trustee acceptance fee and
annual administration fee) and reimbursement of out-of-pocket expense paid
to or
allowed the Custodian by the Securities Administrator pursuant to the Custodial
Agreement or any applicable side letter.
Custodian:
The
Custodian appointed by the Trustee pursuant to the Custodial Agreement, and
any
successor thereto. The initial Custodian is Xxxxx Fargo Bank, N.A.
Cut-off
Date:
March
1, 2007
Cut-off
Date Balance:
The
Aggregate Pool Balance as of the Cut-off Date.
DBRS:
DBRS,
Inc.
Debt
Service Reduction:
With
respect to any Mortgage Loan, a reduction of the Scheduled Payment that the
related Mortgagor is obligated to pay on any Due Date as a result of, or
in
connection with, any proceeding under Bankruptcy law or any similar
proceeding.
27
Defaulting
Party:
As
defined in the Swap Agreement.
Deferred
Amount:
With
respect to any Distribution Date and each Class of Subordinate Certificates,
the
amount by which (x) the aggregate of Applied Loss Amounts previously applied
in
reduction of the Class Principal Amount thereof exceeds (y) the sum of (1)
the
aggregate of amounts previously reimbursed in respect thereof and (2) the
amount
by which the Class Principal Amount of such Class has been increased due
to any
Subsequent Recovery.
Definitive
Certificate:
A
Certificate of any Class issued in definitive, fully registered, certificated
form.
Deleted
Mortgage Loan:
A
Mortgage Loan that is repurchased from the Trust Fund pursuant to the terms
hereof or as to which one or more Qualifying Substitute Mortgage Loans are
substituted therefor.
Delinquency
Event:
Any
Distribution Date in which the Rolling Three Month Delinquency Rate as of
the
last day of the immediately preceding month equals or exceeds 42.00% of the
Senior Enhancement Percentage for such Distribution Date.
Delinquency
Rate:
With
respect to any calendar month, the fraction, expressed as a percentage, the
numerator of which is the aggregate outstanding principal balance of (i)
all
Mortgage Loans 60 days Delinquent or more (including all Mortgage Loans 60
days
Delinquent or more for which the Mortgagor has filed for Bankruptcy after
the
Closing Date) and (ii) each Mortgage Loan in foreclosure and all REO Properties
as of the close of business on the last day of such month, and the denominator
of which is the Aggregate Pool Balance as of the close of business on the
last
day of such month.
Delinquent:
For
reporting purposes, a Mortgage Loan is considered “delinquent” if a monthly
payment has not been received by the close of business on the loan’s due date in
the following month. For example, if a borrower failed to make a monthly
payment
due on December 1 by December 31, that mortgage loan would be considered
less
than 30 days delinquent in payment. If a borrower failed to make a monthly
payment due on November 1 by December 31, that mortgage loan would be considered
to be at least 30 but less than 60 days delinquent in payment.
Deposit
Date:
With
respect to each Distribution Date, the Business Day immediately preceding
such
Distribution Date.
Depositor:
Structured Asset Securities Corporation, a Delaware corporation having its
principal place of business in New York, or its successors in
interest.
Determination
Date:
With
respect to each Distribution Date, the 18th day of the month in which such
Distribution Date occurs, or, if such 18th day is not a Business Day, the
next
succeeding Business Day.
Disqualified
Organization:
A
“disqualified organization” as defined in Section 860E(e)(5) of the
Code.
28
Distressed
Mortgage Loan:
Any
Mortgage Loan that at the date of determination is Delinquent in payment
for a
period of 90 days or more without giving effect to any grace period permitted
by
the related Mortgage Note or for which the Servicer or the Trustee has accepted
a deed in lieu of foreclosure.
Distribution
Date:
The
25th day of each month or, if such 25th day is not a Business Day, the next
succeeding Business Day, commencing in April 2007.
Distribution
Date Statement:
As
defined in Section 4.03(a) hereof.
Document
Transfer Event:
The day
on which (i) Xxxxx Fargo Bank, N.A. or any successor thereto is no longer
the
Servicer of any of the Mortgage Loans, (ii) the senior, unsecured long-term
debt
rating of Xxxxx Fargo & Company is less than “BBB-” by Fitch or (iii) any
Rating Agency requires the Servicer to deliver the Retained Mortgage Files
to
the Custodian.
Due
Date:
With
respect to any Mortgage Loan, the date on which a Scheduled Payment is due
under
the related Mortgage Note.
Eligible
Account:
Either
(i) an account or accounts maintained with a federal or state chartered
depository institution or trust company acceptable to the Rating Agencies
or
(ii) an account or accounts the deposits in which are insured by the FDIC
to the
limits established by such corporation, provided that any such deposits not
so
insured shall be maintained in an account at a depository institution or
trust
company whose commercial paper or other short term debt obligations (or,
in the
case of a depository institution or trust company which is the principal
subsidiary of a holding company, the commercial paper or other short term
debt
or deposit obligations of such holding company or depository institution,
as the
case may be) have been rated by each Rating Agency in its highest short-term
rating category, or (iii) a segregated trust account or accounts (which shall
be
a “special deposit account”) maintained with the Trustee or any other federal or
state chartered depository institution or trust company, acting in its fiduciary
capacity, in a manner acceptable to the Trustee and the Rating Agencies.
Eligible Accounts may bear interest.
Eligible
Investments:
Any one
or more of the following obligations or securities:
(i) direct
obligations of, and obligations fully guaranteed as to timely payment of
principal and interest by, the United States of America or any agency or
instrumentality of the United States of America the obligations of which
are
backed by the full faith and credit of the United States of America (“Direct
Obligations”);
(ii) federal
funds, or demand and time deposits in, certificates of deposits of, or bankers’
acceptances issued by, any depository institution or trust company (including
U.S. subsidiaries of foreign depositories and the Trustee or any agent of
the
Trustee, acting in its respective commercial capacity) incorporated or organized
under the laws of the United States of America or any state thereof and subject
to supervision and examination by federal or state banking authorities, so
long
as at the time of investment or the contractual commitment providing for
such
investment the commercial paper or other short-term debt obligations of such
depository institution or trust company (or, in the case of a depository
institution or trust company which is the principal subsidiary of a holding
company, the commercial paper or other short-term debt or deposit obligations
of
such holding company or deposit institution, as the case may be) have been
rated
by each Rating Agency in its highest short-term rating category or one of
its
two highest long-term rating categories;
29
(iii) repurchase
agreements collateralized by Direct Obligations or securities guaranteed
by
GNMA, FNMA or FHLMC with any registered broker/dealer subject to Securities
Investors’ Protection Corporation jurisdiction or any commercial bank insured by
the FDIC, if such broker/dealer or bank has an uninsured, unsecured and
unguaranteed obligation rated by each Rating Agency in its highest short-term
rating category;
(iv) securities
bearing interest or sold at a discount issued by any corporation incorporated
under the laws of the United States of America or any state thereof which
have a
credit rating from each Rating Agency, at the time of investment or the
contractual commitment providing for such investment, at least equal to (a)
one
of the two highest short-term credit rating categories of S&P and Xxxxx’x
and (b) the highest short-term rating category of Fitch; provided,
however,
that
securities issued by any particular corporation will not be Eligible Investments
to the extent that investment therein will cause the then outstanding principal
amount of securities issued by such corporation and held as part of the Trust
Fund to exceed 20% of the sum of the Aggregate Pool Balance and the aggregate
principal amount of all Eligible Investments in the Certificate Account;
provided,
further,
that
such securities will not be Eligible Investments if they are published as
being
under review with negative implications from any Rating Agency;
(v) commercial
paper (including both non-interest-bearing discount obligations and
interest-bearing obligations payable on demand or on a specified date not
more
than 180 days after the date of issuance thereof) rated by each Rating Agency
in
its highest short-term rating category;
(vi) a
Qualified GIC;
(vii) certificates
or receipts representing direct ownership interests in future interest or
principal payments on obligations of the United States of America or its
agencies or instrumentalities (which obligations are backed by the full faith
and credit of the United States of America) held by a custodian in safekeeping
on behalf of the holders of such receipts; and
(viii) any
other
demand, money market, common trust fund or time deposit or obligation, or
interest-bearing or other security or investment (including those managed
or
advised by the Securities Administrator or any Affiliate thereof), (A) rated
in
the highest rating category by each Rating Agency rating such investment
or (B)
that would not adversely affect the then current rating assigned by each
Rating
Agency of any of the Certificates or the NIM Securities and has a short term
rating of at least “A-1” or its equivalent by each Rating Agency. Such
investments in this subsection (viii) may include money market mutual funds
or
common trust funds, including any fund for which U.S. Bank National Association
(the “Bank”) in its capacity other than as Trustee, the Trustee, the Master
Servicer, any NIMS Insurer, the Securities Administrator or an affiliate
of any
such entity serves as an investment advisor, administrator, shareholder
servicing agent, and/or custodian or subcustodian, notwithstanding that (x)
the
Bank, the Trustee, the Master Servicer, any NIMS Insurer, the Securities
Administrator or any affiliate of any such entity charges and collects fees
and
expenses from such funds for services rendered, (y) the Bank, the Trustee,
the
Master Servicer, any NIMS Insurer, the Securities Administrator or any affiliate
of any such entity charges and collects fees and expenses for services rendered
pursuant to this Agreement, and (z) services performed for such funds and
pursuant to this Agreement may converge at any time. The Trustee specifically
authorizes the Bank or an affiliate thereof to charge and collect from the
Trustee such fees as are collected from all investors in such funds for services
rendered to such funds (but not to exceed investment earnings
thereon);
30
provided,
however,
that no
such instrument shall be an Eligible Investment if such instrument evidences
either (i) a right to receive only interest payments with respect to the
obligations underlying such instrument, or (ii) both principal and interest
payments derived from obligations underlying such instrument and the principal
and interest payments with respect to such instrument provide a yield to
maturity of greater than 120% of the yield to maturity at par of such underlying
obligations, provided that any such investment will be a “permitted investment”
within the meaning of Section 860G(a)(5) of the Code.
ERISA:
The
Employee Retirement Income Security Act of 1974, as amended.
ERISA-Qualifying
Underwriting:
A best
efforts or firm commitment underwriting or private placement that meets the
requirements of an Underwriter’s Exemption.
ERISA-Restricted
Certificate:
Any
Class B, Class P, Class X, Class LT-R or Class R Certificate, and any Offered
Certificate which does not have a rating of BBB- or above, BBB (low) or Baa3
or
above.
ERISA-Restricted
Trust Certificate:
Any
Senior Certificate or Class M Certificate.
Errors
and Omission Insurance Policy:
The
errors or omission insurance policy required to be obtained by the Servicer
satisfying the requirements of the Servicing Agreement.
Escrow
Account:
Any
account established and maintained by the Servicer pursuant to the Servicing
Agreement.
Euroclear:
Euroclear Bank, S.A./N.V., as operator of the Euroclear System.
Event
of Default:
Any one
of the conditions or circumstances enumerated in Section 6.14(a).
Exchange
Act:
The
Securities Exchange Act of 1934, as amended.
Exchange
Act Signing Party:
Either
the Depositor or the Master Servicer, to be determined by mutual agreement
between such parties.
Excluded
Trust Assets:
As
described in the Preliminary Statement.
31
Xxxxxx
Xxx or FNMA:
Xxxxxx
Mae, f/k/a/ the Federal National Mortgage Association, a federally chartered
and
privately owned corporation organized and existing under the Federal National
Mortgage Association Charter Act, or any successor thereto.
FDIC:
The
Federal Deposit Insurance Corporation or any successor thereto.
Fidelity
Bond:
The
fidelity bond required to be obtained by the Servicer satisfying the
requirements of the Servicing Agreement.
Final
Scheduled Distribution Date:
With
respect to each Class of Certificates, the Distribution Date occurring in
February 2037.
Financial
Intermediary:
A
broker, dealer, bank or other financial institution or other Person that
clears
through or maintains a custodial relationship with a Clearing Agency
Participant.
First
Payment Default Mortgage Loan:
Any
Mortgage Loans as to which the related Mortgagor does not make the first
payment
due to the Seller within the time frame required under the Commitment Letter
and
which are identified on Schedule B hereof.
First
Payment Default Purchase Price:
The
purchase price paid for a First Payment Default Mortgage Loan which is required
to be repurchased by a Transferor pursuant to the Commitment
Letter.
Fitch:
Fitch
Ratings, Inc., or any successor in interest.
Fixed
Rate Mortgage Loan:
Any
Mortgage Loan as to which the related Mortgage Note provides for a fixed
rate of
interest throughout the term of such Note.
Form
8-K Disclosure Information.
As
defined in Section 6.20(f)(i).
Form
10-K Certification:
The
certification required pursuant to Rule 13a-14 under the Exchange
Act.
FPD
Premium:
With
respect to any First Payment Default Mortgage Loan, the excess, if any, of
the
First Payment Default Purchase Price over the Purchase Price.
Xxxxxxx
Mac or FHLMC:
Xxxxxxx
Mac, f/k/a the Federal Home Loan Mortgage Corporation, a corporate
instrumentality of the United States created and existing under Title III
of the
Emergency Home Finance Act of 1970, as amended, or any successor
thereto.
Global
Securities:
The
global certificates representing the Book-Entry Certificates.
GNMA:
The
Government National Mortgage Association, a wholly owned corporate
instrumentality of the United States within HUD.
Group:
The
Group 1 Senior Certificates or the Group 2 Senior Certificates, as the context
requires.
32
Group
1 Senior Certificates:
Collectively, the Class A1 and Class A6 Certificates.
Group
2 Senior Certificates:
Collectively, the Class A2, Class A3, Class A4 and Class A5
Certificates.
Holder
or
Certificateholder:
The
registered owner of any Certificate as recorded on the books of the Certificate
Registrar except that, solely for the purposes of taking any action or giving
any consent pursuant to this Agreement, any Certificate registered in the
name
of the Depositor, the Trustee, the Master Servicer, the Securities
Administrator, the Servicer or the Credit Risk Manager or any Affiliate of
any
such entity shall be deemed not to be outstanding in determining whether
the
requisite percentage necessary to effect any such consent has been obtained,
except that, in determining whether the Trustee shall be protected in relying
upon any such consent, only Certificates which a Responsible Officer of the
Trustee knows to be so owned shall be disregarded. The Trustee and any NIMS
Insurer may request and conclusively rely on certifications by the Depositor,
the Master Servicer, the Securities Administrator, the Credit Risk Manager
or
the Servicer in determining whether any Certificates are registered to an
Affiliate of the Depositor, the Master Servicer, the Securities Administrator,
the Servicer or the Credit Risk Manager. After a Section 7.01(c) Purchase
Event,
other than Sections 5.02(b) through (g) and 11.03(a) and (b) and, except
in the
case of the Class LT-R Certificates, Sections 3.03, 3.04, 3.05, 3.06, 3.07
and
3.09 herein, all references in this Agreement to “Holder” or “Certificateholder”
shall be deemed to be references to the LTURI-holder, as recorded on the
books
of the Certificate Registrar, as holder of the Lower Tier Uncertificated
REMIC 1
Regular Interests.
HUD:
The
United States Department of Housing and Urban Development, or any successor
thereto.
Independent:
When
used with respect to any Accountants, a Person who is “independent” within the
meaning of Rule 2-01(b) of the Commission’s Regulation S-X. When used with
respect to any other Person, a Person who (a) is in fact independent of another
specified Person and any Affiliate of such other Person, (b) does not have
any
material direct financial interest in such other Person or any Affiliate
of such
other Person, (c) is not connected with such other Person or any Affiliate
of
such other Person as an officer, employee, promoter, underwriter, trustee,
partner, director or Person performing similar functions and (d) is not a
member
of the immediate family of a Person defined in clause (b) or (c)
above.
Index:
The
index specified in the related Mortgage Note for calculation of the Mortgage
Rate thereof.
Initial
LIBOR Rate:
5.320%.
Initial
Optional Termination Date:
The
first Distribution Date following the date on which the Aggregate Pool Balance
is less than 10.00% of the Cut-off Date Balance.
Insurance
Fee Rate:
Not
applicable.
Insurance
Policy:
Any
Primary Mortgage Insurance Policy, any standard hazard insurance policy,
flood
insurance policy, earthquake insurance policy or title insurance policy relating
to the Mortgage Loans or the Mortgaged Properties, to be in effect as of
the
Closing Date or thereafter during the term of this Agreement.
33
Insurance
Proceeds:
Amounts
paid by the insurer under any Insurance Policy, other than amounts (i) to
cover
expenses incurred by or on behalf of the Servicer or the Master Servicer
in
connection with procuring such proceeds, (ii) to be applied to restoration
or
repair of the related Mortgaged Property or (iii) required to be paid over
to
the Mortgagor pursuant to law or the related Mortgage Note.
Interest
Rate Cap Account:
The
account created pursuant to Section 5.07(b).
Interest
Rate Cap Agreement:
The
interest rate cap agreement (Ref. No. 1368106) dated March 30, 2007 entered
into
by the Trustee on behalf of the Supplemental Interest Trust and the Cap
Counterparty, which agreement provides for the monthly payment specified
therein
to the Trustee (for the benefit of the Certificateholders) commencing with
the
Distribution Date in December 2008 and ending on the Distribution Date in
March
2012, by the Cap Counterparty, but subject to the conditions set forth therein
together with any schedules, confirmations or other agreements relating thereto,
attached hereto as Exhibit N.
Interest
Rate Cap Amount:
With
respect to each Distribution Date, the amount of any Interest Rate Cap Payment
deposited into the Interest Rate Cap Account and any investment earnings
thereon.
Interest
Rate Cap Payment:
With
respect to each Distribution Date, any payment required to be made by the
Cap
Counterparty to the Supplemental Interest Trust pursuant to the terms of
the
Interest Rate Cap Agreement.
Interest
Rate Cap Payment Date:
For so
long as the Interest Rate Cap Agreement is in effect or any amounts remain
unpaid thereunder, the Business Day immediately preceding each Distribution
Date.
Interest
Remittance Amount:
With
respect to any Distribution Date and each Mortgage Pool, an amount equal
to (a)
the sum of (1) all interest collected (other than Payaheads and Prepayment
Charges) or advanced in respect of Scheduled Payments on the Mortgage Loans
in
such Mortgage Pool during the related Collection Period by the Servicer,
the
Master Servicer or the Securities Administrator (solely in its capacity as
successor master servicer), minus
(x) the
Servicing Fee with respect to such Mortgage Loans in such Mortgage Pool and
(y)
previously unreimbursed Advances due to the Servicer, the Master Servicer
or the
Securities Administrator (solely in its capacity as successor master servicer)
to the extent allocable to interest and the allocable portion of previously
unreimbursed Servicing Advances with respect to the Mortgage Loans in such
Mortgage Pool, (2) any amounts actually paid by the Servicer with respect
to
Prepayment Interest Shortfalls and any Compensating Interest Payments and
the
related Prepayment Period with respect to the Mortgage Loans in such Mortgage
Pool, (3) the portion of any Purchase Price (or First Payment Default Purchase
Price (excluding any FPD Premium) payable with respect to a First Payment
Default Mortgage Loan in such Mortgage Pool) or Substitution Amount paid
during
the related Prepayment Period allocable to interest and (4) all Net
Liquidation Proceeds, Insurance Proceeds, any Subsequent Recovery and any
other
recoveries collected during the related Prepayment Period, to the extent
allocable to interest with respect to the Mortgage Loans in such Mortgage
Pool,
as
reduced by
(b) the
product of (i) the applicable Pool Percentage for such Distribution Date
and
(ii) any other costs, expenses or liabilities reimbursable to the Trustee,
the
Master Servicer, the Securities Administrator, the Custodian and the Servicer
to
the extent provided in this Agreement, the Servicing Agreement and the Custodial
Agreement; provided,
however,
that in
the case of the Trustee, such reimbursable amounts payable to the Trustee
pursuant to Section 4.04(b)(i) may not exceed $200,000 during any Anniversary
Year. In the event that the Trustee incurs reimbursable amounts in excess
of
$200,000, it may seek reimbursement for such amounts in subsequent Anniversary
Years, but in no event shall more than $200,000 be reimbursed to the Trustee
per
Anniversary Year. Notwithstanding the foregoing, costs and expenses incurred
by
the Trustee pursuant to Section 6.14(a) in connection with any transfer of
servicing shall be excluded from the $200,000 per Anniversary Year limit
on
reimbursable amounts. For the avoidance of doubt, (i) the Interest Remittance
Amount available on each Swap Payment Date for distributions to the Swap
Account
shall be equal to the Interest Remittance Amount on the related Distribution
Date and (ii) the Interest Remittance Amount for each Distribution Date shall
be
calculated without regard to any distributions to the Swap Account on the
related Swap Payment Date.
34
Intervening
Assignments:
The
original intervening assignments of the Mortgage, notices of transfer or
equivalent instrument.
Latest
Possible Maturity Date:
The
Distribution Date occurring in February 2042.
LBH:
Xxxxxx
Brothers Holdings Inc., or any successor in interest.
LIBOR:
(a)
With respect to the first Accrual Period, the Initial LIBOR Rate. With respect
to each subsequent Accrual Period, a per annum rate determined on the LIBOR
Determination Date in the following manner by the Securities Administrator
on
the basis of the “Interest Settlement Rate” set by the British Bankers’
Association (the “BBA”) for one-month United States dollar deposits, as such
rates appear on the Telerate Page 3750, as of 11:00 a.m. (London time) on
such
LIBOR Determination Date.
(b) If
on
such a LIBOR Determination Date, the BBA’s Interest Settlement Rate does not
appear on the Telerate Page 3750 as of 11:00 a.m. (London time), or if the
Telerate Page 3750 is not available on such date, the Securities Administrator
will obtain such rate first
from
Reuters’ “page LIBOR 01,” or if such page is not available, then from
Bloomberg’s page “BBAM.” If any such rate is not published for such LIBOR
Determination Date, LIBOR for such date will be the most recently published
Interest Settlement Rate. In the event that the BBA no longer sets an Interest
Settlement Rate, the Securities Administrator will designate an alternative
index that has performed, or that the Securities Administrator expects to
perform, in a manner substantially similar to the BBA’s Interest Settlement
Rate. The Securities Administrator will select a particular index as the
alternative index only if it receives an Opinion of Counsel (a copy of which
shall be furnished to the Trustee and any NIMS Insurer), which opinion shall
be
an expense reimbursed from the Certificate Account pursuant to Section 4.04,
that the selection of such index will not cause any of the REMICs to lose
their
classification as REMICs for federal income tax purposes.
35
(c) The
establishment of LIBOR by the Securities Administrator and the Securities
Administrator’s subsequent calculation of the Certificate Interest Rate
applicable to the LIBOR Certificates, for the relevant Accrual Period, in
the
absence of manifest error, will be final and binding.
LIBOR
Business Day:
Any day
on which banks in London, England and The City of New York are open and
conducting transactions in foreign currency and exchange.
LIBOR
Certificate:
Any
Class A1, Class A2, Class A3, Class A4, Class A5, Class A6, Class M1, Class
M2,
Class M3, Class M4, Class M5, Class M6, Class M7, Class M8, Class M9, Class
B1,
Class B2 or Class B3 Certificate.
LIBOR
Determination Date:
The
second LIBOR Business Day immediately preceding the commencement of each
Accrual
Period for any LIBOR Certificate.
Liquidated
Mortgage Loan:
Any
defaulted Mortgage Loan as to which the Master Servicer or the Servicer has
determined that all amounts that it expects to recover on behalf of the Trust
Fund from or on account of such Mortgage Loan have been recovered.
Liquidation
Expenses:
Expenses that are incurred by the Master Servicer or the Servicer in connection
with the liquidation of any defaulted Mortgage Loan, and are not recoverable
under any Insurance Policy, if any, including, without limitation, foreclosure
and rehabilitation expenses, legal expenses and unreimbursed amounts, if
any,
expended pursuant to Sections 9.06, 9.16 or 9.22.
Liquidation
Proceeds:
Cash
received in connection with the liquidation of a defaulted Mortgage Loan,
whether through the sale or assignment of such Mortgage Loan, trustee’s sale,
foreclosure sale, payment in full, discounted payoff, condemnation proceeds,
Insurance Proceeds or otherwise, or the sale of the related Mortgaged Property
if the Mortgaged Property is acquired in satisfaction of the Mortgage Loan
by
foreclosure or deed in lieu of foreclosure, including any amounts remaining
in
the related Escrow Account.
Loan-to-Value
Ratio:
With
respect to any Mortgage Loan, the ratio of the principal balance of such
Mortgage Loan at origination, or such other date as is specified, to the
Original Value of the related Mortgaged Property.
Lower
Tier Interest:
As
described in the Preliminary Statement.
Lower
Tier REMIC 1 Uncertificated Regular Interests:
Lower
Tier Interests of REMIC 1 constituting regular interests held in uncertificated
form pursuant to a Section 7.01(c) Purchase Event.
LPMI
Policy:
A
Primary Mortgage Insurance Policy issued by a Qualified Insurer pursuant
to
which the related premium is to be paid from payments by the
mortgagee.
LTURI-holder:
The
holder of Lower Tier REMIC 1 Uncertificated Regular Interests, which upon
the
occurrence of a Section 7.01(c) Purchase Event shall be the Master Servicer
or
its designee, including any trustee in its capacity as trustee of any privately
placed securitization.
36
M1
Principal Distribution Amount:
For any
Distribution Date on or after the Stepdown Date and as long as a Trigger
Event
is not in effect with respect to such Distribution Date, the amount, if any,
by
which (x) the sum of (i) the aggregate of the Class Principal Amounts of
the Senior Certificates after giving effect to distributions on such
Distribution Date and (ii) the Class Principal Amount of the Class M1
Certificates immediately prior to such Distribution Date exceeds (y) the
M1
Target Amount for such Distribution Date.
M1
Target Amount:
For any
Distribution Date, an amount equal to the lesser of (a) the product of (1)
70.70% and (2) the Aggregate Pool Balance for such Distribution Date determined
as of the last day of the related Collection Period and (b) the amount, if
any,
by which (1) the Aggregate Pool Balance for such Distribution Date determined
as
of the last day of the related Collection Period exceeds (2) the
Overcollateralization Floor.
M2
Principal Distribution Amount:
For any
Distribution Date on or after the Stepdown Date and as long as a Trigger
Event
is not in effect with respect to such Distribution Date, the amount, if any,
by
which (x) the sum of (i) the aggregate of the Class Principal Amounts of
the Senior Certificates and the Class M1 Certificates, in each case, after
giving effect to distributions on such Distribution Date and (ii) the Class
Principal Amount of the Class M2 Certificates immediately prior to such
Distribution Date exceeds (y) the M2 Target Amount for such Distribution
Date.
M2
Target Amount:
For any
Distribution Date, an amount equal to the lesser of (a) the product of (1)
75.40% and (2) the Aggregate Pool Balance for such Distribution Date determined
as of the last day of the related Collection Period and (b) the amount, if
any,
by which (1) the Aggregate Pool Balance for such Distribution Date determined
as
of the last day of the related Collection Period exceeds (2) the
Overcollateralization Floor.
M3
Principal Distribution Amount:
For any
Distribution Date on or after the Stepdown Date and as long as a Trigger
Event
is not in effect with respect to such Distribution Date, the amount, if any,
by
which (x) the sum of (i) the aggregate of the Class Principal Amounts of
the Senior Certificates and the Class M1 and Class M2 Certificates, in each
case
after giving effect to distributions on such Distribution Date, and (ii)
the
Class Principal Amount of the Class M3 Certificates immediately prior to
such
Distribution Date exceeds (y) the M3 Target Amount for such Distribution
Date.
M3
Target Amount:
For any
Distribution Date, an amount equal to the lesser of (a) the product of (1)
78.60% and (2) the Aggregate Pool Balance for such Distribution Date determined
as of the last day of the related Collection Period and (b) the amount, if
any,
by which (1) the Aggregate Pool Balance for such Distribution Date determined
as
of the last day of the related Collection Period exceeds (2) the
Overcollateralization Floor.
M4
Principal Distribution Amount:
For any
Distribution Date on or after the Stepdown Date and as long as a Trigger
Event
is not in effect with respect to such Distribution Date, the amount, if any,
by
which (x) the sum of (i) the aggregate of the Class Principal Amounts of
the Senior Certificates and the Class M1, Class M2 and Class M3 Certificates,
in
each case after giving effect to distributions on such Distribution Date,
and
(ii) the Class Principal Amount of the Class M4 Certificates immediately
prior
to such Distribution Date exceeds (y) the M4 Target Amount for such Distribution
Date.
37
M4
Target Amount:
For any
Distribution Date, an amount equal to the lesser of (a) the product of (1)
81.70% and (2) the Aggregate Pool Balance for such Distribution Date determined
as of the last day of the related Collection Period and (b) the amount, if
any,
by which (1) the Aggregate Pool Balance for such Distribution Date determined
as
of the last day of the related Collection Period exceeds (2) the
Overcollateralization Floor.
M5
Principal Distribution Amount:
For any
Distribution Date on or after the Stepdown Date and as long as a Trigger
Event
is not in effect with respect to such Distribution Date, the amount, if any,
by
which (x) the sum of (i) the aggregate of the Class Principal Amounts of
the Senior Certificates and the Class M1, Class M2, Class M3 and Class M4
Certificates, in each case after giving effect to distributions on such
Distribution Date, and (ii) the Class Principal Amount of the Class M5
Certificates immediately prior to such Distribution Date exceeds (y) the
M5
Target Amount for such Distribution Date.
M5
Target Amount:
For any
Distribution Date, an amount equal to the lesser of (a) the product of (1)
84.70% and (2) the Aggregate Pool Balance for such Distribution Date determined
as of the last day of the related Collection Period and (b) the amount, if
any,
by which (1) the Aggregate Pool Balance for such Distribution Date determined
as
of the last day of the related Collection Period exceeds (2) the
Overcollateralization Floor.
M6
Principal Distribution Amount:
For any
Distribution Date on or after the Stepdown Date and as long as a Trigger
Event
is not in effect with respect to such Distribution Date, the amount, if any,
by
which (x) the sum of (i) the aggregate of the Class Principal Amounts of
the Senior Certificates and the Class M1, Class M2, Class M3, Class M4 and
Class
M5 Certificates, in each case after giving effect to distributions on such
Distribution Date, and (ii) the Class Principal Amount of the Class M6
Certificates immediately prior to such Distribution Date exceeds (y) the
M6
Target Amount for such Distribution Date.
M6
Target Amount:
For any
Distribution Date, an amount equal to the lesser of (a) the product of (1)
86.90% and (2) the Aggregate Pool Balance for such Distribution Date determined
as of the last day of the related Collection Period and (b) the amount, if
any,
by which (1) the Aggregate Pool Balance for such Distribution Date determined
as
of the last day of the related Collection Period exceeds (2) the
Overcollateralization Floor.
M7
Principal Distribution Amount:
For any
Distribution Date on or after the Stepdown Date and as long as a Trigger
Event
is not in effect with respect to such Distribution Date, the amount, if any,
by
which (x) the sum of (i) the aggregate of the Class Principal Amounts of
the Senior Certificates and the Class M1, Class M2, Class M3, Class M4, Class
M5
and Class M6 Certificates, in each case after giving effect to distributions
on
such Distribution Date, and (ii) the Class Principal Amount of the Class
M7
Certificates immediately prior to such Distribution Date exceeds (y) the
M7
Target Amount for such Distribution Date.
M7
Target Amount:
For any
Distribution Date, an amount equal to the lesser of (a) the product of (1)
89.00% and (2) the Aggregate Pool Balance for such Distribution Date determined
as of the last day of the related Collection Period and (b) the amount, if
any,
by which (1) the Aggregate Pool Balance for such Distribution Date determined
as
of the last day of the related Collection Period exceeds (2) the
Xxxxxxxxxxxxxxxxxxxxx Xxxxx.
00
X0
Principal Distribution Amount:
For any
Distribution Date on or after the Stepdown Date and as long as a Trigger
Event
is not in effect with respect to such Distribution Date, the amount, if any,
by
which (x) the sum of (i) the aggregate of the Class Principal Amounts of
the Senior Certificates and the Class M1, Class M2, Class M3, Class M4, Class
M5, Class M6 and Class M7 Certificates, in each case after giving effect to
distributions on such Distribution Date, and (ii) the Class Principal Amount
of
the Class M8 Certificates immediately prior to such Distribution Date exceeds
(y) the M8 Target Amount for such Distribution Date.
M8
Target Amount:
For any
Distribution Date, an amount equal to the lesser of (a) the product of (1)
91.00% and (2) the Aggregate Pool Balance for such Distribution Date determined
as of the last day of the related Collection Period and (b) the amount, if
any,
by which (1) the Aggregate Pool Balance for such Distribution Date determined
as
of the last day of the related Collection Period exceeds (2) the
Overcollateralization Floor.
M9
Principal Distribution Amount:
For any
Distribution Date on or after the Stepdown Date and as long as a Trigger
Event
is not in effect with respect to such Distribution Date, the amount, if any,
by
which (x) the sum of (i) the aggregate of the Class Principal Amounts of
the Senior Certificates and the Class M1, Class M2, Class M3, Class M4, Class
M5, Class M6, Class M7 and Class M8 Certificates, in each case after
giving effect to distributions on such Distribution Date, and (ii) the Class
Principal Amount of the Class M9 Certificates immediately prior to such
Distribution Date exceeds (y) the M9 Target Amount for such Distribution
Date.
M9
Target Amount:
For any
Distribution Date, an amount equal to the lesser of (a) the product of (1)
92.50% and (2) the Aggregate Pool Balance for such Distribution Date determined
as of the last day of the related Collection Period and (b) the amount, if
any,
by which (1) the Aggregate Pool Balance for such Distribution Date determined
as
of the last day of the related Collection Period exceeds (2) the
Overcollateralization Floor.
Master
Servicer:
Aurora
Loan Services LLC, or any successor in interest, or if any successor master
servicer shall be appointed as herein provided, then such successor master
servicer.
Master
Servicer Remittance Date:
With
respect to each Distribution Date, three Business Days immediately preceding
such Distribution Date.
Master
Servicing Fee:
As to
any Distribution Date, an amount equal to 1/12th
the
product of (a) the Master Servicing Fee Rate and (b) the outstanding principal
balance of each Mortgage Loan.
Master
Servicing Fee Rate:
0.00%
per annum.
Material
Defect:
As
defined in Section 2.02(c) hereof.
39
Maximum
Interest Rate:
The
Pool 1 Maximum Interest Rate, the Pool 2 Maximum Interest Rate or the
Subordinate Maximum Interest Rate, as applicable.
MERS:
Mortgage Electronic Registration Systems, Inc., a Delaware corporation, or
any
successor in interest thereto.
MERS
Mortgage Loan:
Any
Mortgage Loan as to which the related Mortgage, or an Assignment of Mortgage,
has been or will be recorded in the name of MERS, as nominee for the holder
from
time to time of the Mortgage Note.
Monthly
Excess Cashflow:
For
each Distribution Date, the aggregate of any remaining Interest Remittance
Amount pursuant to Section 5.02(d)(v) for such date, any Principal Distribution
Amount remaining pursuant to Section 5.02(e)(ii)(C), 5.02(e)(iii),
5.02(e)(iv)(P) or 5.02(e)(v) for such date, and any Aggregate
Overcollateralization Release Amount for such date.
Moody’s:
Xxxxx’x
Investors Service, Inc., or any successor in interest.
Mortgage:
A
mortgage, deed of trust or other instrument encumbering a fee simple interest
in
real property securing a Mortgage Note, together with improvements
thereto.
Mortgage
File:
The
mortgage documents listed in Section 2.01(b) pertaining to a particular Mortgage
Loan required to be delivered to the Trustee or the Custodian pursuant to
this
Agreement and any related Retained Mortgage File that is delivered to the
Custodian or the Trustee pursuant to Section 2.01(c) of this
Agreement.
Mortgage
Loan:
A
Mortgage and the related notes or other evidences of indebtedness secured
by
each such Mortgage conveyed, transferred, sold, assigned to or deposited
with
the Trustee pursuant to Section 2.01 or Section 2.05, including without
limitation each Mortgage Loan listed on the Mortgage Loan Schedule, as amended
from time to time.
Mortgage
Loan Sale Agreement:
The
mortgage loan sale and assignment agreement dated as of March 1, 2007, for
the
sale of the Mortgage Loans by the Seller to the Depositor.
Mortgage
Loan Schedule:
The
schedule attached hereto as Schedule A, which shall identify each Mortgage
Loan,
as such schedule may be amended from time to time to reflect the addition
of
Mortgage Loans to, or the deletion of Mortgage Loans from, the Trust Fund.
Such
schedule shall set forth, among other things, the following information with
respect to each Mortgage Loan: (i) the Mortgage Loan identifying number;
(ii)
the city, state and zip code of the Mortgaged Property; (iii) the original
principal amount of the Mortgage Loan; (iv) the Mortgage Rate at origination;
(v) the monthly payment of principal and interest at origination; (vi) the
Servicing Fee Rate; (vii) the Mortgage Pool in which such Mortgage Loan is
included; (viii) whether such Mortgage Loan is subject to a Prepayment Charge
for voluntary prepayments by the Mortgagor, the term during which such
Prepayment Charges are imposed and the methods of calculation of the Prepayment
Charges; and (ix) whether such Mortgage Loan is a Simple Interest Mortgage
Loan.
The Depositor shall be responsible for providing the Trustee and the Master
Servicer with all amendments to the Mortgage Loan Schedule.
40
Mortgage
Note:
The
note or other evidence of the indebtedness of a Mortgagor secured by a Mortgage
under a Mortgage Loan.
Mortgage
Pool:
Any of
Pool 1 or Pool 2, as the context requires.
Mortgage
Rate:
With
respect to any Mortgage Loan, the per annum rate at which interest accrues
on
such Mortgage Loan, as determined under the related Mortgage Note as reduced
by
any Relief Act Reductions.
Mortgaged
Property:
Either
of (x) the fee simple interest in real property, together with improvements
thereto including any exterior improvements to be completed within 120 days
of
disbursement of the related Mortgage Loan proceeds, or (y) in the case of
a
Cooperative Loan, the related Cooperative Shares and Proprietary Lease, securing
the indebtedness of the Mortgagor under the related Mortgage Loan.
Mortgagor:
The
obligor on a Mortgage Note.
Net
Excess Spread:
With
respect to any Distribution Date, (A) the fraction, expressed as a percentage,
the numerator of which is equal to the product of (i) the amount, if any,
by
which (a) the aggregate of the Interest Remittance Amounts for each Mortgage
Pool for such Distribution Date (as reduced by the aggregate Credit Risk
Manager’s Fee) exceeds (b) the Current Interest payable with respect to the
Certificates for such date and (ii) twelve, and the denominator of which
is the
Aggregate Pool Balance for such Distribution Date, multiplied
by
(B) a
fraction, the numerator of which is thirty (30) and the denominator of which
is
the greater of thirty (30) and the actual number of days in the immediately
preceding calendar month; minus
(C) the
product, expressed as a percentage, of (i) the amount of any Net Swap Payment
owed to the Swap Counterparty for such Distribution Date divided by the
Aggregate Pool Balance as of the beginning of the related Collection Period
and
(ii) a fraction, the numerator of which is 360 and the denominator of which
is
the actual number of days in the Accrual Period related to such Distribution
Date, plus (D) the product, expressed as a percentage, of (i) the sum of
(a) the
amount of any Net Swap Payment and (b) any Interest Rate Cap Payment received
by
the Supplemental Interest Trust for such Distribution Date divided by the
Aggregate Pool Balance as of the beginning of the related Collection Period
and
(ii) a fraction, the numerator of which is 360 and the denominator of which
is
the actual number of days in the Accrual Period related to such Distribution
Date.
Net
Funds Cap:
The
Pool 1 Net Funds Cap, the Pool 2 Net Funds Cap or the Subordinate Net Funds
Cap,
as the context requires.
Net
Liquidation Proceeds:
With
respect to any Liquidated Mortgage Loan, the related Liquidation Proceeds
net of
(i) unreimbursed expenses and (ii) any unreimbursed Advances, if any, received
and retained in connection with the liquidation of such Mortgage
Loan.
Net
Mortgage Rate:
With
respect to any Mortgage Loan, the Mortgage Rate thereof reduced by the Servicing
Fee Rate for such Mortgage Loan.
Net
Prepayment Interest Shortfall:
With
respect to any Master Servicer Remittance Date, the excess, if any, of any
Prepayment Interest Shortfalls with respect to the Mortgage Loans for such
date
over any amounts paid with respect to such shortfalls by the Servicer pursuant
to the Servicing Agreement.
41
Net
Simple Interest Excess:
With
respect to any Distribution Date, the excess, if any, of (a) the amount of
the
payments received by the Servicer and the Master Servicer in the related
Collection Period allocable to interest in respect of Simple Interest Mortgage
Loans, calculated in accordance with the Simple Interest Method, net of the
Servicing Fees, over (b) 30 days’ interest at the weighted average (by principal
balance) of the Net Mortgage Rates of the Simple Interest Mortgage Loans
as of
the first day of the related Collection Period, as determined by the Servicer,
on the aggregate principal balance of such Simple Interest Mortgage Loans
for
such Distribution Date, carried to six decimal places, rounded down, and
calculated on the basis of a 360-day year consisting of twelve 30-day months.
For this purpose, the amount of interest received in respect of the Simple
Interest Mortgage Loans in any month shall be deemed (a) to include any Advances
of interest made by the Servicer, the Master Servicer or the Securities
Administrator (solely in its capacity as successor servicer) in such month
in
respect of such Simple Interest Mortgage Loans and (b) to be reduced by any
amounts paid to the Servicer, the Master Servicer or the Securities
Administrator (solely in its capacity as successor servicer) in such month
in
reimbursement of Advances previously made by the Servicer, the Master Servicer
or the Securities Administrator (solely in its capacity as successor servicer)
in respect of such Simple Interest Mortgage Loans.
Net
Simple Interest Shortfall:
With
respect to any Distribution Date, the excess, if any, of (a) 30 days’ interest
at the weighted average (by principal balance) of the Net Mortgage Rates
of the
Simple Interest Mortgage Loans as of the first day of the related Collection
Period, as determined by the Servicer, on the aggregate principal balance
of
such Simple Interest Mortgage Loans for such Distribution Date, carried to
six
decimal places, rounded down, and calculated on the basis of a 360-day year
consisting of twelve 30-day months, over (b) the amount of the payments received
by the Servicer or the Master Servicer in the related Collection Period
allocable to interest in respect of such Simple Interest Mortgage Loans,
calculated in accordance with the Simple Interest Method, net of the Servicing
Fees.
Net
Swap Payment:
With
respect to each Swap Payment Date, the sum of (i) the net payment required
to be
made pursuant to the terms of the Swap Agreement, which net payment shall
not
take into account any Swap Termination Payment, and (ii) any unpaid amounts
due
on previous Swap Payment Dates and accrued interest thereon as provided in
the
Swap Agreement, as calculated by the Swap Counterparty and furnished to the
Securities Administrator.
Net
WAC Rate:
With
respect to any Distribution Date (and the related Accrual Period), a per
annum
rate equal to the weighted average of the Net Mortgage Rates of the Mortgage
Loans as of the first day of the related Collection Period (not including
for
this purpose Mortgage Loans for which prepayments in full have been received
and
distributed in the month prior to that Distribution Date).
NIM
Redemption Amount:
As
defined in Section 7.01(b).
NIM
Residual Securities:
Any
preference shares, ownership certificates or other residual certificates
issued
in connection with any NIM Securities.
42
NIM
Securities:
Any net
interest margin securities (other than any NIM Residual Securities) issued
by a
trust or other special purpose entity, the principal assets of such trust
including the Class P and Class X Certificates and the payments received
thereon, which principal assets back such securities.
NIMS
Agreement:
Any
agreement pursuant to which the NIM Securities are issued.
NIMS
Insurer:
One or
more insurers issuing financial guaranty insurance policies in connection
with
the issuance of NIM Securities. As of the Closing Date, Radian Insurance
Inc.
has been selected as a NIMS Insurer in connection with a NIM transaction,
which
includes the Class P and Class X Certificates as the NIM
Securities.
Non-Book-Entry
Certificate:
Any
Certificate other than a Book-Entry Certificate.
Non-MERS
Mortgage Loan:
Any
Mortgage Loan other than a MERS Mortgage Loan.
Non-permitted
Foreign Holder:
As
defined in Section 3.03(j).
Non-U.S.
Person:
Any
person other than a “United States person” within the meaning of Section
7701(a)(30) of the Code.
Notional
Amount:
Not
applicable.
Notional
Certificate:
Not
applicable.
Offered
Certificates:
Any of
the Senior Certificates and the Class M Certificates.
Offering
Document:
Each of
the Prospectus and the Private Placement Memorandum.
Officer’s
Certificate:
A
certificate signed by the Chairman of the Board, any Vice Chairman, the
President, any Vice President or any Assistant Vice President of a Person,
and
in each case delivered to the Trustee.
Opinion
of Counsel:
A
written opinion of counsel, reasonably acceptable in form and substance to
the
Trustee, and which may be in-house or outside counsel to the Depositor, the
Master Servicer or the Trustee but which must be Independent outside counsel
with respect to any such opinion of counsel concerning the transfer of any
Residual Certificate or concerning certain matters with respect to the ERISA,
or
the taxation, or the federal income tax status, of each REMIC.
Original
Mortgage Loan:
As
described in the Preliminary Statement.
Original
Value:
The
lesser of (a) the Appraised Value of a Mortgaged Property at the time the
related Mortgage Loan was originated and (b) if the Mortgage Loan was made
to
finance the acquisition of the related Mortgaged Property, the purchase price
paid for the Mortgaged Property by the Mortgagor at the time the related
Mortgage Loan was originated.
43
Overcollateralization
Amount:
With
respect to any Distribution Date, the amount, if any, by which (x) the Aggregate
Pool Balance for such Distribution Date exceeds (y) the aggregate Class
Principal Amount of the LIBOR Certificates after giving effect to distributions
on such Distribution Date.
Overcollateralization
Deficiency:
With
respect to any Distribution Date, the amount, if any, by which (x) the Targeted
Overcollateralization Amount for such Distribution Date exceeds (y) the
Overcollateralization Amount for such Distribution Date, calculated for this
purpose after giving effect to the reduction on such Distribution Date of
the
Certificate Principal Amounts of the LIBOR Certificates resulting from the
distribution of the Principal Distribution Amount on such Distribution Date,
but
prior to allocation of any Applied Loss Amount on such Distribution
Date.
Overcollateralization
Floor:
An
amount equal to 0.50% of the Cut-off Date Balance which is
$4,239,625.85.
Payahead:
With
respect to any Mortgage Loan and any Due Date therefor, any Scheduled Payment
received by the Servicer during any Collection Period in addition to the
Scheduled Payment due on such Due Date, intended by the related Mortgagor
to be
applied on a subsequent Due Date or Due Dates.
Paying
Agent:
Any
paying agent appointed pursuant to Section 3.08.
PCAOB:
The
Public Company Accounting Oversight Board.
Percentage
Interest:
With
respect to any Certificate, its percentage interest in the undivided beneficial
ownership interest in the Trust Fund evidenced by all Certificates of the
same
Class as such Certificate. With respect to any LIBOR Certificate, the Percentage
Interest evidenced thereby shall equal the Certificate Principal Amount thereof
divided by the Class Principal Amount of all Certificates of the same Class.
With respect to the Class X, Class P, Class LT-R and Class R Certificates,
the
Percentage Interest evidenced thereby shall be as specified on the face thereof,
or otherwise be equal to 100%.
Permitted
Servicing Amendment:
Any
amendment to the Servicing Agreement pursuant to Section 11.03(a)(iii) hereunder
in connection with any servicing transfer or transfer of any servicing
rights.
Person:
Any
individual, corporation, partnership, joint venture, association, joint-stock
company, limited liability company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
Plan:
An
employee benefit plan or other retirement arrangement which is subject to
Section 406 of ERISA and/or Section 4975 of the Code or any entity whose
underlying assets include such plan’s or arrangement’s assets by reason of their
investment in the entity.
Plan
Asset Regulations:
The
Department of Labor regulations set forth in 29 C.F.R. 2510.3-101.
44
PMI
Insurance Premium:
Not
applicable.
PMI
Insurer:
Not
applicable.
Pool
1:
The
aggregate of the Mortgage Loans identified on the Mortgage Loan Schedule
as
being included in Pool 1.
Pool
1
Maximum Interest Rate:
For the
Group 1 Senior Certificates, for each Distribution Date on or before the
Distribution Date on which the aggregate Class Principal Amount of the Group
2
Senior Certificates has been reduced to zero, an annual rate equal to (a)
the
product, expressed as a percentage, of (1) the amount, if any, by which the
weighted average of the excess of the maximum “lifetime” Mortgage Rates, as
specified in the related Mortgage Notes for the Pool 1 Mortgage Loans exceeds
the applicable weighted average Servicing Fee Rate and (2) a fraction, the
numerator of which is 30 and the denominator of which is the actual number
of
days in the Accrual Period related to such Distribution Date; plus
(b) the
product, expressed as a percentage, of (1) the sum of (x) the amount of any
Net
Swap Payment owed by the Swap Counterparty on the related Swap Payment Date
allocable to Pool 1 (based on the applicable Pool Percentage) and (y) any
Interest Rate Cap Amount owed by the Cap Counterparty on the related Interest
Rate Cap Payment Date allocable to Pool 1 (based on the applicable Pool
Percentage) divided by the Pool Balance for Pool 1 as of the beginning of
the
related Collection Period and (2) a fraction, the numerator of which is 360
and
the denominator of which is the actual number of days in the Accrual Period
related to such Distribution Date; minus
(c) the
product, expressed as a percentage, of (1) the amount of any Net Swap Payment
owed to the Swap Counterparty on the related Swap Payment Date allocable
to Pool
1 (based on the applicable Pool Percentage) divided by the Pool Balance for
Pool
1 as of the beginning of the related Collection Period and (2) a fraction,
the
numerator of which is 360 and the denominator of which is the actual number
of
days in the Accrual Period related to such Distribution Date.
Pool
1
Net Funds Cap:
For the
Group 1 Senior Certificates, and for each Distribution Date on or before
the
Distribution Date on which the aggregate Class Principal Amount of the Group
2
Certificates has been reduced to zero, a per annum rate equal to (a) a fraction,
expressed as a percentage, the numerator of which is the product of (1) the
excess, if any, of (i) the Pool 1 Optimal Interest Remittance Amount for
such
date over (ii) any Net Swap Payment or Swap Termination Payment (not due
to a
Swap Counterparty Trigger Event) owed to the Swap Counterparty on the related
Swap Payment Date allocable to Pool 1 (based on the applicable Pool Percentage)
and (2) 12, and the denominator of which is the Pool Balance for Pool 1 as
of
the first day of the related Collection Period (excluding for this purpose
any
Mortgage Loans in Pool 1 for which any Principal Prepayments in full have
been
deposited into the Collection Account and distributed therefrom in accordance
with Section 5.02 during the month prior to such Distribution Date),
multiplied
by
(b) a
fraction, the numerator of which is 30 and the denominator of which is the
actual number of days in the Accrual Period related to such Distribution
Date.
Pool
1
Optimal Interest Remittance Amount:
With
respect to each Distribution Date, an amount equal to the product of (a)
the
quotient of (i) the weighted average of the Net Mortgage Rates of the Mortgage
Loans in Pool 1 as of the first day of the related Collection Period, and
(ii)
12 and (b) the Pool Balance for Pool 1 as of the first day of the related
Collection Period (excluding for purposes of clauses (a)(i) and (b) any Mortgage
Loans in Pool 1 for which any Principal Prepayments in full have been deposited
into the Collection Account and distributed therefrom in accordance with
Section
5.02 during the month prior to such Distribution Date).
45
Pool
2:
The
aggregate of the Mortgage Loans identified on the Mortgage Loan Schedule
as
being included in Pool 2.
Pool
2
Maximum Interest Rate:
For the
Group 2 Senior Certificates, and for each Distribution Date on or before
the
Distribution Date on which the Class Principal Amount of the Group 1 Senior
Certificates has been reduced to zero, an annual rate equal to (a) the product,
expressed as a percentage, of (1) the amount, if any, by which the weighted
average of the excess of the maximum “lifetime” Mortgage Rates, as specified in
the related Mortgage Notes for the Pool 2 Mortgage Loans exceeds the applicable
weighted average Servicing Fee Rate and (2) a fraction, the numerator of
which
is 30 and the denominator of which is the actual number of days in the Accrual
Period related to such Distribution Date; plus
(b) the
product, expressed as a percentage, of (1) the sum of (x) the amount of any
Net
Swap Payment owed by the Swap Counterparty on the related Swap Payment Date
allocable to Pool 2 (based on the applicable Pool Percentage) and (y) any
Interest Rate Cap Amount owed by the Cap Counterparty on the related Interest
Rate Cap Payment Date allocable to Pool 2 (based on the applicable Pool
Percentage) divided by the Pool Balance for Pool 2 as of the beginning of
the
related Collection Period and (2) a fraction, the numerator of which is 360
and
the denominator of which is the actual number of days in the Accrual Period
related to such Distribution Date; minus
(c) the
product, expressed as a percentage, of (1) the amount of any Net Swap Payment
owed to the Swap Counterparty on the related Swap Payment Date allocable
to Pool
2 (based on the applicable Pool Percentage) divided by the Pool Balance for
Pool
2 as of the beginning of the related Collection Period and (2) a fraction,
the
numerator of which is 360 and the denominator of which is the actual number
of
days in the Accrual Period related to such Distribution Date.
Pool
2
Net Funds Cap:
For the
Group 2 Senior Certificates, and for each Distribution Date on or before
the
Distribution Date on which the Class Principal Amount of the Group 1 Senior
Certificates has been reduced to zero, a per annum rate equal to (a) a fraction,
expressed as a percentage, the numerator of which is the product of (1) the
excess, if any, of (i) the Pool 2 Optimal Interest Remittance Amount for
such
date over (ii) any Net Swap Payment or Swap Termination Payment (not due
to a
Swap Counterparty Trigger Event) owed to the Swap Counterparty on the related
Swap Payment Date allocable to Pool 2 (based on the applicable Pool Percentage)
and (2) 12, and the denominator of which is the Pool Balance for Pool 2 as
of
the first day of the related Collection Period (excluding for this purpose
any
Mortgage Loans in Pool 2 for which any Principal Prepayments in full have
been
deposited into the Collection Account and distributed therefrom in accordance
with Section 5.02 during the month prior to such Distribution Date),
multiplied
by
(b) a
fraction, the numerator of which is 30 and the denominator of which is the
actual number of days in the Accrual Period related to such Distribution
Date.
Pool
2
Optimal Interest Remittance Amount:
With
respect to each Distribution Date, an amount equal to the product of (a)
the
quotient of (i) the weighted average of the Net Mortgage Rates of the Mortgage
Loans in Pool 2 as of the first day of the related Collection Period, and
(ii)
12 and (b) the Pool Balance for Pool 2 as of the first day of the related
Collection Period (excluding for purposes of clauses (a)(i) and (b) any Mortgage
Loans in Pool 2 for which any Principal Prepayments in full have been deposited
into the Collection Account and distributed therefrom in accordance with
Section
5.02 during the month prior to such Distribution Date).
46
Pool
Balance:
With
respect to each Mortgage Pool, the aggregate of the Scheduled Principal Balances
of all Mortgage Loans in such Mortgage Pool at the date of
determination.
Pool
Percentage:
With
respect to each Mortgage Pool and any Distribution Date, the fraction, expressed
as a percentage, the numerator of which is the Pool Balance for such Mortgage
Pool for such date and the denominator of which is the Aggregate Pool Balance
for such date.
Pool
Subordinate Amount:
As to
each Mortgage Pool and any Distribution Date, the excess of the Pool Balance
for
such Mortgage Pool as of the first day of the immediately preceding Collection
Period over (i) the aggregate Class Principal Amount of the Group 1 Senior
Certificates (in the case of Pool 1) or (ii) the aggregate Class Principal
Amounts of the Group 2 Senior Certificates (in the case of Pool 2) immediately
prior to the related Distribution Date.
Prepayment
Interest Shortfall:
With
respect to any full or partial Principal Prepayment of a Mortgage Loan, the
excess, if any, of (i) one full month’s interest at the applicable Mortgage Rate
(as reduced by the Servicing Fee in the case of Principal Prepayments in
full)
on the outstanding principal balance of such Mortgage Loan immediately prior
to
such prepayment over (ii) the amount of interest actually received with respect
to such Mortgage Loan in connection with such Principal Prepayment.
Prepayment
Charge:
With
respect to any Mortgage Loan and Prepayment Period, the charge or premium,
if
any, due in connection with a full prepayment of such Mortgage Loan during
a
Prepayment Period in accordance with the terms thereof (other than any Servicer
Prepayment Charge Amount).
Prepayment
Period:
With
respect to any Distribution Date and any Principal Prepayment, whether in
part
or in full (including any Principal Prepayment due to liquidation of a Mortgage
Loan), the calendar month immediately preceding the month in which such
Distribution Date occurs.
Primary
Mortgage Insurance Policy:
Any
mortgage guaranty insurance, if any, on an individual Mortgage Loan, including
any LPMI Policy, as evidenced by a policy or certificate, whether such policy
is
obtained by the originator, the lender, the borrower or the Seller on behalf
of
the Trust Fund.
Prime
Rate:
The
prime rate of the United States money center commercial banks as published
in
The
Wall Street Journal.
Principal
Distribution Amount:
With
respect to each Mortgage Pool and any Distribution Date, an amount equal
to (a)
the Principal Remittance Amount for such Mortgage Pool for such date
minus
(b) the
Aggregate Overcollateralization Release Amount, if any, allocable to such
Mortgage Pool (based on the applicable Senior Proportionate Percentage),
if any,
for such Distribution Date.
47
Principal
Prepayment:
Any
Mortgagor payment of principal (other than a Balloon Payment) or other recovery
of principal on a Mortgage Loan that is recognized as having been received
or
recovered in advance of its scheduled Due Date and applied to reduce the
principal balance of the Mortgage Loan in accordance with the terms of the
Mortgage Note or the Servicing Agreement.
Principal
Remittance Amount:
With
respect to any Distribution Date and each Mortgage Pool, (a) the sum of (i)
all
principal collected (other than Payaheads and Prepayment Charges) or advanced
in
respect of Scheduled Payments on the Mortgage Loans in such Mortgage Pool
during
the related Collection Period whether by the Servicer, the Master Servicer
or
the Securities Administrator (less unreimbursed Advances due to the Master
Servicer, the Servicer or the Securities Administrator with respect to the
related Mortgage Loans to the extent allocable to principal), (ii) all Principal
Prepayments in full or in part received on the Mortgage Loans in such Mortgage
Pool during the related Prepayment Period, (iii) the outstanding principal
balance of each Mortgage Loan in such Mortgage Pool that was purchased from
the
Trust Fund by the Seller or the Transferor during the related Prepayment
Period
or any NIMS Insurer (in the case of certain Mortgage Loans 90 days or more
delinquent) from such Mortgage Pool, (iv) the portion of the Purchase Price
or
First Payment Default Purchase Price (excluding any FPD Premium) payable
with
respect to a First Payment Default Mortgage Loan or any Substitution Amount
paid
with respect to any Deleted Mortgage Loan in such Mortgage Pool during the
related Prepayment Period allocable to principal and (v) all Net Liquidation
Proceeds, Insurance Proceeds, any Subsequent Recovery and other recoveries
collected with respect to the Mortgage Loans in such Mortgage Pools during
the
related Prepayment Period, to the extent allocable to principal, as reduced
by
(b) to the extent not reimbursed from the Interest Remittance Amount, any
other
costs, expenses or liabilities reimbursable to the Trustee, the Master Servicer,
the Securities Administrator, the Custodian and the Servicer to the extent
provided in this Agreement, the Servicing Agreement and the Custodial Agreement
and, with respect to the Trustee, to the extent the Interest Remittance Amount
is less than amounts reimbursable to the Trustee pursuant to Section 4.04(b)(i),
the product of (x) the applicable Pool Percentage for such Distribution Date
and
(y) any amounts reimbursable during the related Anniversary Year to the Trustee
therefrom and not reimbursed from the Interest Remittance Amount, or otherwise;
provided,
however,
that
such reimbursable amounts from the Interest Remittance Amount and the Principal
Remittance Amount may not exceed $200,000 in the aggregate during any
Anniversary Year. In the event that the Trustee incurs reimbursable amounts
in
excess of $200,000, it may seek reimbursement for such amounts in subsequent
Anniversary Years, but in no event shall more than $200,000 be reimbursed
to the
Trustee per Anniversary Year. Notwithstanding the foregoing, costs and expenses
incurred by the Trustee pursuant to Section 6.14(a) in connection with any
transfer of servicing shall be excluded from the $200,000 per Anniversary
Year
limit on reimbursable amounts. For the avoidance of doubt, the (i) the Principal
Remittance Amount available on each Swap Payment Date for distributions to
the
Swap Account shall be equal to the Principal Remittance Amount on the related
Distribution Date and (ii) the Principal Remittance Amount for each Distribution
Date shall be calculated without regard to any distributions to the Swap
Account
on the related Swap Payment Date.
Private
Placement Memorandum:
The
private placement memorandum dated March 26, 2007, relating to the Class
B
Certificates.
48
Proceeding:
Any
suit in equity, action at law or other judicial or administrative
proceeding.
Proprietary
Lease:
With
respect to any Cooperative Unit, a lease or occupancy agreement between a
Cooperative Corporation and a holder of related Cooperative Shares.
Prospectus:
The
prospectus supplement dated March 26, 2007, together with the accompanying
prospectus dated March 26, 2007, relating to the Offered
Certificates.
Purchase
Price:
With
respect to the purchase of a Mortgage Loan or related REO Property pursuant
to
this Agreement, an amount equal to the sum of (a) 100% of the unpaid principal
balance of such Mortgage Loan; (b) accrued interest thereon at the applicable
Mortgage Rate, from the date as to which interest was last paid to (but not
including) the Due Date in the Collection Period immediately preceding the
related Distribution Date; (c) the amount of any costs and damages incurred
by
the Trust Fund as a result of any violation of any applicable federal, state
or
local predatory- or abusive-lending law arising from or in connection with
the
origination of such Mortgage Loan; and (d) any unreimbursed Servicing Advances
with respect to such Mortgage Loan. The Master Servicer, the Servicer, the
Custodian (or the Trustee or the Securities Administrator, if applicable)
shall
be reimbursed from the Purchase Price for any Mortgage Loan or related REO
Property for any Advances made or other amounts advanced with respect to
such
Mortgage Loan that are reimbursable to the Master Servicer or the Servicer
under
this Agreement or the Servicing Agreement (or to the Trustee or the Securities
Administrator, if applicable), together with any accrued and unpaid compensation
due to the Master Servicer, the Securities Administrator, the Servicer, the
Custodian or the Trustee hereunder or thereunder.
Purchaser
Call Option Notice:
As
defined in Section 7.01(d).
QIB:
As
defined in Section 3.03(c).
Qualified
GIC:
A
guaranteed investment contract or surety bond providing for the investment
of
funds in the Collection Account, the Securities Administration Account or
the
Certificate Account and insuring a minimum, fixed or floating rate of return
on
investments of such funds, which contract or surety bond shall:
(i) be
an
obligation of an insurance company or other corporation whose long-term debt
is
rated by each Rating Agency in one of its two highest rating categories or,
if
such insurance company has no long-term debt, whose claims paying ability
is
rated by each Rating Agency in one of its two highest rating categories,
and
whose short-term debt is rated by each Rating Agency in its highest rating
category;
(ii) provide
that the Trustee, Master Servicer or Securities Administrator may exercise
all
of the rights under such contract or surety bond without the necessity of
taking
any action by any other Person;
(iii) provide
that if at any time the then current credit standing of the obligor under
such
guaranteed investment contract is such that continued investment pursuant
to
such contract of funds would result in a downgrading of any rating of the
Certificates or the NIM Securities, the Master Servicer, the Securities
Administrator or the Trustee, as applicable, shall terminate such contract
without penalty and be entitled to the return of all funds previously invested
thereunder, together with accrued interest thereon at the interest rate provided
under such contract to the date of delivery of such funds to the
Trustee;
49
(iv) provide
that the Trustee’s, Master Servicer’s or Securities Administrator’s interest, as
applicable, therein shall be transferable to any successor trustee hereunder;
and
(v) provide
that the funds reinvested thereunder and accrued interest thereon be returnable
to the Collection Account, the Securities Administration Account or the
Certificate Account, as the case may be, not later than the Business Day
prior
to any Distribution Date.
Qualified
Insurer:
An
insurance company duly qualified as such under the laws of the states in
which
the related Mortgaged Properties are located, duly authorized and licensed
in
such states to transact the applicable insurance business and to write the
insurance provided and whose claims paying ability is rated by each Rating
Agency in its highest rating category or whose selection as an insurer will
not
adversely affect the ratings of the Certificates.
Qualifying
Substitute Mortgage Loan:
In the
case of a Mortgage Loan substituted for a Deleted Mortgage Loan pursuant
to the
terms of this Agreement, a Mortgage Loan that, on the date of such substitution,
(i) has an outstanding Scheduled Principal Balance (or in the case of a
substitution of more than one mortgage loan for a Deleted Mortgage Loan,
an
aggregate Scheduled Principal Balance), after application of all Scheduled
Payments due during or prior to the month of substitution, not in excess
of, and
not more than 5% less than, the outstanding Scheduled Principal Balance of
the
Deleted Mortgage Loan as of the Due Date in the calendar month during which
the
substitution occurs, (ii) has a Mortgage Rate not less than the Mortgage
Rate on
the Deleted Mortgage Loan, (iii) if applicable, has a maximum Mortgage Rate
not
less than the maximum Mortgage Rate on the Deleted Mortgage Loan, (iv) has
a
minimum Mortgage Rate not less than the minimum Mortgage Rate of the Deleted
Mortgage Loan, (v) if applicable, has a gross margin equal to or greater
than
the gross margin of the Deleted Mortgage Loan, (vi) if applicable, is not
a
Cooperative Loan unless the related Deleted Mortgage Loan was a Cooperative
Loan, (vii) if applicable, has a next adjustment date not later than the
next
adjustment date on the Deleted Mortgage Loan, (viii) has the same Due Date
as
the Deleted Mortgage Loan, (ix) has a remaining stated term to maturity not
longer than 18 months and not more than 18 months shorter than the remaining
stated term to maturity of the related Deleted Mortgage Loan; provided,
that
in
no case shall such substitute Mortgage Loan have a maturity date later than
the
Final Scheduled Distribution Date, (x) is current as of the date of
substitution, (xi) has a Loan-to-Value Ratio as of the date of substitution
equal to or lower than the Loan-to-Value Ratio of the Deleted Mortgage Loan
as
of such date, (xii) has been underwritten by the Transferor in accordance
with
the same underwriting criteria and guidelines as the Deleted Mortgage Loan,
(xiii) has a risk grading determined by the Seller at least equal to the
risk
grading assigned on the Deleted Mortgage Loan, (xiv) is secured by the same
property type as the Deleted Mortgage Loan, (xv) conforms to each representation
and warranty applicable to the Deleted Mortgage Loan made in the related
Mortgage Loan Sale Agreement, (xvi) has the same or higher lien position
as the
Deleted Mortgage Loan, (xvii) [Reserved] and (xviii) contains provisions
covering the payment of any Prepayment Charge by the Mortgagor for early
prepayment of the Mortgage Loan at least as favorable as the Deleted Mortgage
Loan. In the event that one or more mortgage loans are substituted for one
or
more Deleted Mortgage Loans, the amounts described in clause (i) hereof shall
be
determined on the basis of aggregate Scheduled Principal Balances, the Mortgage
Rates described in clause (ii) hereof shall be determined on the basis of
weighted average Mortgage Rates, the risk gradings described in clause (xiii)
hereof shall be satisfied as to each such mortgage loan, the terms described
in
clause (ix) hereof shall be determined on a weighted average basis, provided
that the
stated maturity date of any Qualifying Substitute Mortgage Loan shall not
be
later than the Final Scheduled Distribution Date, the Loan-to-Value Ratios
described in clause (xi) hereof shall be satisfied as to each such mortgage
loan
and, except to the extent otherwise provided in this sentence, the
representations and warranties described in clause (xv) hereof must be satisfied
as to each Qualifying Substitute Mortgage Loan or in the aggregate, as the
case
may be.
50
Rating
Agency:
Each of
DBRS, Fitch and Xxxxx’x.
Realized
Loss:
With
respect to each Liquidated Mortgage Loan, an amount equal to (i) the unpaid
principal balance of such Mortgage Loan as of the date of liquidation, minus
(ii) Liquidation Proceeds received, to the extent allocable to principal,
net of
amounts that are reimbursable therefrom to the Master Servicer or the Servicer
with respect to such Mortgage Loan (other than Advances of principal) including
expenses of liquidation. In determining whether a Realized Loss is a Realized
Loss of principal, Liquidation Proceeds shall be allocated, first, to payment
of
expenses related to such Liquidated Mortgage Loan, then to accrued unpaid
interest and finally to reduce the principal balance of the Mortgage
Loan.
Recognition
Agreement:
With
respect to any Cooperative Loan, an agreement between the related Cooperative
Corporation and the originator of such Mortgage Loan to establish the rights
of
such originator in the related Cooperative Property.
Record
Date:
With
respect to any Class of Book-Entry Certificates and any Distribution Date,
the
close of business on the Business Day immediately preceding such Distribution
Date. With respect to any Class of Definitive Certificates and any Distribution
Date, the last Business Day of the month immediately preceding the month
in
which the Distribution Date occurs (or, in the case of the first Distribution
Date, the Closing Date).
Regular
Interest Purchase Option:
As
defined in Section 7.01(c).
Regulation
AB:
Subpart
229.1100 - Asset Backed Securities (Regulation AB), 17 C.F.R.
§§229.1100-229.1123, as such may be amended from time to time, and subject
to
such clarification and interpretation as have been provided by the Commission
in
the adopting release (Asset-Backed Securities, Securities Act Release No.
33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005)) or by the staff of the
Commission, or as may be provided by the Commission or its staff from time
to
time.
Regulation
S:
Regulation S promulgated under the Securities Act or any successor provision
thereto, in each case as the same may be amended from time to time; and all
references to any rule, section or subsection of, or definition or term
contained in, Regulation S means such rule, section, subsection, definition
or
term, as the case may be, or any successor thereto, in each case as the same
may
be amended from time to time.
51
Regulation
S Global Security:
The
meaning specified in Section 3.01(d).
Related
Senior Principal Distribution Amount:
For
each Mortgage Pool and any Distribution Date on or after the Stepdown Date
and
for as long as a Trigger Event is not in effect, an amount equal to the lesser
of (x) the sum of the aggregate Class Principal Amount of the Group 1 Senior
Certificates (with respect to Pool 1) or the sum of the aggregate Class
Principal Amounts of the Group 2 Senior Certificates (with respect to Pool
2)
immediately prior to such date and (y) the product of (a) the Senior Principal
Distribution Amount and (b) the related Senior Proportionate Percentage,
in each
case for such date.
Related
Senior Priority:
With
respect to each of Group 1 Senior Certificates and the Group 2 Senior
Certificates, the priority of distribution on the Senior Certificates relating
to such Groups as described in Sections 5.02(e)(i)(A)(3) and 5.02(e)(i)(B)(3),
respectively.
Relevant
Servicing Criteria:
The
Servicing Criteria applicable to each party, as set forth on Exhibit S attached
hereto. Multiple parties can have responsibility for the same Relevant Servicing
Criteria. With respect to a Servicing Function Participant engaged by the
Master
Servicer, the Paying Agent, the Securities Administrator, the Credit Risk
Manager, the Custodian or the Servicer, the term “Relevant Servicing Criteria”
may refer to a portion of the Relevant Servicing Criteria applicable to such
parties.
Relief
Act Reduction:
With
respect to any Mortgage Loan as to which there has been a reduction in the
amount of interest collectible thereon as a result of application of the
Civil
Relief Act or any similar state or local statute, any amount by which interest
collectible on such Mortgage Loan for the Due Date in the related Collection
Period is less than interest accrued thereon for the applicable one-month
period
at the Mortgage Rate without giving effect to such reduction.
REMIC:
Each
pool of assets in the Trust Fund designated as a REMIC pursuant to the
Preliminary Statement.
REMIC
1:
As
described in the Preliminary Statement.
REMIC
2:
As
described in the Preliminary Statement.
REMIC
3:
As
described in the Preliminary Statement.
REMIC
3 Net Funds Cap:
For any
Distribution Date (and the related Accrual Period) and any Class of
Certificates, a rate equal to (i) the weighted average of the interest rates
on
the Lower Tier Interests in REMIC 3 (other than the Class LT3-IO Interests),
weighted in proportion to their Class Principal Amounts as of the beginning
of
the related Accrual Period, multiplied by (ii) the quotient of (a) 30 divided
by
(b) the actual number of days in the Accrual Period.
REMIC
4:
As
described in the Preliminary Statement.
52
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
Swap Rate:
For
each Swap Payment Date (and the related Accrual Period), a per annum rate
equal
to the product of: (i) the “Rate of Payment (%)” under the Swap Agreement for
such date, as set forth in Annex C-1 to the Prospectus Supplement, (ii) 2,
and
(ii) the quotient of (a) the actual number of days in the related Accrual
Period
divided by (b) 30.
REO
Property:
A
Mortgaged Property acquired by the Trust Fund through foreclosure or
deed-in-lieu of foreclosure in connection with a defaulted Mortgage Loan
or
otherwise treated as having been acquired pursuant to the REMIC
Provisions.
Reportable
Event:
As
defined in Section 6.20(f)(i).
Reporting
Servicer:
As
defined in Section 6.20(e)(i).
Required
Reserve Fund Deposit:
With
respect to any Distribution Date on which the Net Excess Spread is less than
0.25%, the amount, if any by which (a) the product of 1.00% and the Aggregate
Pool Balance for such date exceeds (b) the amount on deposit in the Basis
Risk
Reserve Fund immediately prior to such date. With respect to any Distribution
Date on which the Net Excess Spread is equal to or greater than 0.25%, the
amount, if any, by which (i) $1,000 exceeds the amount on deposit in the
Basis
Risk Reserve Fund immediately prior to such date; provided,
however,
that on
any Distribution Date on which the Class Principal Amount of each Class of
Offered Certificates and the Class B Certificates has been reduced to zero,
the
Required Reserve Fund Deposit shall be zero.
Residual
Certificate:
Any
Class LT-R or Class R Certificate.
Responsible
Officer:
When
used with respect to the Trustee or the Securities Administrator, any vice
president, assistant vice president, the secretary, any assistant secretary,
or
any officer, working in its Corporate Trust Office (in the case of the Trustee)
and having responsibility for the administration of this Agreement, and any
other officer to whom a matter arising under this Agreement may be referred.
When used with respect to any party other than the Trustee or the Securities
Administrator, a responsible officer thereof.
Restricted
Certificate:
Any
Class B, Class P, Class X, Class LT-R or Class R Certificate.
Restricted
Global Security:
As
defined in Section 3.01(c).
Retained
Mortgage File:
Any
file of mortgage loan documents maintained by the Servicer, pursuant to Section
2.01 of the Servicing Agreement, prior to any Document Transfer
Event.
Rolling
Three Month Delinquency Rate:
With
respect to any Distribution Date, the fraction, expressed as a percentage,
equal
to the average of the Delinquency Rates for each of the three (or one and
two,
in the case of the first and second Distribution Dates, respectively)
immediately preceding calendar months.
53
Rule
144A:
Rule
144A under the Securities Act.
Rules:
As
defined in Section 6.20(c).
S&P:
Standard & Poor’s Ratings Services, a division of The XxXxxx-Xxxx Companies,
Inc., or any 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).
Xxxxxxxx-Xxxxx
Certification:
A
written certification covering the activities of all Servicing Function
Participants and signed by an officer of the Exchange Act Signing Party that
complies with Section 302 of the Sarbanes Oxley Act, as amended from time
to
time.
Scheduled
Payment:
Each
scheduled payment of principal and interest (or of interest only, if applicable)
to be paid by the Mortgagor on a Mortgage Loan, as reduced (except where
otherwise specified herein) by the amount of any related Debt Service Reduction
(excluding all amounts of principal and interest that were due on or before
the
Cut-off Date, whenever received) and, in the case of an REO Property, an
amount
equivalent to the Scheduled Payment that would have been due on the related
Mortgage Loan if such Mortgage Loan had remained in existence.
Scheduled
Principal Balance:
With
respect to (i) any Mortgage Loan (other than a Simple Interest Mortgage Loan)
as
of any Distribution Date, the principal balance of such Mortgage Loan at
the
close of business on the Cut-off Date after giving effect to principal payments
due on or before the Cut-off Date, whether or not received, less an amount
equal
to principal payments due after the Cut-off Date, and on or before the Due
Date
in the related Collection Period, whether or not received from the Mortgagor
or
advanced by the Servicer or the Master Servicer, and all amounts allocable
to
unscheduled principal payments (including Principal Prepayments, Liquidation
Proceeds, Insurance Proceeds and condemnation proceeds, in each case to the
extent identified and applied prior to or during the related Prepayment Period)
and (ii) any REO Property as of any Distribution Date, the Scheduled Principal
Balance of the related Mortgage Loan on the Due Date immediately preceding
the
date of acquisition of such REO Property by or on behalf of the Trustee (reduced
by any amount applied as a reduction of principal on the Mortgage Loan).
With
respect to any Mortgage Loan as of the Cut-off Date, the principal balance
of
such Mortgage Loan, as specified in the Mortgage Loan Schedule. The Scheduled
Principal Balance of any Liquidated Mortgage Loan shall be zero. In the case
of
a Simple Interest Mortgage Loan, references herein to such Mortgage Loan’s
Scheduled Principal Balance shall mean its actual unpaid principal balance.
The
actual unpaid principal balance of a Simple Interest Mortgage Loan with respect
to any Distribution Date shall be determined by subtracting from such Mortgage
Loan’s unpaid principal balance as of the end of the preceding Collection Period
the amount of the borrower’s fixed monthly payment for the related Collection
Period that is not allocated to the payment of interest applying the Simple
Interest Method.
54
Section
7.01(c) Purchase Event:
The
purchase of all the Lower Tier REMIC 1 Uncertificated Regular
Interests.
Securities
Act:
The
Securities Act of 1933, as amended.
Securities
Administration Account:
A
separate account established pursuant to Section 4.05.
Securities
Administrator:
Xxxxx
Fargo Bank, N.A., not in its individual capacity but solely as Securities
Administrator, or any successor in interest, or if any successor Securities
Administrator shall be appointed as herein provided, then such successor
Securities Administrator.
Security
Agreement:
With
respect to any Cooperative Loan, the agreement between the owner of the related
Cooperative Shares and the originator of the related Mortgage Note that defines
the terms of the security interest in such Cooperative Shares and the related
Proprietary Lease.
Seller:
Xxxxxx
Brothers Holdings Inc., or any successor in interest.
Senior
Certificate:
Any
Class A1, Class A2, Class A3, Class A4 Class A5 or Class A6
Certificates.
Senior
Enhancement Percentage:
With
respect to any Distribution Date, the fraction, expressed as a percentage,
the
numerator of which is the sum of the aggregate Class Principal Amount of
the
Subordinate Certificates and the Overcollateralization Amount (which amount,
for
purposes of this definition only, shall not be less than zero and assuming
for
purposes of this definition that the Principal Distribution Amount has been
distributed on such Distribution Date and no Trigger Event has occurred)
and the
denominator of which is the Aggregate Pool Balance for such Distribution
Date,
in each case after giving effect to distributions on such Distribution
Date.
Senior
Principal Distribution Amount:
With
respect to any Distribution Date, on or after the Stepdown Date and as long
as a
Trigger Event is not in effect with respect to such Distribution Date, the
lesser of (x) the aggregate Principal Distribution Amount for both Mortgage
Pools and (y) the amount, if any by which (A) the aggregate Class Principal
Amount of the Senior Certificates immediately prior to such Distribution
Date
exceeds (B) the Senior Target Amount.
Senior
Proportionate Percentage:
With
respect to Pool 1 and any Distribution Date, the fraction, expressed as a
percentage, the numerator of which is the Principal Remittance Amount for
Pool 1
for such Distribution Date and the denominator of which is the aggregate
of the
Principal Remittance Amounts for Pool 1 and Pool 2 for such Distribution
Date.
With respect to Pool 2 and any Distribution Date, the fraction, expressed
as a
percentage, the numerator of which is the Principal Remittance Amount for
Pool 2
for such Distribution Date and the denominator of which is the aggregate
of the
Principal Remittance Amounts for Pool 1 and Pool 2 for such Distribution
Date.
55
Senior
Target Amount:
With
respect to any Distribution Date, an amount equal to the lesser of (a) the
product of (i) 63.30% and (ii) the Aggregate Pool Balance for such Distribution
Date determined as of the last day of the related Collection Period and (b)
the
amount, if any, by which (i) the Aggregate Pool Balance for such Distribution
Date determined as of the last day of the Collection Period exceeds (ii)
the
Overcollateralization Floor.
Servicer:
Xxxxx
Fargo Bank, N.A., or any of its successors in interest.
Servicer
Prepayment Charge Payment Amount:
Any
amount payable by the Servicer in respect of any impermissible waiver by
the
Servicer of a Prepayment Charge pursuant to the Servicing
Agreement.
Servicer
Remittance Date:
The day
in each calendar month on which the Servicer is required to remit payments
to
the Collection Account, as specified in the Servicing Agreement, which is
the
18th
day of
each calendar month (or if such 18th
day is
not a Business Day, the next succeeding Business Day).
Servic(es)(ing):
In
accordance with Regulation AB, the act of managing or collecting payments
on the
Mortgage Loans or any other assets of the Trust Fund by an entity that meets
the
definition of “servicer” set forth in Item 1101 of Regulation AB. For
clarification purposes, any uncapitalized occurrence of this term shall have
the
meaning commonly understood by participants in the residential mortgage-backed
securitization market.
Servicing
Advances:
All
customary, reasonable and necessary “out of pocket” costs and expenses other
than Advances (including reasonable attorneys’ fees and disbursements) incurred
in the performance by the Servicer of its servicing obligations, including,
but
not limited to, the cost of (a) the preservation, inspection, restoration
and
protection of the Mortgaged Property, (b) any enforcement or administrative
or
judicial proceedings, including foreclosures, (c) the management and liquidation
of the Mortgaged Property if the Mortgaged Property is acquired in satisfaction
of the Mortgage, (d) taxes, assessments, water rates, sewer rents and other
charges which are or may become a lien upon the Mortgaged Property, and fire
and
hazard insurance coverage and (e) any losses sustained by the Servicer with
respect to the liquidation of the Mortgaged Property.
Servicing
Agreement:
The
Reconstituted Servicing Agreement, dated as of March 1, 2007, among the Seller,
the Master Servicer and the Servicer, and any other servicing agreement entered
into between a successor servicer and the Seller pursuant to the terms of
this
Agreement.
Servicing
Criteria:
The
criteria set forth in paragraph (d) of Item 1122 of Regulation AB, as such
may
be amended from time to time.
Servicing
Fee:
With
respect to each Distribution Date and each Mortgage Loan, a monthly fee payable
to the Servicer out of interest collections received at any time attributable
to
the monthly payment from the related Mortgage Loan equal to the product of
(a)
one-twelfth of the Servicing Fee Rate and (b) the Scheduled Principal Balance
of
each Mortgage Loan as of the first day of the related Collection
Period.
Servicing
Fee Rate:
With
respect to each Mortgage Loan, 0.50% per annum.
56
Servicing
Function Participant:
Any
Subservicer, Subcontractor or any other Person, other than the Servicer,
the
Custodian, the Master Servicer, the Paying Agent, the Securities Administrator
and the Trustee, that is participating in the servicing function within the
meaning of Regulation AB, unless such Person’s activities relate only to 5% or
less of the Mortgage Loans.
Servicing
Officer:
Any
officer of the Servicer involved or is responsible for, the administration
and
servicing of the Mortgage Loans whose name appears on a list of servicing
officers furnished by the Servicer to the Master Servicer, as such list may
from
time to time be amended.
Simple
Interest Method:
With
respect to a Simple Interest Mortgage Loan, the method of allocating a payment
to principal and interest, pursuant to which the portion of such payment
that is
allocated to interest is equal to the product of the applicable rate of interest
multiplied by the unpaid principal balance multiplied by the period of time
elapsed since the preceding payment of interest was made and divided by either
360 or 365, as specified in the related Mortgage Note and the remainder of
such
payment is allocated to principal.
Simple
Interest Mortgage Loan:
Any
Mortgage Loan specified as a “DSI Loan” in the Mortgage Loan Schedule attached
hereto as Schedule A. As of the Closing Date, there are no Simple Interest
Mortgage Loans included in the Trust Fund.
Sponsor:
Xxxxxx
Brothers Holdings Inc., or any successor in interest.
Startup
Day:
The day
designated as such pursuant to Section 10.01(b) hereof.
Stepdown
Date:
The
earlier of (x) the first Distribution Date following the Distribution Date
on
which the Class Principal Amounts of the Senior Certificates have each been
reduced to zero or (y) the later of (1) the Distribution Date in April 2010
and
(2) the first Distribution Date on which the Senior Enhancement Percentage
(calculated for this purpose after giving effect to payments or other recoveries
in respect of the Mortgage Loans during the related Collection Period, but
before giving effect to distributions on any Certificates on such Distribution
Date) is greater than or equal to 36.70%.
Subcontractor:
Any
vendor, subcontractor or other Person that is not responsible for the overall
servicing (as “servicing” is commonly understood by participants in the
mortgage-backed securities market) of the Mortgage Loans but performs one
or
more discrete functions identified in Item 1122(d) of Regulation AB with
respect
to the Mortgage Loans under the direction or authority of the Trustee, the
Master Servicer, the Custodian, the Servicer, the Securities Administrator
or
the Credit Risk Manager.
Subordinate
Certificate:
Any
Class M or Class B Certificate.
Subordinate
Maximum Interest Rate:
For (i)
the Subordinate Certificates; (ii) the Group 1 Senior Certificates, with
respect
to each Distribution Date after the Distribution Date on which the aggregate
Class Principal Amount of the Group 2 Senior Certificates has been reduced
to
zero; and (iii) the Group 2 Senior Certificates, with respect to each
Distribution Date after the Distribution Date on which the Class Principal
Amount of the Group 1 Senior Certificates has been reduced to zero; the weighted
average of the Pool 1 Maximum Interest Rate and the Pool 2 Maximum Interest
Rate
for such Distribution Date, weighted on the basis of (i) in the case of any
Distribution Date on or before the date on which the aggregate Class Principal
Amount of the Senior Certificates relating to any Mortgage Pool has been
reduced
to zero, the Pool Subordinate Amount and (ii) for any Distribution Date
thereafter, such weighting shall be on the basis of the Pool Balance of each
Mortgage Pool.
57
Subordinate
Net Funds Cap:
With
respect to any Distribution Date, an amount equal to the weighted average
of the
Pool 1 Net Funds Cap and the Pool 2 Net Funds Cap, weighted on the basis
of the
Pool Subordinate Amount for each Mortgage Pool; provided,
however,
that on
any Distribution Date after which the aggregate Class Principal Amounts of
the
Senior Certificates relating to either Mortgage Pool has been reduced to
zero,
such weighting shall be on the basis of the Pool Balance of each Mortgage
Pool.
Subordinate
Priority:
To the
Class M1, Class M2, Class M3, Class M4, Class M5, Class M6, Class M7, Class
M8,
Class M9, Class B1, Class B2 and Class B3 Certificates, sequentially, in
that
order.
Subsequent
Recovery:
Any
amount recovered by the Servicer or the Master Servicer 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.
Subservicer:
Any
Person that (i) is considered to be a Servicing Function Participant, (ii)
services the Mortgage Loans on behalf of the Servicer or Additional Servicer,
and (iii) is responsible for the performance (whether directly or through
subservicers or Subcontractors) of Servicing functions required to be performed
under this Agreement, the Servicing Agreement or any subservicing agreement
that
is identified in Item 1122(d) of Regulation AB.
Substitution
Amount:
The
amount, if any, by which the Scheduled Principal Balance of a Deleted Mortgage
Loan exceeds the Scheduled Principal Balance of the related Qualifying
Substitute Mortgage Loan, or aggregate Scheduled Principal Balance, if
applicable, plus
unpaid
interest thereon, any related unpaid Advances or Servicing Advances or unpaid
Servicing Fees and the amount of any costs and damages incurred by the Trust
Fund associated with a violation of any applicable federal, state or local
predatory or abusive lending law in connection with the origination of such
Deleted Mortgage Loan.
Supplemental
Interest Trust:
The
corpus of a trust created pursuant to Section 5.07 of this Agreement and
designated as the “Supplemental Interest Trust,” consisting of the Swap
Agreement, the Swap Account, the Interest Rate Cap Agreement, the Interest
Rate
Cap Account, the right to receive the Class X Distributable Amount as provided
in Section 5.02(f)(vi), the Class LT4-I interest in REMIC 4 and the right
to
receive Class I Shortfalls.
Swap
Account:
The
account created pursuant to Section 5.07(a) of this Agreement.
Swap
Agreement:
The
interest rate swap agreement (Reference No. 1368105) dated March 30, 2007
entered into by the Trustee on behalf of the Supplemental Interest Trust
and the
Swap Counterparty, which agreement provides for, among other things, a Net
Swap
Payment to be paid to the Trustee commencing on the Distribution Date in
May
2007 and ending with the Distribution Date in March 2013, by the Swap
Counterparty, but subject to the conditions set forth therein, together with
any
schedules, confirmations or other agreements relating thereto, attached hereto
as Exhibit O.
58
Swap
Amount:
With
respect to each Distribution Date and the related Swap Payment Date, the
sum of
any Net Swap Payment and any Swap Termination Payment deposited into the
Swap
Account, and any investment earnings thereon.
Swap
Counterparty:
The
counterparty to the Supplemental Interest Trust under the Swap Agreement,
and
any successor in interest or assigns. Initially, the Swap Counterparty shall
be
Swiss Re Financial Products Corporation.
Swap
Counterparty Trigger Event:
A Swap
Counterparty Trigger Event shall have occurred if any of a Swap Default with
respect to which the Swap Counterparty is a Defaulting Party, a Termination
Event (other than a Termination Event or Illegality or Tax Event as such
terms
are defined in the Swap Agreement) with respect to which the Swap Counterparty
is the sole Affected Party or an Additional Termination Event with respect
to
which the Swap Counterparty is the sole Affected Party has
occurred.
Swap
Default:
Any of
the circumstances constituting an “Event of Default” under the Swap
Agreement.
Swap
LIBOR:
With
respect to any Distribution Date (and the related Swap Payment Date and the
Accrual Period relating to such Distribution Date), the product of (i) the
Floating Rate Option (as defined in the Swap Agreement) for the related Swap
Payment Date, (ii) two, and (iii) the quotient of (a) the actual number of
days
in the Accrual Period for the LIBOR Certificates and (b) 30, as calculated
by
the Swap Counterparty and furnished to the Securities
Administrator.
Swap
Payment Date:
For so
long as the Swap Agreement is in effect or any amounts remain unpaid thereunder,
the Business Day immediately preceding each Distribution Date.
Swap
Replacement Receipts:
As
defined in Section 5.09(a).
Swap
Replacement Receipts Account:
As
defined in Section 5.09(a).
Swap
Termination Payment:
Upon
the designation of an “Early Termination Date” as defined in the Swap Agreement,
the payment required to be made by the Supplemental Interest Trust to the
Swap
Counterparty, or by the Swap Counterparty to the Supplemental Interest Trust,
as
applicable, pursuant to the terms of the Swap Agreement, and any unpaid amounts
due on previous Swap Payment Dates and accrued interest thereon as provided
in
the Swap Agreement, as calculated by the Swap Counterparty and furnished
to the
Securities Administrator.
Swap
Termination Receipts:
As
defined in Section 5.09(a).
Swap
Termination Receipts Account:
As
defined in Section 5.09(a).
59
Target
Amount:
With
respect to any Distribution Date, an amount equal to the Aggregate Pool Balance
for such Distribution Date minus
the
Targeted Overcollateralization Amount for such Distribution Date.
Targeted
Overcollateralization Amount:
For any
Distribution Date prior to the Stepdown Date, an amount equal to $12,295,170.01.
For any Distribution Date on or after the Stepdown Date and provided a Trigger
Event is not in effect, an amount equal to the greater of (i) the lesser
of (a)
$12,295,170.01 and (b) 2.90% of the Aggregate Pool Balance after giving effect
to distributions on such Distribution Date and (ii) the Overcollateralization
Floor. With respect to any Distribution Date on or after the Stepdown Date
and
provided a Trigger Event is in effect, an amount equal to the Targeted
Overcollateralization Amount for the immediately preceding Distribution
Date.
Tax
Matters Person:
The
“tax matters person” as specified in the REMIC Provisions.
Telerate
Page 3750:
The
display currently so designated as “Page 3750” on the Reuters Telerate Service
(or such other page selected by the Securities Administrator as may replace
Page
3750 on that service for the purpose of displaying daily comparable rates
on
prices).
Termination
Event:
As
defined in the Swap Agreement and Interest Rate Cap Agreement, as
applicable.
Termination
Price:
As
defined in Section 7.01.
Title
Insurance Policy:
A title
insurance policy maintained with respect to a Mortgage Loan.
Total
Distribution Amount:
With
respect to any Distribution Date, the sum of (i) the aggregate of the Interest
Remittance Amounts for each Mortgage Pool for such date, (ii) the aggregate
of
the Principal Remittance Amounts for each Mortgage Pool for such date and
(iii)
all Prepayment Charges collected during the related Prepayment
Period.
Transfer
Agreement:
As
defined in the Mortgage Loan Sale Agreement.
Transferor:
Xxxxx
Fargo Bank, N.A., as seller of the Mortgage Loans to Xxxxxx Brothers Bank
FSB
pursuant to the Transfer Agreement.
Trigger
Event:
A
Trigger Event shall have occurred with respect to any Distribution Date if
either a Delinquency Event or a Cumulative Loss Trigger Event is in effect
for
such Distribution Date.
Trust
Fund:
The
corpus of the Structured Asset Securities Corporation Mortgage Loan Trust
2007-WF1 trust created pursuant to this Agreement, consisting of the Mortgage
Loans, the assignment of the Depositor’s rights under the Transfer Agreement,
the Mortgage Loan Sale Agreement and the Servicing Agreement, such amounts
as
shall from time to time be held in the Collection Account, the Securities
Administration Account, the Certificate Account, the Custodial Account and
any
Escrow Account, the Swap Termination Receipts Account, the Swap Replacement
Receipts Account, the Cap Termination Receipts Account, the Cap Replacement
Receipts Account, the Basis Risk Reserve Fund, the Insurance Policies, any
REO
Property and the other items referred to in, and conveyed to the Trustee
under,
Section 2.01(a).
60
Trust
Fund Termination Event:
As
defined in Section 7.01(a).
Trustee:
U.S.
Bank National Association, not in its individual capacity but solely as Trustee,
or any successor in interest, or if any successor trustee shall be appointed
as
herein provided, then such successor in interest or successor trustee, as
the
case may be.
Trustee
Fee:
A fixed
annual fee of $3,750, which is paid first,
by the
Securities Administrator pursuant to Section 6.12, second,
to the
extent not paid under first,
from
income and earnings on the amounts on deposit in the Securities Administration
Account as provided in Section 4.05(f) and third,
to the
extent not paid under first
and
second,
from
income and earnings on amounts on deposit from time to time in the Certificate
Account as provided in Section 4.04(c).
UCC
or
Uniform Commercial Code:
The
Uniform Commercial Code as in effect in any applicable jurisdiction from
time to
time.
Underwriter:
Xxxxxx
Brothers Inc.
Underwriter’s
Exemption:
Prohibited Transaction Exemption 2007-5, (72 Fed. Reg. 13130, March 20, 2007),
as amended (or any successor thereto), or any substantially similar
administrative exemption granted by the U.S. Department of Labor.
Unpaid
Basis Risk Shortfall:
With
respect to any Distribution Date and any LIBOR Certificate, the aggregate
of all
Basis Risk Shortfalls with respect to such Certificate remaining unpaid from
previous Distribution Dates, plus interest accrued thereon at the applicable
Certificate Interest Rate (calculated without giving effect to the applicable
Net Funds Cap) but limited to a rate no greater than the applicable Maximum
Interest Rate.
Upper
Tier REMIC:
REMIC
4.
Voting
Interests:
The
portion of the voting rights of all the Certificates that is allocated to
any
Certificate for purposes of the voting provisions of this Agreement. At all
times during the term of this Agreement, 97.00% of all Voting Interests shall
be
allocated to the LIBOR Certificates. Voting Interests shall be allocated
among
the Classes of LIBOR Certificates based on the product of (i) 97.00% and
(ii)
the fraction, expressed as a percentage, the numerator of which is the Class
Principal Amount of such Certificates then outstanding and the denominator
of
which is the aggregate Class Principal Amount of the LIBOR Certificates.
At all
times during the term of this Agreement, 1% of all Voting Interests shall
be
allocated to each of the Class R, Class P and Class X Certificates while
they
remain outstanding. Voting Interests shall be allocated among the other Classes
of Certificates (and among the Certificates within each such Class) in
proportion to their Class Principal Amounts (or Certificate Principal Amounts)
or Percentage Interests. In the case of the purchase by the Master Servicer
of
the Lower Tier REMIC 1 Uncertificated Regular Interests pursuant to a Section
7.01(c) Purchase Event, the LTURI-holder shall be allocated 100% of the Voting
Interests and upon such purchase any provision in this Agreement which requires
a vote by, a direction or notice given by, an action taken by, a request
in
writing by or the consent of, any percentage of the Holders of the Certificates
or any Class of Certificates may be exercised by the LTURI-holder.
61
Xxxxx
Fargo:
Xxxxx
Fargo Bank, N.A.
Section
1.02. Calculations
Respecting Mortgage Loans.
Calculations
required to be made pursuant to this Agreement with respect to any Mortgage
Loan
in the Trust Fund shall be made based upon current information as to the
terms
of the Mortgage Loans and reports of payments received from the Mortgagor
on
such Mortgage Loans and payments to be made to the Securities Administrator
as
supplied to the Securities Administrator by the Master Servicer, the Swap
Counterparty or the Cap Counterparty. The Securities Administrator shall
not be
required to recompute, verify or recalculate the information supplied to
it by
the Master Servicer, the Servicer, the Swap Counterparty, the Cap Counterparty
or the Credit Risk Manager.
Section
1.03. Calculations
Respecting Accrued Interest.
Accrued
interest, if any, on any LIBOR Certificate shall be calculated based upon
a
360-day year and the actual number of days in each Accrual Period. Accrued
interest on the Class X Certificate and any Class of Lower Tier Interest
shall
be calculated based upon a 360-day year consisting of twelve 30-day months.
62
ARTICLE
II
DECLARATION
OF TRUST;
ISSUANCE
OF CERTIFICATES
Section
2.01. Creation
and Declaration of Trust Fund; Conveyance of Mortgage Loans.
(a) Concurrently
with the execution and delivery of this Agreement, the Depositor does hereby
transfer, assign, set over, deposit with and otherwise convey to the Trustee,
without recourse, subject to Sections 2.02, 2.04, 2.05 and 2.06, in trust,
all
the right, title and interest of the Depositor in and to the Mortgage Loans.
Such conveyance includes, without limitation, the right to all payments of
principal and interest received on or with respect to the Mortgage Loans
on and
after the Cut-off Date (other than payments of principal and interest due
on or
before such date), and all such payments due after such date but received
prior
to such date and intended by the related Mortgagors to be applied after such
date together with all of the Depositor’s right, title and interest in and to
the Collection Account and all amounts from time to time credited to and
the
proceeds of the Collection Account, the Certificate Account and all amounts
from
time to time credited to and the proceeds of the Certificate Account, the
Securities Administration Account and all amounts from time to time credited
to
and the proceeds of the Securities Administration Account (exclusive of
investment earnings thereon), any Custodial Accounts and all amounts from
time
to time credited to and the proceeds of the Custodial Accounts, any Escrow
Account established pursuant to Section 9.06 and any Basis Risk Reserve Fund
established pursuant to Section 5.06 and all amounts from time to time credited
to and the proceeds of each such account, any REO Property and the proceeds
thereof, the Depositor’s rights under any Insurance Policies related to the
Mortgage Loans, the Depositor’s security interest in any collateral pledged to
secure the Mortgage Loans, including the Mortgaged Properties and any Additional
Collateral, and any proceeds of the foregoing, to have and to hold, in trust;
and the Trustee declares that, subject to the review provided for in Section
2.02, it has received and shall hold the Trust Fund, as trustee, in trust,
for
the benefit and use of the Holders of the Certificates and for the purposes
and
subject to the terms and conditions set forth in this Agreement, and,
concurrently with such receipt, has caused to be executed, authenticated
and
delivered to or upon the order of the Depositor, in exchange for the Trust
Fund,
Certificates in the authorized denominations evidencing the entire ownership
of
the Trust Fund.
Concurrently
with the execution of this Agreement, the Swap Agreement and the Interest
Rate
Cap Agreement shall be delivered to the Trustee. In connection therewith,
the
Depositor hereby directs the Trustee (solely in its capacity as such) and
the
Trustee is hereby authorized to execute and deliver the Swap Agreement and
the
Interest Rate Cap Agreement (each on behalf of the Supplemental Interest
Trust)
for the benefit of, the Certificateholders. The Seller, the Master Servicer,
the
Securities Administrator, the Depositor, the Servicer and the Certificateholders
(by their acceptance of such Certificates) acknowledge and agree that the
Trustee is executing and delivering the Swap Agreement and the Interest Rate
Cap
Agreement solely in its capacity as Trustee of the Supplemental Interest
Trust
and the Trust Fund not in its individual capacity. The Trustee shall have
no
duty or responsibility to enter into any other interest rate swap agreement
or
interest rate cap agreement upon the expiration or termination of the Swap
Agreement or the Interest Rate Cap Agreement, other than as provided in Sections
5.09(a) and (b), respectively.
63
Concurrently
with the execution and delivery of this Agreement, the Depositor does hereby
assign to the Trustee all of its rights and interest under the Mortgage Loan
Sale Agreement, including all rights of the Seller under the Servicing Agreement
and the Transfer Agreement (including the right to enforce the Transferor’s
obligation with respect to First Payment Default Mortgage Loans pursuant
to the
Commitment Letter) but
only
to the extent assigned under the Mortgage Loan Sale Agreement. The Trustee
hereby accepts such assignment, and shall be entitled to exercise all the
rights
of the Depositor under the Mortgage Loan Sale Agreement as if, for such purpose,
it were the Depositor.
It
is
agreed and understood by the Depositor and the Trustee (and the Seller has
so
represented and recognized in the Mortgage Loan Sale Agreement) that it is
not
intended that any Mortgage Loan to be included in the Trust Fund be (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 in the
Indiana Home Loan Practices Act effective January 1, 2005.
The
foregoing sale, transfer, assignment, set-over, deposit and conveyance does
not
and is not intended to result in the creation or assumption by the Trustee
of
any obligation of the Depositor, the Seller or any other Person in connection
with the Mortgage Loans.
(b) In
connection with such transfer and assignment, the Depositor does hereby deliver
to, and deposit with, or cause to be delivered to and deposited with, the
Trustee, and/or the Custodian acting on the Trustee’s behalf, the following
documents or instruments with respect to each Mortgage Loan (each a “Mortgage
File”) so transferred and assigned:
(i) with
respect to each Mortgage Loan, the original Mortgage Note endorsed without
recourse in proper form to the order of the Trustee as shown on Exhibit B-4
hereto, or in blank (in each case, with all necessary intervening endorsements,
as applicable) or with respect to any lost Mortgage Note, a lost note affidavit
stating that the original Mortgage Note was lost, misplaced or destroyed,
together with a copy of the related Mortgage Note;
(ii) the
original of any guarantee executed in connection with the Mortgage Note,
assigned to the Trustee;
(iii) the
original of each assumption, modification or substitution agreement, if any,
relating to the Mortgage Loans, or, as to any assumption, modification or
substitution agreement which cannot be delivered on or prior to the Closing
Date
because of a delay caused by the public recording office where such assumption,
modification or substitution agreement has been delivered for recordation,
a
photocopy of such assumption, modification or substitution agreement, pending
delivery of the original thereof, together with an Officer’s Certificate of the
Depositor certifying that the copy of such assumption, modification or
substitution agreement delivered to the Custodian is a true copy and that
the
original of such agreement has been forwarded to the public recording office;
and
64
(iv) with
respect to each Non-MERS Mortgage Loan other than a Cooperative Loan, an
original Assignment of Mortgage, in form and substance acceptable for recording.
The Mortgage shall be assigned either (A) in blank, without recourse or (B)
to
“U.S. Bank National Association, as Trustee of the Structured Asset Securities
Corporation Mortgage Loan Trust 2007-WF1,” without recourse.
The
parties hereto acknowledge and agree that the form of endorsement attached
hereto as Exhibit B-4 is intended to effect the transfer to the Trustee,
for the
benefit of the Certificateholders, of the Mortgage Notes.
(c) Pursuant
to the Servicing Agreement, the Servicer will hold the Retained Mortgage
Files
in trust for the benefit of the Trustee. The possession of each Retained
Mortgage File held by the Servicer is in a custodial capacity only. Within
60
days of the occurrence of a Document Transfer Event, the Servicer shall,
pursuant to Section 2.01 of the Servicing Agreement, deliver or cause to
be
delivered to and deposited with the Trustee or to the corporate trust services
division of the Custodian the Retained Mortgage Files consisting of the
following additional items, as applicable:
(i) with
respect to any Mortgage Loan other than a Cooperative Loan, the original
recorded Mortgage with evidence of recording thereon, and the original recorded
power of attorney, if the Mortgage was executed pursuant to a power of attorney,
with evidence of recording thereon or, if such Mortgage or power of attorney
has
been submitted for recording but has not been returned from the applicable
public recording office, has been lost or is not otherwise available, a copy
of
such Mortgage or power of attorney, as the case may be, certified by an
Officer’s Certificate of the Depositor to be a true and complete copy of the
original submitted for recording, together with a written Opinion of Counsel
for
the Depositor acceptable to the Trustee that an original recorded Mortgage
is
not required to enforce the Trustee’s interest in the Mortgage
Loan;
(ii) if
applicable, such original intervening assignments of Mortgage, notices of
transfer or equivalent instruments (each, an “Intervening Assignment”), as may
be necessary to show a complete chain of assignment from the originator or,
in
the case of an Intervening Assignment that has been lost, a written Opinion
of
Counsel acceptable to the Trustee that such original Intervening Assignment
is
not required to enforce the Trustee’s interest in the Mortgage
Loan;
(iii) with
respect to any Mortgage Loan other than a Cooperative Loan, the original
or a
certified copy of lender’s title insurance policy (or, in lieu thereof, a
commitment to issue such title insurance policy, with an original or certified
copy of such title insurance policy to follow as soon after the Closing Date
as
reasonably practicable);
(iv) the
original LPMI Policy or certificate or an electronic certification evidencing
the existence of the LPMI Policy or certificate, if private mortgage guaranty
insurance is required;
(v) the
original of any security agreement, chattel mortgage or equivalent instrument
executed in connection with the Mortgage or as to any security agreement,
chattel mortgage or their equivalent instrument that cannot be delivered
on or
prior to the Closing Date because of a delay caused by the public recording
office where such document has been delivered for recordation, a photocopy
of
such document, pending delivery of the original thereof, together with an
Officer’s Certificate of the Depositor certifying that the copy of such security
agreement, chattel mortgage or their equivalent instrument delivered to the
Custodian is a true copy and that the original of such document has been
forwarded to the public recording office; and
65
(vi) with
respect to any Cooperative Loan, the Cooperative Loan Documents.
(d) i) Assignments
of Mortgage with respect to each Non-MERS Mortgage Loan other than a Cooperative
Loan shall be recorded; provided,
however,
that
such Assignments need not be recorded if, on or prior to the Closing Date,
the
Depositor delivers, at its own expense, an Opinion of Counsel addressed to
the
Trustee (which must be Independent counsel) acceptable to the Trustee and
the
Rating Agencies, to the effect that recording in such states is not required
to
protect the Trustee’s interest in the related Non-MERS Mortgage Loans;
provided,
further,
that
notwithstanding the delivery of any Opinion of Counsel, the Master Servicer
shall direct the Servicer to submit each Assignment of Mortgage for recording
upon the occurrence of a bankruptcy, insolvency or foreclosure relating to
the
Mortgagor under the related Mortgage. Subject to the preceding sentence,
as soon
as practicable after the Closing Date (but in no event more than three months
thereafter except to the extent delays are caused by the applicable recording
office), the Master Servicer, at the expense of the Depositor and with the
cooperation of the Servicer, shall direct the Servicer to properly record
in
each public recording office where the related Mortgages are recorded each
Assignment of Mortgage referred to in subsection (b)(iv) above with respect
to
each Non-MERS Mortgage Loan.
(ii) With
respect to each MERS Mortgage Loan, the Master Servicer shall direct the
Servicer, at the expense of the Depositor, to take such actions as are necessary
to cause the Trustee to be clearly identified as the owner of each such Mortgage
Loan on the records of MERS for purposes of the system of recording transfers
of
beneficial ownership of mortgages maintained by MERS. With respect to each
Cooperative Loan, the Master Servicer, at the expense of the Depositor and
with
the cooperation of the Servicer, shall direct the Servicer to take such actions
as are necessary under applicable law in order to perfect the interest of
the
Trustee in the related Mortgaged Property.
(e) In
instances where a Title Insurance Policy is required to be delivered to the
Trustee or the Custodian on behalf of the Trustee under clause (c)(iv) above
and
is not so delivered, the Depositor will provide a copy of such Title Insurance
Policy to the Trustee, or to the Custodian on behalf of the Trustee, as promptly
as practicable after the execution and delivery hereof, but in any case within
180 days of the Closing Date.
(f) For
Mortgage Loans (if any) that have been prepaid in full after the Cut-off
Date
and prior to the Closing Date, the Depositor, in lieu of delivering the above
documents, herewith delivers to any NIMS Insurer and the Trustee, or to the
Custodian on behalf of the Trustee, an Officer’s Certificate which shall include
a statement to the effect that all amounts received in connection with such
prepayment that are required to be deposited in the Collection Account pursuant
to Section 4.01 have been so deposited. All original documents that are not
delivered to the Trustee or the Custodian on behalf of the Trustee shall
be held
by the Master Servicer or the Servicer in trust for the benefit of the Trustee
and the Certificateholders.
66
(g) The
issuing entity is hereby named “Structured Asset Securities Corporation Mortgage
Loan Trust 2007-WF1”.
Section
2.02. Acceptance
of Trust Fund by Trustee: Review of Documentation for Trust
Fund.
(a) The
Trustee, by execution and delivery hereof, acknowledges receipt by it or
by the
Custodian on its behalf of the Mortgage Files pertaining to the Mortgage
Loans
listed on the Mortgage Loan Schedule, subject to review thereof by the Trustee,
or by the Custodian on behalf of the Trustee, under this Section 2.02. The
Trustee, or the Custodian on behalf of the Trustee, will execute and deliver
to
the Depositor, the Master Servicer, the Servicer, the Trustee and any NIMS
Insurer on the Closing Date an Initial Certification in the form annexed
hereto
as Exhibit B-1 (or in the form annexed to the Custodial Agreement as Exhibit
B-1, as applicable).
(b) Within
45
days after the Closing Date, the Trustee or the Custodian on behalf of the
Trustee, will, for the benefit of Holders of the Certificates, review each
Mortgage File to ascertain that all required documents set forth in Section
2.01
have been received and appear on their face to contain the requisite signatures
by or on behalf of the respective parties thereto, and shall deliver to the
Trustee, the Depositor, the Servicer, the Master Servicer and any NIMS Insurer
an Interim Certification in the form annexed hereto as Exhibit B-2 (or in
the
form annexed to the Custodial Agreement as Exhibit B-2, as applicable) to
the
effect that, as to each Mortgage Loan listed in the Mortgage Loan Schedule
(other than any Mortgage Loan prepaid in full or any Mortgage Loan specifically
identified in such certification as not covered by such certification), (i)
all
of the applicable documents specified in Section 2.01(c) are in its possession
and (ii) such documents have been reviewed by it and appear to relate to
such
Mortgage Loan. The Trustee, or the Custodian on behalf of the Trustee, shall
determine whether such documents are executed and endorsed, but shall be
under
no duty or obligation to inspect, review or examine any such documents,
instruments, certificates or other papers to determine that the same are
valid,
binding, legally effective, properly endorsed, genuine, enforceable or
appropriate for the represented purpose or that they have actually been recorded
or are in recordable form or that they are other than what they purport to
be on
their face. Neither the Trustee nor the Custodian shall have any responsibility
for verifying the genuineness or the legal effectiveness of or authority
for any
signatures of or on behalf of any party or endorser.
(c) If
in the
course of the review described in paragraph (b) above the Trustee or the
Custodian discovers any document or documents constituting a part of a Mortgage
File that is missing, does not appear regular on its face (i.e.,
is
mutilated, damaged, defaced, torn or otherwise physically altered) or appears
to
be unrelated to the Mortgage Loans identified in the Mortgage Loan Schedule
(each, a “Material Defect”), the Trustee, or the Custodian on behalf of the
Trustee, discovering such Material Defect shall promptly identify the Mortgage
Loan to which such Material Defect relates in the Interim Certification
delivered to the Depositor, the Trustee and the Master Servicer. Within 90
days
of its receipt of such notice, the Transferor, or, if the Transferor does
not do
so, the Depositor shall be required to cure such Material Defect (and, in
such
event, the Depositor shall provide the Trustee with an Officer’s Certificate
confirming that such cure has been effected). If the Transferor or the
Depositor, as applicable, does not so cure such Material Defect, the Transferor,
or, if the Transferor does not do so, the Depositor, shall, if a loss has
been
incurred with respect to such Mortgage Loan that would, if such Mortgage
Loan
were not purchased from the Trust Fund, constitute a Realized Loss, and such
loss is attributable to the failure of the Depositor to cure such Material
Defect, repurchase the related Mortgage Loan from the Trust Fund at the Purchase
Price. A loss shall be deemed to be attributable to the failure of the Depositor
to cure a Material Defect if, as determined by the Depositor, upon mutual
agreement with the Trustee each acting in good faith, absent such Material
Defect, such loss would not have been incurred. Within the two-year period
following the Closing Date, the Depositor may, in lieu of repurchasing a
Mortgage Loan pursuant to this Section 2.02, substitute for such Mortgage
Loan a
Qualifying Substitute Mortgage Loan subject to the provisions of Section
2.05.
The failure of the Trustee or the Custodian to give the notice contemplated
herein within 45 days after the Closing Date shall not affect or relieve
the
Depositor of its obligation to repurchase any Mortgage Loan pursuant to this
Section 2.02 or any other Section of this Agreement requiring the repurchase
of
Mortgage Loans from the Trust Fund.
67
(d) Within
180 days following the Closing Date, the Trustee, or the Custodian, shall
deliver to the Trustee, the Depositor, the Master Servicer, the Servicer
and any
NIMS Insurer a Final Certification substantially in the form attached as
Exhibit
B-3 (or in the form annexed to the Custodial Agreement as Exhibit B-3, as
applicable) evidencing the completeness of the Mortgage Files in its possession
or control, with any exceptions noted thereto.
(e) Nothing
in this Agreement shall be construed to constitute an assumption by the Trust
Fund, the Trustee, the Custodian or the Certificateholders of any unsatisfied
duty, claim or other liability on any Mortgage Loan or to any
Mortgagor.
(f) Each
of
the parties hereto acknowledges that the Custodian shall perform the applicable
review of the Mortgage Loans and respective certifications thereof as provided
in this Section 2.02 and the Custodial Agreement. The Trustee is hereby
authorized and directed by the Depositor to appoint the Custodian and to
execute
and deliver the Custodial Agreement.
(g) Upon
execution of this Agreement, the Depositor hereby delivers to the Trustee
and
the Trustee acknowledges receipt of the Mortgage Loan Sale Agreement and
the
Servicing Agreement. The Depositor hereby directs the Trustee, solely in
its
capacity as Trustee hereunder, to execute and deliver, concurrently with
the
execution and delivery of this Agreement, the Servicing Agreement.
Section
2.03. Representations
and Warranties of the Depositor.
(a) The
Depositor hereby represents and warrants to the Trustee, for the benefit
of
Certificateholders, the Master Servicer, the Securities Administrator and
any
NIMS Insurer as of the Closing Date or such other date as is specified,
that:
(i) the
Depositor is a corporation duly organized, validly existing and in good standing
under the laws governing its creation and existence and has full corporate
power
and authority to own its property, to carry on its business as presently
conducted, to enter into and perform its obligations under this Agreement,
and
to create the trust pursuant hereto;
68
(ii) the
execution and delivery by the Depositor of this Agreement have been duly
authorized by all necessary corporate action on the part of the Depositor;
none
of the execution and delivery of this Agreement, nor the consummation of
the
transactions herein contemplated, nor compliance with the provisions hereof,
will conflict with or result in a breach of, or constitute a default under,
any
of the provisions of any law, governmental rule, regulation, judgment, decree
or
order binding on the Depositor or its properties or the certificate of
incorporation or bylaws of the Depositor;
(iii) the
execution, delivery and performance by the Depositor of this Agreement and
the
consummation of the transactions contemplated hereby do not require the consent
or approval of, the giving of notice to, the registration with, or the taking
of
any other action in respect of, any state, federal or other governmental
authority or agency, except such as has been obtained, given, effected or
taken
prior to the date hereof;
(iv) this
Agreement has been duly executed and delivered by the Depositor and, assuming
due authorization, execution and delivery by the Trustee, the Master Servicer,
the Securities Administrator and the Credit Risk Manager, constitutes a valid
and binding obligation of the Depositor enforceable against it in accordance
with its terms except as such enforceability may be subject to (A) applicable
bankruptcy and insolvency laws and other similar laws affecting the enforcement
of the rights of creditors generally and (B) general principles of equity
regardless of whether such enforcement is considered in a proceeding in equity
or at law;
(v) there
are
no actions, suits or proceedings pending or, to the knowledge of the Depositor,
threatened or likely to be asserted against or affecting the Depositor, before
or by any court, administrative agency, arbitrator or governmental body (A)
with
respect to any of the transactions contemplated by this Agreement or (B)
with
respect to any other matter which in the judgment of the Depositor will be
determined adversely to the Depositor and will if determined adversely to
the
Depositor materially and adversely affect it or its business, assets, operations
or condition, financial or otherwise, or adversely affect its ability to
perform
its obligations under this Agreement; and
(vi) immediately
prior to the transfer and assignment of the Mortgage Loans to the Trustee,
the
Depositor was the sole owner of record and holder of each Mortgage Loan,
and the
Depositor had good and marketable title thereto, and had full right to transfer
and sell each Mortgage Loan to the Trustee free and clear, subject only to
(1)
liens of current real property taxes and assessments not yet due and payable
and, if the related Mortgaged Property is a condominium unit, any lien for
common charges permitted by statute, (2) covenants, conditions and restrictions,
rights of way, easements and other matters of public record as of the date
of
recording of such Mortgage acceptable to mortgage lending institutions in
the
area in which the related Mortgaged Property is located and specifically
referred to in the lender’s Title Insurance Policy or attorney’s opinion of
title and abstract of title delivered to the originator of such Mortgage
Loan,
and (3) such other matters to which like properties are commonly subject
which
do not, individually or in the aggregate, materially interfere with the benefits
of the security intended to be provided by the Mortgage, of any encumbrance,
equity, participation interest, lien, pledge, charge, claim or security
interest, and had full right and authority, subject to no interest or
participation of, or agreement with, any other party, to sell and assign
each
Mortgage Loan pursuant to this Agreement.
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(b) The
representations and warranties of the Transferor with respect to the related
Mortgage Loans in the Transfer Agreement, which have been assigned to the
Trustee hereunder, were made as of the date specified in the Transfer Agreement
(or underlying agreement, if such Transfer Agreement is in the form of an
assignment of a prior agreement). To the extent that any fact, condition
or
event with respect to a Mortgage Loan constitutes a breach of both (i) a
representation or warranty of the Transferor under the Transfer Agreement
and
(ii) a representation or warranty of the Seller under the Mortgage Loan Sale
Agreement, except as provided in the immediately succeeding sentence with
respect to those representations and warranties of the Seller which constitute
direct obligations of the Seller under the Mortgage Loan Sale Agreement,
the
only right or remedy of the Trustee, any Certificateholder or any NIMS Insurer
hereunder shall be their rights to enforce the obligations of the Transferor
under any applicable representation or warranty made by it. The Trustee
acknowledges that with the exception of those representations and warranties
made by the Seller pursuant to Sections 1.04(b)(xiii) through (xix) of the
Mortgage Loan Sale Agreement, all of which constitute direct obligations
of the
Seller, the Seller shall not have any obligation or liability with respect
to
any breach of a representation or warranty made by it with respect to the
Mortgage Loans sold by it if the fact, condition or event constituting such
breach also constitutes a breach of a representation or warranty made by
the
Transferor in the Transfer Agreement without regard to whether the Transferor
fulfills its contractual obligations in respect of such representation or
warranty. The Trustee further acknowledges that the Depositor shall have
no
obligation or liability with respect to any breach of any representation
or
warranty with respect to the Mortgage Loans (except as set forth in Section
2.03(a)(vi)) under any circumstances.
Section
2.04. Discovery
of Breach.
It
is
understood and agreed that the representations and warranties (i) of the
Depositor set forth in Section 2.03, (ii) of the Seller set forth in the
Mortgage Loan Sale Agreement and assigned to the Depositor by the Seller
under
the Mortgage Loan Sale Agreement and to the Trustee by the Depositor hereunder
and (iii) of the Transferor and of the Servicer assigned by Xxxxxx Brothers
Bank
FSB to the Seller under the Assignment and Assumption Agreement, by the Seller
to the Depositor pursuant to the Mortgage Loan Sale Agreement and by the
Trustee
by the Depositor hereunder, shall each survive delivery of the Mortgage Files
and the Assignment of Mortgage of each Mortgage Loan to the Trustee and shall
continue throughout the term of this Agreement. Upon discovery by any of
the
Depositor, the Master Servicer, the Securities Administrator, the Trustee
or any
NIMS Insurer of a breach of any of such representations and warranties that
adversely and materially affects the value of the related Mortgage Loan,
the
party discovering such breach shall give prompt written notice to the other
parties. Within 90 days of the discovery of a breach of any representation
or
warranty given to the Trustee by the Depositor or given by the Transferor
or the
Seller and assigned to the Trustee, the Depositor, the Transferor or the
Seller,
as applicable, shall either (a) cure such breach in all material respects,
(b)
repurchase such Mortgage Loan or any property acquired in respect thereof
from
the Trustee at the Purchase Price (or in the case of a First Payment Default
Mortgage Loan, the First Payment Default Purchase Price) or (c) within the
two-year period following the Closing Date, substitute a Qualifying Substitute
Mortgage Loan for the affected Mortgage Loan. In the event of discovery by
any
of the Depositor, the Trustee, any NIMS Insurer or the Master Servicer of
a
breach of any representation and warranty of the Transferor assigned to the
Trustee, the party discovering such breach should give prompt written notice
to
the other parties and the Trustee shall enforce its rights under the Transfer
Agreement and the Mortgage Loan Sale Agreement for the benefit of
Certificateholders and any NIMS Insurer. As provided in the Mortgage Loan
Sale
Agreement, if the Transferor substitutes a mortgage loan for a Deleted Mortgage
Loan pursuant to the Transfer Agreement and such substitute mortgage loan
is not
a Qualifying Substitute Mortgage Loan, then pursuant to the terms of the
Mortgage Loan Sale Agreement the Seller will, in exchange for such substitute
mortgage loan, (i) pay to the Trust Fund the applicable Purchase Price for
the
affected Mortgage Loan or (ii) within two years of the Closing Date,
substitute a Qualifying Substitute Mortgage Loan.
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Section
2.05. Repurchase,
Purchase or Substitution of Mortgage Loans.
(a) With
respect to any Mortgage Loan repurchased by the Depositor pursuant to this
Agreement, by the Seller pursuant to the Mortgage Loan Sale Agreement or
by the
Transferor pursuant to the Transfer Agreement, the principal portion of the
funds (including the related First Payment Default Purchase Price in the
case of
a First Payment Mortgage Loan) (excluding any FPD Premium) received by the
Trustee in respect of such repurchase of a Mortgage Loan will be considered
a
Principal Prepayment and the Purchase Price or First Payment Default Purchase
Price (excluding any FPD Premium) shall be deposited in the Collection Account
or a Custodial Account, as applicable. The Trustee (i) upon receipt of the
full
amount of the Purchase Price for a Deleted Mortgage Loan, (ii) upon receipt
of a
written certification from the Master Servicer that it has received the full
amount of the Purchase Price for a Deleted Mortgage Loan and has deposited
such
amount in the Collection Account or (iii) upon receipt of notification from
the
Custodian that it had received the Mortgage File for a Qualifying Substitute
Mortgage Loan substituted for a Deleted Mortgage Loan (and any applicable
Substitution Amount), shall release or cause to be released and reassign
to the
Depositor, the Seller or the Transferor, as applicable, the related Mortgage
File for the Deleted Mortgage Loan and shall execute and deliver such
instruments of transfer or assignment, in each case without recourse,
representation or warranty, as shall be necessary to vest in such party or
its
designee or assignee title to any Deleted Mortgage Loan released pursuant
hereto, free and clear of all security interests, liens and other encumbrances
created by this Agreement, which instruments shall be prepared by the Servicer,
and the Trustee shall have no further responsibility with respect to the
Mortgage File relating to such Deleted Mortgage Loan. The Seller indemnifies
and
holds the Trust Fund, the Master Servicer, the Securities Administrator,
the
Trustee, the Depositor, any NIMS Insurer and each Certificateholder harmless
against any and all taxes, claims, losses, penalties, fines, forfeitures,
reasonable legal fees and related costs, judgments, and any other costs,
fees
and expenses that the Trust Fund, the Trustee, the Master Servicer, the
Securities Administrator, the Depositor, any NIMS Insurer and any
Certificateholder may sustain in connection with any actions of such Seller
relating to a repurchase of a Mortgage Loan other than in compliance with
the
terms of this Section 2.05 and the Mortgage Loan Sale Agreement, to the extent
that any such action causes an Adverse REMIC Event.
71
(b) With
respect to each Qualifying Substitute Mortgage Loan to be delivered to the
Trustee (or the Custodian) pursuant to the terms of this Article II in exchange
for a Deleted Mortgage Loan: (i) the Depositor, the Transferor or the Seller,
as
applicable, must deliver to the Trustee (or the Custodian) the Mortgage File
for
the Qualifying Substitute Mortgage Loan containing the documents set forth
in
Section 2.01(b) along with a written certification certifying as to the delivery
of such Mortgage File and containing granting language substantially comparable
to that set forth in the first paragraph of Section 2.01(a); and (ii) the
Depositor will be deemed to have made, with respect to such Qualifying
Substitute Mortgage Loan, each of the representations and warranties made
by it
with respect to the related Deleted Mortgage Loan. As soon as practicable
after
the delivery of any Qualifying Substitute Mortgage Loan hereunder, the Master
Servicer, at the expense of the Depositor and at the direction and with the
cooperation of the Servicer, shall (i) with respect to a Qualifying
Substitute Mortgage Loan that is a Non-MERS Mortgage Loan, cause the Assignment
of Mortgage to be recorded by the Servicer if required pursuant to Section
2.01(d), or (ii) with respect to a Qualifying Substitute Mortgage Loan that
is a
MERS Mortgage Loan, cause to be taken such actions as are necessary to cause
the
Trustee to be clearly identified as the owner of each such Mortgage Loan
on the
records of MERS if required pursuant to Section 2.01(d).
(c) Notwithstanding
any other provision of this Agreement, the right to substitute Mortgage Loans
pursuant to this Article II shall be subject to the additional limitations
that
no substitution of a Qualifying Substitute Mortgage Loan for a Deleted Mortgage
Loan shall be made unless the Trustee and any NIMS Insurer has received an
Opinion of Counsel addressed to the Trustee (at the expense of the party
seeking
to make the substitution) that, under current law, such substitution will
not
cause an Adverse REMIC Event.
Section
2.06. Grant
Clause.
(a) It
is
intended that the conveyance of the Depositor’s right, title and interest in and
to property constituting the Trust Fund pursuant to this Agreement shall
constitute, and shall be construed as, a sale of such property and not a
grant
of a security interest to secure a loan. However, if such conveyance is deemed
to be in respect of a loan, it is intended that: (1) the rights and obligations
of the parties shall be established pursuant to the terms of this Agreement;
(2)
the Depositor hereby grants to the Trustee for the benefit of the Holders
of the
Certificates a first priority security interest to secure repayment of an
obligation in an amount equal to the aggregate Class Principal Amount of
the
Certificates (or the aggregate principal balance of the Lower Tier REMIC 1
Uncertificated Regular Interests, if applicable) in all of the Depositor’s
right, title and interest in, to and under, whether now owned or hereafter
acquired, the Trust Fund and the Supplemental Interest Trust and all proceeds
of
any and all property constituting the Trust Fund and the Supplemental Interest
Trust to secure payment of the Certificates or Lower Tier REMIC 1
Uncertificated Regular Interests, as applicable, (such security interest
being,
to the extent of the assets that constitute the Supplemental Interest Trust,
pari
passu
with the
security interest as provided in clause (4) below); (3) this Agreement shall
constitute a security agreement under applicable law; and (4) the Swap
Counterparty shall be deemed, during the term of such agreement and while
such
agreement is the property of the Trustee, to have a security interest in
all of
the assets that constitute the Supplemental Interest Trust, but only to the
extent of such Swap Counterparty’s right to payment under the Swap Agreement
(such security interest being pari
passu
with the
security interest as provided in clause (2) above). If such conveyance is
deemed
to be in respect of a loan and the trust created by this Agreement terminates
prior to the satisfaction of the claims of any Person holding any Certificate
or
Lower Tier REMIC 1 Uncertificated Regular Interests, as applicable, the
security interest created hereby shall continue in full force and effect
and the
Trustee shall be deemed to be the collateral agent for the benefit of such
Person, and all proceeds shall be distributed as herein provided.
72
(b) The
Depositor shall, to the extent consistent with this Agreement, take such
reasonable actions as may be necessary to ensure that, if this Agreement
were
deemed to create a security interest in the Mortgage Loans and the other
property described above, such security interest would be deemed to be a
perfected security interest of first priority under applicable law and shall
be
maintained as such throughout the term of this Agreement. The Depositor shall,
at its own expense, make all initial filings on or about the Closing Date
and
shall forward a copy of such filing or filings to the Trustee. Without limiting
the generality of the foregoing, the Depositor shall prepare and forward
for
filing, or shall cause to be forwarded for filing, at the expense of the
Depositor, all filings necessary to maintain the effectiveness of any original
filings necessary under the relevant UCC to perfect the Trustee’s security
interest in or lien on the Mortgage Loans, including without limitation (x)
continuation statements, and (y) such other statements as may be occasioned
by
(1) any change of name of the Seller, the Depositor or the Trustee, (2) any
change of location of the jurisdiction of organization of the Seller or the
Depositor, (3) any transfer of any interest of the Seller or the Depositor
in
any Mortgage Loan or (4) any change under the relevant UCC or other applicable
laws. Neither the Seller nor the Depositor shall organize under the law of
any
jurisdiction other than the State under which each is organized as of the
Closing Date (whether changing its jurisdiction of organization or organizing
under an additional jurisdiction) without giving 30 days prior written notice
of
such action to its immediate and intermediate transferee, including the Trustee.
Before effecting such change, the Seller or the Depositor proposing to change
its jurisdiction of organization shall prepare and file in the appropriate
filing office any financing statements or other statements necessary to continue
the perfection of the interests of its immediate and intermediate transferees,
including the Trustee, in the Mortgage Loans. In connection with the
transactions contemplated by this Agreement, each of the Seller and the
Depositor authorizes its immediate or intermediate transferee to file in
any
filing office any initial financing statements, any amendments to financing
statements, any continuation statements, or any other statements or filings
described in this paragraph (b).
ARTICLE
III
THE
CERTIFICATES
Section
3.01. The
Certificates.
(a) The
Certificates shall be issuable in registered form only and shall be securities
governed by Article 8 of the New York Uniform Commercial Code. The Book-Entry
Certificates will be evidenced by one or more certificates, beneficial ownership
of which will be held in the dollar denominations in Certificate Principal
Amount, or in the Percentage Interests, specified herein. Each Class of
Book-Entry Certificates will be issued in the minimum denominations in
Certificate Principal Amount specified in the Preliminary Statement hereto
and
in integral multiples of $1 in excess thereof. The Class P and Class X
Certificates shall each be maintained in definitive, fully registered form
in
the minimum denomination specified in the Preliminary Statement hereto and
in
integral multiples of 1% in excess thereof. Each of the Class LT-R and Class
R
Certificate shall be issued as a single Certificate and maintained in
definitive, fully registered form in a minimum denomination equal to 100%
of the
Percentage Interest of each such Class. The Certificates may be issued in
the
form of typewritten certificates.
73
(b) The
Certificates shall be executed by manual or facsimile signature on behalf
of the
Trustee by an authorized officer. Each Certificate shall, on original issue,
be
authenticated by the Trustee upon the order of the Depositor upon receipt
by the
Trustee (or its custodian) of the Mortgage Files described in Section 2.01.
No
Certificate shall be entitled to any benefit under this Agreement, or be
valid
for any purpose, unless there appears on such Certificate a certificate of
authentication substantially in the form provided for herein, executed by
an
authorized officer of the Trustee or the Authenticating Agent, if any, by
manual
signature, and such certification upon any Certificate shall be conclusive
evidence, and the only evidence, that such Certificate has been duly
authenticated and delivered hereunder. All Certificates shall be dated the
date
of their authentication. At any time and from time to time after the execution
and delivery of this Agreement, the Depositor may deliver Certificates executed
by the Depositor to the Trustee or the Authenticating Agent for authentication
and the Trustee or the Authenticating Agent shall authenticate and deliver
such
Certificates as in this Agreement provided and not otherwise.
(c) The
Class
B Certificates offered and sold in reliance on the exemption from registration
under Rule 144A under the Securities Act shall be issued initially in the
form
of one or more permanent global Certificates in definitive, fully registered
form without interest coupons with the applicable legends set forth in Exhibit
A
added to the forms of such Certificates (each, a “Restricted Global Security”),
which shall be deposited on behalf of the subscribers for such Certificates
represented thereby with the Trustee, as custodian for The Depository Trust
Company (“DTC”) and registered in the name of a nominee of DTC, duly executed
and authenticated by the Trustee as hereinafter provided. The aggregate
principal amounts of the Restricted Global Securities may from time to time
be
increased or decreased by adjustments made on the records of the Trustee
or DTC
or its nominee, as the case may be, as hereinafter provided.
(d) The
Class
B Certificates sold in offshore transactions in reliance on Regulation S
shall
be issued initially in the form of one or more permanent global Certificates
in
definitive, fully registered form without interest coupons with the applicable
legends set forth in Exhibit A hereto added to the forms of such Certificates
(each, a “Regulation S Global Security”), which shall be deposited on behalf of
the subscribers for such Certificates represented thereby with the Trustee,
as
custodian for DTC and registered in the name of a nominee of DTC, duly executed
and authenticated by the Trustee as hereinafter provided. The aggregate
principal amounts of the Regulation S Global Securities may from time to
time be
increased or decreased by adjustments made on the records of the Trustee
or DTC
or its nominee, as the case may be, as hereinafter provided.
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(e) The
Class
B Certificates sold to an “accredited investor” under Rule 501(a)(1), (2), (3)
or (7) under the Securities Act shall be issued initially in the form of
one or
more Definitive Certificates.
Section
3.02. Registration.
The
Trustee is hereby appointed, and hereby accepts its appointment as, Certificate
Registrar in respect of the Certificates (and, after a Section 7.01(c) Purchase
Event, the Lower Tier REMIC 1 Uncertificated Regular Interests, if applicable)
and shall maintain books for the registration and for the transfer of
Certificates (and, after a Section 7.01(c) Purchase Event, the Lower Tier
REMIC 1 Uncertificated Regular Interests, if applicable) (the “Certificate
Register”). The Trustee may appoint a bank or trust company to act as
Certificate Registrar. A registration book shall be maintained for the
Certificates (and Lower Tier REMIC 1 Uncertificated Regular Interests, as
the case may be) collectively. The Certificate Registrar may resign or be
discharged or removed and a new successor may be appointed in accordance
with
the procedures and requirements set forth in Sections 6.06 and 6.07 hereof
with
respect to the resignation, discharge or removal of the Trustee and the
appointment of a successor Trustee. The Certificate Registrar may appoint,
by a
written instrument delivered to the Holders, any NIMS Insurer and the Master
Servicer, any bank or trust company to act as co-registrar under such conditions
as the Certificate Registrar may prescribe; provided,
however,
that the
Certificate Registrar shall not be relieved of any of its duties or
responsibilities hereunder by reason of such appointment.
Upon
the
occurrence of a Section 7.01(c) Purchase Event, the Master Servicer shall
provide the Trustee with written notice of the identity of any transferee
of the
Master Servicer’s interest in the Lower Tier REMIC 1 Uncertificated Regular
Interests, which notice shall contain a certification that such transferee
is a
permitted LTURI-holder hereunder. The Lower Tier REMIC 1 Uncertificated Regular
Interests may only be transferred in whole and not in part to no more than
one
LTURI-holder at a time who is either (1) an affiliate of the Master Servicer
or
(2) a trustee of a privately placed securitization. The Trustee and the
Depositor shall treat the Person in whose name the Lower Tier REMIC 1
Uncertificated Regular Interests are registered on the books of the Certificate
Registrar as the LTURI-holder for all purposes hereunder.
Section
3.03. Transfer
and Exchange of Certificates.
(a) A
Certificate (other than a Book-Entry Certificate which shall be subject to
Section 3.09 hereof) may be transferred by the Holder thereof only upon
presentation and surrender of such Certificate at the office of the Certificate
Registrar duly endorsed or accompanied by an assignment duly executed by
such
Holder or his duly authorized attorney in such form as shall be satisfactory
to
the Certificate Registrar. Upon the transfer of any Certificate in accordance
with the preceding sentence, the Trustee shall execute, and the Trustee or
any
Authenticating Agent shall authenticate and deliver to the transferee, one
or
more new Certificates of the same Class and evidencing, in the aggregate,
the
same aggregate Certificate Principal Amount or Percentage Interest as the
Certificate being transferred. No service charge shall be made to a
Certificateholder for any registration of transfer of Certificates, but the
Certificate Registrar may require payment of a sum sufficient to cover any
tax
or governmental charge that may be imposed in connection with any registration
of transfer of Certificates.
75
(b) A
Certificate may be exchanged by the Holder thereof for any number of new
Certificates of the same Class, in authorized denominations, representing
in the
aggregate the same Certificate Principal Amount or Percentage Interest as
the
Certificate surrendered, upon surrender of the Certificate to be exchanged
at
the office of the Certificate Registrar duly endorsed or accompanied by a
written instrument of transfer duly executed by such Holder or his duly
authorized attorney in such form as is satisfactory to the Certificate
Registrar. Certificates delivered upon any such exchange will evidence the
same
obligations, and will be entitled to the same rights and privileges, as the
Certificates surrendered. No service charge shall be made to a Certificateholder
for any exchange of Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or governmental charge that
may be
imposed in connection with any exchange of Certificates. Whenever any
Certificates are so surrendered for exchange, the Trustee shall execute,
and the
Trustee or the Authenticating Agent shall authenticate, date and deliver
the
Certificates which the Certificateholder making the exchange is entitled
to
receive.
(c) By
acceptance of a Restricted Certificate or a Regulation S Global Security,
whether upon original issuance or subsequent transfer, each Holder of such
a
Certificate acknowledges the restrictions on the transfer of such Certificate
set forth thereon and agrees that it will transfer such a Certificate only
as
provided herein. In addition, each Holder of a Regulation S Global Security
shall be deemed to have represented and warranted to the Trustee, the
Certificate Registrar and any of their respective successors that: (i) such
Person is not a U.S. person within the meaning of Regulation S and was, at
the
time the buy order was originated, outside the United States and (ii) such
Person understands that such Certificates have not been registered under
the
Securities Act, and that (x) until the expiration of the 40-day distribution
compliance period (within the meaning of Regulation S), no offer, sale, pledge
or other transfer of such Certificates or any interest therein shall be made
in
the United States or to or for the account or benefit of a U.S. person (each
as
defined in Regulation S), (y) if in the future it decides to offer, resell,
pledge or otherwise transfer such Certificates, such Certificates may be
offered, resold, pledged or otherwise transferred only (A) to a person which
the
seller reasonably believes is a “qualified institutional buyer” (a “QIB”) as
defined in Rule 144A under the Securities Act, that is purchasing such
Certificates for its own account or for the account of a qualified institutional
buyer to which notice is given that the transfer is being made in reliance
on
Rule 144A or (B) in an offshore transaction (as defined in Regulation S)
in
compliance with the provisions of Regulation S, in each case in compliance
with
the requirements of this Agreement; and it will notify such transferee of
the
transfer restrictions specified in this Section.
The
following restrictions shall apply with respect to the transfer and registration
of transfer of a Restricted Certificate to a transferee that takes delivery
in
the form of a Definitive Certificate:
(i) The
Certificate Registrar shall register the transfer of a Restricted Certificate
if
the requested transfer is (x) to the Depositor or the Placement Agent, an
affiliate (as defined in Rule 405 under the Securities Act) of the Depositor
or
the Placement Agent or (y) being made to a “qualified institutional buyer” (a
“QIB”) as defined in Rule 144A under the Securities Act by a transferor that has
provided the Trustee with a certificate in the form of Exhibit F hereto;
or
76
(ii) The
Certificate Registrar shall register the transfer of a Restricted Certificate
if
the requested transfer is being made to an “accredited investor” under Rule
501(a)(1), (2), (3) or (7) under the Securities Act, or to any Person all
of the
equity owners in which are such accredited investors, by a transferor who
furnishes to the Trustee a letter of the transferee substantially in the
form of
Exhibit G hereto.
(d) (i) No
transfer of an ERISA-Restricted Certificate in the form of a Definitive
Certificate shall be made to any Person unless the Trustee or the Certificate
Registrar has received (A) a certificate substantially in the form of Exhibit
H
hereto (or Exhibit D-1, in the case of a Residual Certificate) from such
transferee or (B) an Opinion of Counsel satisfactory to the Trustee or the
Certificate Registrar, to the effect that the purchase and holding of such
a
Certificate will not constitute or result in prohibited transactions under
Title
I of ERISA or Section 4975 of the Code and will not subject the Trustee,
the
Master Servicer, the Servicer, the Securities Administrator, any NIMS Insurer
or
the Depositor to any obligation in addition to those undertaken in the
Agreement; provided,
however,
that the
Trustee or the Certificate Registrar will not require such certificate or
opinion in the event that, as a result of a change of law or otherwise, counsel
satisfactory to the Trustee has rendered an opinion to the effect that the
purchase and holding of an ERISA-Restricted Certificate by a Plan or a Person
that is purchasing or holding such a Certificate with the assets of a Plan
will
not constitute or result in a prohibited transaction under Title I of ERISA
or
Section 4975 of the Code. Each Transferee of an ERISA-Restricted Certificate
that is a Book-Entry Certificate shall be deemed to have made the
representations set forth in Exhibit H. The preparation and delivery of the
certificate and opinions referred to above shall not be an expense of the
Trust
Fund, the Trustee, the Master Servicer, the Servicer, the Securities
Administrator, any NIMS Insurer or the Depositor.
Notwithstanding
the foregoing, no opinion or certificate shall be required for the initial
issuance of the ERISA-Restricted Certificates. The Trustee and the Certificate
Registrar shall have no obligation to monitor transfers of Book-Entry
Certificates that are ERISA-Restricted Certificates and shall have no liability
for transfers of such Certificates in violation of the transfer restrictions.
The Trustee and the Certificate Registrar shall be under no liability to
any
Person for any registration of transfer of any ERISA-Restricted Certificate
that
is in fact not permitted by this Section 3.03(d) or for making any payments
due
on such Certificate to the Holder thereof or taking any other action with
respect to such Holder under the provisions of this Agreement so long as
the
transfer was registered by the Trustee or the Certificate Registrar in
accordance with the foregoing requirements. The Trustee and the Certificate
Registrar shall be entitled, but not obligated, to recover from any Holder
of
any ERISA-Restricted Certificate that was in fact a Plan or a Person acting
on
behalf of any such Plan any payments made on such ERISA-Restricted Certificate
at and after either such time. Any such payments so recovered by the Trustee
shall be paid and delivered by the Trustee to the last preceding Holder of
such
Certificate that is not such a Plan or Person acting on behalf of a
Plan.
(ii)
No
transfer of an ERISA-Restricted Trust Certificate shall be made prior to
the
termination of the Swap Agreement and the Interest Rate Cap Agreement, unless
the Trustee or the Certificate Registrar shall have received a representation
letter from the transferee of such Certificate, substantially in the form
set
forth in Exhibit H, to the effect that either (i) such transferee is neither
a
Plan nor a Person acting on behalf of any such Plan or using the assets of
any
such Plan to effect such transfer or (ii) the acquisition and holding of
the
ERISA-Restricted Trust Certificate are eligible for exemptive relief under
the
statutory exemption for nonfiduciary service providers under Section 408(b)(17)
of ERISA or Section 4975(d)(26) of the Code, Prohibited Transaction Class
Exemption (“PTCE”) 84-14, XXXX 00-0, XXXX 00-00, XXXX 95-60 or PTCE 96-23 or
some other applicable exemption. Notwithstanding anything else to the contrary
herein, prior to the termination of the Swap Agreement and the Interest Rate
Cap
Agreement, any purported transfer of an ERISA-Restricted Trust Certificate
on
behalf of a Plan without the delivery to the Trustee or the Certificate
Registrar, as applicable, of a representation letter as described above shall
be
void and of no effect. If the ERISA-Restricted Trust Certificate is a Book-Entry
Certificate, prior to the termination of the Swap Agreement and the Interest
Rate Cap Agreement, the transferee will be deemed to have made a representation
as provided in clause (i) or (ii) of this paragraph, as applicable.
77
If
any
ERISA-Restricted Trust Certificate, or any interest therein, is acquired
or held
in violation of the provisions of the preceding paragraph, the next preceding
permitted beneficial owner will be treated as the beneficial owner of that
Certificate, retroactive to the date of transfer to the purported beneficial
owner. Any purported beneficial owner whose acquisition or holding of an
ERISA-Restricted Trust Certificate, or interest therein, was effected in
violation of the provisions of the preceding paragraph shall indemnify to
the
extent permitted by law and hold harmless the Depositor, the Securities
Administrator, the Trustee, the Certificate Registrar, any NIMS Insurer and
the
Master Servicer from and against any and all liabilities, claims, costs or
expenses incurred by such parties as a result of such acquisition or
holding.
To
the
extent permitted under applicable law (including, but not limited to, ERISA),
neither the Trustee nor the Certificate Registrar shall be under any liability
to any Person for any registration of transfer of any ERISA-Restricted Trust
Certificate that is in fact not permitted by this Section 3.03(d)(ii) or
for
making any payments due on such Certificate to the Holder thereof or taking
any
other action with respect to such Holder under the provisions of this Agreement
so long as the transfer was registered by the Trustee or the Certificate
Registrar, as applicable, in accordance with the foregoing
requirements.
(e) As
a
condition of the registration of transfer or exchange of any Certificate,
the
Trustee or the Certificate Registrar, as applicable, may require the certified
taxpayer identification number of the owner of the Certificate and the payment
of a sum sufficient to cover any tax or other governmental charge imposed
in
connection therewith; provided,
however,
that
neither the Trustee nor the Certificate Registrar shall have any obligation
to
require such payment or to determine whether or not any such tax or charge
may
be applicable. No service charge shall be made to the Certificateholder for
any
registration, transfer or exchange of a Certificate.
(f) Notwithstanding
anything to the contrary contained herein, no Residual Certificate may be
owned,
pledged or transferred, directly or indirectly, by or to (i) a Disqualified
Organization or (ii) an individual, corporation or partnership or other person
unless such person is (A) not a Non-U.S. Person or (B) is a Non-U.S. Person
that
holds a Residual Certificate in connection with the conduct of a trade or
business within the United States and has furnished the transferor and the
Trustee with an effective Internal Revenue Service W-8ECI or successor form
at
the time and in the manner required by the Code (any such person who is not
covered by clause (A) or (B) above is referred to herein as a “Non-permitted
Foreign Holder”).
78
Prior
to
and as a condition of the registration of any transfer, sale or other
disposition of a Residual Certificate, the proposed transferee shall deliver
to
the Trustee or the Certificate Registrar an affidavit in substantially the
form
attached hereto as Exhibit D-1 representing and warranting, among other things,
that such transferee is not a Disqualified Organization, an agent or nominee
acting on behalf of a Disqualified Organization or a Non-Permitted Foreign
Holder (any such transferee, a “Permitted Transferee”), and the proposed
transferor shall deliver to the Trustee or the Certificate Registrar an
affidavit in substantially the form attached hereto as Exhibit D-2. In addition,
the Trustee may (but shall have no obligation to) require, prior to and as
a
condition of any such transfer, the delivery by the proposed transferee of
an
Opinion of Counsel, addressed to the Depositor, the Master Servicer, the
Securities Administrator, any NIMS Insurer and the Trustee satisfactory in
form
and substance to the Depositor, that such proposed transferee or, if the
proposed transferee is an agent or nominee, the proposed beneficial owner,
is
not a Disqualified Organization, agent or nominee thereof, or a Non-Permitted
Foreign Holder. Notwithstanding the registration in the Certificate Register
of
any transfer, sale, or other disposition of a Residual Certificate to a
Disqualified Organization, an agent or nominee thereof, or Non-Permitted
Foreign
Holder, such registration shall be deemed to be of no legal force or effect
whatsoever and such Disqualified Organization, agent or nominee thereof,
or
Non-Permitted Foreign Holder shall not be deemed to be a Certificateholder
for
any purpose hereunder, including, but not limited to, the receipt of
distributions on such Residual Certificate. Neither the Trustee nor the
Certificate Registrar shall be under any liability to any person for any
registration or transfer of a Residual Certificate to a Disqualified
Organization, agent or nominee thereof or Non-permitted Foreign Holder or
for
the maturity of any payments due on such Residual Certificate to the Holder
thereof or for taking any other action with respect to such Holder under
the
provisions of the Agreement, so long as the transfer was effected in accordance
with this Section 3.03(f), unless a Responsible Officer of the Trustee or
the
Certificate Registrar, as applicable, shall have actual knowledge at the
time of
such transfer or the time of such payment or other action that the transferee
is
a Disqualified Organization, or an agent or nominee thereof, or Non-permitted
Foreign Holder. The Trustee and the Certificate Registrar shall be entitled,
but
not obligated, to recover from any Holder of a Residual Certificate that
was a
Disqualified Organization, agent or nominee thereof, or Non-permitted Foreign
Holder at the time it became a Holder or any subsequent time it became a
Disqualified Organization, agent or nominee thereof, or Non-permitted Foreign
Holder, all payments made on such Residual Certificate at and after either
such
times (and all costs and expenses, including but not limited to attorneys’ fees,
incurred in connection therewith). Any payment (not including any such costs
and
expenses) so recovered by the Trustee shall be paid and delivered to the
last
preceding Holder of such Residual Certificate.
If
any
purported transferee shall become a registered Holder of a Residual Certificate
in violation of the provisions of this Section 3.03(f), then upon receipt
of
written notice to the Trustee or the Certificate Registrar that the registration
of transfer of such Residual Certificate was not in fact permitted by this
Section 3.03(f), the last preceding Permitted Transferee shall be restored
to
all rights as Holder thereof retroactive to the date of such registration
of
transfer of such Residual Certificate. Neither the Trustee nor the Certificate
Registrar shall be under any liability to any Person for any registration
of
transfer of a Residual Certificate that is in fact not permitted by this
Section
3.03(f), for making any payment due on such Certificate to the registered
Holder
thereof or for taking any other action with respect to such Holder under
the
provisions of this Agreement so long as the transfer was registered upon
receipt
of the affidavit described in the preceding paragraph of this Section
3.03(f).
79
(g) Each
Holder or Certificate Owner of a Restricted Certificate, ERISA-Restricted
Certificate or Residual Certificate, or an interest therein, by such Holder’s or
Owner’s acceptance thereof, shall be deemed for all purposes to have consented
to the provisions of this section.
(h) Notwithstanding
any provision to the contrary herein, so long as a Global Security representing
any Class B Certificate remains outstanding and is held by or on behalf of
DTC,
transfers of a Global Security representing any such Certificates, in whole
or
in part, shall only be made in accordance with Section 3.01 and this Section
3.03(h).
(i) Subject
to clauses (ii) and (iii) of this Section 3.03(h), transfers of a Global
Security representing any Class B Certificate shall be limited to transfers
of
such Global Security, in whole or in part, to nominees of DTC or to a successor
of DTC or such successor’s nominee.
(ii) Restricted
Global Security to Regulation S Global Security.
If a
holder of a beneficial interest in a Restricted Global Security deposited
with
or on behalf of DTC wishes at any time to exchange its interest in such
Restricted Global Security for an interest in a Regulation S Global Security,
or
to transfer its interest in such Restricted Global Security to a Person who
wishes to take delivery thereof in the form of an interest in a Regulation
S
Global Security, such holder, provided such holder is not a U.S. person,
may,
subject to the rules and procedures of DTC, exchange or cause the exchange
of
such interest for an equivalent beneficial interest in the Regulation S Global
Security. Upon receipt by the Trustee, as Certificate Registrar, of (I)
instructions from DTC directing the Trustee, as Certificate Registrar, to
be
credited a beneficial interest in a Regulation S Global Security in an amount
equal to the beneficial interest in such Restricted Global Security to be
exchanged but not less than the minimum denomination applicable to such holder’s
Certificates held through a Regulation S Global Security, (II) a written
order
given in accordance with DTC’s procedures containing information regarding the
participant account of DTC and, in the case of a transfer pursuant to and
in
accordance with Regulation S, the Euroclear or Clearstream account to be
credited with such increase and (III) a certificate in the form of Exhibit
M-1
hereto given by the holder of such beneficial interest stating that the exchange
or transfer of such interest has been made in compliance with the transfer
restrictions applicable to the Global Securities, including that the holder
is
not a U.S. person, and pursuant to and in accordance with Regulation S, the
Trustee, as Certificate Registrar, shall reduce the principal amount of the
Restricted Global Security and increase the principal amount of the Regulation
S
Global Security by the aggregate principal amount of the beneficial interest
in
the Restricted Global Security to be exchanged, and shall instruct Euroclear
or
Clearstream, as applicable, concurrently with such reduction, to credit or
cause
to be credited to the account of the Person specified in such instructions
a
beneficial interest in the Regulation S Global Security equal to the reduction
in the principal amount of the Restricted Global Security.
80
(iii) Regulation
S Global Security to Restricted Global Security.
If a
holder of a beneficial interest in a Regulation S Global Security deposited
with
or on behalf of DTC wishes at any time to transfer its interest in such
Regulation S Global Security to a Person who wishes to take delivery thereof
in
the form of an interest in a Restricted Global Security, such holder may,
subject to the rules and procedures of DTC, exchange or cause the exchange
of
such interest for an equivalent beneficial interest in a Restricted Global
Security. Upon receipt by the Trustee, as Certificate Registrar, of (I)
instructions from DTC directing the Trustee, as Certificate Registrar, to
cause
to be credited a beneficial interest in a Restricted Global Security in an
amount equal to the beneficial interest in such Regulation S Global Security
to
be exchanged but not less than the minimum denomination applicable to such
holder’s Certificates held through a Restricted Global Security, to be
exchanged, such instructions to contain information regarding the participant
account with DTC to be credited with such increase, and (II) a certificate
in
the form of Exhibit M-2 hereto given by the holder of such beneficial interest
and stating, among other things, that the Person transferring such interest
in
such Regulation S Global Security reasonably believes that the Person acquiring
such interest in a Restricted Global Security is a QIB, is obtaining such
beneficial interest in a transaction meeting the requirements of Rule 144A
under
the Securities Act and in accordance with any applicable securities laws
of any
State of the United States or any other jurisdiction, then the Trustee, as
Certificate Registrar, will reduce the principal amount of the Regulation
S
Global Security and increase the principal amount of the Restricted Global
Security by the aggregate principal amount of the beneficial interest in
the
Regulation S Global Security to be transferred and the Trustee, as Certificate
Registrar, shall instruct DTC, concurrently with such reduction, to credit
or
cause to be credited to the account of the Person specified in such instructions
a beneficial interest in the Restricted Global Security equal to the reduction
in the principal amount of the Regulation S Global Security.
(iv) Other
Exchanges.
In the
event that a Global Security is exchanged for Certificates in definitive
registered form without interest coupons, pursuant to Section 3.09(c) hereof,
such Certificates may be exchanged for one another only in accordance with
such
procedures as are substantially consistent with the provisions above (including
certification requirements intended to insure that such transfers comply
with
Rule 144A, comply with Rule 501(a)(1), (2), (3) or (7) or are to non-U.S.
persons in compliance with Regulation S under the Securities Act, as the
case
may be), and as may be from time to time adopted by the Trustee.
(v) Restrictions
on U.S. Transfers.
Transfers of interests in the Regulation S Global Security to U.S. persons
(as
defined in Regulation S) shall be limited to transfers made pursuant to the
provisions of Section 3.03(h)(iii).
Section
3.04. Cancellation
of Certificates.
81
Any
Certificate surrendered for registration of transfer or exchange shall be
cancelled and retained in accordance with the Trustee’s or the Certificate
Registrar’s normal retention policies with respect to cancelled certificates
maintained by the Trustee or the Certificate Registrar.
Section
3.05. Replacement
of Certificates.
If
(i)
any Certificate is mutilated and is surrendered to the Trustee or any
Authenticating Agent or (ii) the Trustee or any Authenticating Agent receives
evidence to its satisfaction of the destruction, loss or theft of any
Certificate, and there is delivered to the Trustee and the Authenticating
Agent
and any NIMS Insurer such security or indemnity as may be required by them
to
save each of them harmless, then, in the absence of notice to the Trustee
and
any Authenticating Agent that such destroyed, lost or stolen Certificate
has
been acquired by a bona fide purchaser, the Trustee shall execute and the
Trustee or any Authenticating Agent shall authenticate and deliver, in exchange
for or in lieu of any such mutilated, destroyed, lost or stolen Certificate,
a
new Certificate of like tenor and Certificate Principal Amount. Upon the
issuance of any new Certificate under this Section 3.05, the Trustee and
Authenticating Agent may require the payment of a sum sufficient to cover
any
tax or other governmental charge that may be imposed in relation thereto
and any
other expenses (including the fees and expenses of the Trustee or the
Authenticating Agent) connected therewith. Any replacement Certificate issued
pursuant to this Section 3.05 shall constitute complete and indefeasible
evidence of ownership in the applicable Trust Fund, as if originally issued,
whether or not the lost, stolen or destroyed Certificate shall be found at
any
time.
Section
3.06. Persons
Deemed Owners.
Subject
to the provisions of Section 3.09 with respect to Book-Entry Certificates,
the
Depositor, the Master Servicer , the Securities Administrator, the Trustee,
the
Certificate Registrar, any NIMS Insurer and any agent of any of them may
treat
the Person in whose name any Certificate is registered upon the books of
the
Certificate Registrar as the owner of such Certificate for the purpose of
receiving distributions pursuant to Sections 5.01 and 5.02 and for all other
purposes whatsoever, and none of the Depositor, the Master Servicer, the
Securities Administrator, the Trustee, the Certificate Registrar, any NIMS
Insurer or any agent of any of them shall be affected by notice to the
contrary.
Section
3.07. Temporary
Certificates.
(a) Pending
the preparation of definitive Certificates, upon the order of the Depositor,
the
Trustee shall execute and shall authenticate and deliver temporary Certificates
that are printed, lithographed, typewritten, mimeographed or otherwise produced,
in any authorized denomination, substantially of the tenor of the definitive
Certificates in lieu of which they are issued and with such variations as
the
authorized officers executing such Certificates may determine, as evidenced
by
their execution of such Certificates.
(b) If
temporary Certificates are issued, the Depositor will cause definitive
Certificates to be prepared without unreasonable delay. After the preparation
of
definitive Certificates, the temporary Certificates shall be exchangeable
for
definitive Certificates upon surrender of the temporary Certificates at the
office or agency of the Trustee without charge to the Holder. Upon surrender
for
cancellation of any one or more temporary Certificates, the Trustee shall
execute and authenticate and deliver in exchange therefor a like aggregate
Certificate Principal Amount of definitive Certificates of the same Class
in the
authorized denominations. Until so exchanged, the temporary Certificates
shall
in all respects be entitled to the same benefits under this Agreement as
definitive Certificates of the same Class.
82
Section
3.08. Appointment
of Paying Agent.
(a) The
Trustee hereby appoints itself as initial Paying Agent. The Trustee, subject
to
the consent of any NIMS Insurer, may appoint a Paying Agent (which may be
the
Trustee) for the purpose of making distributions to Certificateholders
hereunder. The Trustee shall cause such Paying Agent (if other than the Trustee)
to execute and deliver to the Trustee an instrument in which such Paying
Agent
shall agree with the Trustee that such Paying Agent will hold (and, if the
Trustee is Paying Agent, the Trustee agrees that it will hold) all sums held
by
it for the payment to Certificateholders in an Eligible Account in trust
for the
benefit of the Certificateholders entitled thereto until such sums shall
be paid
to the Certificateholders. All funds remitted by the Trustee to any such
Paying
Agent for the purpose of making distributions shall be paid to
Certificateholders on each Distribution Date and any amounts not so paid
shall
be returned on such Distribution Date to the Trustee. If the Paying Agent
is not
the Trustee, the Trustee shall cause to be remitted to the Paying Agent on
or
before the Business Day prior to each Distribution Date, by wire transfer
in
immediately available funds, the funds to be distributed on such Distribution
Date. Any Paying Agent shall be either a bank or trust company or otherwise
authorized under law to exercise corporate trust powers.
(b) Any
Paying Agent (if other than the Trustee) shall comply with its reporting
obligations under Regulation AB with respect to the Trust Fund in form and
substance similar to those of the Trustee pursuant to Section 6.20, and the
related assessment of compliance shall cover, at a minimum, the elements
of the
servicing criteria applicable to the Paying Agent indicated in Exhibit S
attached hereto. The Paying Agent shall give prior written notice to the
Sponsor, the Master Servicer and the Depositor of the appointment of any
Subcontractor by it and a written description (in form and substance
satisfactory to the Sponsor and the Depositor) of the role and function of
each
Subcontractor utilized by the Paying Agent, as applicable, specifying (A)
the
identity of each such Subcontractor and B) which elements of the servicing
criteria set forth under Item 1122(d) of Regulation AB will be addressed
in
assessments of compliance provided by each such Subcontractor. In addition,
the
Paying Agent (if other than the Trustee) shall notify the Sponsor, the Master
Servicer, the Trustee and the Depositor within five (5) calendar days of
knowledge thereof (i) of any legal proceedings pending against the Paying
Agent
of the type described in Item 1117 (§ 229.1117) of Regulation AB, (ii) any
merger, consolidation or sale of substantially all of the assets of the Paying
Agent and (iii) if the Paying Agent shall become (but only to the extent
not
previously disclosed) at any time an affiliate of any of the parties listed
on
Exhibit V hereto or any of their affiliates. On or before March 1st
of each
year, the Depositor shall distribute the information in Exhibit V to the
Paying
Agent.
(c) Any
Paying Agent (if other than the Trustee) agrees to indemnify the Depositor,
the
Securities Administrator, the Trustee and the Master Servicer, and each of
their
respective directors, officers, employees and agents and the Trust Fund and
hold
each of them harmless from and against any losses, damages, penalties, fines,
forfeitures, legal fees and expenses and related costs, judgments, and any
other
costs, fees and expenses that any of them may sustain arising out of or based
upon the failure by such Paying Agent to deliver any information, report
or
certification when and as required under Section 6.20 and Section 9.25(a).
This
indemnification shall survive the termination of this Agreement or the
termination of such Paying Agent hereunder.
83
Section
3.09. Book-Entry
Certificates.
(a) Each
Class of Book-Entry Certificates, upon original issuance, shall be issued
in the
form of one or more typewritten Certificates representing the Book-Entry
Certificates. The Book-Entry Certificates shall initially be registered on
the
Certificate Register in the name of the nominee of the Clearing Agency, and
no
Certificate Owner will receive a definitive certificate representing such
Certificate Owner’s interest in the Book-Entry Certificates, except as provided
in Section 3.09(c). Unless Definitive Certificates have been issued to
Certificate Owners of Book-Entry Certificates pursuant to Section
3.09(c):
(i) the
provisions of this Section 3.09 shall be in full force and effect;
(ii) the
Depositor, the Master Servicer, the Securities Administrator, the Paying
Agent,
the Registrar, any NIMS Insurer and the Trustee may deal with the Clearing
Agency for all purposes (including the making of distributions on the Book-Entry
Certificates) as the authorized representatives of the Certificate Owners
and
the Clearing Agency shall be responsible for crediting the amount of such
distributions to the accounts of such Persons entitled thereto, in accordance
with the Clearing Agency’s normal procedures;
(iii) to
the
extent that the provisions of this Section 3.09 conflict with any other
provisions of this Agreement, the provisions of this Section 3.09 shall control;
and
(iv) the
rights of Certificate Owners shall be exercised only through the Clearing
Agency
and the Clearing Agency Participants and shall be limited to those established
by law and agreements between such Certificate Owners and the Clearing Agency
and/or the Clearing Agency Participants. Unless and until Definitive
Certificates are issued pursuant to Section 3.09(c), the initial Clearing
Agency
will make book-entry transfers among the Clearing Agency Participants and
receive and transmit distributions of principal of and interest on the
Book-Entry Certificates to such Clearing Agency Participants.
(b) Whenever
notice or other communication to the Certificateholders is required under
this
Agreement, unless and until Definitive Certificates shall have been issued
to
Certificate Owners pursuant to Section 3.09(c), the Trustee shall give all
such
notices and communications specified herein to be given to Holders of the
Book-Entry Certificates to the Clearing Agency.
84
(c) If
(i)
(A) the Depositor advises the Trustee in writing that the Clearing Agency
is no
longer willing or able to discharge properly its responsibilities with respect
to the Book-Entry Certificates, and (B) the Depositor is unable to locate
a
qualified successor or (ii) after the occurrence of an Event of Default,
Certificate Owners representing beneficial interests aggregating not less
than
50% of the Class Principal Amount of a Class of Book-Entry Certificates
identified as such to the Trustee by an Officer’s Certificate from the Clearing
Agency advise the Trustee and the Clearing Agency through the Clearing Agency
Participants in writing that the continuation of a book-entry system through
the
Clearing Agency is no longer in the best interests of the Certificate Owners
of
a Class of Book-Entry Certificates, the Trustee shall notify any NIMS Insurer
and shall notify or cause the Certificate Registrar to notify the Clearing
Agency to effect notification to all Certificate Owners, through the Clearing
Agency, of the occurrence of any such event and of the availability of
Definitive Certificates to Certificate Owners requesting the same. Upon
surrender to the Trustee of the Book-Entry Certificates by the Clearing Agency,
accompanied by registration instructions from the Clearing Agency for
registration, the Trustee shall issue the Definitive Certificates. Neither
the
Depositor nor the Trustee shall be liable for any delay in delivery of such
instructions and may conclusively rely on, and shall be protected in relying
on,
such instructions. Upon the issuance of Definitive Certificates all references
herein to obligations imposed upon or to be performed by the Clearing Agency
shall be deemed to be imposed upon and performed by the Trustee, to the extent
applicable, with respect to such Definitive Certificates and the Trustee
shall
recognize the holders of the Definitive Certificates as Certificateholders
hereunder. Notwithstanding the foregoing, the Trustee, upon the instruction
of
the Depositor, shall have the right to issue Definitive Certificates on the
Closing Date in connection with credit enhancement programs.
85
ARTICLE
IV
ADMINISTRATION
OF THE TRUST FUND
Section
4.01. Collection
Account.
(a) On
the
Closing Date, the Master Servicer shall open and shall thereafter maintain
a
segregated account held in trust (the “Collection Account”), entitled
“Collection Account, Aurora Loan Services LLC, as Master Servicer, in trust
for
the benefit of the Holders of Structured Asset Securities Corporation Mortgage
Pass-Through Certificates, Series 2007-WF1.” The Collection Account shall relate
solely to the Certificates and to the Lower Tier REMIC 1 Uncertificated Regular
Interests issued by the Trust Fund hereunder, and funds in such Collection
Account shall not be commingled with any other monies.
(b) The
Collection Account shall be an Eligible Account. If an existing Collection
Account ceases to be an Eligible Account, the Master Servicer shall establish
a
new Collection Account that is an Eligible Account within 10 days and transfer
all funds and investment property on deposit in such existing Collection
Account
into such new Collection Account.
(c) The
Master Servicer shall give to the Trustee and the Securities Administrator
prior
written notice of the name and address of the depository institution at which
the Collection Account is maintained and the account number of such Collection
Account. The Master Servicer shall take such actions as are necessary to
cause
the depository institution holding the Collection Account to hold such account
in the name of the Master Servicer under this Agreement. On each Master Servicer
Remittance Date, the entire amount on deposit in the Collection Account (subject
to permitted withdrawals set forth in Section 4.02), other than amounts not
included in the Total Distribution Amount for such Distribution Date shall
be
remitted to the Securities Administrator for deposit into the Securities
Administration Account by wire transfer in immediately available funds. The
Master Servicer, at its option, may choose to make daily remittances from
the
Collection Account to the Securities Administrator for deposit into the
Securities Administration Account.
(d) The
Master Servicer shall deposit or cause to be deposited into the Collection
Account, no later than the second Business Day following the Closing Date,
any
amounts received with respect to the Mortgage Loans representing Scheduled
Payments (or in the case of Simple Interest Mortgage Loans, representing
scheduled interest payments, but actual principal payments) on the Mortgage
Loans due after the Cut-off Date and unscheduled payments received on or
after
the Cut-off Date and on or before the Closing Date. Thereafter, the Master
Servicer shall deposit or cause to be deposited in the Collection Account
on the
earlier of the applicable Master Servicer Remittance Date and two Business
Days
following receipt thereof, the following amounts received or payments made
by it
(other than in respect of principal of and interest on the Mortgage Loans
due on
or before the Cut-off Date):
(i) all
payments on account of principal, including Principal Prepayments, any
Subsequent Recovery and any Scheduled Payment attributable to principal received
after its related Due Date on the Mortgage Loans;
86
(ii) all
payments on account of interest on the Mortgage Loans, including Prepayment
Charges, in all cases net of the Servicing Fee, with respect to each such
Mortgage Loan, but only to the extent of the amount permitted to be withdrawn
or
withheld from the Collection Account in accordance with Sections 5.04 and
9.21;
(iii) any
unscheduled payment or other recovery with respect to a Mortgage Loan not
otherwise specified in this paragraph (d), including all Net Liquidation
Proceeds with respect to the Mortgage Loans and REO Property, and all amounts
received in connection with the operation of any REO Property, net of (x)
any
unpaid Servicing Fees with respect to such Mortgage Loans (but only to the
extent of the amount permitted to be withdrawn or withheld from the Collection
Account in accordance with Sections 5.04 and 9.21) and (y) any amounts
reimbursable to the Servicer with respect to such Mortgage Loan under the
Servicing Agreement and retained by the Servicer;
(iv) all
Insurance Proceeds;
(v) all
Advances made by the Master Servicer or the Servicer pursuant to Section
5.04 or
the Servicing Agreement;
(vi) all
amounts paid by the Servicer with respect to Net Simple Interest Shortfalls
and
Prepayment Interest Shortfalls; and
(vii)
the
Purchase Price or First Payment Default Purchase Price of any Mortgage Loan
repurchased by the Depositor, the Seller, the Master Servicer, the Transferor
or
any other Person and any Substitution Amount related to any Qualifying
Substitute Mortgage Loan and
any
purchase price paid by any NIMS Insurer for the purchase of any Distressed
Mortgage Loan under Section 7.04.
The
Master Servicer shall also deposit from its own funds into the Collection
Account (to the extent not already received from the Servicer), without right
of
reimbursement, except from Net Simple Interest Excess, an amount equal to
any
Net Simple Interest Shortfall (to the extent not offset by Net Simple Interest
Excess) for the related Collection Period.
(e) Funds
in
the Collection Account may be invested in Eligible Investments selected by
and
at the written direction of the Master Servicer, which shall mature not later
than one Business Day prior to the Master Servicer Remittance Date (except
that
if such Eligible Investment is an obligation of the Securities Administrator,
then such Eligible Investment shall mature not later than such applicable
Master
Servicer Remittance Date) and any such Eligible Investment shall not be sold
or
disposed of prior to its maturity. All such Eligible Investments shall be
made
in the name of the Master Servicer in trust for the benefit of the Trustee
and
Holders of the Structured Asset Securities Corporation Mortgage Pass-Through
Certificates, Series 2007-WF1. All income and gain realized from any Eligible
Investment shall be for the benefit of the Master Servicer and shall be subject
to its withdrawal or order from time to time, subject to Section 5.05 hereof,
and shall not be part of the Trust Fund. The amount of any losses incurred
in
respect of any such investments shall be deposited in such Collection Account
by
the Master Servicer out of its own funds, without any right of reimbursement
therefor, immediately as realized. The foregoing requirements for deposit
in the
Collection Account are exclusive, it being understood and agreed that, without
limiting the generality of the foregoing, payments of interest on funds in
the
Collection Account and payments in the nature of late payment charges,
assumption fees and other incidental fees and charges relating to the Mortgage
Loans (other than Prepayment Charges) need not be deposited by the Master
Servicer in the Collection Account and may be retained by the Master Servicer
or
the Servicer as additional servicing compensation. If the Master Servicer
deposits in the Collection Account any amount not required to be deposited
therein, it may at any time withdraw such amount from such Collection Account.
87
Section
4.02. Application
of Funds in the Collection Account.
The
Master Servicer may, from time to time, make, or cause to be made, withdrawals
from the Collection Account for the following purposes:
(i) to
reimburse itself or the Servicer for Advances or Servicing Advances made
by it
or by the Servicer pursuant to Section 5.04 or the Servicing Agreement; such
right to reimbursement pursuant to this subclause (i) is limited to amounts
received on or in respect of a particular Mortgage Loan (including, for this
purpose, Liquidation Proceeds and amounts representing Insurance Proceeds
with
respect to the property subject to the related Mortgage) which represent
late
recoveries (net of the Servicing Fee) of payments of principal or interest
respecting which any such Advance was made, it being understood, in the case
of
any such reimbursement, that the Master Servicer’s or Servicer’s right thereto
shall be prior to the rights of the Certificateholders;
(ii) to
reimburse itself or the Servicer following a final liquidation of a Mortgage
Loan (except as otherwise provided in the Servicing Agreement) for any
previously unreimbursed Advances or Servicing Advances made by it or by the
Servicer (A) that it determines in good faith will not be recoverable from
amounts representing late recoveries of payments of principal or interest
respecting the particular Mortgage Loan as to which such Advance or Servicing
Advance was made or from Liquidation Proceeds or Insurance Proceeds with
respect
to such Mortgage Loan and/or (B) to the extent that such unreimbursed Advances
or Servicing Advances exceed the related Liquidation Proceeds or Insurance
Proceeds, it being understood, in the case of each such reimbursement, that
such
Master Servicer’s or Servicer’s right thereto shall be prior to the rights of
the Certificateholders;
(iii) to
reimburse itself or the Servicer from Liquidation Proceeds for Liquidation
Expenses and for amounts expended by it pursuant to Section 9.22(c) or the
Servicing Agreement in good faith in connection with the restoration of damaged
property and, to the extent that Liquidation Proceeds after such reimbursement
exceed the unpaid principal balance of the related Mortgage Loan, together
with
accrued and unpaid interest thereon at the applicable Mortgage Rate less
the
Servicing Fee Rate for such Mortgage Loan to the Due Date next succeeding
the
date of its receipt of such Liquidation Proceeds, to pay to itself out of
such
excess the amount of any unpaid assumption fees, late payment charges or
other
Mortgagor charges on the related Mortgage Loan and to retain any excess
remaining thereafter as additional servicing compensation, it being understood,
in the case of any such reimbursement or payment, that such Master Servicer’s or
Servicer’s right thereto shall be prior to the rights of the
Certificateholders;
88
(iv) to
the
extent of any previous Advances made by the Master Servicer with respect
to
Simple Interest Mortgage Loans, to pay itself an amount equal to Net Simple
Interest Excess for the related Collection Period to the extent not offset
by
Net Simple Interest Shortfalls;
(v) to
reimburse itself or the Servicer for expenses incurred by and recoverable
by or
reimbursable to it or the Servicer pursuant to this Agreement, including,
without limitation, Sections 9.04, 9.05(b), 9.07(a), 9.30 or 11.15;
(vi) to
pay to
the Depositor, any NIMS Insurer, the Seller or the Transferor, as applicable,
with respect to each Mortgage Loan or REO Property acquired in respect thereof
that has been purchased pursuant to this Agreement, all amounts received
thereon
and not distributed on the date on which the related repurchase was effected,
and to pay to the applicable Person any Advances and Servicing Advances to
the
extent specified in the definition of Purchase Price or (First Payment Default
Purchase Price and FPD Premium in the case of a First Payment Default Mortgage
Loan);
(vii)
subject
to Section 5.05, to pay to itself income earned on the investment of funds
deposited in the Collection Account;
(viii) to
make
payments to the Securities Administrator for deposit into the Securities
Administration Account in the amounts and in the manner provided
herein;
(ix) to
make
payment to itself, the Securities Administrator, the Trustee and others pursuant
to any provision of this Agreement;
(x) to
withdraw funds deposited in error in the Collection Account;
(xi) to
clear
and terminate the Collection Account pursuant to Section 7.02;
(xii) to
reimburse the Trustee and a successor master servicer (solely in its capacity
as
successor master servicer), for any fee or advance occasioned by a termination
of the Master Servicer, and the assumption of such duties by the Securities
Administrator or a successor master servicer appointed by the Trustee pursuant
to Section 6.14, in each case to the extent not reimbursed by the terminated
Master Servicer, it being understood, in the case of any such reimbursement
or
payment, that the right of the Master Servicer or the Securities Administrator
thereto shall be prior to the rights of the Certificateholders; and
(xiii) to
reimburse the Servicer for such amounts as are due thereto under the Servicing
Agreement and have not been retained by or paid to the Servicer, to the extent
provided in the Servicing Agreement.
In
the
event that the Master Servicer fails on any Master Servicer Remittance Date
to
remit to the Securities Administrator any amounts required to be so remitted
to
the Securities Administrator pursuant to sub-clause (viii) by such date,
the
Master Servicer shall pay the Securities Administrator, interest calculated
at
the “prime rate” (as published in the “Money Rates” section of The
Wall Street Journal)
on such
amounts not timely remitted for the period from and including that Master
Servicer Remittance Date to but not including the related Deposit Date. The
Master Servicer shall only be required to pay the Securities Administrator
interest for the actual number of days such amounts are not timely remitted
(e.g.,
one
day’s interest, if such amounts are remitted one day after the Master Servicer
Remittance Date).
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In
connection with withdrawals made pursuant to subclauses (i), (iii), (iv)
and
(vi) above, the Master Servicer’s, the Servicer’s or such other Person’s
entitlement thereto is limited to collections or other recoveries on the
related
Mortgage Loan. The Master Servicer shall therefore keep and maintain a separate
accounting for each Mortgage Loan it master services for the purpose of
justifying any withdrawal made from the Collection Account it maintains pursuant
to such subclauses (i), (iii), (iv) and (vi).
Section
4.03. Reports
to Certificateholders.
(a) On
each
Distribution Date, the Securities Administrator shall have prepared (based
solely on information provided by the Master Servicer or the Swap Counterparty)
and shall make available to the Trustee, any NIMS Insurer, the Swap
Counterparty, the Credit Risk Manager, the Seller and each Certificateholder
a
report (the “Distribution Date Statement”) setting forth the following
information (on the basis of Mortgage Loan level information obtained from
the
Master Servicer):
(i) the
aggregate amount of the distribution to be made on such Distribution Date
to the
Holders of each Class of Certificates, to the extent applicable, allocable
to
principal on the Mortgage Loans, including Liquidation Proceeds and Insurance
Proceeds, stating separately the amount attributable to scheduled principal
payments and unscheduled payments in the nature of principal;
(ii) the
aggregate amount of the distribution to be made on such Distribution Date
to the
Holders of each Class of Certificates allocable to interest and the calculation
thereof;
(iii) the
amount, if any, of any distribution to the Holders of the Class P Certificate,
the Class X Certificates, the Class LT-R Certificates and the Class R
Certificate;
(iv) (A) the
aggregate amount of any Advances required to be made as of the end of the
month
immediately preceding the month in which the Distribution Date occurs by
or on
behalf of the Servicer (or the Master Servicer) with respect to such
Distribution Date, (B) the aggregate amount of such Advances actually made,
and (C) the amount, if any, by which (A) above exceeds (B)
above;
(v) by
Mortgage Pool and in the aggregate, the total number of Mortgage Loans, the
aggregate Scheduled Principal Balance of all the Mortgage Loans as of the
close
of business on the last day of the related Collection Period, after giving
effect to payments allocated to principal reported under clause (i)
above;
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(vi) the
Class
Principal Amount of each Class of Certificates, to the extent applicable,
as of
such Distribution Date after giving effect to payments allocated to principal
reported under clause (i) above, separately identifying any reduction of
any of
the foregoing Certificate Principal Amounts due to Applied Loss
Amounts;
(vii) the
amount of any Prepayment Charges (which includes Servicer Prepayment Charge
Payment Amounts) distributed to the Class P Certificates;
(viii) by
Mortgage Pool and in the aggregate, the amount of any Realized Losses incurred
with respect to the Mortgage Loans (x) in the applicable Prepayment Period
and
(y) in the aggregate since the Cut-off Date;
(ix) the
amount of the Servicing Fees and the Credit Risk Manager’s Fees paid during the
Collection Period to which such distribution relates;
(x) [Reserved];
(xi) by
Mortgage Pool and in the aggregate, the number and aggregate Scheduled Principal
Balance of Mortgage Loans in each Mortgage Pool, as reported to the Securities
Administrator by the Master Servicer, (a) remaining outstanding (b) Delinquent
30 to 59 days on a contractual basis, (c) Delinquent 60 to 89 days on a
contractual basis, (d) Delinquent 90 or more days on a contractual basis,
(e) as
to which foreclosure proceedings have been commenced, each as of the close
of
business on the last Business Day of the calendar month immediately preceding
the month in which such Distribution Date occurs, (f) in bankruptcy and (g)
that
are REO Properties (the information in this item (xi) to be calculated utilizing
the OTS delinquency method);
(xii) by
Mortgage Pool and in the aggregate, the aggregate Scheduled Principal Balance
of
any Mortgage Loans with respect to which the related Mortgaged Property became
a
REO Property as of the close of business on the last Business Day of the
calendar month immediately preceding the month in which such Distribution
Date
occurs;
(xiii) with
respect to substitution of Mortgage Loans in the preceding calendar month,
the
Scheduled Principal Balance of each Deleted Mortgage Loan, and of each
Qualifying Substitute Mortgage Loan;
(xiv) the
aggregate outstanding Carryforward Interest, Net Prepayment Interest Shortfalls,
Deferred Amounts, Basis Risk Shortfalls and Unpaid Basis Risk Shortfalls,
if
any, for each Class of Certificates, after giving effect to the distribution
made on such Distribution Date;
(xv) the
Certificate Interest Rate applicable to such Distribution Date with respect
to
each Class of Certificates (with a notation if such Certificate Interest
Rate
reflects the application of the applicable Net Funds Cap);
(xvi) with
respect to each Mortgage Pool, the Interest Remittance Amount and the Principal
Remittance Amount applicable to such Distribution Date;
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(xvii) if
applicable, the amount of any shortfall (i.e.,
the
difference between the aggregate amounts of principal and interest which
Certificateholders would have received if there were sufficient available
amounts in the Certificate Account and the amounts actually distributed);
(xviii) the
Overcollateralization Amount after giving effect to the distributions made
on
such Distribution Date;
(xix) the
amount of any Overcollateralization Deficiency after giving effect to the
distributions made on such Distribution Date;
(xx) the
aggregate amount of any insurance claim payments received with respect to
any
Primary Mortgage Insurance Policy during the related Collection Period;
(xxi) the
level
of LIBOR for such Distribution Date;
(xxii) the
amount of any payments made by the Cap Counterparty to the Supplemental Interest
Trust made pursuant to Section 5.07(d);
(xxiii) the
amount of any Net Swap Payment to the Supplemental Interest Trust made pursuant
to Section 5.07, any Net Swap Payment to the Swap Counterparty made pursuant
to
Section 5.02, any Swap Termination Payment to the Supplemental Interest Trust
made pursuant to Sections 5.07 and any Swap Termination Payment to the Swap
Counterparty made pursuant to Section 5.02;
(xxiv) whether
a
Trigger Event is in effect for such Distribution Date; and
(xxv) the
amount of any FPD Premiums, if any, for such Distribution Date.
In
addition to the information listed above, such Distribution Date Statement
shall
also include such other information as is required by Form 10-D, including,
but
not limited to, the information required by Item 1121 (§ 229.1121) of Regulation
AB.
In
the
case of information furnished pursuant to subclauses (i), (ii) and (vi) above,
the amounts shall also (except in the case of the report delivered to the
holder
of the Class X Certificates) be expressed as a dollar amount per $1,000 of
original principal amount of Certificates.
On
any
Distribution Date after the occurrence of a Section 7.01(c) Purchase Event,
the
information required by subclauses (i), (iii), (iv), (v), (vii), (viii),
(ix),
(xi), (xii), (xiii), (xvi), (xix), (xxi) (xxii) and (xxiii) shall be provided
to
the Trustee, any NIMS Insurer, the Swap Counterparty, the Credit Risk Manager,
the Seller, the holder of the Class LT-R Certificate and the LTURI-holder
with
regard to the Lower Tier REMIC 1 Uncertificated Regular Interests in lieu
of the
Certificates.
The
Securities Administrator shall make such report and any additional loan level
information (and, at its option, any additional files containing the same
information in an alternative format) available each month to the Trustee,
any
NIMS Insurer, Certificateholders and the Rating Agencies via the Securities
Administrator’s internet website. The Securities Administrator’s internet
website shall initially be located at “xxx.xxxxxxx.xxx.”
Assistance in using the website can be obtained by calling the Securities
Administrator’s customer service desk at 0-000-000-0000. Such parties that are
unable to use the website are entitled to have a paper copy mailed to them
via
first class mail by calling the customer service desk and indicating such.
The
Securities Administrator shall have the right to change the way such statements
are distributed in order to make such distribution more convenient and/or
more
accessible to the above parties and the Securities Administrator shall provide
timely and adequate notification to all above parties regarding any such
changes. In addition, the Trustee may post the information provided to it
under
this Section 4.03 by the Securities Administrator at the Trustee’s website
initially located at xxxx://xxxxxxxxxxxxxxxxxxx.xxx.
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The
foregoing information and reports shall be prepared and determined by the
Securities Administrator based solely on Mortgage Loan data provided to the
Securities Administrator by the Master Servicer (in a format agreed to by
the
Securities Administrator and the Master Servicer) no later than 2:00 p.m.
Eastern Time four Business Days prior to the Distribution Date and on the
information provided to the Securities Administrator by the Swap Counterparty
and the Cap Counterparty. In preparing or furnishing the foregoing information
to the Trustee, Certificateholders and any NIMS Insurer, the Securities
Administrator shall be entitled to rely conclusively on the accuracy and
completeness of the information or data (i) regarding the Mortgage Loans
and the
related REO Property, that has been provided to the Securities Administrator
by
the Master Servicer, (ii) regarding the Swap Agreement, that has been provided
to the Securities Administrator by the Swap Counterparty and (iii) regarding
the
Interest Rate Cap Agreement, that has been provided to the Securities
Administrator by the Cap Counterparty, and the Securities Administrator shall
not be obligated to verify, recompute, reconcile or recalculate any such
information or data. The Securities Administrator shall be entitled to
conclusively rely on the Mortgage Loan data provided by the Master Servicer
and
shall have no liability for any errors or omissions in such Mortgage Loan
data.
The information and reports described in the first paragraph of this Section
4.03(a) shall be provided to the Trustee by the Securities Administrator
no
later than 12:00 p.m. Eastern Time two Business Days prior to the Distribution
Date.
(b) Upon
the
reasonable advance written request of any NIMS Insurer or any Certificateholder
that is a savings and loan, bank or insurance company, which request, if
received by the Trustee, shall be promptly forwarded to the Securities
Administrator, the Securities Administrator shall provide, or cause to be
provided, (or, to the extent that such information or documentation is not
required to be provided by the Servicer under the Servicing Agreement, shall
use
reasonable efforts to obtain such information and documentation from the
Servicer, and provide) to any NIMS Insurer and such Certificateholder such
reports and access to information and documentation regarding the Mortgage
Loans
as any NIMS Insurer or such Certificateholder may reasonably deem necessary
to
comply with applicable regulations of the Office of Thrift Supervision or
its
successor or other regulatory authorities with respect to an investment in
the
Certificates; provided,
however,
that the
Securities Administrator shall be entitled to be reimbursed by such
Certificateholder or any NIMS Insurer for the actual expenses incurred in
providing such reports and access.
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(c) Upon
request of a Certificateholder and prior to a Section 7.01(c) Purchase Event,
the Trustee shall have prepared and the Trustee shall make available to any
NIMS
Insurer and each Person who at any time during the calendar year was a
Certificateholder of record, and make available to Certificate Owners
(identified as such by the Clearing Agency) in accordance with applicable
regulations, a report summarizing the items provided to any NIMS Insurer
and the
Certificateholders pursuant to Sections 4.03(a)(i) and 4.03(a)(ii) on an
annual
basis as may be required to enable any NIMS Insurer and such Holders to prepare
their federal income tax returns; provided,
however,
that
this Section 4.03(c) shall not be applicable where relevant reports or summaries
are required elsewhere in this Agreement. Such information shall also include
the amount of original issue discount accrued on each Class of Certificates
and
information regarding the expenses of the Trust Fund. The Trustee shall be
deemed to have satisfied this requirement if it forwards such information
in any
other format permitted by the Code. The Securities Administrator shall provide
the Trustee with such information as is necessary for the Trustee to prepare
such reports (and the Trustee may rely solely upon such
information).
(d) The
Securities Administrator shall, to the extent reasonably available, furnish
any
other information that is required by the Code and regulations thereunder
to be
made available to Certificateholders. The Master Servicer shall, to the extent
reasonably available, provide the Securities Administrator with such information
as is necessary for the Securities Administrator to prepare such reports
(and
the Securities Administrator may rely solely upon such
information).
(e) So
long
as not prohibited by applicable law, the Master Servicer shall, to the extent
reasonably available, provide the Depositor or to any party designated by
the
Depositor, as promptly as practicable upon the Depositor's request, any and
all
loan-level information that the Depositor may request in any format reasonably
requested by the Depositor. The Depositor shall have the right to publish,
disseminate or otherwise utilize such information in its discretion, subject
to
applicable laws and regulations.
Section
4.04. Certificate
Account.
(a) The
Trustee shall establish and maintain in its name, as trustee, a trust account
(the “Certificate Account”) entitled “Certificate Account, U.S. Bank National
Association, as Trustee, in trust for the benefit of the Holders of Structured
Asset Securities Corporation Mortgage Pass-Through Certificates, Series
2007-WF1” until disbursed pursuant to the terms of this Agreement. The
Certificate Account shall be an Eligible Account and shall be for the benefit
of
the Certificateholders, subject to the rights of the Trustee set forth herein.
If the existing Certificate Account ceases to be an Eligible Account, the
Trustee shall establish a new Certificate Account that is an Eligible Account
within ten Business Days and transfer all funds and investment property on
deposit in such existing Certificate Account into such new Certificate Account.
The Certificate Account shall relate solely to the Certificates and to the
Lower
Tier REMIC 1 Uncertificated Regular Interests issued hereunder and funds
in the
Certificate Account shall be held separate and apart from and shall not be
commingled with any other monies including, without limitation, other monies
of
the Trustee held under this Agreement.
94
(b) The
Trustee shall deposit or cause to be deposited into the Certificate Account
all
monies remitted by the Securities Administrator to the Trustee on the same
day
on which such monies are remitted to the Trustee, or if such day is not a
Business Day, the immediately following Business Day. The Trustee shall make
withdrawals from the Certificate Account only for the following
purposes:
(i) to
make
payment to itself pursuant to any provision of this Agreement or to reimburse
itself for any fees or expenses reimbursable to it pursuant to Section 6.12;
provided,
however,
that
any amounts in excess of the annual cap described in clause (b) of the
definition of “Interest Remittance Amount” and clause (b) of the definition of
“Principal Remittance Amount” in any Anniversary Year, other than costs and
expenses incurred by the Trustee pursuant to Section 6.14, in connection
with
any transfer of servicing, shall not be withdrawn from the Certificate Account
during such Anniversary Year and paid to the Trustee and the Trustee’s
reimbursement for such excess amounts shall be made pursuant to Section 5.02
only in one or more subsequent Anniversary Years;
(ii) to
withdraw amounts deposited in the Certificate Account in error;
(iii) to
make
payments to itself and others pursuant to any provision of this
Agreement;
(iv) to
make
distributions to Certificateholders pursuant to Article V; and
(v) to
clear
and terminate the Certificate Account pursuant to Section 7.02.
(c) Funds
in
the Certificate Account may be invested by the Trustee at the direction of
the
Master Servicer in Eligible Investments (which may be obligations of the
Trustee). All such investments must be payable on demand or mature no later
than
one Business Day prior to the next Distribution Date, and shall not be sold
or
disposed of prior to their maturity. All such Eligible Investments will be
made
in the name of the Trustee (in its capacity as such) or its nominee. All
income
and gain realized from any such investment for each Distribution Date shall
be
compensation (1) to the Trustee, in payment of its Trustee Fee to the extent
not
paid by the Securities Administrator when due and (2) to the Master Servicer,
any income and gain remaining. Subject to the preceding sentence, all income
and
gain realized from any such investment for each Distribution Date shall be
subject to withdrawal by the Master Servicer from time to time. The amount
of
any losses incurred in respect of any such investments shall be paid by the
Master Servicer for deposit in the Certificate Account out of its own funds,
without any right of reimbursement therefor, immediately as realized.
Section
4.05. Securities
Administration Account.
(a) On
the
Closing Date, the Securities Administrator shall open and shall thereafter
maintain an account to be held in trust (the “Securities Administration
Account”), entitled “Xxxxx Fargo Bank, N.A., as Securities Administrator, in
trust for the benefit of the Holders of Structured Asset Securities Corporation
Mortgage Pass-Through Certificates, Series 2007-WF1.” The Securities
Administration Account shall relate solely to the Certificates issued by
the
Trust Fund hereunder, and funds in such Securities Administration Account
shall
not be commingled with any other monies.
95
(b) The
Securities Administration Account shall be an Eligible Account. If an existing
Securities Administration Account ceases to be an Eligible Account, the
Securities Administrator shall establish a new Securities Administration
Account
that is an Eligible Account within 10 Business Days of notice thereof to
the
Securities Administrator, and shall transfer all funds on deposit in such
existing Securities Administration Account into such new Securities
Administration Account.
(c) The
Securities Administrator shall make withdrawals from the Securities
Administration Account only for the following purposes:
(i) to
withdraw amounts deposited in the Securities Administration Account in
error;
(ii) to
make
payments of any investment income or earnings on the Securities Administration
Account to (A) the Trustee to pay the Trustee Fee, if due, (B) the Custodian
to
pay the Custodial Compensation, if due and (C) then any remaining amounts
of
investment income or earnings to itself;
(iii) to
reimburse itself for any amounts reimbursable under the terms of this
Agreement;
(iv) to
make
payments to the Trustee for deposit into the Certificate Account pursuant
to
Section 4.04; and
(v) to
clear
and terminate the Securities Administration Account pursuant to Section
7.02.
(d) The
Securities Administrator shall give to the Trustee prior written notice of
the
name and address of the depository institution at which the Securities
Administration Account is maintained and the account number of such Securities
Administration Account. On each Deposit Date, the entire amount on deposit
in
the Securities Administration Account (less any amounts withdrawn pursuant
to
Section 4.05(c)(i) and (ii)), shall be remitted to the Trustee for deposit
into
the Certificate Account by wire transfer in immediately available funds.
The
Securities Administrator, at its option, may choose to make daily remittances
from the Securities Administration Account to the Trustee for deposit into
the
Certificate Account.
(e) The
Securities Administrator shall cause to be deposited into the Securities
Administration Account on the Master Servicer Remittance Date, any monies
remitted by the Master Servicer to the Securities Administrator on such date
pursuant to the terms of this Agreement.
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(f) The
Securities Administrator may invest, or cause to be invested, funds held
in the
Securities Administration Account, which funds, if invested, shall be invested
in Eligible Investments (which may be obligations of the Securities
Administrator or its Affiliate). All such investments must be payable on
demand
or mature no later than the next Deposit Date, and shall not be sold or disposed
of prior to their maturity. All such Eligible Investments will be made in
the
name of the Trustee (in its capacity as such) or its nominee. All income
and
gain realized from any such investment for each Distribution Date shall be
compensation (1) to the Trustee, in payment of its Trustee Fee, to the extent
not paid when due in accordance with Section 6.12, (2) to the Custodian,
in
payment of its Custodial Compensation, to the extent not paid when due in
accordance with Section 6.12 and (3) to the Securities Administrator, any
income
and gain remaining. The Securities Administrator shall pay to the Trustee
the
Trustee Fee and to the Custodian its Custodial Compensation on behalf of
the
Trust Fund and all income and gain realized from any such investments shall
be
subject to its withdrawal on order from time to time. The amount of any losses
incurred in respect of any such investments shall be paid by the Securities
Administrator for deposit in the Securities Administration Account out of
its
own funds, without any right of reimbursement therefor, immediately as
realized.
97
ARTICLE
V
DISTRIBUTIONS
TO HOLDERS OF CERTIFICATES
Section
5.01. Distributions
Generally.
(a) Subject
to Section 7.01 respecting the final distribution on the Certificates or
Lower
Tier REMIC 1 Uncertificated Regular Interests, on each Distribution Date
the
Trustee or the Paying Agent shall make allocations and/or distributions in
accordance with the Preliminary Statement and this Article V based solely
on the
reports for such Distribution Date provided to it by the Securities
Administrator pursuant to Section 4.03(a). Such distributions shall be made
by
wire transfer in immediately available funds to an account specified in writing
to the Trustee at least five (5) Business Days prior to the first Distribution
Date to such Certificateholder and at the expense of such
Certificateholder.
(b) The
final
distribution in respect of any Certificate shall be made only upon presentation
and surrender of such Certificate at the Corporate Trust Office; provided,
however,
that
the foregoing provisions shall not apply to any Class of Certificates as
long as
such Certificate remains a Book-Entry Certificate in which case all payments
made shall be made through the Clearing Agency and its Clearing Agency
Participants. Notwithstanding such final payment of principal of any of the
Certificates, each Residual Certificate will remain outstanding until the
termination of each REMIC and the payment in full of all other amounts due
with
respect to the Residual Certificates, and at such time such final payment
in
retirement of any Residual Certificate will be made only upon presentation
and
surrender of such Certificate at the Corporate Trust Office. If any payment
required to be made on the Certificates or Lower Tier REMIC 1 Uncertificated
Regular Interests is to be made on a day that is not a Business Day, then
such
payment will be made on the next succeeding Business Day.
(c) All
distributions or allocations made with respect to Certificateholders within
each
Class on each Distribution Date shall be allocated among the outstanding
Certificates in such Class equally in proportion to their respective initial
Class Principal Amounts (or Percentage Interests).
(d) The
Trustee or the Paying Agent, as applicable, shall make payments to
Certificateholders and to the Swap Counterparty and any other person pursuant
to
this Article V and make deposits to and withdrawals from the Supplemental
Interest Trust, the Basis Risk Reserve Fund and accounts held by it hereunder
based solely on the information set forth in the monthly report furnished
by the
Securities Administrator in accordance with Section 4.03(a), and shall be
entitled to conclusively rely on such information and reports, and on the
calculations contained therein, when making distributions to Certificateholders,
the Swap Counterparty and any other party hereunder. The Trustee shall have
no
liability for any errors in such reports or information, and shall not be
required to verify, recompute, reconcile or recalculate any such information
or
data.
98
Section
5.02. Distributions
from the Certificate Account.
(a) On
each
Distribution Date on or prior to a Section 7.01(c) Purchase Event or a Trust
Fund Termination Event, the Trustee (or the Paying Agent on behalf of the
Trustee) shall withdraw from the Certificate Account the Total Distribution
Amount (to the extent such amount is on deposit in the Certificate Account),
and
amounts that are available for payment to the Swap Counterparty, and shall
allocate such amount to the interests issued in respect of each REMIC created
pursuant to this Agreement and shall distribute such amount as specified
in
subparagraphs (b) through (g) of this Section 5.02; provided,
that
amounts that are available for payment to the Swap Counterparty shall be
paid on
the related Swap Payment Date. On each Distribution Date after a Section
7.01(c)
Purchase Event but on or prior to a Trust Fund Termination Event, the Trustee
(or the Paying Agent on behalf of the Trustee) shall withdraw from the
Certificate Account the Total Distribution Amount (to the extent such amount
is
on deposit in the Certificate Account), and amounts that are available for
payment to the Swap Counterparty, and shall allocate such amount to the
interests issued in respect of REMIC 1 created pursuant to this Agreement
and
shall distribute such amount as specified in subparagraphs (j) through (l)
of
this Section; provided,
that
amounts that are available for payment to the Swap Counterparty shall be
paid on
the related Swap Payment Date.
(b) On
each
Distribution Date (or, with respect to clauses (i) and (ii) below, on the
related Swap Payment Date), the Trustee shall distribute the Interest Remittance
Amount for Pool 1 for such date in the following order of priority:
(i) for
deposit into the Swap Account, an amount equal to the lesser of (x) the product
of (A) the amount of any Net Swap Payment or Swap Termination Payment (not
due
to a Swap Counterparty Trigger Event) owed to the Swap Counterparty on the
related Swap Payment Date and (B) the Pool Percentage for Pool 1 for such
Distribution Date and (y) the Interest Remittance Amount for Pool 1 for such
Distribution Date;
(ii) for
deposit into the Swap Account, the amount of any Net Swap Payment or Swap
Termination Payment (not due to a Swap Counterparty Trigger Event) owed to
the
Swap Counterparty on the related Swap Payment Date (after giving effect to
distributions made pursuant to clause 5.02(b)(i) above and subsection 5.02(c)(i)
below for such Distribution Date), to be paid concurrently and in proportion
to
the Interest Remittance Amount available with respect to Pool 2 for such
Distribution Date;
(iii) concurrently,
on a pro
rata
basis,
to each Class of Group 1 Senior Certificates, Current Interest and any
Carryforward Interest for each such Class and such Distribution Date;
provided,
however,
that any
shortfall in Current Interest and Carryforward Interest shall be allocated
between such Classes in proportion to the amount of Current Interest and
Carryforward Interest that would otherwise be distributable thereon;
and
(iv) for
application pursuant to Section 5.02(d) below, any Interest Remittance Amount
for Pool 1 remaining undistributed after application pursuant to clauses
(i)
through (iii) of this Section 5.02(b) for such Distribution Date.
99
(c) On
each
Distribution Date (or with respect to clauses (i) and (ii) below, on the
related
Swap Payment Date), the Trustee shall distribute the Interest Remittance
Amount
for Pool 2 for such date in the following order of priority:
(i) for
deposit into the Swap Account, an amount equal to the lesser of (x) the product
of (A) the amount of any Net Swap Payment or Swap Termination Payment (not
due
to a Swap Counterparty Trigger Event) owed to the Swap Counterparty on the
related Swap Payment Date and (B) the Pool Percentage for Pool 2 for such
Distribution Date and (y) the Interest Remittance Amount for Pool 2 for such
Distribution Date;
(ii) for
deposit into the Swap Account, the amount of any Net Swap Payment or Swap
Termination Payment (not due to a Swap Counterparty Trigger Event) owed to
the
Swap Counterparty on the related Swap Payment Date (after giving effect to
distributions made pursuant to subsections 5.02(b)(i) and 5.02(c)(i) above
for
such Distribution Date);
(iii) concurrently,
on a pro
rata
basis,
to each Class of the Group 2 Senior Certificates, Current Interest and any
Carryforward Interest for each such Class and such Distribution Date;
provided,
however,
that
any shortfall in Current Interest and Carryforward Interest shall be allocated
among such Classes in proportion to the amount of
Current Interest and Carryforward Interest that would otherwise be distributable
thereon; and
(iv) for
application pursuant to Section 5.02(d) below, any Interest Remittance Amount
for Pool 2 remaining undistributed after application pursuant to clauses
(i)
through (iii) of this Section 5.02(c) for such Distribution Date.
(d) On
each
Distribution Date, the Trustee shall distribute the aggregate of any remaining
Interest Remittance Amounts from subsections 5.02(b)(iv) and 5.02(c)(iv)
above
in the following order of priority:
(i) concurrently, on
a
pro
rata basis,
to
each Class of Senior Certificates, Current Interest and any Carryforward
Interest (taking into account distributions pursuant to subsections 5.02(b)(iii)
and 5.02(c)(iii) above) for each such Class and such Distribution Date;
provided,
however,
that
any shortfall in Current Interest and Carryforward Interest shall be allocated
among such Classes in proportion to the amount of Current Interest and
Carryforward Interest that would otherwise be distributable
thereon;
(ii) to
each
Class of Subordinate Certificates, in accordance with the Subordinate Priority,
Current Interest and any Carryforward Interest for each such Class and such
Distribution Date;
(iii) to
the
Credit Risk Manager, the Credit Risk Manager’s Fee;
(iv) to
the
Trustee, any amounts reimbursable pursuant to Section 4.04(b)(i) and not
previously reimbursed to the Trustee; and
100
(v) for
application as part of Monthly Excess Cashflow for such Distribution Date,
as
provided in subsection (f) of this Section, any Interest Remittance Amount
remaining undistributed for such Distribution Date.
(e) On
each
Distribution Date or related Swap Payment Date, as applicable, the Trustee
shall
distribute the Principal Distribution Amount with respect to each Mortgage
Pool
for such date as follows:
(i) On
each
Distribution Date (or, with respect to clauses (A)(1), (A)(2), (B)(1) and
(B)(2)
below of this Section 5.02(e), on the related Swap Payment Date) (a) prior
to
the Stepdown Date or (b) with respect to which a Trigger Event is in effect,
until the aggregate Certificate Principal Amount of the LIBOR Certificates
equals the Target Amount for such Distribution Date, the Trustee shall make
the
following distributions, concurrently:
(A) For
Pool 1:
The
Principal Distribution Amount for Pool 1 will be distributed in the following
order of priority:
(1) for
deposit into the Swap Account, an amount equal to the lesser of (x) the product
of (A) the amount of any Net Swap Payment or Swap Termination Payment (not
due
to a Swap Counterparty Trigger Event) owed to the Swap Counterparty on the
related Swap Payment Date (to the extent not paid previously or from the
Interest Remittance Amount for such Distribution Date) and (B) the Pool
Percentage for Pool 1 for such Distribution Date and (y) the Principal
Remittance Amount for Pool 1 for such Distribution Date;
(2) for
deposit into the Swap Account, the amount of any Net Swap Payment or Swap
Termination Payment (not due to a Swap Counterparty Trigger Event) owed to
the
Swap Counterparty on the related Swap Payment Date (after giving effect to
distributions made pursuant to subsections 5.02(e)(i)(A)(1) above and
5.02(e)(i)(B)(1) below, and to the extent not paid previously or from the
Interest Remittance Amount for such Distribution Date);
(3) to
the
Class A1 and Class A6 Certificates, pro
rata,
in
proportion to their outstanding Class Principal Amounts, until the Class
Principal Amount of each such Class has been reduced to zero; and
(4) for
application pursuant to subsection 5.02(e)(ii) below, any such Principal
Distribution Amount for Pool 1 remaining undistributed for such Distribution
Date.
(B) For
Pool 2:
The
Principal Distribution Amount for Pool 2 will be distributed in the following
order of priority:
(1) for
deposit into the Swap Account, an amount equal to the lesser of (x) the product
of (A) the amount of any Net Swap Payment or Swap Termination Payment (not
due
to a Swap Counterparty Trigger Event) owed to the Swap Counterparty on the
related Swap Payment Date (to the extent not paid previously or from the
Interest Remittance Amount for such Distribution Date) and (B) the Pool
Percentage for Pool 2 for such Distribution Date and (y) the Principal
Remittance Amount for Pool 2 for such Distribution Date;
101
(2) for
deposit into the Swap Account, the amount of any Net Swap Payment or Swap
Termination Payment (not due to a Swap Counterparty Trigger Event) owed to
the
Swap Counterparty on the related Swap Payment Date (after giving effect to
distributions made pursuant to subsections 5.02(e)(i)(A)(1) and 5.02(e)(i)(B)(1)
above, and to the extent not paid previously or from the Interest Remittance
Amount for such Distribution Date);
(3) sequentially,
to the Class A2, Class A3, Class A4 and Class A5 Certificates, in that order,
until the Class Principal Amount of each such Class has been reduced to zero;
and
(4) for
application pursuant to subsection 5.02(e)(ii) below, any such Principal
Distribution Amount for Pool 2 remaining undistributed for such Distribution
Date.
(ii) On
each
Distribution Date, the Trustee shall distribute the aggregate of any remaining
Principal Distribution Amounts from subsections 5.02(e)(i)(A)(4) and
5.02(e)(i)(B)(4) above, in the following order of priority:
(A) concurrently,
on a pro
rata
basis,
in proportion to the aggregate Class Principal Amount of the Group 1 Senior
Certificates and the aggregate Class Principal Amount of the Group 2 Senior
Certificates related to each such Group, after giving effect to principal
distributions on such Distribution Date pursuant to subsections 5.02(e)(i)(A)(3)
and 5.02(e)(i)(B)(3) above, to the Group 1 Senior Certificates and the Group
2
Senior Certificates, in each case in accordance with the Related Senior
Priority, until the Class Principal Amount of each such Class has been reduced
to zero;
(B) to
each
Class of Subordinate Certificates, in accordance with the Subordinate Priority,
until the Class Principal Amount of each such Class has been reduced to zero;
and
(C) for
application as part of Monthly Excess Cashflow for such Distribution Date,
as
provided in subsection (f) of
this
Section, any Principal Distribution Amount remaining after application pursuant
to clauses (A) and (B) of this Section 5.02(e)(ii).
(iii) Any
Principal Distribution Amount remaining on any Distribution Date after the
Target Amount is achieved will be applied as part of Monthly Excess Cashflow
for
such Distribution Date as provided in subsection (f) of this
Section.
102
(iv) On
each
Distribution Date (or, with respect to clauses (A) and (B) below, on the
related
Swap Payment Date) (a) on or after the Stepdown Date and (b) with respect
to
which a Trigger Event is not in effect, the Principal Distribution Amount
for
each Mortgage Pool for such date will be distributed in the following order
of
priority:
(A) for
deposit into the Swap Account, an amount equal to the lesser of (x) the product
of (1) the amount of any Net Swap Payment or Swap Termination Payment (not
due
to a Swap Counterparty Trigger Event) owed to the Swap Counterparty on the
related Swap Payment Date (to the extent not paid previously or from the
Interest Remittance Amount for such Distribution Date) and (2) the Pool
Percentage for the related Mortgage Pool for such Distribution Date and (y)
the
Principal Remittance Amount for such Mortgage Pool for such Distribution
Date;
(B) for
deposit into the Swap Account, the amount of any Net Swap Payment or Swap
Termination Payment (not due to a Swap Counterparty Trigger Event) owed to
the
Swap Counterparty on the related Swap Payment Date (after giving effect to
distributions made pursuant to subsection 5.02(e)(iv)(A) above, and to the
extent not paid previously or from the Interest Remittance Amount from both
Mortgage Pools for such Distribution Date), to be paid concurrently and in
proportion to the related Principal Distribution Amounts available with respect
to each Mortgage Pool for such Distribution Date);
(C) so
long
as any of the Subordinate Certificates are outstanding, to the Group 1 Senior
Certificates in accordance with the Related Senior Priority (from amounts
generated by Pool 1, except as provided below) and to the Group 2 Senior
Certificates in accordance with the Related Senior Priority (from amounts
generated by Pool 2, except as provided below) in each case, an amount equal
to
the lesser of (x) the excess of (a) the Principal Distribution Amount for
the
related Mortgage Pool for such Distribution Date over (b) the amount paid
to the
Supplemental Interest Trust for deposit into the Swap Account on the related
Swap Payment Date pursuant to clauses (A) and (B) above and (y) the Related
Senior Principal Distribution Amount for such Mortgage Pool for such
Distribution Date, in each case, until the Class Principal Amount of each
such
Class has been reduced to zero; provided,
however,
to the
extent that the Principal Distribution Amount for a Mortgage Pool exceeds
the
Related Senior Principal Distribution Amount for such Mortgage Pool, such
excess
shall be applied to the Senior Certificates related to the other Mortgage
Pool
(in accordance with the Related Senior Priority), but in an amount not to
exceed
the Senior Principal Distribution Amount for such Distribution Date (as reduced
by any distributions pursuant to subclauses (x) or (y) of this clause (1)
on
such Distribution Date); or (2) if none of the Subordinate Certificates are
outstanding, to the Group 1 Senior Certificates and the Group 2 Senior
Certificates (in each case in accordance with the Related Senior Priority),
the
excess of (A) the Principal Distribution Amount for the related Mortgage
Pool
for such Distribution Date over (B) the amount paid to the Supplemental Interest
Trust for deposit into the Swap Account for the related Mortgage Pool on
the
related Swap Payment Date pursuant to clauses (A) and (B) above, in each
case
until the Class Principal Amount of each such Class has been reduced to
zero;
103
(D) to
the
Class M1, an amount equal to the lesser of (x) the excess of (a) the aggregate
of the Principal Distribution Amounts for Pool 1 and Pool 2 for such
Distribution Date over (b) the amount paid to the Supplemental Interest Trust
for deposit into the Swap Account or distributed to the Senior Certificates
on
such date pursuant to clauses (A) through (C) above, and (y) the M1 Principal
Distribution Amount for such date, until the Class Principal Amount of each
such
Class has been reduced to zero;
(E) to
the
Class M2 Certificates, an amount equal to the lesser of (x) the excess of
(a)
the aggregate of the Principal Distribution Amounts for Pool 1 and Pool 2
for
such Distribution Date over (b) the amount paid to the Supplemental Interest
Trust for deposit into the Swap Account or distributed to the Senior
Certificates and the Class M1 Certificates on such date pursuant to clauses
(A)
through (D) above, and (y) the M2 Principal Distribution Amount for such
date,
until the Class Principal Amount of such Class has been reduced to
zero;
(F) to
the
Class M3 Certificates, an amount equal to the lesser of (x) the excess of
(a)
the aggregate of the Principal Distribution Amounts for Pool 1 and Pool 2
for
such Distribution Date over (b) the amount paid to the Supplemental Interest
Trust for deposit into the Swap Account or distributed to the Senior
Certificates and the Class M1 and Class M2 Certificates on such date pursuant
to
clauses (A) through (E) above, and (y) the M3 Principal Distribution Amount
for
such date, until the Class Principal Amount of such Class has been reduced
to
zero;
(G) to
the
Class M4 Certificates, an amount equal to the lesser of (x) the excess of
(a)
the aggregate of the Principal Distribution Amounts for Pool 1 and Pool 2
for
such Distribution Date over (b) the amount paid to the Supplemental Interest
Trust for deposit into the Swap Account or distributed to the Senior
Certificates and the Class M1, Class M2 and Class M3 Certificates on such
date
pursuant to clauses (A) through (F) above, and (y) the M4 Principal Distribution
Amount for such date, until the Class Principal Amount of such Class has
been
reduced to zero;
(H) to
the
Class M5 Certificates, an amount equal to the lesser of (x) the excess of
(a) the aggregate of the Principal Distribution Amounts for Pool 1 and Pool
2
for such Distribution Date over (b) the amount paid to the Supplemental Interest
Trust for deposit into the Swap Account or distributed to the Senior
Certificates and the Class M1, Class M2, Class M3 and Class M4 Certificates
on
such date pursuant to clauses (A) through (G) above, and (y) the M5 Principal
Distribution Amount for such date, until the Class Principal Amount of such
Class has been reduced to zero;
104
(I) to
the
Class M6 Certificates, an amount equal to the lesser of (x) the excess of
(a)
the aggregate of the Principal Distribution Amounts for Pool 1 and Pool 2
for
such Distribution Date over (b) the amount paid to the Supplemental Interest
Trust for deposit into the Swap Account or distributed to the Senior
Certificates and the Class M1, Class M2, Class M3, Class M4 and Class M5
Certificates on such date pursuant to clauses (A) through (H) above, and
(y) the
M6 Principal Distribution Amount for such date, until the Class Principal
Amount
of such Class has been reduced to zero;
(J) to
the
Class M7 Certificates, an amount equal to the lesser of (x) the excess of
(a)
the aggregate of the Principal Distribution Amounts for Pool 1 and Pool 2
for
such Distribution Date over (b) the amount paid to the Supplemental Interest
Trust for deposit into the Swap Account or distributed to the Senior
Certificates and the Class M1, Class M2, Class M3, Class M4, Class M5 and
Class
M6 Certificates on such date pursuant to clauses (A) through (I) above, and
(y)
the M7 Principal Distribution Amount for such date, until the Class Principal
Amount of such Class has been reduced to zero;
(K) to
the
Class M8 Certificates, an amount equal to the lesser of (x) the excess of
(a)
the aggregate of the Principal Distribution Amounts for Pool 1 and Pool 2
for
such Distribution Date over (b) the amount paid to the Supplemental Interest
Trust for deposit into the Swap Account or distributed to the Senior
Certificates and the Class M1, Class M2, Class M3, Class M4, Class M5, Class
M6
and Class M7 Certificates on such date pursuant to clauses (A) through (J)
above, and (y) the M8 Principal Distribution Amount for such date, until
the
Class Principal Amount of such Class has been reduced to zero;
(L) to
the
Class M9 Certificates, an amount equal to the lesser of (x) the excess of
(a)
the aggregate of the Principal Distribution Amounts for Pool 1 and Pool 2
for
such Distribution Date over (b) the amount paid to the Supplemental Interest
Trust for deposit into the Swap Account or distributed to the Senior
Certificates and the Class M1, Class M2, Class M3, Class M4, Class M5, Class
M6,
Class M7 and Class M8 Certificates on such date pursuant to clauses (A) through
(K) above, and (y) the M9 Principal Distribution Amount for such date, until
the
Class Principal Amount of such Class has been reduced to zero;
(M) to
the
Class B1 Certificates, an amount equal to the lesser of (x) the excess of
(a)
the aggregate of the Principal Distribution Amounts for Pool 1 and Pool 2
for
such Distribution Date over (b) the amount paid to the Supplemental Interest
Trust for deposit into the Swap Account or distributed to the Senior
Certificates and the Class M1, Class M2, Class M3, Class M4, Class M5, Class
M6,
Class M7, Class M8 and Class M9 Certificates on such date pursuant to clauses
(A) through (L) above, and (y) the B1 Principal Distribution Amount for such
date, until the Class Principal Amount of such Class has been reduced to
zero;
105
(N) to
the
Class B2 Certificates, an amount equal to the lesser of (x) the excess of
(a)
the aggregate of the Principal Distribution Amounts for Pool 1 and Pool 2
for
such Distribution Date over (b) the amount paid to the Supplemental Interest
Trust for deposit into the Swap Account or distributed to the Senior
Certificates and the Class M1, Class M2, Class M3, Class M4, Class M5, Class
M6,
Class M7, Class M8, Class M9 and Class B1 Certificates on such date pursuant
to
clauses (A) through (M) above, and (y) the B2 Principal Distribution Amount
for
such date, until the Class Principal Amount of such Class has been reduced
to
zero;
(O) to
the
Class B3 Certificates, an amount equal to the lesser of (x) the excess of
(a)
the aggregate of the Principal Distribution Amounts for Pool 1 and Pool 2
for
such Distribution Date over (b) the amount paid to the Supplemental Interest
Trust for deposit into the Swap Account or distributed to the Senior
Certificates and the Class M1, Class M2, Class M3, Class M4, Class M5, Class
M6,
Class M7, Class M8, Class M9, Class B1 and Class B2 Certificates on such
date
pursuant to clauses (A) through (N) above, and (y) the B3 Principal Distribution
Amount for such date, until the Class Principal Amount of such Class has
been
reduced to zero; and
(P) for
application as part of Monthly Excess Cashflow for such Distribution Date,
as
provided in Section 5.02(f), any Principal Distribution Amount remaining
after
application pursuant to clauses (A) through (O) above.
(v) Any
Principal Distribution Amount remaining on any Distribution Date after the
Target Amount is achieved will be applied as part of Monthly Excess Cashflow
for
such Distribution Date as provided in subsection (f) of this
Section.
(f) On
each
Distribution Date, the Trustee shall distribute the Monthly Excess Cashflow
for
such date in the following order of priority:
(i) for
each
Distribution Date occurring (a) before the Stepdown Date or (b) on or after
the Stepdown Date but for which a Trigger Event is in effect, then until
the
aggregate Certificate Principal Amount of the LIBOR Certificates equals the
Target Amount for such Distribution Date, in the following order of
priority:
(A) concurrently,
to the Group 1 Senior Certificates and the Group 2 Senior Certificates, in
proportion to the aggregate Class Principal Amount of the Senior Certificates
related to each Group, after giving effect to previous principal distributions
on such Distribution Date pursuant to subsection 5.02(e)(ii)(A) above, to
the
Group 1 Senior Certificates and the Group 2 Senior Certificates, in each
case in
accordance with the Related Senior Priority, in reduction of their respective
Class Principal Amounts, until the Class Principal Amount of each such Class
has
been reduced to zero; and
106
(B) to
each
Class of Subordinate Certificates, in accordance with the Subordinate Priority,
in reduction of their respective Class Principal Amounts, until the Class
Principal Amount of each such Class has been reduced to zero.
(ii) for
each
Distribution Date occurring on or after the Stepdown Date and for which a
Trigger Event is not in effect, in the following order of priority:
(A) concurrently,
to the Group 1 Senior Certificates and the Group 2 Senior Certificates, in
proportion to the aggregate Class Principal Amount of the Senior Certificates
related to each such Group, after giving effect to previous principal
distributions on such Distribution Date pursuant to subsection 5.02(e)(iv)(C)
above, to the Group 1 Senior Certificates and the Group 2 Senior Certificates,
in each case in accordance with the Related Senior Priority, in reduction
of
their respective Class Principal Amounts, until the aggregate Class Principal
Amount of each such Class, after giving effect to distributions on such
Distribution Date, equals the Senior Target Amount;
(B) to
the
Class M1 Certificates, in reduction of their Class Principal Amounts, until
the
aggregate of the Class Principal Amounts of such Class and the Senior
Certificates, after giving effect to distributions on such Distribution Date,
equals the M1 Target Amount;
(C) to
the
Class M2 Certificates, in reduction of their Class Principal Amount, until
the
aggregate of the Class Principal Amounts of such Class, the Senior Certificates
and the Class M1 Certificates, after giving effect to distributions on such
Distribution Date, equals the M2 Target Amount;
(D) to
the
Class M3 Certificates, in reduction of their Class Principal Amount, until
the
aggregate of the Class Principal Amounts of such Class, the Senior Certificates
and the Class M1 and Class M2 Certificates, after giving effect to distributions
on such Distribution Date, equals the M3 Target Amount;
(E) to
the
Class M4 Certificates, in reduction of their Class Principal Amount, until
the
aggregate of the Class Principal Amounts of such Class, the Senior Certificates
and the Class M1, Class M2 and Class M3 Certificates, after giving effect
to
distributions on such Distribution Date, equals the M4 Target Amount;
(F) to
the
Class M5 Certificates, in reduction of their Class Principal Amount, until
the
aggregate of the Class Principal Amounts of such Class, the Senior Certificates
and the Class M1, Class M2, Class M3 and Class M4 Certificates, after giving
effect to distributions on such Distribution Date, equals the M5 Target Amount;
(G) to
the
Class M6 Certificates, in reduction of their Class Principal Amount, until
the
aggregate of the Class Principal Amounts of such Class, the Senior Certificates
and the Class M1, Class M2, Class M3, Class M4 and Class M5 Certificates,
after
giving effect to distributions on such Distribution Date, equals the M6 Target
Amount;
107
(H) to
the
Class M7 Certificates, in reduction of their Class Principal Amount, until
the
aggregate of the Class Principal Amounts of such Class, the Senior Certificates
and the Class M1, Class M2, Class M3, Class M4, Class M5 and Class M6
Certificates, after giving effect to distributions on such Distribution Date,
equals the M7 Target Amount;
(I) to
the
Class M8 Certificates, in reduction of their Class Principal Amount, until
the
aggregate of the Class Principal Amounts of such Class, the Senior Certificates
and the Class M1, Class M2, Class M3, Class M4, Class M5, Class M6 and Class
M7
Certificates, after giving effect to distributions on such Distribution Date,
equals the M8 Target Amount;
(J) to
the
Class M9 Certificates, in reduction of their Class Principal Amount, until
the
aggregate of the Class Principal Amounts of such Class, the Senior Certificates
and the Class M1, Class M2, Class M3, Class M4, Class M5, Class M6, Class
M7 and
Class M8 Certificates, after giving effect to distributions on such Distribution
Date, equals the M9 Target Amount;
(K) to
the
Class B1 Certificates, in reduction of their Class Principal Amount, until
the
aggregate of the Class Principal Amounts of such Class, the Senior Certificates
and the Class M1, Class M2, Class M3, Class M4, Class M5, Class M6, Class
M7,
Class M8 and Class M9 Certificates, after giving effect to distributions
on such
Distribution Date, equals the B1 Target Amount;
(L) to
the
Class B2 Certificates, in reduction of their Class Principal Amount, until
the
aggregate of the Class Principal Amounts of such Class and the Senior
Certificates and the Class M1, Class M2, Class M3, Class M4, Class M5, Class
M6,
Class M7, Class M8, Class M9 and Class B1 Certificates, after giving effect
to
distributions on such Distribution Date, equals the B2 Target Amount;
and
(M) to
the
Class B3 Certificates, in reduction of their Class Principal Amount, until
the
aggregate of the Class Principal Amounts of such Class and the Senior
Certificates and the Class M1, Class M2, Class M3, Class M4, Class M5, Class
M6,
Class M7, Class M8, Class M9, Class B1 and Class B2 Certificates, after giving
effect to distributions on such Distribution Date, equals the B3 Target
Amount;
(iii) to
each
Class of Subordinate Certificates, in accordance with the Subordinate Priority,
any Deferred Amount for each such Class and such Distribution Date;
(iv) to
the
Basis Risk Reserve Fund, an amount equal to the Basis Risk Payment for such
Distribution Date, and then from the Basis Risk Reserve Fund, in the following
order of priority:
108
(A) concurrently,
in proportion to their respective Basis Risk Shortfalls and Unpaid Basis
Risk
Shortfalls, to each Class of Senior Certificates, any applicable Basis Risk
Shortfall and Unpaid Basis Risk Shortfall for each such Class and such
Distribution Date;
(B) to
each
Class of Subordinate Certificates, in accordance with the Subordinate Priority,
any applicable Basis Risk Shortfall and Unpaid Basis Risk Shortfall for each
such Class and such Distribution Date; and
(C) to
the
Swap Account, for application pursuant to Section 5.02(g)(xi), any amounts
remaining in the Basis Risk Reserve Fund, after taking into account
distributions pursuant to clauses (A) and (B) above, in excess of the
Required Reserve Fund Deposit for such Distribution Date;
(v) on
the
Distribution Date occurring in April 2010 (or the next succeeding Distribution
Date on which sufficient funds are available in the Certificate Account to
make
such distributions to the Class P Certificates), $100 to the Class P
Certificates in payment of its Class P Principal Amount;
(vi) to
the
Swap Account, the Class X Distributable Amount for such Distribution Date,
for
application pursuant to Section 5.02(g)(xi) below; and
(vii) to
the
Class LT-R Certificate, any amount remaining on such date after application
pursuant to clauses (i) through (vi) above to the extent attributable to
REMIC
1, and otherwise to the Class R Certificates.
(g) On
each
Distribution Date (or, with respect to clauses (i), (ii), (ix) and (x) below,
on
the related Swap Payment Date), the Trustee shall distribute the Swap Amount
for
such date after making all distributions under Section 5.02(e) above as
follows:
(i) to
the
Swap Counterparty, any Net Swap Payment owed to the Swap Counterparty pursuant
to the Swap Agreement for such Swap Payment Date;
(ii) to
the
Swap Counterparty, any Swap Termination Payment not due to a Swap Counterparty
Trigger Event owed to the Swap Counterparty pursuant to the Swap Agreement
for
such Swap Payment Date;
(iii) concurrently,
to the Senior Certificates, Current Interest and any Carryforward Interest
for
each such Class and such Distribution Date, to the extent unpaid (any shortfall
in Current Interest and Carryforward Interest to be allocated among such
Classes
in proportion to the amount of Current Interest and Carryforward Interest
that
would have otherwise been distributable thereon);
(iv) to
the
Subordinate Certificates, in accordance with the Subordinate Priority, Current
Interest and any Carryforward Interest for each such Class and such Distribution
Date to the extent unpaid;
109
(v) to
the
LIBOR Certificates, any amount necessary to maintain the Targeted
Overcollateralization Amount as specified in Sections 5.02(f)(i) and (ii)
above
for such Distribution Date, for application pursuant to the priorities set
forth
in such Sections, after giving effect to distributions pursuant to such
Sections; provided,
however,
that the
sum of all such amounts distributed pursuant to this Section 5.02(e)(v) and
all
amounts distributed pursuant to Section 5.02(g)(vi) and Sections 5.02(h)(iii)
and 5.02(h)(iv) shall not exceed the aggregate amount of cumulative Realized
Losses incurred from the Cut-off Date through the last day of the related
Collection Period less any amounts previously distributed pursuant to this
Section 5.02(g)(v) and Section 5.02(g)(vi) together with any amounts previously
distributed pursuant to Sections 5.02(h)(iii) and 5.02(h)(iv);
(vi) to
the
Subordinate Certificates, in accordance with the Subordinate Priority, any
Deferred Amount for each such Class and such Distribution Date, to the extent
unpaid; provided,
however,
that the
sum of all such amounts distributed pursuant to this Section 5.02(g)(vi)
and all
amounts distributed pursuant to Section 5.02(g)(v) and Sections 5.02(h)(iii)
and
5.02(h)(iv) shall not exceed the aggregate amount of cumulative Realized
Losses
incurred from the Cut-off Date through the last day of the related Collection
Period less any amounts previously distributed pursuant to this Section
5.02(g)(vi) and Section 5.02(g)(v) together with any amounts previously
distributed pursuant to Sections 5.02(h)(iii) and 5.02(h)(iv);
(vii) to
the
Senior Certificates, any Basis Risk Shortfalls and Unpaid Basis Risk Shortfalls
for each such Class for such Distribution Date, for application pursuant
to the
priorities set forth in Section 5.02(f)(iv)(A), to the extent
unpaid;
(viii) to
the
Subordinate Certificates, any Basis Risk Shortfalls and Unpaid Basis Risk
Shortfalls for each such Class and for such Distribution Date, for application
pursuant to the priorities set forth Section 5.02(f)(iv)(B), to the extent
unpaid;
(ix) if
applicable, to the Swap Termination Receipts Account for application to the
purchase of a replacement swap agreement pursuant to Section
5.09(a);
(x) to
the
Swap Counterparty, any Swap Termination Payment due to a Swap Counterparty
Trigger Event owed to the Swap Counterparty pursuant to the Swap
Agreement;
(xi) to
the
Class X Certificates, any remaining amount deposited into the Swap Account
pursuant to Section 5.02(f)(iv)(C) or Section 5.02(f)(vi) and any remaining
Swap
Amount; and
(xii) on
the
first Distribution Date on which the Class Principal Amount of each Class
of
Certificates has been reduced to zero, to the Class X Certificates, all amounts
remaining in the Swap Account.
(h) On
each
Distribution Date, the Trustee shall distribute the Interest Rate Cap Amount
for
such date after making all distributions under Section 5.02(e) above as
follows:
110
(i) concurrently,
to the Senior Certificates, Current Interest and any Carryforward Interest
for
each such Class for such Distribution Date, to the extent unpaid pursuant
to
Section 5.02(g)(iii) above (any shortfall in Current Interest and Carryforward
Interest to be allocated among such Classes in proportion to the amount of
Current Interest and Carryforward Interest that would have otherwise been
distributable thereon);
(ii) to
the
Subordinate Certificates, in accordance with the Subordinate Priority, Current
Interest and any Carryforward Interest for such Class and such Distribution
Date
to the extent unpaid;
(iii) to
the
LIBOR Certificates, any amount necessary to maintain the Targeted
Overcollateralization Amount specified in Sections 5.02(f)(i) and (ii) above
for
such Distribution Date, for application pursuant to the priorities set forth
in
such Sections; provided,
however,
that
the sum of all such amounts distributed pursuant to this Section 5.02(h)(iii)
and all amounts distributed pursuant to Section 5.02(h)(iv) and Sections
5.02(g)(v) and 5.02(g)(vi) shall not exceed the aggregate amount of cumulative
Realized Losses incurred from the Cut-off Date through the last day of the
related Collection Period less any amounts previously distributed pursuant
to
this Section 5.02(h)(iii) and Section 5.02(h)(iv) together with any amounts
previously distributed pursuant to Sections 5.02(g)(v) and
5.02(g)(vi);
(iv) to
the
Subordinate Certificates, in accordance with the Subordinate Priority, any
Deferred Amount for each such Class and such Distribution Date to the extent
unpaid; provided,
however,
that the
sum of all such amounts distributed pursuant to this Section 5.02(h)(iv)
and all
amounts distributed pursuant to Section 5.02(h)(iii) and Sections 5.02(g)(v)
and
5.02(g)(vi) shall not exceed the aggregate amount of cumulative Realized
Losses
incurred from the Cut-off Date through the last day of the related Collection
Period less any amounts previously distributed pursuant to this Section
5.02(h)(iv) and Section 5.02(h)(iii) together with any amounts previously
distributed pursuant to Sections 5.02(g)(v) and 5.02(g)(vi);
(v) to
the
Senior Certificates, any Basis Risk Shortfalls and Unpaid Basis Risk Shortfalls
for each such Class and for such Distribution Date, for application pursuant
to
the priorities set forth in Section 5.02(f)(iv)(A), to the extent
unpaid;
(vi) to
the
Subordinate Certificates, any Basis Risk Shortfalls and Unpaid Basis Risk
Shortfalls for each such Class and for such Distribution Date, for application
pursuant to the priorities set forth in Section 5.02(f)(iv)(B), to the extent
unpaid;
(vii) to
the
Cap Termination Receipts Account for application to the purchase of a
replacement cap agreement pursuant to Section 5.09(b); and
(viii) to
the
Class X Certificates, any remaining Interest Rate Cap Amount.
(i) On
each
Distribution Date, an amount equal to the aggregate of all Prepayment Charges,
whether paid by the mortgagor or by the Seller in connection with a breach
of a
representation or warranty under Section 2.03(b) hereof, and all Servicer
Prepayment Charge Payment Amounts paid by the Servicer pursuant to the Servicing
Agreement, received during the preceding Prepayment Period shall be distributed
to the Class P Certificates.
111
(j) On
each
Distribution Date occurring after a Section 7.01(c) Purchase Event but on
or
prior to a Trust Fund Termination Event, the Trustee (or the Paying Agent
on
behalf of the Trustee), shall withdraw from the Certificate Account the Total
Distribution Amount (to the extent such amount is on deposit in the Certificate
Account), and shall allocate such amount to the interests issued in respect
of
the Lower Tier REMIC 1 Uncertificated Regular Interests created pursuant
to this
Agreement and shall distribute such amount first,
for
deposit into the Swap Account, an amount equal to any Net Swap Payment or
Swap
Termination Payment owed to the Swap Counterparty on the related Swap Payment
Date, second,
to the
Credit Risk Manager, the Credit Risk Manager’s Fee, third,
to the
Trustee, any amounts reimbursable pursuant to Section 4.04(b)(i) and not
previously reimbursed to the Trustee and fourth,
to the
LTURI-holder, any remaining Total Distribution Amount to the extent payable
on
the Lower Tier REMIC I Uncertificated Regular Interests as provided in the
Preliminary Statement, and fifth,
to the
Class LT-R Certificates.
(k) On
each
Swap Payment Date occurring after a Section 7.01(c) Purchase Event but on
or
prior to a Trust Fund Termination Event, the Trustee (or Paying Agent) shall
distribute the Swap Amount for such date first,
to the
Swap Counterparty to pay any Net Swap Payment owed to the Swap Counterparty
pursuant to the Swap Agreement for such Swap Payment Date; second,
to the
Swap Counterparty, to pay any Swap Termination Payment owed to the Swap
Counterparty pursuant to the Swap Agreement for such Swap Payment Date,
third,
if
applicable, to the Swap Termination Receipts Account, for application to
the
purchase of a replacement swap agreement pursuant to Section 5.09(a); and
fourth,
any
remaining amount of Swap Amount, to the LTURI-holder.
(l) On
each
Distribution Date occurring after a Section 7.01(c) Purchase Event but on
or
prior to a Trust Fund Termination Event, the Trustee shall distribute any
amounts received from the Cap Counterparty under the Interest Rate Cap Agreement
for such Distribution Date first,
to the
Cap Termination Receipts Account, for application to the purchase of a
replacement cap agreement pursuant to Section 5.09(b); and second,
any
remaining amount from the Cap Counterparty under the Interest Rate Cap
Agreement, to the LTURI-holder.
(m) On
each
Distribution Date, an amount equal to the aggregate FPD Premium collected
during
the preceding Prepayment Period shall be distributed to the Class X
Certificates.
Section
5.03. Allocation
of Losses.
On
each
Distribution Date, the Class Principal Amounts of the Subordinate Certificates
will be reduced by the amount of any Applied Loss Amount for such date, in
the
following order of priority:
(i) to
the
Class B3 Certificates, until the Class Principal Amount thereof has been
reduced
to zero;
112
(ii) to
the
Class B2 Certificates, until the Class Principal Amount thereof has been
reduced
to zero;
(iii) to
the
Class B1 Certificates, until the Class Principal Amount thereof has been
reduced
to zero;
(iv) to
the
Class M9 Certificates, until the Class Principal Amount thereof has been
reduced
to zero;
(v) to
the
Class M8 Certificates, until the Class Principal Amount thereof has been
reduced
to zero;
(vi) to
the
Class M7 Certificates, until the Class Principal Amount thereof has been
reduced
to zero;
(vii) to
the
Class M6 Certificates, until the Class Principal Amount thereof has been
reduced
to zero;
(viii) to
the
Class M5 Certificates, until the Class Principal Amount thereof has been
reduced
to zero;
(ix) to
the
Class M4 Certificates, until the Class Principal Amount thereof has been
reduced
to zero; and
(x) to
the
Class M3 Certificates, until the Class Principal Amount thereof has been
reduced
to zero.
(xi) to
the
Class M2 Certificates, until the Class Principal Amount thereof has been
reduced
to zero.
(xii) to
the
Class M1 Certificates, until the Class Principal Amount thereof has been
reduced
to zero.
Section
5.04. Advances
by Master Servicer, Servicer and Securities Administrator.
(a) Subject
to Section 9.07, Advances shall be made in respect of each Master Servicer
Remittance Date as provided herein. If, on any Determination Date, the Servicer
determines that any Scheduled Payments (or in the case of Simple Interest
Mortgage Loans, the amount of any scheduled interest payments) due during
the
related Collection Period (other than Balloon Payments) have not been received,
the Servicer shall advance such amount to the extent provided in the Servicing
Agreement. If the Servicer fails to remit Advances required to be made under
the
Servicing Agreement, the Master Servicer shall itself make, or shall cause
the
successor Servicer to make, such Advance on the Master Servicer Remittance
Date
immediately following such Determination Date. If the Master Servicer determines
that an Advance is required, it shall on the Master Servicer Remittance Date
immediately following such Determination Date either (i) remit to the Securities
Administrator from its own funds (or funds advanced by the Servicer) for
deposit
in the Securities Administration Account immediately available funds in an
amount equal to such Advance, (ii) cause to be made an appropriate entry
in the
records of the Collection Account that funds in such account being held for
future distribution or withdrawal have been, as permitted by this Section
5.04,
used by the Master Servicer to make such Advance, and remit such immediately
available funds to the Securities Administrator for deposit in the Securities
Administration Account or (iii) make Advances in the form of any combination
of
clauses (i) and (ii) aggregating the amount of such Advance. Any funds being
held in the Collection Account for future distribution to Certificateholders
and
so used shall be replaced by the Master Servicer from its own funds by
remittance to the Securities Administrator for deposit in the Securities
Administration Account on or before any future Master Servicer Remittance
Date
to the extent that funds in the Certificate Account on such Master Servicer
Remittance Date shall be less than payments to Certificateholders required
to be
made on the related Distribution Date. The Master Servicer and the Servicer
shall be entitled to be reimbursed from the Collection Account for all Advances
made by it as provided in Section 4.02. Notwithstanding anything to the contrary
herein, in the event the Master Servicer determines in its reasonable judgment
that an Advance is non-recoverable, the Master Servicer shall be under no
obligation to make such Advance.
113
(b) In
the
event that the Master Servicer or the Servicer fails for any reason to make
an
Advance required to be made pursuant to this Section 5.04 on or before the
Master Servicer Remittance Date, the Securities Administrator, as successor
master servicer pursuant to Section 6.14, shall, on or before the related
Distribution Date, deposit in the Certificate Account an amount equal to
the
excess of (a) Advances required to be made by the Master Servicer or the
Servicer that would have been deposited in such Certificate Account over
(b) the
amount of any Advance made by the Master Servicer or the Servicer with respect
to such Distribution Date; provided,
however,
that the
Securities Administrator shall be required to make such Advance only if it
is
not prohibited by law from doing so and it has determined that such Advance
would be recoverable from amounts to be received with respect to such Mortgage
Loan, including late payments, Liquidation Proceeds, Insurance Proceeds,
or
otherwise. The Securities Administrator shall be entitled to be reimbursed
from
the Collection Account and/or the Certificate Account for Advances made by
it
pursuant to this Section 5.04 as if it were the Master Servicer.
Section
5.05. Compensating
Interest Payments.
The
Master Servicer shall not be responsible for making any Compensating Interest
Payments not made by the Servicer. Any Compensating Interest Payments made
by
the Servicer shall be a component of the Interest Remittance
Amount.
Section
5.06. Basis
Risk Reserve Fund.
(a) On
the
Closing Date, the Trustee shall establish and maintain in its name, in trust
for
the benefit of the Certificateholders, a Basis Risk Reserve Fund, into which
Xxxxxx Brothers Holdings Inc. (“LBH”) shall initially deposit $1,000. The Basis
Risk Reserve Fund shall be an Eligible Account, and funds on deposit therein
shall be held separate and apart from, and shall not be commingled with,
any
other monies, including, without limitation, other monies of the Trustee
held
pursuant to this Agreement.
(b) The
Trustee (or Paying Agent) shall make withdrawals from the Basis Risk Reserve
Fund to make distributions pursuant to Section 5.02(f)(iv) hereof in accordance
with the Distribution Date reports prepared by the Securities Administrator.
Notwithstanding the foregoing, the initial deposit of $1,000 made pursuant
to
subsection (a) above may be applied by the Trustee (or Paying Agent) to make
such distributions.
114
(c) Funds
in
the Basis Risk Reserve Fund shall be invested in Eligible Investments. Any
earnings on such amounts shall be distributed on each Distribution Date to
the
Holders of the Class X Certificates. The Class X Certificates shall evidence
ownership of the Basis Risk Reserve Fund for federal income tax purposes
and LBH
on behalf of the Holder thereof shall direct the Trustee, in writing, as
to
investment of amounts on deposit therein. LBH shall be liable for any losses
incurred on such investments. In the absence of written instructions from
LBH as
to investment of funds on deposit in the Basis Risk Reserve Fund, such funds
shall be invested in the “U.S. Bank First American Prime Obligation Fund Class
A”. The Basis Risk Reserve Fund will be terminated after the earlier of (A)
a
Section 7.01(c) Purchase Event or (B) a Trust Fund Termination Event, and
any
funds remaining in such fund upon such termination shall be released to Holders
of the Class X Certificates.
Section
5.07. Supplemental
Interest Trust.
(a) A
separate trust is hereby established (the “Supplemental Interest Trust”), the
corpus of which shall be held by the Trustee, in trust, for the benefit of
the
Certificateholders and the Swap Counterparty. The Trustee, as trustee of
the
Supplemental Interest Trust, shall establish an account (the “Swap Account”),
into which LBH shall initially deposit $1,000. The Swap Account shall be
an
Eligible Account, and funds on deposit therein shall be held separate and
apart
from, and shall not be commingled with, any other monies, including, without
limitation, other monies of the Trustee held pursuant to this Agreement.
After
payment in full to the Swap Counterparty of any Net Swap Payments or Swap
Termination Payments owed to it pursuant to the Swap Agreement, any funds
remaining in such fund upon termination of the Swap Account shall be released
to
Holders of the Class X Certificates pursuant to Sections 5.02(g)(xi) and
5.02(g)(xii).
(b) In
addition, the Trustee, as trustee of the Supplemental Interest Trust, shall
establish an account (the “Interest Rate Cap Account”), into which LBH shall
initially deposit $1,000. The Interest Rate Cap Account shall be an Eligible
Account, and funds on deposit therein shall be held separate and apart from,
and
shall not be commingled with, any other monies, including, without limitation,
other monies of the Trustee held pursuant to this Agreement.
(c) In
addition, on the Closing Date, the Trustee, on behalf of the Supplemental
Interest Trust, shall establish an account (the “Collateral
Account”)
into
which funds shall be deposited pursuant to Section 5.07(h). The Collateral
Account shall be an Eligible Account, and funds on deposit therein shall
be held
separate and apart from, and shall not be commingled with, any other monies,
including, without limitation, other monies of the Trustee held pursuant
to this
Agreement.
(d) The
Trustee shall deposit into the Swap Account any Net Swap Payment required
pursuant to Sections 5.02(b), (c), (e) and (k), any Swap Termination Payment
required pursuant to Sections 5.02(b), (c), (e) and (k), any amounts received
from the Swap Counterparty under the Swap Agreement and any amounts distributed
from the Basis Risk Reserve Fund required pursuant to Sections 5.02(f)(iv)(C)
and (f)(vii), and shall distribute from the Swap Account any Net Swap Payment
required pursuant to Section 5.02(g)(i) or Section 5.02(k), as applicable,
or Swap Termination Payment required pursuant to Sections 5.02(g)(ii) and
5.02(g)(x) or Section 5.02(k), as applicable.
115
(e) The
Trustee shall deposit into the Interest Rate Cap Account any amounts received
from the Cap Counterparty under the Interest Rate Cap Agreement and shall
distribute from the Interest Rate Cap Account any Interest Rate Cap Amount
pursuant to Section 5.02(h) or 5.02(l), as applicable.
(f) Funds
in
the Swap Account shall be invested in Eligible Investments. Any earnings
on such
amounts shall be distributed on each Distribution Date pursuant to Section
5.02(f) or Section 5.02(l), as applicable. The Class X Certificates shall
evidence ownership of the Swap Account for federal income tax purposes and
the
Holder thereof shall direct the Trustee, in writing, as to investment of
amounts
on deposit therein. LBH shall be liable for any losses incurred on such
investments. In the absence of written instructions from the Class X
Certificateholders as to investment of funds on deposit in the Swap Account,
such funds shall be invested in the “U.S. Bank First American Prime Obligations
Fund Class A” or comparable investment vehicle. Any amounts on deposit in the
Swap Account in excess of the Swap Amount on any Distribution Date shall
be held
for distribution pursuant to Section 5.02(g) or Section 5.02(k), as
applicable, on the following Distribution Date.
(g) Funds
in
the Interest Rate Cap Account shall be invested in Eligible Investments.
Any
earnings on such amounts shall be distributed on each Distribution Date pursuant
to Section 5.02(h) or Section 5.02(l), as applicable. The Class X Certificates
shall evidence ownership of the Interest Rate Cap Account for federal income
tax
purposes and the Holder thereof shall direct the Trustee, in writing, as to
investment of amounts on deposit therein. LBH shall be liable for any losses
incurred on such investments. In the absence of written instructions from
the
Class X Certificateholders as to investment of funds on deposit in the Interest
Rate Cap Account, such funds shall be invested in the U.S. Bank First American
Prime Obligations Fund Class A or comparable investment vehicle. Any amounts
on
deposit in the Interest Rate Cap Account in excess of the Interest Rate Cap
Amount on any Distribution Date shall be held for distribution pursuant to
Section 5.02(h) or Section 5.02(l), as applicable, on the following Distribution
Date.
(h) Funds
or
collateral required to be held pursuant to the Credit Support Annex shall
be
deposited into the Collateral Account. Funds posted by the Cap Counterparty
(or
its credit support provider) and/or the Swap Counterparty (or its credit
support
provider) in the Collateral Account shall be invested in Eligible Investments
at
the written direction of the Swap Counterparty. Any interest earnings on
such
amounts shall be remitted to the Cap Counterparty and/or the Swap Counterparty,
as applicable, pursuant to the terms of the Credit Support Annex. For federal
income tax purposes, the Swap Counterparty shall be considered owner of funds
deposited in the Collateral Account. The Trustee shall not be liable for
any
losses incurred on such investments. In the absence of written instructions
from
the Cap Counterparty (or its credit support provider) and/or the Swap
Counterparty (or its credit support provider) as to investment of funds on
deposit in the Collateral Account, such funds shall be invested in the “U.S.
Bank First American Prime Obligation Fund Class A” or comparable investment
vehicle. On the first Distribution Date immediately following any Swap Payment
Date as to which a shortfall exists with respect to a Net Swap Payment or
a Swap
Termination Payment owed by the Swap Counterparty as a result of its failure
to
make payments pursuant to the Swap Agreement, amounts necessary to cover
such
shortfall shall be removed from the Collateral Account, remitted to the Swap
Account and distributed as all or a portion of such Net Swap Payment or Swap
Termination Payment pursuant to Section 5.02(g) or Section 5.02(k), as
applicable. On any Distribution Date as to which a shortfall exists with
respect
to Interest Rate Cap Amounts owed by the Cap Counterparty as a result of
its
failure to make payments pursuant to the Interest Rate Cap Agreement, amounts
necessary to cover such shortfall shall be removed from the Collateral Account,
remitted to the Interest Rate Cap Account and distributed as all or a portion
of
such Interest Rate Cap Amount pursuant to Section 5.02(h) or Section 5.02(l),
as
applicable. Any amounts on deposit in the Collateral Account required to
be
returned to the Cap Counterparty (or its credit support provider) and/or
the
Swap Counterparty (or its credit support provider), as applicable, as a result
of (i) the termination of the Swap Agreement or the Interest Rate Cap Agreement,
as applicable, (ii) the procurement of a guarantor, (iii) the reinstatement
of
required ratings or (iv) otherwise pursuant to the Swap Agreement, shall
be
released directly to the Swap Counterparty and/or the Cap Counterparty, as
applicable, pursuant to the terms of the Credit Support Annex.
116
(i) Upon
termination of the Trust Fund, any amounts remaining in the Swap Account
shall
be distributed pursuant to the priorities set forth in Section 5.02(g) or
Section 5.02(k), as applicable.
(j) Upon
termination of the Trust Fund, any amounts remaining in the Interest Rate
Cap
Account shall be distributed pursuant to the priorities set forth in Section
5.02(h) or Section 5.02(l), as applicable.
(k) Upon
termination of the Trust Fund, any amounts remaining in the Collateral Account
shall be distributed as required pursuant to the terms of the Credit Support
Annex.
(l) It
is the
intention of the parties hereto that, for federal and state income and state
and
local franchise tax purposes, the Supplemental Interest Trust be disregarded
as
an entity separate from the holder of the Class X Certificates unless and
until
the date when either (a) there is more than one Class X Certificateholder
or (b)
any Class of Certificates in addition to the Class X Certificates is
recharacterized as an equity interest in the Supplemental Interest Trust
for
federal income tax purposes. Neither the Securities Administrator nor the
Trustee shall be responsible for any entity level tax reporting for the
Supplemental Interest Trust.
(m) To
the
extent that the Supplemental Interest Trust is determined to be a separate
legal
entity from the Trustee, any obligation of the Trustee under the Swap Agreement
or the Interest Rate Cap Agreement shall be deemed to be an obligation of
the
Supplemental Interest Trust.
(n) In
the
event that either the Swap Counterparty or the Cap Counterparty fails to
perform
any of its obligations under the Swap Agreement or the Interest Rate Cap
Agreement (including, without limitation, its obligations to make any payment
or
transfer collateral), or breaches any of its representations and warranties
under the Swap Agreement or the Interest Rate Cap Agreement, as applicable,
or
in the event that an Event of Default, Termination Event, or Additional
Termination Event occurs (as such terms are defined in the Swap Agreement
or the
Interest Rate Cap Agreement, as applicable), the Trustee, on behalf of the
Supplemental Interest Trust, shall (upon a Responsible Officer of the Trustee
receiving written notice or having actual knowledge of the occurrence thereof),
as soon as practicable following such failure, breach or occurrence, notify
the
Swap Counterparty or the Cap Counterparty and give any notice of such failure
and make any demand for payment pursuant to the Swap Agreement or the Interest
Rate Cap Agreement, as applicable. In the event that the Swap Counterparty’s
obligations under the Swap Agreement or the Cap Counterparty’s obligations under
the Interest Rate Cap Agreement are at any time guaranteed by a third party,
then to the extent that the Swap Counterparty or Cap Counterparty fails to
make
any payment or delivery required under terms of the Swap Agreement or the
Interest Rate Cap Agreement, as applicable, the Trustee, on behalf of the
Supplemental Interest Trust, shall (upon a Responsible Officer of the Trustee
receiving written notice or having actual knowledge of the occurrence thereof),
as soon as practicable following such failure, demand that such guarantor
make
any and all payments then required to be made by the applicable guarantor.
117
Section
5.08. Rights
of Swap Counterparty.
The
Swap
Counterparty 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, upon
designation of an “Early Termination Date” (as defined in the Swap Agreement),
to enforce its rights under this Agreement, which rights include but are
not
limited to the obligation of the Trustee (A) to deposit any Net Swap Payment
required pursuant to Sections 5.02(b), (c), (e) and (k) and any Swap Termination
Payment required pursuant to Sections 5.02(b), (c), (e) and (k) into the
Swap
Account, (B) to deposit any amounts from the Basis Risk Reserve Fund required
pursuant to Sections 5.02(f)(iv)(C) and Section 5.02(f)(vi) into the Swap
Account, (C) to pay any Net Swap Payment required pursuant to Section 5.02(g)(i)
or Section 5.02(k), as applicable, or Swap Termination Payment required
pursuant to Section 5.02(g)(ii), Section 5.02(g)(x) or
Section 5.02(k), as applicable, to the Swap Counterparty and (D) to
establish and maintain the Swap Account, to make such deposits thereto,
investments therein and distributions therefrom as are required pursuant
to
Section 5.07. For the protection and enforcement of the provisions of this
Section the Swap Counterparty shall be entitled to such relief as can be
given
either at law or in equity.
Section
5.09. Termination
Receipts.
(a) In
the
event of an “Early Termination Event” as defined under the Swap Agreement, (i)
any Swap Termination Payment made by the Swap Counterparty to the Swap Account
and paid pursuant to Section 5.02(g)(x) or Section 5.02(k), as applicable
(“Swap Termination Receipts”) shall be deposited in a segregated non-interest
bearing account which shall be an Eligible Account established by the Trustee
(the “Swap Termination Receipts Account”) and (ii) any amounts received from a
replacement Swap Counterparty (“Swap Replacement Receipts”) will be deposited in
a segregated non-interest bearing account which shall be an Eligible Account
established by the Trustee (the “Swap Replacement Receipts Account”). The
Trustee shall invest, or cause to be invested, funds held in the Swap
Termination Receipts Account and the Swap Replacement Receipts Account in
time
deposits of the Trustee as permitted by clause (ii) of the definition of
Eligible Investments or as otherwise directed in writing by a majority of
the
Certificateholders. All such investments shall be payable on demand or mature
on
a Swap Payment Date, a Distribution Date or such other date as directed by
the
Certificateholders. All such Eligible Investments shall be made in the name
of
the Trustee of the Supplemental Interest Trust (in its capacity as such)
or its
nominee. All income and gain realized from any such investment shall be
deposited in the Swap Termination Receipts Account or the Swap Replacement
Receipts Account, as applicable, and all losses, if any, shall be borne by
the
related account.
118
Unless
otherwise permitted by the Rating Agencies as evidenced in a written
confirmation, the Depositor shall arrange for a replacement Swap Agreement(s)
and the Trustee shall promptly, upon receipt of written direction from the
Depositor, use amounts on deposit in the Swap Termination Receipts Account,
if
necessary, to enter into a replacement Swap Agreement(s) which shall be executed
and delivered by the Trustee on behalf of the Supplemental Interest Trust
upon
receipt of written confirmation from each Rating Agency that such replacement
Swap Agreement(s) will not result in the reduction or withdrawal of the rating
of any outstanding Class of Certificates with respect to which it is a Rating
Agency.
Amounts
on deposit in the Swap Replacement Receipts Account shall be held for the
benefit of the related Swap Counterparty and paid to such Swap Counterparty
if
the Supplemental Interest Trust is required to make a payment to such Swap
Counterparty following an event of default or termination event with respect
to
the Supplemental Interest Trust under the related Swap Agreement. Any amounts
not so applied shall, following the termination or expiration of such Swap
Agreement, be paid to the Class X Certificates.
(b) In
the
event of an “Early Termination Event” as defined under the Interest Rate Cap
Agreement, (i) any Cap Termination Payment made by the Cap Counterparty to
the
Interest Rate Cap Account and paid pursuant to Section 5.02(h)(vii) or Section
5.02(l), as applicable, (“Cap Termination Receipts”) shall be deposited in a
segregated non-interest bearing account which shall be an Eligible Account
established by the Trustee (the “Cap Termination Receipts Account”) and (ii) any
amounts received from a replacement Cap Counterparty (“Cap Replacement
Receipts”) will be deposited in a segregated non-interest bearing account which
shall be an Eligible Account established by the Trustee (the “Cap Replacement
Receipts Account”). The Trustee shall invest, or cause to be invested, funds
held in the Cap Termination Receipts Account and the Cap Replacement Receipts
Account in time deposits of the Trustee as permitted by clause (ii) of the
definition of Eligible Investments or as otherwise directed in writing by
a
majority of the Certificateholders. All such investments shall be payable
on
demand or mature on an Interest Rate Cap Payment Date, a Distribution Date
or
such other date as directed by the Certificateholders. All such Eligible
Investments shall be made in the name of Trustee of the Supplemental Interest
Trust (in its capacity as such) or its nominee. All income and gain realized
from any such investment shall be deposited in the Cap Termination Receipts
Account or the Cap Replacement Receipts Account, as applicable, and all losses,
if any, shall be borne by the related account.
119
Unless
otherwise permitted by the Rating Agencies as evidenced in a written
confirmation, the Depositor shall arrange for a replacement Interest Rate
Cap
Agreement(s) and the Trustee shall promptly, upon receipt of written direction
of the Depositor, use amounts on deposit in the Cap Termination Receipts
Account, if necessary, to enter into a replacement Interest Rate Cap
Agreement(s) which shall be executed and delivered by the Trustee on behalf
of
the Supplemental Interest Trust upon receipt of written confirmation from
each
Rating Agency that such replacement Interest Rate Cap Agreement(s) will not
result in the reduction or withdrawal of the rating of any outstanding Class
of
Certificates with respect to which it is a Rating Agency.
120
ARTICLE
VI
CONCERNING
THE TRUSTEE AND THE SECURITIES ADMINISTRATOR; EVENTS OF DEFAULT
Section
6.01. Duties
of Trustee and Securities Administrator.
(a) Each
of
the Trustee and the Securities Administrator, except during the continuance
of
an Event of Default of which a Responsible Officer of the Trustee or Securities
Administrator, as applicable, shall have actual knowledge, undertakes to
perform
such duties and only such duties as are specifically set forth in this
Agreement. Any permissive right of the Trustee or Securities Administrator
provided for in this Agreement shall not be construed as a duty of the Trustee
or Securities Administrator. If an Event of Default (of which a Responsible
Officer of the Trustee or Securities Administrator, as applicable, shall
have
actual knowledge) has occurred and has not otherwise been cured or waived,
the
Trustee or the Securities Administrator shall exercise such of the rights
and
powers vested in it by this Agreement and use the same degree of care and
skill
in their exercise as a prudent Person would exercise or use under the
circumstances in the conduct of such Person’s own affairs, unless the Securities
Administrator is acting as Master Servicer, in which case it shall use the
same
degree of care and skill as the Master Servicer hereunder.
(b) Each
of
the Trustee and the Securities Administrator, upon receipt of all resolutions,
certificates, statements, opinions, reports, documents, orders or other
instruments furnished to the Trustee or the Securities Administrator which
are
specifically required to be furnished pursuant to any provision of this
Agreement, shall examine them to determine whether they are on their face
in the
form required by this Agreement; provided,
however,
that
neither the Trustee nor the Securities Administrator shall be responsible
for
the accuracy or content of any such resolution, certificate, statement, opinion,
report, document, order or other instrument furnished by the Master Servicer,
the Servicer, the Swap Counterparty, the Cap Counterparty or the Credit Risk
Manager to the Trustee or the Securities Administrator pursuant to this
Agreement, and shall not be required to recalculate or verify any numerical
information furnished to the Trustee or the Securities Administrator pursuant
to
this Agreement. Subject to the immediately preceding sentence, if any such
resolution, certificate, statement, opinion, report, document, order or other
instrument is found not to conform on its face to the form required by this
Agreement in a material manner the Trustee or Securities Administrator, as
applicable, shall notify the Person providing such resolutions, certificates,
statements, opinions, reports or other documents of the non-conformity, and
if
the instrument is not corrected to the Trustee’s or Securities Administrator’s,
as applicable, satisfaction, the Trustee or Securities Administrator, as
applicable, will provide notice thereof to the Certificateholders and any
NIMS
Insurer and will, at the expense of the Trust Fund, which expense shall be
reasonable given the scope and nature of the required action, take such further
action as directed by the Certificateholders or any NIMS Insurer.
(c) Neither
the Trustee nor the Securities Administrator shall have any liability arising
out of or in connection with this Agreement, except for its negligence or
willful misconduct. No provision of this Agreement shall be construed to
relieve
the Trustee 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:
121
(i) 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 direction of the Holders as provided in Section 6.18
hereof;
(ii) For
all
purposes under this Agreement, the Trustee shall not be deemed to have notice
of
any Event of Default unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which is in fact
such a
default is received by the Trustee at the Corporate Trust Office, and such
notice references the Holders of the Certificates and this
Agreement;
(iii) For
all
purposes under this Agreement, the Securities Administrator shall not be
deemed
to have notice of any Event of Default (other than resulting from a failure
by
the Master Servicer to furnish information to the Securities Administrator
when
required to do so) unless a Responsible Officer of the Securities Administrator
has actual knowledge thereof or unless written notice of any event which
is in
fact such a default is received by the Securities Administrator at the address
provided in Section 11.07, and such notice references the Holders of the
Certificates and this Agreement;
(iv) No
provision of this Agreement shall require the Trustee or the Securities
Administrator to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or 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 under this
Agreement;
(v) Neither
the Trustee nor the Securities Administrator shall be responsible for any
act or
omission of the Master Servicer, the Servicer, the Credit Risk Manager, the
Depositor, the Seller or the Custodian and neither the Securities Administrator
nor the Trustee shall be responsible for any act or omission of the
other.
(d) The
Trustee shall have no duty hereunder with respect to any complaint, claim,
demand, notice or other document it may receive or which may be alleged to
have
been delivered to or served upon it by the parties as a consequence of the
assignment of any Mortgage Loan hereunder; provided,
however,
that the
Trustee shall promptly remit to the Master Servicer upon receipt any such
complaint, claim, demand, notice or other document (i) which is delivered
to the
Corporate Trust Office of the Trustee and makes reference to this series
of
Certificate or this Agreement, (ii) of which a Responsible Officer has actual
knowledge, and (iii) which contains information sufficient to permit the
Trustee
to make a determination that the real property to which such document relates
is
a Mortgaged Property.
122
(e) Neither
the Trustee nor the Securities Administrator shall be personally liable with
respect to any action taken, suffered or omitted to be taken by it in good
faith
in accordance with the direction of any NIMS Insurer or the Certificateholders
of any Class holding Certificates which evidence, as to such Class, Percentage
Interests aggregating not less than 25% as to the time, method and place
of
conducting any proceeding for any remedy available to the Trustee or the
Securities Administrator or exercising any trust or power conferred upon
the
Trustee or the Securities Administrator, as applicable, under this
Agreement.
(f) Neither
the Trustee nor the Securities Administrator shall be required to perform
services under this Agreement, or to expend or risk its own funds or otherwise
incur financial liability in connection with the performance of any of its
duties or the exercise of any of its rights or powers hereunder if there
is
reasonable ground for believing that the timely payment of its fees and expenses
or the repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it, and none of the provisions contained
in this Agreement shall in any event require the Trustee or the Securities
Administrator, as applicable, to perform, or be responsible for the manner
of
performance of, any of the obligations of the Master Servicer or the Servicer
under this Agreement or the Servicing Agreement except during such time,
if any,
as the Securities Administrator shall be the successor to, and be vested
with
the rights, duties, powers and privileges of, the Master Servicer in accordance
with the terms of this Agreement.
(g) The
Trustee shall not be held liable by reason of any insufficiency in the
Collection Account resulting from any investment loss on any Eligible Investment
included therein (except to the extent that the Trustee is the obligor and
has
defaulted thereon).
(h) The
Trustee shall not and, except as otherwise provided herein, the Securities
Administrator shall not have any duty (A) to see to any recording, filing,
or
depositing of this Agreement or any agreement referred to herein or any
financing statement or continuation statement evidencing a security interest,
or
to see to the maintenance of any such recording or filing or depositing or
to
any rerecording, refiling or redepositing of any thereof, (B) to see to any
insurance or claim under any Insurance Policy, and (C) to see to the payment
or
discharge of any tax, assessment, or other governmental charge or any lien
or
encumbrance of any kind owing with respect to, assessed or levied against,
any
part of the Trust Fund or the Supplemental Interest Trust other than from
funds
available in the Collection Account, the Securities Administration Account
or
the Certificate Account, as applicable. Except as otherwise provided herein,
neither the Trustee nor the Securities Administrator shall have any duty to
confirm or verify the contents of any reports or certificates of the Master
Servicer, the Servicer, the Swap Counterparty, the Cap Counterparty or the
Credit Risk Manager delivered to the Trustee or the Securities Administrator
pursuant to this Agreement believed by the Trustee or the Securities
Administrator, as applicable, to be genuine and to have been signed or presented
by the proper party or parties.
(i) Neither
the Securities Administrator nor the Trustee shall be liable in its individual
capacity for an error of judgment made in good faith by a Responsible Officer
or
other officers of the Trustee or the Securities Administrator, as applicable,
unless it shall be proved that the Trustee or the Securities Administrator,
as
applicable, was negligent in ascertaining the pertinent facts.
123
(j) Notwithstanding
anything in this Agreement to the contrary, none of the Securities
Administrator, any Paying Agent or the Trustee shall be liable for special,
indirect or consequential losses or damages of any kind whatsoever (including,
but not limited to, lost profits), even if the Securities Administrator,
the
Paying Agent or the Trustee, as applicable, has been advised of the likelihood
of such loss or damage and regardless of the form of action, provided,
however,
that
this Subsection 6.01(j) shall not apply in connection with any failure by
the
Securities Administrator to comply with the provisions of Subsections 6.01(l)
hereof and Subsections 9.25(a) and (b) hereof.
(k) Neither
the Securities Administrator nor the Trustee shall be responsible for the
acts
or omissions of the other, it being understood that this Agreement shall
not be
construed to render them agents of one another, or of the Master Servicer
or the
Servicer.
(l) The
Securities Administrator shall give prior written notice to the Sponsor,
the
Master Servicer, the NIMS Insurer and the Depositor of the appointment of
any
Subcontractor by it and a written description (in form and substance
satisfactory to the Sponsor and the Depositor) of the role and function of
each
Subcontractor utilized by the Securities Administrator specifying (A) the
identity of each such Subcontractor and (B) which elements of the servicing
criteria set forth under Item 1122(d) of Regulation AB will be addressed
in
assessments of compliance provided by each such Subcontractor.
Section
6.02. Certain
Matters Affecting the Trustee and the Securities Administrator.
Except
as
otherwise provided in Section 6.01:
(a) Each
of
the Trustee and the Securities Administrator may request, and may rely and
shall
be protected in acting or refraining from acting upon any resolution, Officer’s
Certificate, certificate of auditors or any other certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond
or
other paper or document believed by it to be genuine and to have been signed
or
presented by the proper party or parties;
(b) Each
of
the Trustee and the Securities Administrator may consult with counsel and
any
advice of its counsel or Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or suffered or
omitted by it hereunder in good faith and in accordance with such advice
or
Opinion of Counsel;
(c) Neither
the Trustee nor the Securities Administrator shall be personally liable for
any
action taken, suffered or omitted by it in good faith and reasonably believed
by
it to be authorized or within the discretion or rights or powers conferred
upon
it by this Agreement;
(d) Unless
an
Event of Default shall have occurred and be continuing, neither the Trustee
nor
the Securities Administrator shall be bound to make any investigation into
the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, bond or other
paper
or document (provided the same appears regular on its face), unless requested
in
writing to do so by any NIMS Insurer or the Holders of at least a majority
in
Class Principal Amount (or Percentage Interest) of each Class of Certificates
or, if such Classes have been retired pursuant to a Section 7.01(c) Purchase
Event, the LTURI-holder; provided,
however,
that, if
the payment within a reasonable time to the Trustee or the Securities
Administrator, as applicable, of the costs, expenses or liabilities likely
to be
incurred by it in the making of such investigation is, in the opinion of
the
Trustee or the Securities Administrator, as applicable, not reasonably assured
to the Trustee or the Securities Administrator by the security afforded to
it by
the terms of this Agreement, the Trustee or the Securities Administrator,
as
applicable, may require reasonable indemnity against such expense or liability
or payment of such estimated expenses from any NIMS Insurer or the
Certificateholders, as applicable, as a condition to proceeding. The reasonable
expense thereof shall be paid by the party requesting such investigation
and if
not reimbursed by the requesting party shall be reimbursed to the Trustee
by the
Trust Fund;
124
(e) Each
of
the Trustee and the Securities Administrator may execute any of the trusts
or
powers hereunder or perform any duties hereunder either directly or by or
through agents, custodians or attorneys, which agents, custodians or attorneys
shall have any and all of the rights, powers, duties and obligations of the
Trustee and the Securities Administrator conferred on them by such appointment,
provided that each of the Trustee and the Securities Administrator shall
continue to be responsible for its duties and obligations hereunder to the
extent provided herein, and provided further that neither the Trustee nor
the
Securities Administrator shall be responsible for any misconduct or negligence
on the part of any such agent or attorney appointed with due care by the
Trustee
or the Securities Administrator, as applicable;
(f) Neither
the Trustee nor the Securities Administrator shall be under any obligation
to
exercise any of the trusts or powers vested in it by this Agreement or to
institute, conduct or defend any litigation hereunder or in relation hereto,
in
each case at the request, order or direction of any of the Certificateholders
or
any NIMS Insurer pursuant to the provisions of this Agreement, unless such
Certificateholders or any NIMS Insurer shall have offered to the Trustee
or the
Securities Administrator, as applicable, reasonable security or indemnity
against the costs, expenses and liabilities which may be incurred therein
or
thereby;
(g) The
right
of the Trustee and the Securities Administrator to perform any discretionary
act
enumerated in this Agreement shall not be construed as a duty, and neither
the
Trustee nor the Securities Administrator shall be answerable for other than
its
negligence or willful misconduct in the performance of such act;
and
(h) Neither
the Trustee nor the Securities Administrator shall be required to give any
bond
or surety in respect of the execution of the Trust Fund or Supplemental Interest
Trust created hereby or the powers granted hereunder.
Section
6.03. Trustee
and Securities Administrator Not Liable for Certificates.
The
Trustee and the Securities Administrator make no representations as to the
validity or sufficiency of this Agreement, the Swap Agreement, the Interest
Rate
Cap Agreement, the Certificates (other than the certificate of authentication
on
the Certificates) or the Lower Tier REMIC 1 Uncertificated Regular Interests,
or
of any Mortgage Loan, or related document save that the Trustee and the
Securities Administrator represent that, assuming due execution and delivery
by
the other parties hereto, this Agreement has been duly authorized, executed
and
delivered by it and constitutes its valid and binding obligation, enforceable
against it in accordance with its terms except that such enforceability may
be
subject to (A) applicable bankruptcy and insolvency laws and other similar
laws
affecting the enforcement of the rights of creditors generally, and (B) general
principles of equity regardless of whether such enforcement is considered
in a
proceeding in equity or at law. The Trustee and the Securities Administrator
shall not be accountable for the use or application by the Depositor of funds
paid to the Depositor in consideration of the assignment of the Mortgage
Loans
to the Trust Fund by the Depositor or for the use or application of any funds
deposited into the Collection Account, the Certificate Account, the Securities
Administration Account, any Escrow Account or any other fund or account
maintained with respect to the Certificates. The Trustee and the Securities
Administrator shall not be responsible for the legality or validity of this
Agreement, the Swap Agreement, the Interest Rate Cap Agreement, the Mortgage
Loan Sale Agreement or the validity, priority, perfection or sufficiency
of the
security for the Certificates or the Lower Tier REMIC 1 Uncertificated Regular
Interests issued or intended to be issued hereunder. The Trustee shall not,
and
except as otherwise provided herein, the Securities Administrator shall not
be
responsible 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.
125
Section
6.04. Trustee
and the Securities Administrator May Own Certificates.
The
Trustee and the Securities Administrator and any Affiliate or agent of either
of
them in its individual or any other capacity may become the owner or pledgee
of
Certificates and may transact banking and trust business with the other parties
hereto and their Affiliates with the same rights it would have if it were
not
Trustee, Securities Administrator or such agent.
Section
6.05. Eligibility
Requirements for Trustee and Securities Administrator.
The
Trustee and the Securities Administrator hereunder shall at all times be
(i) an
institution whose accounts are insured by the FDIC, (ii) a corporation or
national banking association, organized and doing business under the laws
of any
State or the United States of America, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of not less
than
$50,000,000 and subject to supervision or examination by federal or state
authority and (iii) not an Affiliate of the Master Servicer or the Servicer
(except in the case of the Securities Administrator). If such corporation
or
national banking association publishes reports of condition at least annually,
pursuant to law or to the requirements of the aforesaid supervising or examining
authority, then, for the purposes of this Section, the combined capital and
surplus of such corporation or national banking association shall be deemed
to
be its combined capital and surplus as set forth in its most recent report
of
condition so published. In addition, the Securities Administrator (i) may
not be
an originator of Mortgage Loans, the Master Servicer, a Servicer, the Depositor
or an affiliate of the Depositor unless the Securities Administrator is in
an
institutional trust department of the Securities Administrator, (ii) must
be
authorized to exercise corporate trust powers under the laws of its jurisdiction
of organization and (iii) must be rated at least “A/F1” by Fitch, if Fitch is a
Rating Agency that has rated the Securities Administrator, or the equivalent
rating by S&P or Moody’s. In case at any time the Trustee or the Securities
Administrator shall cease to be eligible in accordance with provisions of
this
Section, the Trustee or the Securities Administrator, as applicable, shall
resign immediately in the manner and with the effect specified in Section
6.06.
126
Section
6.06. Resignation
and Removal of Trustee and the Securities Administrator.
(a) Each
of
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
Trustee or the Securities Administrator, as applicable, the Depositor, the
Swap
Counterparty, any NIMS Insurer and the Master Servicer. Upon receiving such
notice of resignation, the Depositor will promptly appoint a successor trustee
or a successor securities administrator, as applicable, acceptable to any
NIMS
Insurer by written instrument, one copy of which instrument shall be delivered
to the resigning Trustee and the resigning Securities Administrator, as
applicable, one copy to the successor trustee or successor securities
administrator, as applicable, and one copy to each of the Master Servicer
and
any NIMS Insurer. If no successor trustee or successor securities administrator
shall have been so appointed and shall have accepted appointment within 30
days
after the giving of such notice of resignation, the resigning Trustee or
resigning Securities Administrator, as applicable, may petition any court
of
competent jurisdiction for the appointment of a successor trustee or successor
securities administrator, as applicable.
(b) If
at any
time (i) the Trustee shall cease to be eligible in accordance with the
provisions of Section 6.05 and shall fail to resign after written request
therefor by the Depositor or any NIMS Insurer, (ii) 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 of its property shall be appointed, or any public officer shall
take charge or control of the Trustee or the Securities Administrator or
of
either of their property or affairs for the purpose of rehabilitation,
conservation or liquidation, (iii) the Securities Administrator shall fail
to
observe or perform in any material respect any of the covenants or agreements
of
the Securities Administrator contained in this Agreement, including (A) any
failure to remit payment to the Trustee on the Deposit Date which failure
continues unremedied for a period of one Business Day (unless such failure
to
remit payment is directly caused by a failure by the Master Servicer to remit
payments to the Securities Administrator and the Trustee has not terminated
the
Master Servicer as a result of such failure to remit, in which case the
Securities Administrator shall remit payment as promptly as possible, but
in no
case later than one Business Day after recovering payment from the Master
Servicer) and (B) any failure to provide the information, reports, assessments
or attestations required pursuant to Subsection 9.25(a) or 9.25(b) hereof,
(iv)
a tax is imposed or threatened with respect to the Trust Fund by any state
in
which the Trustee or the Trust Fund held by the Trustee is located, (v) the
continued use of the Trustee or Securities Administrator would result in
a
downgrading of the rating by any Rating Agency of any Class of Certificates
with
a rating, (vi) the Paying Agent shall fail to provide the information required
pursuant to Subsection 3.08(b) hereof or (vii) the Depositor desires to replace
the Securities Administrator with a successor Securities Administrator, then
the
Depositor, the Master Servicer, the Trustee (with regard to clause (iii)
only)
or any NIMS Insurer shall remove the Trustee, the Paying Agent or the Securities
Administrator, as applicable, and the Depositor shall appoint a successor
trustee, successor paying agent or successor securities administrator, as
applicable, acceptable to any NIMS Insurer and the Master Servicer by written
instrument, one copy of which instrument shall be delivered to the Trustee,
Paying Agent or Securities Administrator so removed, one copy each to the
successor trustee, successor paying agent or successor securities administrator,
as applicable, and one copy to each of the Master Servicer and any NIMS
Insurer.
127
(c) The
Holders of more than 50% of the Class Principal Amount (or Percentage Interest)
of each Class of Certificates (or any NIMS Insurer in the event of failure
of
the Trustee or Securities Administrator, as applicable, to perform its
obligations hereunder) may at any time upon 30 days’ written notice to the
Trustee or the Securities Administrator, as applicable, and to the Depositor
remove the Trustee or the Securities Administrator, as applicable, by such
written instrument, signed by such Holders or their attorney-in-fact duly
authorized (or by any NIMS Insurer), one copy of which instrument shall be
delivered to the Depositor, one copy to the Trustee, one copy each to the
Master
Servicer and any NIMS Insurer; the Depositor shall thereupon appoint a successor
trustee or successor securities administrator, as applicable, in accordance
with
this Section mutually acceptable to the Depositor, the Master Servicer and
any
NIMS Insurer.
(d) Any
resignation or removal of the Trustee or the Securities Administrator, as
applicable, and appointment of a successor trustee or successor securities
administrator pursuant to any of the provisions of this Section shall become
effective upon acceptance of appointment by the successor trustee or the
successor securities administrator, as applicable, as provided in Section
6.07.
Section
6.07. Successor
Trustee and Successor Securities Administrator.
(a) Any
successor trustee or successor securities administrator appointed as provided
in
Section 6.06 shall execute, acknowledge and deliver to the Depositor, the
Master
Servicer, any NIMS Insurer, the Swap Counterparty and to its predecessor
trustee
or predecessor securities administrator, as applicable, an instrument accepting
such appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee or predecessor securities administrator, as applicable,
shall become effective and such successor trustee or successor securities
administrator, as applicable, without any further act, deed or conveyance,
shall
become fully vested with all the rights, powers, duties and obligations of
its
predecessor hereunder, with like effect as if originally named as trustee
or
securities administrator, as applicable, herein. A predecessor trustee shall
deliver to the Trustee or any successor trustee (or assign to the Trustee
its
interest under the Custodial Agreement, to the extent permitted thereunder),
all
Mortgage Files and documents and statements related to each Mortgage File
held
by it hereunder, and shall duly assign, transfer, deliver and pay over to
the
successor trustee the entire Trust Fund, together with all necessary instruments
of transfer and assignment or other documents properly executed necessary
to
effect such transfer and such of the records or copies thereof maintained
by the
predecessor trustee in the administration hereof as may be requested by the
successor trustee and shall thereupon be discharged from all duties and
responsibilities under this Agreement. In addition, the Master Servicer and
the
predecessor trustee or predecessor securities administrator, as applicable,
shall execute and deliver such other instruments and do such other things
as may
reasonably be required to more fully and certainly vest and confirm in the
successor trustee or successor securities administrator, as applicable, all
such
rights, powers, duties and obligations.
(b) No
successor trustee or successor securities administrator shall accept appointment
as provided in this Section unless at the time of such appointment such
successor trustee or successor securities administrator shall be eligible
under
the provisions of Section 6.05.
128
(c) Upon
acceptance of appointment by a successor trustee or successor securities
administrator, as applicable, as provided in this Section, the predecessor
trustee or predecessor securities administrator, as applicable, shall mail
notice of the succession of such trustee or securities administrator, as
applicable, to all Holders of Certificates at their addresses as shown in
the
Certificate Register and to any Rating Agency. The expenses of such mailing
shall be borne by the predecessor trustee or predecessor securities
administrator, as applicable.
(d) Upon
the
resignation or removal of the Trustee pursuant to Section 6.06, the Trustee
shall deliver the amounts held in its possession for the benefit of the
Certificateholders to the successor trustee upon the appointment of the
successor trustee.
Section
6.08. Merger
or Consolidation of Trustee or the Securities Administrator.
Any
Person into which the Trustee or Securities Administrator may be merged or
with
which it may be consolidated, or any Person resulting from any merger,
conversion or consolidation to which the Trustee or Securities Administrator
shall be a party, or any Persons succeeding to the corporate trust business
of
the Trustee or Securities Administrator, shall be the successor to the Trustee
or Securities Administrator hereunder, without the execution or filing of
any
paper or any further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding, provided
that, in
the case of the Trustee, such Person shall be eligible under the provisions
of
Section 6.05. As a condition to a succession to the Trustee or the Securities
Administrator under this Agreement by any Person (i) into which the Trustee
or
the Securities Administrator may be merged or consolidated, or (ii) which
may be
appointed as a successor to the Trustee or the Securities Administrator,
the
Trustee or the Securities Administrator shall notify the Sponsor, the Master
Servicer and the Depositor, at least 15 calendar days prior to the effective
date of such succession or appointment, of such succession or appointment
and
shall furnish to the Sponsor, the Master Servicer and the Depositor in writing
and in form and substance reasonably satisfactory to the Sponsor, the Master
Servicer and the Depositor, all information reasonably necessary for the
Securities Administrator to accurately and timely report, pursuant to Section
6.20, the event under Item 6.02 of Form 8-K pursuant to the Exchange Act
(if
such reports under the Exchange Act are required to be filed under the Exchange
Act).
Section
6.09. Appointment
of Co-Trustee, Separate Trustee or Custodian.
(a) Notwithstanding
any other provisions hereof, at any time, the Trustee, the Depositor or the
Certificateholders evidencing more than 50% of the Class Principal Amount
(or
Percentage Interest) of every Class of Certificates shall
have the power from time to time to appoint one or more Persons, approved
by the
Trustee and any NIMS Insurer, to act either as co-trustees jointly with the
Trustee, or as separate trustees, or as custodians, for the purpose of holding
title to, foreclosing or otherwise taking action with respect to any Mortgage
Loan outside the state where the Trustee has its principal place of business
where such separate trustee or co-trustee is necessary or advisable (or the
Trustee has been advised by the Master Servicer that such separate trustee
or
co-trustee is necessary or advisable) under the laws of any state in which
a
property securing a Mortgage Loan is located or for the purpose of otherwise
conforming to any legal requirement, restriction or condition in any state
in
which a property securing a Mortgage Loan is located or in any state in which
any portion of the Trust Fund is located. The separate Trustees, co-trustees,
or
custodians so appointed shall be trustees or custodians for the benefit of
all
the Certificateholders and shall have such powers, rights and remedies as
shall
be specified in the instrument of appointment; provided,
however,
that no
such appointment shall, or shall be deemed to, constitute the appointee an
agent
of the Trustee. The obligation of the Securities Administrator to make Advances
pursuant to Section 5.04 and 6.14 hereof shall not be affected or assigned
by
the appointment of a co-trustee. Notwithstanding the foregoing, no such
co-custodian or co-trustee shall be vested with any powers, rights and remedies
under this Agreement unless such party has agreed to comply with all Regulation
AB requirements set forth under this Agreement or the related Custodial
Agreement, as applicable. The Trustee shall not be responsible for any action
or
omission of any separate trustee, co-trustee or custodian.
129
(b) Every
separate trustee, co-trustee, and custodian shall, to the extent permitted
by
law, be appointed and act subject to the following provisions and
conditions:
(i) all
powers, duties, obligations and rights conferred upon the Trustee in respect
of
the receipt, custody and payment of monies shall be exercised solely by the
Trustee;
(ii) all
other
rights, powers, duties and obligations conferred or imposed upon the Trustee
shall be conferred or imposed upon and exercised or performed by the Trustee
and
such separate trustee, co-trustee, or custodian jointly, except to the extent
that under any law of any jurisdiction in which any particular act or acts
are
to be performed the Trustee shall be incompetent or unqualified to perform
such
act or acts, in which event such rights, powers, duties and obligations,
including the holding of title to the Trust Fund or any portion thereof in
any
such jurisdiction, shall be exercised and performed by such separate trustee,
co-trustee, or custodian;
(iii) no
trustee or custodian hereunder shall be personally liable by reason of any
act
or omission of any other trustee or custodians hereunder; and
(iv) the
Trustee or the Certificateholders evidencing more than 50% of the Aggregate
Voting Interests of the Certificates may at any time accept the resignation
of
or remove any separate trustee, co-trustee or custodian, so appointed by
it or
them, if such resignation or removal does not violate the other terms of
this
Agreement.
(c) Any
notice, request or other writing given to the Trustee shall be deemed to
have
been given to each of the separate trustees and co-trustees, as effectively
as
if given to each of them. Every instrument appointing any separate trustee,
co-trustee or custodian shall refer to this Agreement and the conditions
of this
Article VI. Each separate trustee and co-trustee, upon its acceptance of
the
trusts conferred, shall be vested with the estates or property specified
in its
instrument of appointment, either jointly with the Trustee or separately,
as may
be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the
conduct
of, affecting the liability of, or affording protection to, the Trustee.
Every
such instrument shall be filed with the Trustee and a copy given to the Master
Servicer and any NIMS Insurer.
130
(d) Any
separate trustee, co-trustee or custodian may, at any time, constitute the
Trustee its agent or attorney-in-fact with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of
this
Agreement on its behalf and in its name. If any separate trustee, co-trustee
or
custodian shall die, become incapable of acting, resign or be removed, all
of
its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
(e) No
separate trustee, co-trustee or custodian hereunder shall be required to
meet
the terms of eligibility as a successor trustee under Section 6.05 hereunder
and
no notice to Certificateholders of the appointment shall be required under
Section 6.07 hereof.
(f) The
Trustee agrees to instruct the co-trustees, if any, to the extent necessary
to
fulfill the Trustee’s obligations hereunder.
(g) The
Trustee shall pay the reasonable compensation of the co-trustees requested
by
the Trustee to be so appointed (which compensation shall not reduce any
compensation payable to the Trustee ) and, if paid by the Trustee, shall
be a
reimbursable expense pursuant to Section 6.12.
Section
6.10. Authenticating
Agents.
(a) The
Trustee may appoint one or more Authenticating Agents which shall be authorized
to act on behalf of the Trustee in authenticating Certificates. Wherever
reference is made in this Agreement to the authentication of Certificates
by the
Trustee or the Trustee’s certificate of authentication, such reference shall be
deemed to include authentication on behalf of the Trustee by an Authenticating
Agent and a certificate of authentication executed on behalf of the Trustee
by
an Authenticating Agent. Each Authenticating Agent must be a corporation
organized and doing business under the laws of the United States of America
or
of any state, having a combined capital and surplus of at least $15,000,000,
authorized under such laws to do a trust business and subject to supervision
or
examination by federal or state authorities and acceptable to any NIMS
Insurer.
(b) Any
Person into which any Authenticating Agent may be merged or converted or
with
which it may be consolidated, or any Person resulting from any merger,
conversion or consolidation to which any Authenticating Agent shall be a
party,
or any Person succeeding to the corporate agency business of any Authenticating
Agent, shall continue to be the Authenticating Agent without the execution
or
filing of any paper or any further act on the part of the Trustee or the
Authenticating Agent.
(c) Any
Authenticating Agent may at any time resign by giving at least 30 days’ advance
written notice of resignation to the Trustee, any NIMS Insurer and the
Depositor. The Trustee may at any time terminate the agency of any
Authenticating Agent by giving written notice of termination to such
Authenticating Agent, any NIMS Insurer and the Depositor. Upon receiving
a
notice of resignation or upon such a termination, or in case at any time
any
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section 6.10, the Trustee may appoint a successor
Authenticating Agent, shall give written notice of such appointment to the
Depositor and any NIMS Insurer and shall mail notice of such appointment
to all
Holders of Certificates. Any successor Authenticating Agent upon acceptance
of
its appointment hereunder shall become vested with all the rights, powers,
duties and responsibilities of its predecessor hereunder, with like effect
as if
originally named as Authenticating Agent. No successor Authenticating Agent
shall be appointed unless eligible under the provisions of this Section 6.10.
No
Authenticating Agent shall have responsibility or liability for any action
taken
by it as such at the direction of the Trustee. Any Authenticating Agent shall
be
entitled to reasonable compensation for its services and, if paid by the
Trustee, it shall be a reimbursable expense pursuant to Section
6.12.
131
Section
6.11. Indemnification
of Trustee and Securities Administrator.
The
Trustee and the Securities Administrator and their respective directors,
officers, employees and agents shall be entitled to indemnification from
the
Trust Fund for any loss, liability or expense incurred in connection with
any
legal proceeding or incurred without negligence or willful misconduct on
their
part, arising out of, or in connection with, the acceptance or administration
of
the trusts created hereunder or in connection with the performance of their
duties hereunder or under the Swap Agreement, the Interest Rate Cap Agreement,
the Mortgage Loan Sale Agreement, the Transfer Agreement, the Servicing
Agreement or the Custodial Agreement, including any applicable fees and expenses
payable pursuant to Section 6.12 and the costs and expenses of defending
themselves against any claim in connection with the exercise or performance
of
any of their powers or duties hereunder, provided that:
(i) with
respect to any such claim, the Trustee or the Securities Administrator, as
applicable, shall have given the Depositor, the Master Servicer, any NIMS
Insurer and the Holders written notice thereof promptly after a Responsible
Officer of the Trustee or the Securities Administrator, as applicable, shall
have knowledge thereof provided
that the
failure to provide such prompt written notice shall not affect the Trustee’s or
Securities Administrator’s right to indemnification hereunder;
(ii) while
maintaining control over its own defense, the Trustee or the Securities
Administrator, as applicable, shall cooperate and consult fully with the
Depositor, the Master Servicer and any NIMS Insurer in preparing such defense;
and
(iii) notwithstanding
anything to the contrary in this Section 6.11, the Trust Fund shall not be
liable for settlement of any such claim by the Trustee or the Securities
Administrator, as applicable, entered into without the prior consent of the
Depositor, the Master Servicer and any NIMS Insurer, which consent shall
not be
unreasonably withheld.
The
Trustee shall be further indemnified by the Seller for and held harmless
against, any loss, liability or expense arising out of, or in connection
with,
the provisions set forth in the fourth paragraph of Section 2.01(a) hereof,
including, without limitation, all costs, liabilities and expenses (including
reasonable legal fees and expenses) of investigating and defending itself
against any claim, action or proceeding, pending or threatened, relating
to the
provisions of such paragraph.
132
The
provisions of this Section 6.11 shall survive any termination of this Agreement
and the resignation or removal of the Trustee or the Securities Administrator,
as applicable, and shall be construed to include, but not be limited to any
loss, liability or expense under any environmental law.
Section
6.12. Fees
and Expenses of Securities Administrator, Trustee and Custodian.
The
Trustee shall be entitled, annually, to the Trustee Fee, which shall be paid
by
the Securities Administrator on the first Distribution Date of each Anniversary
Year. The Custodian shall be entitled to the Custodial Compensation which
shall
be paid by the Securities Administrator as invoiced by the Custodian. The
Securities Administrator shall be entitled to any investment income and earnings
on the Securities Administration Account (other than any amounts required
to be
deducted in respect of the Trustee Fee and the Custodial Compensation as
provided in Section 4.05(f)). The Trustee and the Securities Administrator
shall
be entitled to reimbursement of all reasonable expenses, disbursements and
advances incurred or made by the Securities Administrator or Trustee, as
applicable, in accordance with this Agreement (including fees and expenses
of
its counsel and all persons not regularly in its employment and any amounts
described in Section 10.01 to which such party is entitled as provided therein),
except for expenses, disbursements and advances that either (i) do not
constitute “unanticipated expenses” within the meaning of Treasury Regulation
Section 1.860G-1(b)(3)(ii) or (ii) arise from its negligence, bad faith or
willful misconduct. If either the Trustee Fee or the Custodial Compensation
is
not fully paid from (i) the Securities Administrator’s own funds or (ii)
investment income and earnings on amounts on deposit in the Securities
Administration Account, as applicable, then prior to any distribution to
Certificateholders pursuant to Section 5.02 hereof, the Trust Fund shall
immediately reimburse the Trustee, or the Custodian, as applicable, upon
demand
for any such shortfall from amounts on deposit in the Certificate Account.
The
Custodian shall receive compensation and reimbursement or payment of its
expenses under the Custodial Agreement as provided therein; provided
that,
to the
extent required under Section 6 or Section 20 of the Custodial Agreement,
the
Trustee is hereby authorized to pay such compensation from amounts on deposit
in
the Certificate Account prior to any distributions to Certificateholders
pursuant to Section 5.02 hereof.
Section
6.13. Collection
of Monies.
Except
as
otherwise expressly provided in this Agreement, the Securities Administrator
and
the Trustee, as applicable, may demand payment or delivery of, and shall
receive
and collect, all money and other property payable to or receivable by it
pursuant to this Agreement. The Securities Administrator and the Trustee
shall
hold all such money and property received by it as part of the Trust Fund
and
shall distribute it as provided in this Agreement. If the Securities
Administrator shall not have timely received amounts to be remitted with
respect
to the Mortgage Loans from the Master Servicer, the Securities Administrator
shall request the Master Servicer to make such distribution as promptly as
practicable or legally permitted. If the Trustee shall not have timely received
amounts to be remitted with respect to the Mortgage Loans from the Securities
Administrator, the Trustee shall request the Securities Administrator to
make
such distribution as promptly as practicable or legally permitted. If the
Securities Administrator or the Trustee shall subsequently receive any such
amounts, each may withdraw such request, respectively.
133
Section
6.14. Events
of Default; Trustee To Act; Appointment of Successor.
(a) The
occurrence of any one or more of the following events shall constitute an
“Event
of Default”:
(i) Any
failure by the Master Servicer to furnish to the Securities Administrator
the
Mortgage Loan data sufficient to prepare the reports described in Section
4.03(a) (other than with respect to the information referred to in clauses
(xix), (xx) and (xxi) of such Section 4.03(a)) which continues unremedied
for a
period of two (2) Business Days after the date upon which written notice
of such
failure shall have been given to such Master Servicer by the Trustee or the
Securities Administrator or to such Master Servicer, the Securities
Administrator and the Trustee by any NIMS Insurer or by the Holders of not
less
than 25% of the Class Principal Amount of each Class of Certificates affected
thereby; or
(ii) Any
failure by the Master Servicer to duly perform, within the required time
period
and without notice, its obligations to provide any certifications required
pursuant to Sections 9.25 and 9.26; or
(iii) Except
with respect to those items listed in clause (ii) above, any failure by the
Master Servicer to duly perform, within the required time period, without
notice
or grace period, its obligations to provide any information, data or materials
required to be provided hereunder pursuant to Sections 9.23 and 9.29(b),
including any items required to be included in any Exchange Act report;
or
(iv) Any
failure on the part of the Master Servicer duly to observe or perform in
any
material respect any other of the covenants or agreements on the part of
the
Master Servicer contained in this Agreement which continues unremedied for
a
period of 30 days after the date on which written notice of such failure,
requiring the same to be remedied, shall have been given to the Master Servicer
by the Trustee or the Securities Administrator, or to the Master Servicer,
the
Securities Administrator and the Trustee by the Holders of more than 50%
of the
Aggregate Voting Interests of the Certificates or by any NIMS Insurer;
or
(v) A
decree
or order of a court or agency or supervisory authority having jurisdiction
for
the appointment of a conservator or receiver or liquidator in any insolvency,
readjustment of debt, marshalling of assets and liabilities or similar
proceedings, or for the winding-up or liquidation of its affairs, shall have
been entered against the Master Servicer, and such decree or order shall
have
remained in force undischarged or unstayed for a period of 60 days or any
Rating
Agency reduces or withdraws or threatens to reduce or withdraw the rating
of the
Certificates because of the financial condition or loan servicing capability
of
such Master Servicer; or
(vi) The
Master Servicer shall consent to the appointment of a conservator or receiver
or
liquidator in any insolvency, readjustment of debt, marshalling of assets
and
liabilities, voluntary liquidation or similar proceedings of or relating
to the
Master Servicer or of or relating to all or substantially all of its property;
or
134
(vii) The
Master Servicer shall admit in writing its inability to pay its debts generally
as they become due, file a petition to take advantage of any applicable
insolvency or reorganization statute, make an assignment for the benefit
of its
creditors or voluntarily suspend payment of its obligations; or
(viii) The
Master Servicer shall be dissolved, or shall dispose of all or substantially
all
of its assets, or consolidate with or merge into another entity or shall
permit
another entity to consolidate or merge into it, such that the resulting entity
does not meet the criteria for a successor servicer as specified in Section
9.27
hereof; or
(ix) If
a
representation or warranty set forth in Section 9.14 hereof shall prove to
be
incorrect as of the time made in any respect that materially and adversely
affects the interests of the Certificateholders, and the circumstance or
condition in respect of which such representation or warranty was incorrect
shall not have been eliminated or cured within 30 days after the date on
which
written notice of such incorrect representation or warranty shall have been
given to the Master Servicer by the Trustee or the Securities Administrator,
or
to the Master Servicer, the Securities Administrator and the Trustee by the
Holders of more than 50% of the Aggregate Voting Interests of the Certificates
or by any NIMS Insurer; or
(x) A
sale or
pledge of any of the rights of the Master Servicer hereunder or an assignment
of
this Agreement by the Master Servicer or a delegation of the rights or duties
of
the Master Servicer hereunder shall have occurred in any manner not otherwise
permitted hereunder and without the prior written consent of the Trustee,
any
NIMS Insurer and Certificateholders holding more than 50% of the Aggregate
Voting Interests of the Certificates; or
(xi) The
Master Servicer has notice or actual knowledge that the Servicer at any time
is
not either a Xxxxxx Xxx- or Xxxxxxx Mac- approved Seller/Servicer, and the
Master Servicer has not terminated the rights and obligations of such Servicer
under the Servicing Agreement and replaced such Servicer with a Xxxxxx Mae-
or
Xxxxxxx Mac -approved servicer within 60 days of the date the Master Servicer
receives such notice or acquires such actual knowledge; or
(xii) After
receipt of notice from the Trustee, Securities Administrator or any NIMS
Insurer, any failure of the Master Servicer to remit to the Securities
Administrator any payment required to be made to the Securities Administrator
for the benefit of Certificateholders under the terms of this Agreement,
including any Advance, on any Master Servicer Remittance Date which such
failure
continues unremedied for a period of one Business Day after the date upon
which
notice of such failure shall have been given to the Master Servicer by the
Trustee.
If
an
Event of Default described in clauses (i) through (xii) of this Section shall
occur, then, in each and every case, subject to applicable law, so long as
any
such Event of Default shall not have been remedied within any period of time
prescribed by this Section, the Trustee, by notice in writing to the Master
Servicer (with a copy to the Securities Administrator) may, and shall, if
so
directed by any NIMS Insurer or the Certificateholders evidencing more than
50%
of the Class Principal Amount of each Class of Certificates, terminate all
of
the rights and obligations of the Master Servicer hereunder and in and to
the
Mortgage Loans and the proceeds thereof. If an Event of Default described
in
clause (xii) of this Section shall occur, then, in each and every case, subject
to applicable law, so long as such Event of Default shall not have been remedied
within the time period prescribed by clause (xii) of this Section 6.14, the
Trustee, by notice in writing to the Master Servicer (with a copy to the
Securities Administrator), shall promptly terminate all of the rights and
obligations of the Master Servicer hereunder and in and to the Mortgage Loans
and the proceeds thereof. On or after the receipt by the Master Servicer
of such
written notice, all authority and power of the Master Servicer, and only
in its
capacity as Master Servicer under this Agreement, whether with respect to
the
Mortgage Loans or otherwise, shall pass to and be vested in the Securities
Administrator and upon receipt of written notice by the Securities Administrator
from the Trustee pursuant to and under the terms of this Agreement; provided,
however,
the
parties acknowledge that notwithstanding the preceding sentence there may
be a
transition period, not to exceed 90 days, in order to effect the transfer
of the
Master Servicing obligations to the Securities Administrator; and, provided,
further, that
the
obligation to make Advances by the Securities Administrator shall be effective
upon the Trustee’s providing notice of termination to the Master Servicer (with
a copy to the Securities Administrator) pursuant to this Section 6.14. The
Securities Administrator is hereby authorized and empowered to execute and
deliver, on behalf of the defaulting Master Servicer as attorney-in-fact
or
otherwise, any and all documents and other instruments, and to do or accomplish
all other acts or things necessary or appropriate to effect the purposes
of such
notice of termination, whether to complete the transfer and endorsement or
assignment of the Mortgage Loans and related documents or otherwise. The
defaulting Master Servicer agrees to cooperate with the Trustee and the
Securities Administrator in effecting the termination of the defaulting Master
Servicer’s responsibilities and rights hereunder as Master Servicer including,
without limitation, notifying Servicers of the assignment of the master
servicing function and providing the Securities Administrator or its designee
all documents and records in electronic or other form reasonably requested
by it
to enable the Securities Administrator or its designee to assume the defaulting
Master Servicer’s functions hereunder and the transfer to the Securities
Administrator for administration by it of all amounts which shall at the
time be
or should have been deposited by the defaulting Master Servicer in the
Collection Account maintained by such defaulting Master Servicer and any
other
account or fund maintained with respect to the Certificates or thereafter
received with respect to the Mortgage Loans. The Master Servicer being
terminated (or the Trust Fund, if the Master Servicer is unable to fulfill
its
obligations hereunder) as a result of an Event of Default shall bear all
costs
of a master servicing transfer, including but not limited to those of the
Trustee and the Securities Administrator reasonably allocable to specific
employees and overhead, legal fees and expenses, accounting and financial
consulting fees and expenses, and costs of amending the Agreement, if
necessary.
135
The
Securities Administrator and the Trustee shall be entitled to be reimbursed
from
the Master Servicer (or by the Trust Fund, if the Master Servicer is unable
to
fulfill its obligations hereunder) for all costs associated with the transfer
of
master servicing from the predecessor Master Servicer, including, without
limitation, any costs or expenses associated with the complete transfer of
all
master servicing data and the completion, correction or manipulation of such
servicing data as may be required by the Securities Administrator to correct
any
errors or insufficiencies in the master servicing data or otherwise to enable
the Securities Administrator to master service the Mortgage Loans properly
and
effectively. If the terminated Master Servicer does not pay such reimbursement
within thirty (30) days of its receipt of an invoice therefor, such
reimbursement shall be an expense of the Trust, and the Securities Administrator
and the Trustee, as applicable, shall be entitled to withdraw such reimbursement
from amounts on deposit in the Certificate Account pursuant to Section 4.04(b);
provided that the terminated Master Servicer shall reimburse the Trust for
any
such expense incurred by the Trust; and provided, further, that the Securities
Administrator shall decide whether and to what extent it is in the best interest
of the Certificateholders to pursue any remedy against any party obligated
to
make such reimbursement.
136
Notwithstanding
the termination of its activities as Master Servicer, each terminated Master
Servicer shall continue to be entitled to reimbursement to the extent provided
in Section 4.02 to the extent such reimbursement relates to the period prior
to
such Master Servicer’s termination.
If
any
Event of Default shall occur, the Trustee, upon a Responsible Officer of
the
Trustee becoming aware of the occurrence thereof, shall promptly notify the
Securities Administrator, any NIMS Insurer, the Swap Counterparty and each
Rating Agency of the nature and extent of such Event of Default. The Securities
Administrator shall immediately give written notice to the Master Servicer
and
the Trustee upon the Master Servicer’s failure to remit funds to the Securities
Administrator on the Master Servicer Remittance Date. If any Event of Default
shall occur of which the Securities Administrator has actual knowledge, the
Securities Administrator shall notify the Trustee of the nature and extent
of
such Event of Default.
(b) On
and
after the time the Master Servicer receives a notice of termination from
the
Trustee pursuant to Section 6.14(a) or the Trustee receives the resignation
of
the Master Servicer evidenced by an Opinion of Counsel pursuant to Section
9.28
and within a period of time not to exceed 90 days after the Securities
Administrator receives written notice from the Trustee pursuant to Section
6.14(a) or Section 9.28, the Securities Administrator, unless another master
servicer shall have been appointed, shall be the successor in all respects
to
the Master Servicer in its capacity as such under this Agreement and the
transactions set forth or provided for herein and shall have all the rights
and
powers and be subject to all the responsibilities, duties and liabilities
relating thereto and arising thereafter placed on the Master Servicer hereunder,
including the obligation to make Advances; provided,
however,
that
any failure to perform such duties or responsibilities caused by the Master
Servicer’s or the Trustee’s failure to provide information required by this
Agreement shall not be considered a default by the Securities Administrator
or
the Trustee hereunder. In addition, the Securities Administrator shall have
no
responsibility for any act or omission of the Master Servicer prior to the
issuance of any notice of termination and within a period of time not to
exceed
90 days after the Securities Administrator receives written notice from the
Trustee pursuant to Section 6.14(a) or Section 9.28, as applicable. The
Securities Administrator shall have no liability relating to the representations
and warranties of the Master Servicer set forth in Section 9.14. In the
Securities Administrator’s capacity as such successor, the Securities
Administrator shall have the same limitations on liability herein granted
to the
Master Servicer. As compensation therefor, the Securities Administrator shall
be
entitled to receive all compensation payable to the Master Servicer under
this
Agreement, including the Master Servicing Fee.
137
(c) Notwithstanding
the above, the Securities Administrator may, if it shall be unwilling to
continue to so act, or shall, if it is unable to so act, request the Trustee
to
appoint, petition a court of competent jurisdiction to appoint, or appoint
on
its own behalf any established housing and home finance institution servicer,
master servicer, servicing or mortgage servicing institution having a net
worth
of not less than $15,000,000 and meeting such other standards for a successor
master servicer as are set forth in this Agreement, as the successor to such
Master Servicer in the assumption of all of the responsibilities, duties
or
liabilities of the Master Servicer hereunder; provided,
the
appointment of any successor Master Servicer shall be approved by the NIMS
Insurer. Any entity designated by the Trustee or the Securities Administrator
as
a successor master servicer may be an Affiliate of the Trustee or the Securities
Administrator; provided,
however,
that,
unless such Affiliate meets the net worth requirements and other standards
set
forth herein for a successor master servicer, the Trustee or the Securities
Administrator, in its individual capacity shall agree, at the time of such
designation, to be and remain liable to the Trust Fund for such Affiliate’s
actions and omissions in performing its duties hereunder. In connection with
such appointment and assumption, the Trustee or the Securities Administrator
may
make such arrangements for the compensation of such successor out of payments
on
Mortgage Loans as it and such successor shall agree; provided,
however,
that no
such compensation shall be in excess of that permitted to the Master Servicer
hereunder. The Trustee, the Securities Administrator and such successor shall
take such actions, consistent with this Agreement, as shall be necessary
to
effectuate any such succession and may make other arrangements with respect
to
the servicing to be conducted hereunder which are not inconsistent herewith.
The
Master Servicer shall cooperate with the Trustee, the Securities Administrator
and any successor master servicer in effecting the termination of the Master
Servicer’s responsibilities and rights hereunder including, without limitation,
notifying Mortgagors of the assignment of the master servicing functions
and
providing the Trustee, the Securities Administrator and successor master
servicer, as applicable, all documents and records in electronic or other
form
reasonably requested by it to enable it to assume the Master Servicer’s
functions hereunder and the transfer to the Trustee, the Securities
Administrator or such successor master servicer, as applicable, all amounts
which shall at the time be or should have been deposited by the Master Servicer
in the Collection Account and any other account or fund maintained with respect
to the Certificates or the Lower Tier REMIC 1 Uncertificated Regular Interests
or thereafter be received with respect to the Mortgage Loans. Neither the
Trustee, the Securities Administrator nor any other successor master servicer
shall be deemed to be in default hereunder by reason of any failure to make,
or
any delay in making, any distribution hereunder or any portion thereof caused
by
(i) the failure of the Master Servicer to deliver, or any delay in delivering,
cash, documents or records to it, (ii) the failure of the Master Servicer
to
cooperate as required by this Agreement, (iii) the failure of the Master
Servicer to deliver the Mortgage Loan data to the Securities Administrator
as
required by this Agreement or (iv) restrictions imposed by any regulatory
authority having jurisdiction over the Master Servicer. Neither the Securities
Administrator nor any other successor master servicer shall be deemed to
be in
default hereunder by reason of any failure to make, or any delay in making,
any
distribution hereunder or any portion thereof caused by (i) the failure of
the
Trustee to deliver, or any delay in delivering cash, documents or records
to it
in its possession, or (ii) the failure of Trustee to cooperate as required
by
this Agreement.
Section
6.15. Additional
Remedies of Trustee Upon Event of Default.
138
During
the continuance of any Event of Default, so long as such Event of Default
shall
not have been remedied, the Trustee, in addition to the rights specified
in
Section 6.14, shall have the right, in its own name and as trustee of an
express
trust, to take all actions now or hereafter existing at law, in equity or
by
statute to enforce its rights and remedies and to protect the interests,
and
enforce the rights and remedies, of any NIMS Insurer and the Certificateholders
(including the institution and prosecution of all judicial, administrative
and
other proceedings and the filings of proofs of claim and debt in connection
therewith). Except as otherwise expressly provided in this Agreement, no
remedy
provided for by this Agreement shall be exclusive of any other remedy, and
each
and every remedy shall be cumulative and in addition to any other remedy,
and no
delay or omission to exercise any right or remedy shall impair any such right
or
remedy or shall be deemed to be a waiver of any Event of Default.
Section
6.16. Waiver
of Defaults.
More
than
50% of the Aggregate Voting Interests of Certificateholders (with the consent
of
any NIMS Insurer) may waive any default or Event of Default by the Master
Servicer in the performance of its obligations hereunder, except that a default
in the making of any required deposit to the Certificate Account that would
result in a failure of the Trustee to make any required payment of principal
of
or interest on the Certificates may only be waived with the consent of 100%
of
the affected Certificateholders and with the consent of any NIMS Insurer.
Upon
any such waiver of a past default, such default shall cease to exist, and
any
Event of Default arising therefrom shall be deemed to have been remedied
for
every purpose of this Agreement. No such waiver shall extend to any subsequent
or other default or impair any right consequent thereon except to the extent
expressly so waived.
Section
6.17. Notification
to Holders.
Upon
termination of the Master Servicer or appointment of a successor to the Master
Servicer, in each case as provided herein, the Trustee shall promptly mail
notice thereof by first class mail to the Securities Administrator and the
Certificateholders at their respective addresses appearing on the Certificate
Register, any NIMS Insurer, the Swap Counterparty and the Cap Counterparty.
The
Trustee shall also, within 45 days after the occurrence of any Event of Default
known to a Responsible Officer of the Trustee, give written notice thereof
to
Securities Administrator, any NIMS Insurer and the Certificateholders, unless
such Event of Default shall have been cured or waived prior to the issuance
of
such notice and within such 45-day period.
Section
6.18. Directions
by Certificateholders and Duties of Trustee During Event of Default.
Subject
to the provisions of Section 8.01 hereof, during the continuance of any Event
of
Default, Holders of Certificates evidencing not less than 25% of the Class
Principal Amount (or Percentage Interest) of each Class of Certificates affected
thereby may, with the consent of any NIMS Insurer, direct the time, method
and
place of conducting any proceeding for any remedy available to the Trustee,
or
exercising any trust or power conferred upon the Trustee, under this Agreement;
provided,
however,
that the
Trustee shall be under no obligation to pursue any such remedy, or to exercise
any of the trusts or powers vested in it by this Agreement (including, without
limitation, (i) the conducting or defending of any administrative action
or
litigation hereunder or in relation hereto and (ii) the terminating of the
Master Servicer or any successor master servicer from its rights and duties
as
master servicer hereunder) at the request, order or direction of any of the
Certificateholders or any NIMS Insurer, unless such Certificateholders or
any
NIMS Insurer shall have offered to the Trustee reasonable security or indemnity
against the cost, expenses and liabilities which may be incurred therein
or
thereby; and, provided further, that, subject to the provisions of Section
8.01,
the Trustee shall have the right to decline to follow any such direction
if the
Trustee, in accordance with an Opinion of Counsel acceptable to any NIMS
Insurer, determines that the action or proceeding so directed may not lawfully
be taken or if the Trustee in good faith determines that the action or
proceeding so directed would involve it in personal liability for which it
is
not indemnified to its satisfaction or be unjustly prejudicial to the
non-assenting Certificateholders.
139
Section
6.19. Action
Upon Certain Failures of the Master Servicer and Upon Event of Default.
In
the
event that a Responsible Officer of the Trustee or the Securities Administrator
shall have actual knowledge of any action or inaction of the Master Servicer
that would become an Event of Default upon the Master Servicer’s failure to
remedy the same after notice, the Trustee or the Securities Administrator,
as
applicable, shall give notice thereof to the Master Servicer, any NIMS Insurer,
the Trustee, the Securities Administrator, the Swap Counterparty and the
Cap
Counterparty, as applicable.
Section
6.20. Preparation
of Tax Returns and Other Reports.
(a) The
Securities Administrator shall prepare or cause to be prepared on behalf
of the
Trust Fund, based upon information calculated in accordance with this Agreement
pursuant to instructions given by the Depositor, and the Securities
Administrator shall file federal tax returns, all in accordance with Article
X
hereof. If the Securities Administrator determines that a state tax return
or
other return is required, then, at its sole expense, the Securities
Administrator shall prepare and file such state income tax returns and such
other returns as may be required by applicable law relating to the Trust
Fund,
and, if required by state law, 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 supplemental tax
information and such other information within the Securities Administrator’s
control as the Depositor may reasonably request in writing. The Securities
Administrator shall furnish to the Trustee, who shall furnish to each
Certificateholder, such forms and such information within the control of
the
Securities Administrator as are required by the Code and the REMIC Provisions
to
be furnished to them (other than any Form 1099s). The Master Servicer shall
indemnify the Securities Administrator and the Trustee for any liability
of or
assessment against the Securities Administrator and the Trustee, as applicable,
resulting from any error in any of such tax or information returns directly
resulting from errors in the information provided by such Master
Servicer.
(b) The
Securities Administrator shall prepare and file with the Internal Revenue
Service (“IRS”), on behalf of the Trust Fund and each of the REMICs specified in
the Preliminary Statement, an application for an employer identification
number
on IRS Form SS-4 or by any other acceptable method. The Securities Administrator
shall also file a Form 8811 as required. The Securities Administrator, upon
receipt from the IRS of the Notice of Taxpayer Identification Number Assigned,
shall upon request promptly forward a copy of such notice to the Trustee
and the
Depositor. The Trustee shall have no obligation to verify the information
in any
Form 8811 or Form SS-4 filing.
140
(c) The
Depositor shall prepare or cause to be prepared the initial current report
on
Form 8-K. Thereafter, the Securities Administrator shall, in accordance with
industry standards and the rules of the Commission as in effect from time
to
time (the “Rules”), prepare and file with the Commission via the Electronic Data
Gathering and Retrieval System (“XXXXX”), the reports listed in subsections (d)
through (f) of this Section 6.20 in respect of the Trust Fund as and to the
extent required under the Exchange Act.
(d) Reports
Filed on Form 10-D.
(i) Within
15
days after each Distribution Date (subject to permitted extensions under
the
Exchange Act), the Securities Administrator shall prepare and file on behalf
of
the Trust Fund any Form 10-D required by the Exchange Act, in form and substance
as required by the Exchange Act. The Securities Administrator shall file
each
Form 10-D with a copy of the related Distribution Date Statement and a copy
of
each report made available by the Credit Risk Manager pursuant to Section
9.34
(provided
each
such report is made available to the Securities Administrator in a format
compatible with XXXXX filing requirements) attached thereto. Any disclosure
in
addition to the Distribution Date Statement that is required to be included
on
Form 10-D (“Additional Form 10-D Disclosure”) shall be determined and prepared
by and at the direction of the Depositor pursuant to the following paragraph
and
the Securities Administrator will have no duty or liability for any failure
hereunder to determine or prepare any Additional Form 10-D Disclosure, except
as
set forth in the next paragraph.
(ii) As
set
forth on Exhibit P-1 hereto, within five calendar days after the related
Distribution Date, (A) certain parties to the Structured Asset Securities
Corporation Mortgage Loan Trust 2007-WF1 transaction shall be required to
provide to the Securities Administrator and the Depositor, to the extent
known
by a responsible officer thereof, in XXXXX-compatible form (which may be
Word or
Excel documents easily convertible to XXXXX format), or in such other form
as
otherwise agreed upon by the Securities Administrator and such party, the
form
and substance of any Additional Form 10-D Disclosure Notification if applicable,
and include with such Additional Form 10-D Disclosure Notification in the
form
attached hereto as Exhibit P-4, and (B) the Depositor will approve, as to
form
and substance, or disapprove, as the case may be, the inclusion of the
Additional Form 10-D Disclosure on Form 10-D. The Sponsor will be responsible
for any reasonable fees and expenses assessed or incurred by the Securities
Administrator in connection with including any Additional Form 10-D Disclosure
on Form 10-D pursuant to this paragraph.
(iii) After
preparing the Form 10-D, the Securities Administrator shall forward
electronically a copy of the Form 10-D to the Exchange Act Signing Party
for
review and approval. If the Master Servicer is the Exchange Act Signing Party
and the Form 10-D includes Additional Form 10-D Disclosure, then the Form
10-D
shall also be electronically distributed to the Depositor for review and
approval. Within two Business Days, but in no event later than the
12th
calendar
day after the related Distribution Date, a duly authorized representative
of the
Exchange Act Signing Party shall sign the Form 10-D and return an electronic
or
fax copy of such signed Form 10-D (with an original executed hard copy to
follow
by overnight mail) to the Securities Administrator. If a Form 10-D cannot
be
filed on time or if a previously filed Form 10-D needs to be amended, the
Securities Administrator will follow the procedures set forth in subsection
(g)(ii) of this Section 6.20. 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-D
filed
by the Securities Administrator. Each party to this Agreement acknowledges
that
the performance by the Securities Administrator of its duties under this
Section
6.20(d) related to the timely preparation and filing of Form 10-D is contingent
upon such parties strictly observing all applicable deadlines in the performance
of their duties under this Section 6.20(d). The Securities Administrator
shall
have no liability for any loss, expense, damage, claim arising out of or
with
respect to any failure to properly prepare and/or timely file such Form 10-D,
where such failure results from the Securities Administrator’s inability or
failure to obtain or receive, on a timely basis, any information from any
other
party hereto needed to prepare, arrange for execution or file such Form 10-D,
not resulting from its own negligence, bad faith or willful
misconduct.
141
(iv) Form
10-D
requires the registrant to indicate (by checking "yes" or "no") that it “(1) has
filed all reports required to be filed by Section 13 or 15(d) of the Exchange
Act during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to
such
filing requirements for the past 90 days.” 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 report.
(e) Reports
Filed on Form 10-K.
(i) Within
90
days after the end of each fiscal year of the Trust Fund or such earlier
date as
may be required by the Exchange Act (the “10-K Filing Deadline”) (it being
understood that the fiscal year for the Trust Fund ends on December
31st
of each
year), commencing in March 2008, the Securities Administrator shall prepare
and
file on behalf of the Trust Fund a Form 10-K, in form and substance as required
by the Exchange Act. Each such Form 10-K shall include the following items,
in
each case to the extent they have been delivered to the Securities Administrator
within the applicable time frames set forth in this Agreement, the Servicing
Agreement and the Custodial Agreement, (A) an annual compliance statement
for
the Servicer, each Additional Servicer and the Master Servicer, as described
under Section 9.26 hereof and in the Servicing Agreement, (B)(I) the annual
reports on assessment of compliance with servicing criteria for each Servicer,
the Custodian, each Additional Servicer, the Master Servicer, the Credit
Risk
Manager, any Servicing Function Participant, the Paying Agent and the Securities
Administrator (each, a “Reporting Servicer”), as described under Section 9.25(a)
hereof and in the Servicing Agreement and Custodial Agreement, and (II) if
any
Reporting Servicer’s report on assessment of compliance with servicing criteria
described under Section 9.25(a) hereof or in the Servicing Agreement or
Custodial Agreement identifies any material instance of noncompliance,
disclosure identifying such instance of noncompliance, or if any Reporting
Servicer’s report on assessment of compliance with servicing criteria described
under Section 9.25(a) hereof or in the Servicing Agreement or the Custodial
Agreement is not included as an exhibit to such Form 10-K, disclosure that
such
report is not included and an explanation why such report is not included,
(C)(I) the registered public accounting firm attestation report for each
Reporting Servicer, as described under Section 9.25(b) hereof and in the
Servicing Agreement and the Custodial Agreement and (II) if any registered
public accounting firm attestation report described under Section 9.25(b)
hereof
or in the Servicing Agreement or Custodial Agreement identifies any material
instance of noncompliance, disclosure identifying such instance of
noncompliance, or if any such registered public accounting firm attestation
report is not included as an exhibit to such Form 10-K, disclosure that such
report is not included and an explanation why such report is not included,
and
(D) a Xxxxxxxx-Xxxxx Certification. Any disclosure or information in addition
to
(A) through (D) above that is required to be included on Form 10-K (“Additional
Form 10-K Disclosure”) shall be determined and prepared by and at the direction
of the Depositor pursuant to the following paragraph and the Securities
Administrator will have no duty or liability for any failure hereunder to
determine or prepare any Additional Form 10-K Disclosure, except as set forth
in
the next paragraph.
142
(ii) As
set
forth on Exhibit P-2 hereto, no later than March 15 of each year that the
Trust
Fund is subject to the Exchange Act reporting requirements, commencing in
2008,
(A) certain parties to the Structured Asset Securities Corporation Mortgage
Loan
Trust 2007-WF1 transaction shall be required to provide to the Securities
Administrator and the Depositor, to the extent known by a responsible officer
thereof, in XXXXX-compatible form (which may be Word or Excel documents easily
convertible to XXXXX format), or in such other form as otherwise agreed upon
by
the Securities Administrator and such party, the form and substance of any
Additional Form 10-K Disclosure, if applicable, and include with such Additional
Form 10-K Disclosure, an Additional Disclosure Notification in the form attached
hereto as Exhibit P-4, and (B) the Depositor will approve, as to form and
substance, or disapprove, as the case may be, the inclusion of the Additional
Form 10-K Disclosure on Form 10-K. The Securities Administrator has no duty
under this Agreement to monitor or enforce the performance by the parties
listed
on Exhibit P-2 of their duties under this paragraph or proactively solicit
or
procure from such parties any Form 10-K Disclosure Information. The Sponsor
will
be responsible for any reasonable fees and expenses assessed or incurred
by the
Securities Administrator in connection with including any Additional Form
10-K
Disclosure on Form 10-K pursuant to this paragraph.
(iii) After
preparing the Form 10-K, the Securities Administrator shall forward
electronically a copy of the Form 10-K to the Exchange Act Signing Party
for
review and approval. If the Master Servicer is the Exchange Act Signing Party
and the Form 10-K includes Additional Form 10-K Disclosure, then the Form
10-K
shall also be electronically distributed to the Depositor for review and
approval. No later than the close of business New York City time on the 4th
Business Day prior to the 10-K Filing Deadline, a senior officer of the Exchange
Act Signing Party shall sign the Form 10-K and return an electronic or fax
copy
of such signed Form 10-K (with an original executed hard copy to follow by
overnight mail) to the Securities Administrator. If a Form 10-K cannot be
filed
on time or if a previously filed Form 10-K needs to be amended, the Securities
Administrator will follow the procedures set forth in subsection (g) of this
Section 6.20. 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 filed by the Securities
Administrator. The parties to this Agreement acknowledge that the performance
by
the Securities Administrator of its duties under this Section 6.20(e) related
to
the timely preparation and filing of Form 10-K is contingent upon such parties
(and any Additional Servicer or Servicing Function Participant) strictly
observing all applicable deadlines in the performance of their duties under
this
Section 6.20(e), Section 9.25(a), Section 9.25(b) and Section 9.26. The
Securities Administrator shall have no liability for any loss, expense, damage,
claim arising out of or with respect to any failure to properly prepare and/or
timely file such Form 10-K, where such failure results from the Securities
Administrator’s inability or failure to obtain or receive, on a timely basis,
any information from any other party hereto needed to prepare, arrange for
execution or file such Form 10-K, not resulting from its own negligence,
bad
faith or willful misconduct.
143
(iv) Each
Form
10-K shall include the Xxxxxxxx-Xxxxx Certification. The Securities
Administrator, the Paying Agent and, if the Depositor is the Exchange Act
Signing Party, the Master Servicer, shall, and the Securities Administrator,
the
Paying Agent and the Master Servicer (if applicable) shall cause any Servicing
Function Participant engaged by it to, provide to the Person who signs the
Xxxxxxxx-Xxxxx Certification (the “Certifying Person”), by March 15 of each year
in which the Trust Fund is subject to the reporting requirements of the Exchange
Act (each, a “Back-Up Certification”), in the form attached hereto as Exhibit
Q-1 (or, in the case of (x) the Paying Agent, in the form attached as Exhibit
Q-2 and (y) the Securities Administrator, the form attached hereto as Exhibit
Q-3), upon which the Certifying Person, the entity for which the Certifying
Person acts as an officer, and such entity’s officers, directors and Affiliates
(collectively with the Certifying Person, “Certification Parties”) can
reasonably rely. The senior officer of the Exchange Act Signing Party shall
serve as the Certifying Person on behalf of the Trust Fund. In the event
the
Master Servicer, the Securities Administrator, the Paying Agent or any Servicing
Function Participant engaged by such parties is terminated or resigns pursuant
to the terms of this Agreement, such party or Servicing Function Participant
shall provide a Back-Up Certification to the Certifying Person pursuant to
this
Section 6.20(e)(iv) with respect to the period of time it was subject to
this
Agreement.
(v) Each
person (including their officers or directors) that signs any Form 10-K
Certification shall be entitled to indemnification from the Trust Fund for
any
liability or expense incurred by it in connection with such certification,
other
than any liability or expense attributable to such Person’s own bad faith,
negligence or willful misconduct. The provisions of this subsection shall
survive any termination of this Agreement and the resignation or removal
of such
Person.
144
(vi) Form
10-K
requires the registrant to indicate (by checking "yes" or "no") that it “(1) has
filed all reports required to be filed by Section 13 or 15(d) of the Exchange
Act during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to
such
filing requirements for the past 90 days.” 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 March 15th
with
respect to the filing of a report on Form 10-K, if the answer to the questions
should be “no.” The Securities Administrator shall be entitled to rely on such
representations in preparing, executing and/or filing any such
report.
(f) Reports
Filed on Form 8-K.
(i) During
any year in which the Trust Fund is subject to Exchange Act reporting, within
four Business Days after the occurrence of an event requiring disclosure
on Form
8-K (each such event, a “Reportable Event”), and if requested by the Depositor,
the Securities Administrator shall prepare and file on behalf of the Trust
Fund
any Form 8-K, as required by the Exchange Act, provided
that the
Depositor shall file the initial Form 8-K in connection with the issuance
of the
Certificates. Any disclosure or information related to a Reportable Event
or
that is otherwise required to be included on Form 8-K (“Form 8-K Disclosure
Information”) shall be determined and prepared by and at the direction of the
Depositor pursuant to the following paragraph and the Securities Administrator
will have no duty or liability for any failure hereunder to determine or
prepare
any Form 8-K Disclosure Information or any Form 8-K, except as set forth
in the
next paragraph.
(ii) As
set
forth on Exhibit P-3 hereto, for so long as the Trust Fund is subject to
the
Exchange Act reporting requirements, no later than Noon New York City time
on
the 2nd Business Day after the occurrence of a Reportable Event (A) certain
parties to the Structured Asset Securities Corporation Mortgage Loan Trust
2007-WF1 transaction shall be required to provide to the Securities
Administrator and the Depositor, to the extent known by a responsible officer
thereof, in XXXXX-compatible form (which may be Word or Excel documents easily
convertible to XXXXX format), or in such other form as otherwise agreed upon
by
the Securities Administrator and such party, the form and substance of any
Form
8-K Disclosure Information, if applicable, and include with such Form 8-K
Disclosure Information, an Additional Disclosure Notification in the form
attached hereto as Exhibit P-4, and (B) the Depositor will approve, as to
form
and substance, or disapprove, as the case may be, the inclusion of the Form
8-K
Disclosure Information. The Securities Administrator has no duty under this
Agreement to monitor or enforce the performance by the parties listed on
Exhibit
P-3 of their duties under this paragraph or proactively solicit or procure
from
such parties any Form 8-K Disclosure Information. The Sponsor will be
responsible for any reasonable fees and expenses assessed or incurred by
the
Securities Administrator in connection with including any Form 8-K Disclosure
Information on Form 8-K pursuant to this paragraph.
145
(iii) After
preparing the Form 8-K, the Securities Administrator shall forward
electronically, no later than Noon New York City time on the 3rd
Business
Day after the Reportable Event, a copy of the Form 8-K to the Exchange Act
Signing Party for review and approval. If the Master Servicer is the Exchange
Act Signing Party, then the Form 8-K shall also be electronically distributed
to
the Depositor for review and approval. No later than Noon New York City time
on
the 4th
Business
Day after the Reportable Event, a duly authorized representative of the Exchange
Act Signing Party shall sign the Form 8-K and return an electronic or fax
copy
of such signed Form 8-K (with an original executed hard copy to follow by
overnight mail) to the Securities Administrator. If a Form 8-K cannot be
filed
on time or if a previously filed Form 8-K needs to be amended, the Securities
Administrator will follow the procedures set forth in subsection (g) of this
Section 6.20. 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 8-K prepared and filed by it pursuant
to this Section 6.20(f). The parties to this Agreement acknowledge that the
performance by the Securities Administrator of its duties under this Section
6.20(f) related to the timely preparation and filing of Form 8-K is contingent
upon such parties strictly observing all applicable deadlines in the performance
of their duties under this Section 6.20(f). The Securities Administrator
shall
have no liability for any loss, expense, damage, claim arising out of or
with
respect to any failure to properly prepare and/or timely file such Form 8-K,
where such failure results from the Securities Administrator’s inability or
failure to obtain or receive, on a timely basis, any information from any
other
party hereto needed to prepare, arrange for execution or file such Form 8-K,
not
resulting from its own negligence, bad faith or willful misconduct.
(g) Suspension
of Reporting Obligation; Amendments; Late Filings.
(i) On
or
before January 30th of the first year in which the Securities Administrator
is
able to do so under applicable law, unless otherwise directed by the Depositor,
the Securities Administrator shall prepare and file a Form 15 relating to
the
automatic suspension of reporting in respect of the Trust Fund under the
Exchange Act. The Paying Agent is entitled to assume that a Form 15 will
be
filed for such year unless the Securities Administrator notifies the Paying
Agent that a Form 15 will not be filed.
(ii) In
the
event that the Securities Administrator becomes aware that it will be unable
to
timely file with the Commission all or any required portion of any Form 8-K,
10-D or 10-K required to be filed by this Agreement because required disclosure
information was either not delivered to it or delivered to it after the delivery
deadlines set forth in this Agreement or for any other reason, the Securities
Administrator will promptly notify the Depositor. In the case of Form 10-D
and
10-K, the parties to this Agreement and each Servicer will cooperate to prepare
and file a Form 12b-25 and a 10-D/A and 10-K/A as applicable, pursuant to
Rule
12b-25 of the Exchange Act. In the case of Form 8-K, the 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 Form 10-D. In the event that any previously filed
Form
8-K, 10-D or 10-K needs to be amended with respect to an additional disclosure
item, the Securities Administrator will notify the Depositor and any applicable
party and such parties will cooperate to prepare any necessary 8-K/A, 10-D/A
or
10-K/A. Any Form 15, Form 12b-25 or any amendment to Form 8-K, 10-D or 10-K
shall be signed by a senior officer or a duly authorized representative,
as
applicable, of the Exchange Act Signing Party. The parties to this Agreement
acknowledge that the performance by the Securities Administrator of its duties
under this Section 6.20(g) related to the timely preparation and filing of
Form
15, a Form 12b-25 or any amendment to Form 8-K, 10-D or 10-K is contingent
upon
each such party performing its duties under this Section. The Securities
Administrator shall have no liability for any loss, expense, damage, claim
arising out of or with respect to any failure to properly prepare and/or
timely
file any such Form 15, Form 12b-25 or any amendments to Forms 8-K, 10-D or
10-K,
where such failure results from the Securities Administrator’s inability or
failure to obtain or receive, on a timely basis, any information from any
other
party hereto needed to prepare, arrange for execution or file such Form 15,
Form
12b-25 or any amendments to Forms 8-K, 10-D or 10-K, not resulting from its
own
negligence, bad faith or willful misconduct.
146
(h) Any
party
that signs any Exchange Act report that the Securities Administrator is required
to file shall provide to the Securities Administrator prompt notice of the
execution of such Exchange Act report along with the name and contact
information for the person signing such report and shall promptly deliver
to the
Securities Administrator the original executed signature page for such report.
In addition, each of the parties agrees to provide to the Securities
Administrator such additional information related to such party as the
Securities Administrator may reasonably request, including evidence of the
authorization of the person signing any certification or statement, financial
information and reports, and such other information related to such party
or its
performance hereunder.
(i) The
Depositor and the Master Servicer, by mutual agreement, shall determine which
of
the Depositor or the Master Servicer shall be the initial Exchange Act Signing
Party. Upon such determination, the Depositor shall timely notify the Securities
Administrator, and such notice shall provide contact information for the
Exchange Act Signing Party. If the Depositor and Master Servicer, at any
time,
mutually agree to change the identity of the Exchange Act Signing Party,
the
Depositor shall provide timely notice to the Securities Administrator of
any
such change. Any notice delivered pursuant to this Section 6.20 may be by
fax or
electronic copy, notwithstanding the notice provisions of Section
11.07.
Section
6.21. Reporting
Requirements of the Commission
Each
of
the parties hereto acknowledges and agrees that the purpose of Sections 6.01
and
6.20 of this Agreement is to facilitate compliance by the Sponsor, the Master
Servicer and 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 (a) the obligations of the parties hereunder shall be interpreted in
such a
manner as to accomplish compliance with Regulation AB, (b) the parties’
obligations hereunder will be supplemented and modified as necessary to be
consistent with any such amendments, interpretive advice or guidance, convention
or consensus among active participants in the asset-backed securities markets,
advice of counsel, or otherwise in respect of the requirements of Regulation
AB
and (c) the parties shall comply with reasonable requests made by the Sponsor,
the Master Servicer, the Depositor or the Securities Administrator for delivery
of additional or different information, to the extent that such information
is
available or reasonably attainable, as the Sponsor, the Depositor, the Master
Servicer or the Securities Administrator may determine in good faith is
necessary to comply with the provisions of Regulation AB.
147
Section
6.22. No
Merger.
The
Trustee shall not cause or otherwise knowingly permit the assets of the Trust
Fund to be merged or consolidated with any other entity, except as a result
of a
final judicial determination.
Section
6.23. Indemnification
by the Securities Administrator.
The
Securities Administrator agrees to indemnify the Depositor, the Trustee and
the
Master Servicer, and each of their respective directors, officers, employees
and
agents and the Trust Fund and hold each of them harmless from and against
any
losses, damages, penalties, fines, forfeitures, legal fees and expenses and
related costs, judgments, and any other costs, fees and expenses that any
of
them may sustain arising out of or based upon the engagement of any
Subcontractor in violation of Section 6.01(l) or any failure by the Securities
Administrator to deliver any information, report, certification, accountants’
letter or other material when and as required under this Agreement, including
any report under Sections 6.20 or 9.25(a) or (b).
148
ARTICLE
VII
PURCHASE
OF MORTGAGE LOANS AND
TERMINATION
OF THE TRUST FUND
Section
7.01. Purchase
of Mortgage Loans; Termination of Trust Fund Upon Purchase or Liquidation
of All
Mortgage Loans; Purchase of Lower Tier REMIC 1 Uncertificated Regular Interests.
(a) The
respective obligations and responsibilities of the Trustee and the Master
Servicer created hereby (other than the obligation of the Trustee to make
payments to Certificateholders and the Swap Counterparty as set forth in
Section
7.02, the obligation of the Master Servicer to make a final remittance to
the
Securities Administrator pursuant to Section 4.01, and the obligations of
the
Master Servicer to the Securities Administrator pursuant to Section 9.10
and to
the Securities Administrator and the Trustee pursuant to Sections 9.14 and
9.31)
shall terminate on the earliest of (i) the final payment or other liquidation
of
the last Mortgage Loan remaining in the Trust Fund and the disposition of
all
REO Property, (ii) the sale of the property held by the Trust Fund in accordance
with Section 7.01(b) and (iii) the Latest Possible Maturity Date (each, a
“Trust
Fund Termination Event”); provided,
however,
that in
no event shall the Trust Fund created hereby continue beyond the expiration
of
21 years from the death of the last survivor of the descendants of Xxxxxx
X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. James’s,
living on the date hereof. Upon the occurrence of a Trust Fund Termination
Event, each REMIC shall be terminated in a manner that shall qualify as a
“qualified liquidation” under the REMIC Provisions.
(b) On
any
Distribution Date occurring on or after the Initial Optional Termination
Date,
the Master Servicer or LTURI-holder, as applicable, with the prior written
consent of any NIMS Insurer and the Seller, which consent shall not be
unreasonably withheld, has the option to cause the Trust Fund to adopt a
plan of
complete liquidation pursuant to Section 7.03(a)(i) hereof to sell all of
its
property (each such option, a “Call Option”); provided,
however,
that
any purchase of the Trust Fund’s property shall be made by the Bid Holder
pursuant to Section 7.01(d) below. Upon exercise of such option, the property
of
the Trust Fund shall be sold to the Master Servicer at a price (the “Termination
Price”) equal to the sum of (i) 100% of the unpaid principal balance of each
Mortgage Loan on the day of such purchase plus interest accrued thereon at
the
applicable Mortgage Rate with respect to any Mortgage Loan to the Due Date
in
the Collection Period immediately preceding the related Distribution Date
to the
date of such repurchase, (ii) the fair market value of any REO Property and
any
other property held by any REMIC, such fair market value to be determined
by an
independent appraiser or appraisers mutually agreed upon by the Master Servicer,
any NIMS Insurer and the Trustee (reduced, in the case of REO Property, by
(1)
reasonably anticipated disposition costs and (2) any amount by which the
fair
market value as so reduced exceeds the outstanding principal balance of the
related Mortgage Loan plus interest accrued thereon at the applicable Net
Mortgage Rate to the date of such purchase), (iii) any unreimbursed Servicing
Advances and (iv) any Swap Termination Payment payable to the Swap Counterparty
as a result of a termination pursuant to this Section 7.01; provided,
however, if
there
are any NIM Securities outstanding, the Master Servicer may only exercise
its
option after receiving the prior written consent of the holders of such NIM
Securities and, if such consent is given, the Termination Price shall also
include an amount equal to the sum of (1) any accrued interest on the NIM
Securities, (2) the unpaid principal balance of any such NIM Securities and
(3)
any other reimbursable expenses owed by the issuer of the NIM Securities,
including any amounts owed to the NIMS Insurer (the “NIM Redemption Amount”).
The Master Servicer, the Servicer, the Trustee, the Securities Administrator
and
the Custodian shall be reimbursed from the Termination Price for any Mortgage
Loan or related REO Property for any Advances made or other amounts advanced
with respect to the Mortgage Loans that are reimbursable to any such entity
under this Agreement, the Servicing Agreement or the Custodial Agreement,
together with any accrued and unpaid compensation and any other amounts due
to
the Master Servicer, the Securities Administrator or the Trustee hereunder
or
the Servicer or the Custodian. If any NIMS Insurer directs the Master Servicer
to exercise its right to cause the Trust Fund to adopt a plan of complete
liquidation as described above, then (i) the Master Servicer shall cause
the
Trust Fund to adopt a plan of complete liquidation as described above, (ii)
such
NIMS Insurer shall remit the Termination Price in immediately available funds
to
the Master Servicer at least three Business Days prior to the applicable
Distribution Date and, upon receipt of such funds from the NIMS Insurer,
the
Master Servicer shall promptly deposit such funds in the Collection Account
and
(iii) upon termination of the Trust Fund, the Trustee will transfer the property
of the Trust Fund to the NIMS Insurer. The NIMS Insurer shall be obligated
to
reimburse the Master Servicer and the Trustee for its reasonable out-of-pocket
expenses incurred in connection with its termination of the Trust Fund at
the
direction of the NIMS Insurer and shall indemnify and hold harmless the Master
Servicer for any losses, liabilities or expenses arising out of any claims
directly resulting from or relating to the Master Servicer’s termination of the
Trust Fund at the direction of the NIMS Insurer, except to the extent such
losses, liabilities or expenses arise out of or result from the Master
Servicer’s negligence, bad faith or willful misconduct.
149
(c) On
any
Distribution Date occurring on or after the Initial Optional Termination
Date
and provided there are no NIM Securities outstanding (and no amounts are
owed to
the NIMS Insurer hereunder or with respect to the NIM Securities), the Master
Servicer, with the prior written consent of the Seller, which consent shall
not
be unreasonably withheld, has the option to purchase all of the Lower Tier
REMIC
1 Uncertificated Regular Interests (the “Regular Interest Purchase Option”).
Upon exercise of such option, the Lower Tier REMIC 1 Uncertificated Regular
Interests shall be sold to the Master Servicer at a price (the “Lower Tier REMIC
1 Uncertificated Regular Interests Purchase Price”) equal to the sum of (i) 100%
of the unpaid principal balance of each Mortgage Loan on the day of such
purchase plus interest accrued thereon at the applicable Mortgage Rate with
respect to any Mortgage Loan to the Due Date in the Collection Period
immediately preceding the related Distribution Date to the date of such
repurchase and (ii) the fair market value of any REO Property and any other
property held by any REMIC, such fair market value to be determined by an
independent appraiser or appraisers mutually agreed upon by the Master Servicer,
any NIMS Insurer and the Trustee (reduced, in the case of REO Property, by
(1)
reasonably anticipated disposition costs and (2) any amount by which the
fair
market value as so reduced exceeds the outstanding principal balance of the
related Mortgage Loan plus interest accrued thereon at the applicable Net
Mortgage Rate to the date of such purchase). If the Master Servicer elects
to
exercise such option, each REMIC created pursuant to this Agreement (other
than
REMIC 1) shall be terminated in such a manner so that the termination of
each
such REMIC shall qualify as a “qualified liquidation” under the REMIC Provisions
and the Lower Tier REMIC 1 Uncertificated Regular Interests and the Class
LT-R
Certificates will evidence the entire beneficial interest in the property
of the
Trust Fund. Following a purchase of the Lower Tier REMIC 1 Uncertificated
Regular Interests pursuant to this subsection, the Trust Fund (and REMIC
1) will
remain outstanding and final payment on the Certificates (other than the
Class
LT-R Certificates) will be made in accordance with Sections 7.03(a)(iii)
and
5.02. The Trust Fund will terminate upon the occurrence of a Trust Fund
Termination Event, in accordance with Section 7.01(a).
150
(d) (i)
Prior
to exercising the Call Option pursuant to Section 7.01(b) or the Regular
Interests Purchase Option pursuant to Section 7.01(c), the Master Servicer
shall
on the first Business Day of the month of the occurrence of the Initial Optional
Termination Date, and for so long as the Master Servicer shall not have
exercised the Call Option or the Regular Interests Purchase Option, on the
first
Business Day of each succeeding month (each, a “Bid Month”), give written notice
in the form attached hereto as Exhibit W (the “Call Option Notice”) to each Call
Option Holder.
(ii) Not
later
than three (3) Business Days prior to the related Bid Due Date (as defined
in
the paragraph immediately below), the Master Servicer shall give written
notice
to each Call Option Holder of the Termination Price for the related Distribution
Date.
(iii) Not
later
than the 15th day (or if such date is not a Business Day, the immediately
succeeding Business Day) of each Bid Month (the “Bid Due Date”), if any Call
Option Holder desires that the Master Servicer exercise the option to purchase
the Mortgage Loans and certain other property of the Trust Fund, such Call
Option Holder shall give written notice in the form attached hereto as Exhibit
X
(the “Purchaser Call Option Notice”) to the Master Servicer, requesting that the
Master Servicer exercise such option on behalf of such Call Option Holder.
The
Purchaser Call Option Notice shall include the amount to be paid by a Call
Option Holder with respect to the proceeds or assets to be received by the
Master Servicer for the Mortgage Loans and certain other property of the
Trust
Fund (the “Bid Price”); provided,
that
the Bid Price must be equal to or greater than the Termination
Price.
(iv) One
(1)
Business Day after the related Bid Due Date, the Master Servicer shall notify
the Call Option Holder, if any, that has submitted the highest Bid Price
(the
“Bid Holder”) that such Bid Holder has the right to direct the Master Servicer
to exercise the option to purchase the Mortgage Loans and certain other property
of the Trust Fund on its behalf. The Master Servicer shall thereafter notify
any
Call Option Holder that did not submit the highest Bid Price (or did not
submit
a Purchaser Call Option Notice) of the amount of the highest Bid Price. If
two
or more Call Option Holder shall have bid the same Bid Price, the Bid Holders
shall be the Call Option Holder with the greater Percentage Interest in the
NIM
Residual Securities or Class X Certificates, as applicable. If the Master
Servicer does not receive any Purchaser Call Option Notices by such Bid Due
Date, or if no Purchaser Call Option Notice specifies a Bid Price equal to
or
greater than the Termination Price, then the Master Servicer shall not exercise
the option to purchase the Mortgage Loans and certain other property of the
Trust Fund on such Distribution Date (other than in accordance with clause
(vii)
below).
151
(v) Not
later
than three (3) Business Days immediately preceding the Distribution Date
in the
related Bid Month, the Bid Holder shall remit the Bid Price as specified
in the
Purchaser Call Option Notice to the Master Servicer, in immediately available
funds. Upon receipt of such funds from the Bid Holder, the Master Servicer
shall
promptly deposit the Termination Price in the Collection Account for subsequent
deposit in the Certificate Account in accordance with this Trust Agreement.
Any
amounts received by the Master Servicer from the Bid Holder in excess of
the
Termination Price shall be remitted to the Trustee for distribution to the
Call
Option Holders. In no event shall any such excess be treated as being paid
by
any REMIC created hereby.
(vi) If
the
Bid Holder directs the Master Servicer to exercise the option to purchase
the
Mortgage Loans and certain other property of the Trust Fund, then the Master
Servicer shall (i) cause the Trust Fund to adopt a plan of complete liquidation
pursuant to Section 7.03(a)(i) hereof to sell all of its property and (ii)
instruct the Trustee upon termination of the Trust Fund to transfer the property
of the Trust Fund to the Bid Holder. The Bid Holder shall be obligated to
reimburse the Master Servicer for its reasonable out-of-pocket expenses incurred
in connection with its exercise of the option to purchase the Mortgage Loans
and
certain other property of the Trust Fund and to indemnify and hold harmless
the
Master Servicer for any losses, liabilities or expenses resulting from any
claims directly resulting from or relating to the Master Servicer’s exercise of
such option, except to the extent such losses, liabilities or expenses arise
out
of or result from the Master Servicer’s negligence, bad faith or willful
misconduct. The terms of such expense reimbursement and the extent of such
indemnity may be amended accordant to an agreement between the Master Servicer
and the Bid Holder.
(vii) Commencing
on the Distribution Date of the one year anniversary of the Initial Optional
Termination Date, and on each Distribution Date thereafter, the Master Servicer
shall have the right to exercise the Call Option or the Regular Interests
Purchase Option. If the Master Servicer desires to exercise the Call Option
or
the Regular Interests Purchase Option, the Master Servicer shall notify the
Call
Option Holders pursuant to a Call Option Notice that it desires to exercise
such
Call Option or such Regular Interest Purchase Option, as applicable, on the
immediately succeeding Distribution Date. If one or more Call Option Holders
submit a Purchaser Call Option Notice on or before the immediately succeeding
Bid Due Date, then, the Master Servicer shall follow the procedures set forth
in
clauses (iv) through (vi) above. However, if no Call Option Holder submits
a
Purchaser Call Option Notice on or before the immediately succeeding Bid
Due
Date, then, on the immediately succeeding Distribution Date, the Master Servicer
may exercise the its right to purchase the Mortgage Loans and other property
of
the Trust Fund pursuant to Section 7.01(b) or the Lower Tier REMIC 1
Uncertificated Regular Interests pursuant to Section 7.01(c).
Section
7.02. Procedure
Upon Termination of Trust Fund or Purchase of Lower Tier REMIC 1 Uncertificated
Regular Interests.
152
(a) Notice
of
any Trust Fund Termination Event and notice of the purchase of the Lower
Tier
REMIC 1 Uncertificated Regular Interests, specifying the Distribution Date
upon
which the final distribution to the Certificates (other than the Class LT-R
Certificates, in the case of a purchase of the Lower Tier REMIC 1 Uncertificated
Regular Interests) shall be made, shall be given by the Trustee by first
class
mail to Certificateholders mailed promptly (and in no event later than five
Business Days) (x) after the Trustee has received notice from the Master
Servicer or the LTURI-holder, as applicable, of its election to cause (1)
the
sale of all of the property of the Trust Fund pursuant to Section 7.01(b)
or (2)
the purchase of the Lower Tier REMIC 1 Uncertificated Regular Interests pursuant
to Section 7.01(c), or (y) upon the final payment or other liquidation of
the
last Mortgage Loan or REO Property in the Trust Fund. In the case of a Trust
Fund Termination Event, the Trustee shall also give notice to the Master
Servicer, the Swap Counterparty, the Cap Counterparty, and the Certificate
Registrar at the time notice is given to Holders.
In
the
case of a Trust Fund Termination Event, such notice shall specify (A) the
Distribution Date upon which final distribution on the Certificates or Lower
Tier REMIC 1 Uncertificated Regular Interests of all amounts required to
be
distributed to Certificateholders pursuant to Section 5.02 will be made upon
presentation and surrender of the Certificates at the Corporate Trust Office,
and (B) that the Record Date otherwise applicable to such Distribution Date
is
not applicable, distribution being made only upon presentation and surrender
of
the Certificates at the office or agency of the Trustee therein specified.
Upon
any such Trust Fund Termination Event, the duties of the Certificate Registrar
with respect to the Certificates or Lower Tier REMIC 1 Uncertificated Regular
Interests shall terminate and the Trustee shall terminate or request the
Master
Servicer to terminate, the Collection Account it maintains, the Certificate
Account and any other account or fund maintained with respect to the
Certificates or Lower Tier REMIC 1 Uncertificated Regular Interests, subject
to
the Trustee’s obligation hereunder to hold all amounts payable to
Certificateholders in trust without interest pending such payment.
In
the
case of a purchase of the Lower Tier REMIC 1 Uncertificated Regular Interests,
such notice shall specify (A) the Distribution Date upon which final
distribution on the Certificates (other than the Class LT-R Certificates)
of all
amounts required to be distributed to Certificateholders pursuant to Section
5.02 (other than any distributions to the Class LT-R Certificates in respect
of
REMIC 1) will be made upon presentation and surrender of the Certificates
(other
than the Class LT-R Certificates) at the Corporate Trust Office, and (B)
that
the Record Date otherwise applicable to such Distribution Date is not
applicable, distribution being made only upon presentation and surrender
of the
Certificates (other than the Class LT-R Certificates) at the office or agency
of
the Trustee therein specified. Upon any such purchase of the Lower Tier REMIC
1
Uncertificated Regular Interests, the duties of the Certificate Registrar
with
respect to the Certificates other than the Class LT-R Certificate shall
terminate but the Trustee shall not terminate or request the Master Servicer
to
terminate, the Collection Account it maintains, the Certificate Account and
any
other account or fund maintained with respect to the Certificates, subject
to
the Trustee’s obligation hereunder to hold all amounts payable to
Certificateholders in trust without interest pending such payment. For all
Distribution Dates following the Distribution Date on which the Master Servicer
purchases the Lower Tier REMIC 1 Uncertificated Regular Interests, all amounts
that would be distributed on the Certificates (other than the Class LT-R
Certificate and exclusive of amounts payable from any fund held outside of
REMIC
1) absent such purchase shall be payable to the LTURI-holder.
153
(b) In
the
event that all of the Holders do not surrender their Certificates for
cancellation within three months after the time specified in the above-mentioned
written notice, the Trustee shall give a second written notice to the remaining
Certificateholders to surrender their Certificates for cancellation and receive
the final distribution with respect thereto. If within one year after the
second
notice any Certificates shall not have been surrendered for cancellation,
the
Trustee may take appropriate steps to contact the remaining Certificateholders
concerning surrender of such Certificates, and the cost thereof shall be
paid
out of the amounts distributable to such Holders. If within two years after
the
second notice any Certificates shall not have been surrendered for cancellation,
the Trustee shall, subject to applicable state law relating to escheatment,
hold
all amounts distributable to such Holders for the benefit of such Holders.
No
interest shall accrue on any amount held by the Trustee and not distributed
to a
Certificateholder due to such Certificateholder’s failure to surrender its
Certificate(s) for payment of the final distribution thereon in accordance
with
this Section.
(c) Any
reasonable expenses incurred by the Trustee in connection with any Trust
Fund
Termination Event or any purchase of the Lower Tier REMIC 1 Uncertificated
Regular Interests shall be reimbursed from proceeds received from such
termination or purchase.
Section
7.03. Additional
Trust Fund Termination Event or Purchase of the Lower Tier REMIC 1
Uncertificated Regular Interests.
(a) Any
termination of the Trust Fund pursuant to Section 7.01(a) or any termination
of
a REMIC pursuant to Section 7.01(c) shall be effected in accordance with
the
following additional requirements, unless the Trustee seeks (at the request
of
the party exercising the option to purchase all of the Mortgage Loans or
Lower
Tier REMIC 1 Uncertificated Regular Interests pursuant to Section 7.01(b)
or
Section 7.01(c), respectively), and subsequently receives, an Opinion of
Counsel
(at the expense of such requesting party), addressed to the Trustee and any
NIMS
Insurer to the effect that the failure to comply with the requirements of
this
Section 7.03 will not result in an Adverse REMIC Event:
(i) Within
89
days prior to the time of the making of the final payment on the Certificates
(other than the Class LT-R Certificates, in the case of a purchase of the
Lower
Tier REMIC 1 Uncertificated Regular Interests), upon notification by the
Master
Servicer, the Securities Administrator, any NIMS Insurer or an Affiliate
of the
Seller that it intends to exercise its option to cause the termination of
the
Trust Fund or purchase the Lower Tier REMIC 1 Uncertificated Regular Interests,
the Trustee shall adopt a plan of complete liquidation prepared by the Depositor
on behalf of each REMIC (other than REMIC 1, in the case of a purchase of
the
Lower Tier REMIC 1 Uncertificated Regular Interests), meeting the requirements
of a qualified liquidation under the REMIC Provisions;
(ii) Any
sale
of the assets of the Trust Fund or the Lower Tier REMIC 1 Uncertificated
Regular
Interests pursuant to Section 7.02 shall be a sale for cash and shall occur
at
or after the time of adoption of such a plan of complete liquidation and
prior
to the time of making of the final payment on the Certificates (other than
the
Class LT-R Certificates, in the case of a purchase of the Lower Tier REMIC
1
Uncertificated Regular Interests);
154
(iii) On
the
date specified for final payment of the Certificates (other than the Class
LT-R
Certificates, in the case of a purchase of the Lower Tier REMIC 1 Uncertificated
Regular Interests), the Trustee shall make final distributions of principal
and
interest on such Certificates and shall pay, in the case of a Trust Fund
Termination Event, any Swap Termination Payment owed to the Swap Counterparty
on
the related Swap Payment Date (to the extent not paid on previous Swap Payment
Dates) in accordance with Sections 5.01 and 5.02. In the case of a Trust
Fund
Termination Event, and, after payment of, or provision for any outstanding
expenses, the Trustee shall distribute or credit, or cause to be distributed
or
credited, to the Holders of the Residual Certificates all cash on hand after
such final payment (other than cash retained to meet claims), and the Trust
Fund
(and each REMIC) shall terminate at that time; and
(iv) In
no
event may the final payment on the Certificates or the final distribution
or
credit to the Holders of the Residual Certificates in respect of the residual
interest in any liquidated REMIC be made after the 89th day from the date
on
which the plan of complete liquidation for such REMIC is adopted.
(b) By
its
acceptance of a Residual Certificate, each Holder thereof hereby agrees to
accept the plan of complete liquidation prepared by the Depositor and adopted
by
the Trustee under this Section and to take such other action in connection
therewith as may be reasonably requested by the Master Servicer or the
Servicer.
(c) In
connection with the termination of the Trust Fund, or a Section 7.01(c) Purchase
Event, the Trustee may request an Opinion of Counsel addressed to the Trustee
(at the expense of the Depositor) to the effect that all the requirements
of a
qualified liquidation under the REMIC Provisions have been met.
Section
7.04. Optional
Repurchase Right.
The
NIMS
Insurer, if any, may repurchase any Distressed Mortgage Loan for a purchase
price equal to the outstanding principal balance of such Mortgage Loan, plus
accrued interest thereon to the date of repurchase plus any unreimbursed
Advances, Servicing Advances or Servicing Fees allocable to such Distressed
Mortgage Loan. Any such repurchase shall be accomplished by the NIMS Insurer’s
remittance of the purchase price for the Distressed Mortgage Loan to the
Master
Servicer for deposit into the Collection Account. The NIMS Insurer shall
not use
any procedure in selecting Distressed Mortgage Loans to be repurchased which
would be materially adverse to Certificateholders.
155
ARTICLE
VIII
RIGHTS
OF
CERTIFICATEHOLDERS
Section
8.01. Limitation
on Rights of Holders.
(a) The
death
or incapacity of any Certificateholder shall not operate to terminate this
Agreement or this Trust Fund, nor entitle such Certificateholder’s legal
representatives or heirs to claim an accounting or take any action or proceeding
in any court for a partition or winding up of this Trust Fund, nor otherwise
affect the rights, obligations and liabilities of the parties hereto or any
of
them. Except as otherwise expressly provided herein, no Certificateholder,
solely by virtue of its status as a Certificateholder, shall have any right
to
vote or in any manner otherwise control the Master Servicer or the operation
and
management of the Trust Fund, or the obligations of the parties hereto, nor
shall anything herein set forth, or contained in the terms of the Certificates,
be construed so as to constitute the Certificateholders from time to time
as
partners or members of an association, nor shall any Certificateholder be
under
any liability to any third person by reason of any action taken by the parties
to this Agreement pursuant to any provision hereof.
(b) No
Certificateholder, solely by virtue of its status as Certificateholder, shall
have any right by virtue or by availing of any provision of this Agreement
to
institute any suit, action or proceeding in equity or at law upon or under
or
with respect to this Agreement, unless such Holder previously shall have
given
to the Trustee a written notice of an Event of Default and of the continuance
thereof, as hereinbefore provided, and unless also the Holders of Certificates
evidencing not less than 25% of the Class Principal Amount (or Percentage
Interest) of Certificates of each Class affected thereby shall, with the
prior
written consent of any NIMS Insurer, have made written request upon the Trustee
to institute such action, suit or proceeding in its own name as Trustee
hereunder and shall have offered to the Trustee such reasonable indemnity
as it
may require against the cost, expenses and liabilities to be incurred therein
or
thereby, and the Trustee, for sixty days after its receipt of such notice,
request and offer of indemnity, shall have neglected or refused to institute
any
such action, suit or proceeding and no direction inconsistent with such written
request has been given the Trustee during such sixty-day period by such
Certificateholders or any NIMS Insurer; it being understood and intended,
and
being expressly covenanted by each Certificateholder with every other
Certificateholder, any NIMS Insurer, the Securities Administrator and the
Trustee, that no one or more Holders of Certificates shall have any right
in any
manner whatever by virtue or by availing of any provision of this Agreement
to
affect, disturb or prejudice the rights of the Holders of any other of such
Certificates or the rights of any NIMS Insurer, or to obtain or seek to obtain
priority over or preference to any other such Holder or any NIMS Insurer,
or to
enforce any right under this Agreement, except in the manner herein provided
and
for the benefit of all Certificateholders. For the protection and enforcement
of
the provisions of this Section, each and every Certificateholder, any NIMS
Insurer and the Trustee shall be entitled to such relief as can be given
either
at law or in equity.
156
Section
8.02. Access
to List of Holders.
(a) If
the
Trustee is not acting as Certificate Registrar, the Certificate Registrar
will
furnish or cause to be furnished to the Trustee and any NIMS Insurer, within
fifteen days after receipt by the Certificate Registrar of a request by the
Trustee or any NIMS Insurer in writing, a list, in such form as the Trustee
may
reasonably require, of the names and addresses of the Certificateholders
of each
Class as of the most recent Record Date.
(b) If
any
NIMS Insurer or three or more Holders or Certificate Owners (hereinafter
referred to as “Applicants”) apply in writing to the Trustee, and such
application states that the Applicants desire to communicate with other Holders
with respect to their rights under this Agreement or under the Certificates
and
is accompanied by a copy of the communication which such Applicants propose
to
transmit, then the Trustee shall, within five Business Days after the receipt
of
such application, afford such Applicants reasonable access during the normal
business hours of the Trustee to the most recent list of Certificateholders
held
by the Trustee or shall, as an alternative, send, at the Applicants’ expense,
the written communication proffered by the Applicants to all Certificateholders
at their addresses as they appear in the Certificate Register.
(c) Every
Holder or Certificate Owner, if the Holder is a Clearing Agency, by receiving
and holding a Certificate, agrees with the Depositor, the Master Servicer,
the
Securities Administrator, any NIMS Insurer, the Certificate Registrar and
the
Trustee that neither the Depositor, the Master Servicer, the Securities
Administrator, any NIMS Insurer, the Certificate Registrar nor the Trustee
shall
be held accountable by reason of the disclosure of any such information as
to
the names and addresses of the Certificateholders hereunder, regardless of
the
source from which such information was derived.
Section
8.03. Acts
of Holders of Certificates.
(a) Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Agreement to be given or taken by Holders or Certificate
Owner, if the Holder is a Clearing Agency, may be embodied in and evidenced
by
one or more instruments of substantially similar tenor signed by such Holders
in
person or by agent duly appointed in writing; and, except as herein otherwise
expressly provided, such action shall become effective when such instrument
or
instruments are delivered to the Trustee and the Securities Administrator
and,
where expressly required herein, to the Master Servicer. Such instrument
or
instruments (as the action embodies therein and evidenced thereby) are herein
sometimes referred to as an “Act” of the Holders signing such instrument or
instruments. Proof of execution of any such instrument or of a writing
appointing any such agents shall be sufficient for any purpose of this Agreement
and conclusive in favor of the Trustee, the Securities Administrator and
the
Master Servicer, if made in the manner provided in this Section. Each of
the
Trustee, the Securities Administrator and the Master Servicer shall promptly
notify the others of receipt of any such instrument by it, and shall promptly
forward a copy of such instrument to the others.
(b) The
fact
and date of the execution by any Person of any such instrument or writing
may be
proved by the affidavit of a witness of such execution or by the certificate
of
any notary public or other officer authorized by law to take acknowledgments
or
deeds, certifying that the individual signing such instrument or writing
acknowledged to him the execution thereof. Whenever such execution is by
an
officer of a corporation or a member of a partnership on behalf of such
corporation or partnership, such certificate or affidavit shall also constitute
sufficient proof of his authority. The fact and date of the execution of
any
such instrument or writing, or the authority of the individual executing
the
same, may also be proved in any other manner which the Trustee deems
sufficient.
157
(c) The
ownership of Certificates or Lower Tier REMIC 1 Uncertificated Regular Interests
(whether or not such Certificates or Lower Tier REMIC 1 Uncertificated Regular
Interests shall be overdue and notwithstanding any notation of ownership
or
other writing thereon made by anyone other than the Trustee) shall be proved
by
the Certificate Register, and none of the Trustee, the Master Servicer, the
Securities Administrator, any NIMS Insurer, or the Depositor shall be affected
by any notice to the contrary.
(d) Any
request, demand, authorization, direction, notice, consent, waiver or other
action by the Holder of any Certificate or Lower Tier REMIC 1 Uncertificated
Regular Interest shall bind every future Holder of the same Certificate or
Lower
Tier REMIC 1 Uncertificated Regular Interest and the Holder of every Certificate
or Lower Tier REMIC 1 Uncertificated Regular Interest issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof,
in
respect of anything done, omitted or suffered to be done by the Trustee or
the
Master Servicer in reliance thereon, whether or not notation of such action
is
made upon such Certificate or Lower Tier REMIC 1 Uncertificated Regular
Interest.
158
ARTICLE
IX
ADMINISTRATION
AND SERVICING OF MORTGAGE LOANS; CREDIT RISK MANAGER
Section
9.01. Duties
of the Master Servicer.
The
Certificateholders, by their purchase and acceptance of the Certificates
or
Lower Tier REMIC 1 Uncertificated Regular Interests, appoint Aurora Loan
Services LLC, as Master Servicer. For and on behalf of the Depositor, the
Trustee and the Certificateholders, the Master Servicer shall master service
the
Mortgage Loans in accordance with the provisions of this Agreement and the
provisions of each Servicing Agreement. Notwithstanding anything in this
Agreement, the Servicing Agreement or the Credit Risk Management Agreement
to
the contrary, the Master Servicer shall have no duty or obligation to enforce
the Credit Risk Management Agreement, or to supervise, monitor or oversee
the
activities of the Servicer under its Credit Risk Management Agreement with
respect to any action taken or not taken by the Servicer at the direction
of the
Seller or pursuant to a recommendation of the Credit Risk Manager.
Section
9.02. Master
Servicer Fidelity Bond and Master Servicer Errors and Omissions Insurance
Policy.
(a) The
Master Servicer, at its expense, shall maintain in effect a Master Servicer
Fidelity Bond and a Master Servicer 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
Master Servicer Errors and Omissions Insurance Policy and the Master Servicer
Fidelity Bond shall be in such form and amount that would be consistent with
coverage customarily maintained by master servicers of mortgage loans similar
to
the Mortgage Loans and the Master Servicer shall provide the Trustee and
any
NIMS Insurer upon request, with a copy of such policy and fidelity bond.
The
Master Servicer shall (i) require the Servicer to maintain an Errors and
Omissions Insurance Policy and the Servicer Fidelity Bond in accordance with
the
provisions of the Servicing Agreement, (ii) cause the Servicer to provide
to the
Master Servicer certificates evidencing that such policy and bond is in effect
and to furnish to the Master Servicer any notice of cancellation, non-renewal
or
modification of the policy or bond received by it, as and to the extent provided
in the Servicing Agreement, and (iii) furnish copies of such policies and
of the
certificates and notices referred to in clause (ii) to the Trustee upon
request.
(b) The
Master Servicer shall promptly report to the Trustee and any NIMS Insurer
any
material changes that may occur in the Master Servicer Fidelity Bond or the
Master Servicer Errors and Omissions Insurance Policy and shall furnish to
the
Trustee and any NIMS Insurer, on request, certificates evidencing that such
bond
and insurance policy are in full force and effect. The Master Servicer shall
promptly report to the Trustee and any NIMS Insurer all cases of embezzlement
or
fraud, if such events involve funds relating to the Mortgage Loans. The total
losses, regardless of whether claims are filed with the applicable insurer
or
surety, shall be disclosed in such reports together with the amount of such
losses covered by insurance. If a bond or insurance claim report is filed
with
any of such bonding companies or insurers, the Master Servicer shall promptly
furnish a copy of such report to the Trustee and any NIMS Insurer. Any amounts
relating to the Mortgage Loans collected by the Master Servicer under any
such
bond or policy shall be promptly remitted by the Master Servicer to the Trustee
for deposit into the Certificate Account. Any amounts relating to the Mortgage
Loans collected by the Servicer under any such bond or policy shall be remitted
to the Master Servicer to the extent provided in the Servicing
Agreement.
159
Section
9.03. Master
Servicer’s Financial Statements and Related Information.
For
each
year this Agreement is in effect, the Master Servicer shall submit to the
Trustee, any NIMS Insurer, each Rating Agency and the Depositor a copy of
its
annual unaudited financial statements on or prior to March 31 of each year,
beginning in March 2008. Such financial statements shall include a balance
sheet, income statement, statement of retained earnings, statement of additional
paid-in capital, statement of changes in financial position and all related
notes and schedules and shall be in comparative form, certified by a nationally
recognized firm of Independent Accountants to the effect that such statements
were examined and prepared in accordance with generally accepted accounting
principles applied on a basis consistent with that of the preceding
year.
Section
9.04. Power
to Act; Procedures.
(a) The
Master Servicer shall master service the Mortgage Loans and shall have full
power and authority, subject to the REMIC Provisions and the provisions of
Article X hereof, and the Servicer shall have full power and authority (to
the
extent provided in the Servicing Agreement) to do any and all things that
it may
deem necessary or desirable in connection with the servicing and administration
of the Mortgage Loans, including but not limited to the power and authority
(i)
to execute and deliver, on behalf of the Certificateholders and the Trustee,
customary consents or waivers and other instruments and documents, (ii) to
consent to transfers of any Mortgaged Property and assumptions of the Mortgage
Notes and related Mortgages, (iii) to collect any Insurance Proceeds and
Liquidation Proceeds, and (iv) to effectuate foreclosure or other conversion
of
the ownership of the Mortgaged Property securing any Mortgage Loan, in each
case, in accordance with the provisions of this Agreement and the Servicing
Agreement, as applicable; provided that the Master Servicer shall not take,
or
knowingly permit the Servicer to take, any action that is inconsistent with
or
prejudices the interests of the Trust Fund or the Certificateholders in any
Mortgage Loan or the rights and interests of the Depositor, the Trustee,
the
Certificateholders under this Agreement. The Master Servicer shall represent
and
protect the interests of the Trust Fund in the same manner as it protects
its
own interests in mortgage loans in its own portfolio in any claim, proceeding
or
litigation regarding a Mortgage Loan and shall not make or knowingly permit
the
Servicer to make any modification, waiver or amendment of any term of any
Mortgage Loan that would cause an Adverse REMIC Event. Without limiting the
generality of the foregoing, the Master Servicer in its own name or in the
name
of the Servicer, and the Servicer, to the extent such authority is delegated
to
the Servicer under the Servicing Agreement, is hereby authorized and empowered
by the Trustee when the Master Servicer or the Servicer, as the case may
be,
believes it appropriate in its best judgment and in accordance with Accepted
Servicing Practices and the Servicing Agreement, to execute and deliver,
on
behalf of itself and the Certificateholders, the Trustee or any of them,
any and
all instruments of satisfaction or cancellation, or of partial or full release
or discharge and all other comparable instruments, with respect to the Mortgage
Loans and with respect to the Mortgaged Properties. The Trustee shall furnish
to
the Master Servicer, upon request, with any powers of attorney empowering
the
Master Servicer or the Servicer to execute and deliver instruments of
satisfaction or cancellation, or of partial or full release or discharge,
and to
foreclose upon or otherwise liquidate Mortgaged Property, and to appeal,
prosecute or defend in any court action relating to the Mortgage Loans or
the
Mortgaged Property, in accordance with the Servicing Agreement and this
Agreement, and the Trustee shall execute and deliver such other documents,
as
the Master Servicer may request, necessary or appropriate to enable the Master
Servicer to master service the Mortgage Loans and carry out its duties hereunder
and to allow the Servicer to service the Mortgage Loans, in each case in
accordance with Accepted Servicing Practices (and the Trustee shall have
no
liability for misuse of any such powers of attorney by the Master Servicer
or
the Servicer). If the Master Servicer or the Trustee has been advised that
it is
likely that the laws of the state in which action is to be taken prohibit
such
action if taken in the name of the Trustee or that the Trustee would be
adversely affected under the “doing business” or tax laws of such state if such
action is taken in its name, then upon request of the Trustee the Master
Servicer shall join with the Trustee in the appointment of a co-trustee pursuant
to Section 6.09 hereof. In no event shall the Master Servicer, without the
Trustee’s written consent: (i) initiate any action, suit or proceeding solely
under the Trustee’s name without indicating the Master Servicer in its
applicable, representative capacity, so long as the jurisdictional and
procedural rules will allow for this insertion to occur, (ii) initiate any
action, suit or proceeding not directly relating to the servicing of a Mortgage
Loan (including but not limited to actions, suits or proceedings against
Certificateholders, or against the Depositor, the Seller or the Transferor
for
breaches of representations and warranties) solely under the Trustee’s name,
(iii) engage counsel to represent the Trustee in any action, suit or proceeding
not directly relating to the servicing of a Mortgage Loan (including but
not
limited to actions, suits or proceedings against Certificateholders, or against
the Depositor, the Seller or the Transferor for breaches of representations
and
warranties), or (iv) prepare, execute or deliver any government filings,
forms,
permits, registrations or other documents or take any action with the intent
to
cause, and that actually causes, the Trustee to be registered to do business
in
any state. The Master Servicer shall indemnify the Trustee for any and all
costs, liabilities and expenses incurred by the Trustee in connection with
the
negligent or willful misuse of such powers of attorney by the Master Servicer.
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 on behalf of the Trust Fund, be
deemed
to be the agent of the Trustee.
160
(b) In
master
servicing and administering the Mortgage Loans, the Master Servicer shall
employ
procedures and exercise the same care that it customarily employs and exercises
in master servicing and administering loans for its own account, giving due
consideration to Accepted Servicing Practices where such practices do not
conflict with this Agreement. Consistent with the foregoing, the Master Servicer
may, and may permit the Servicer to, in its discretion (i) waive any late
payment charge (but not any Prepayment Charges, except as set forth below)
and
(ii) extend the due dates for payments due on a Mortgage Note for a period
of
not greater than 180 days; provided
that,
any
extension pursuant to this clause (ii) shall not affect the amortization
schedule of any Mortgage Loan for purposes of any computation hereunder,
except
as provided below. In the event of any such arrangement pursuant to clause
(ii) above, the Servicer or the Master Servicer pursuant to Section
5.04(a) shall make timely Advances on such Mortgage Loan during such
extension and in accordance with the amortization schedule of such Mortgage
Loan without modification thereof by reason of such arrangements, provided,
that, subject to Section 5.04(a) the Master Servicer shall not be
required to make any such Advances that, in its reasonable judgement, would
not
be recoverable Advances. Notwithstanding the foregoing, in the event that
any Mortgage Loan is in default or, in the judgment of the Servicer pursuant
to
the terms of the Servicing Agreement, such default is reasonably foreseeable,
the Master Servicer, consistent with the standards set forth in this Section
9.04(b), may permit the Servicer to waive, modify or vary any term of such
Mortgage Loan (including modifications that would change the Mortgage Rate,
forgive the payment of principal or interest or extend the final maturity
date
of such Mortgage Loan, accept payment from the related Mortgagor of an amount
less than the Scheduled Principal Balance in final satisfaction of such Mortgage
Loan (such payment, a “Short Pay-off”) or consent to the postponement of strict
compliance with any such term or otherwise grant indulgence to any Mortgagor;
provided
that,
in the
judgment of the Servicer pursuant to the terms of the Servicing Agreement,
any
such modification, waiver or amendment could reasonably be expected to result
in
collections and other recoveries in respect of such Mortgage Loans in excess
of
Net Liquidation Proceeds that would be recovered upon the foreclosure of,
or
other realization upon, such Mortgage Loan and provided
further,
that
the NIMS Insurer’s prior written consent shall be required pursuant to the terms
of the Servicing Agreement, for any modification of a Mortgage Loan (excluding
for this purpose any waiver or amendment of a Mortgage Loan made pursuant
to this Servicing Agreement) if the aggregate number of outstanding Mortgage
Loans which have been modified by the Servicer and have been reported
to the Credit Risk Manager exceeds 5% of the number of Mortgage Loans
as of the Cut-off Date. Notwithstanding anything to the contrary in this
Agreement, the Master Servicer shall not knowingly waive a Prepayment Charge
due
on any Mortgage Loan, unless: (i) such Mortgage Loan is in default or default
by
the related Mortgagor is, in the reasonable judgment of the Master Servicer
or
the Servicer, reasonably foreseeable, and such waiver would maximize
recovery of total proceeds taking into account the value of such Prepayment
Charge and the related Mortgage Loan or (ii) if the prepayment is not the
result
of a refinancing of the Mortgage Loan by the Servicer or any of its affiliates
and (a) such waiver is standard and customary in servicing mortgage loans
similar to the Mortgage Loans, and such waiver would maximize recovery of
total
proceeds taking into account the value of such Prepayment Charge and the
related
Mortgage Loan, (b) the collection of the Prepayment Charge would be in violation
of applicable law, (c) the collection of such Prepayment Charge would be
considered “predatory” pursuant to written guidance published or issued by any
applicable federal, state or local regulatory authority acting in its official
capacity and having jurisdiction over such matters or (d) such
modification, waiver or amendment would not result in an Adverse REMIC Event.
161
(c) As
an
alternative to permitting a modification or effectuating a foreclosure or
other
conversion of the ownership of a Mortgaged Property, the Master Servicer
may, at
its option, purchase any Mortgage Loan that has become one hundred and twenty
(120) days or more delinquent in payment (including, for the avoidance of
doubt,
any Mortgage Loan with respect to which the related borrower is in Bankruptcy);
provided,
however,
that
(i) the Master Servicer promptly notifies the Servicer of its intention to
purchase any such delinquent Mortgage Loan prior to its purchase and (ii)
the
Master Servicer shall exercise any such option to purchase a Mortgage Loan
within sixty (60) days after any such Mortgage Loan has become one hundred
and
twenty (120) days delinquent. The price at which the Master Servicer shall
purchase any such delinquent Mortgage Loan shall equal the Purchase Price
and
such amount shall be deposited into the Collection Account on the date of
purchase pursuant to Section 4.01(d)(viii). Upon receipt by the Trustee of
a
written certification from the Master Servicer that the Master Servicer has
exercised such option and deposited the full amount of the Purchase Price
of the
related Mortgage Loan in the Collection Account and delivery of a Request
for
Release of Documents (on the form attached hereto as Exhibit C or in the
form
attached to the Custodial Agreement), the Custodian shall release the related
Mortgage File to or upon the order of the Master Servicer, and at the written
request of the Master Servicer the Trustee shall execute and deliver such
instruments of transfer or assignment, in each case without recourse,
representation or warranty, as shall be necessary to vest title to such Mortgage
Loan in the Master Servicer or its designee, which instruments shall be prepared
by the Master Servicer.
162
Section
9.05. Enforcement
of Servicer’s and Master Servicer’s Obligations.
(a) The
Servicing Agreement requires the Servicer to service the Mortgage Loans in
accordance with the provisions thereof. References in this Agreement to actions
taken or to be taken by the Master Servicer include actions taken or to be
taken
by the Servicer on behalf of the Master Servicer. Any fees and other amounts
payable to the Servicer shall be deducted from amounts remitted to the Master
Servicer by the Servicer (to the extent permitted by the Servicing Agreement)
and shall not be an obligation of the Trust Fund, the Trustee or the Master
Servicer.
(b) The
Master Servicer shall not be required to (i) take any action with respect
to the
servicing of any Mortgage Loan that the Servicer is not required to take
under
the Servicing Agreement and (ii) cause the Servicer to take any action or
refrain from taking any action if the Servicing Agreement does not require
the
Servicer to take such action or refrain from taking such action; in both
cases
notwithstanding any provision of this Agreement that requires the Master
Servicer to take such action or cause the Servicer to take such
action.
(c) The
Master Servicer, for the benefit of the Trustee, any NIMS Insurer and the
Certificateholders, shall enforce the obligations of the Servicer under the
Servicing Agreement, and shall, in the event that the Servicer fails to perform
its obligations in accordance therewith, terminate the rights and obligations
of
the Servicer thereunder (with the prior consent of the NIMS Insurer) and
either
act as servicer of the related Mortgage Loans or cause the other parties
hereto
to enter into a Servicing Agreement (and such parties hereby agree to execute
and deliver any such successor Servicing Agreement), with a successor Servicer
acceptable to the NIMS Insurer. Such enforcement, including, without limitation,
the legal prosecution of claims, termination of the Servicing Agreement and
the
pursuit of other appropriate remedies, shall be in such form and carried
out to
such an extent and at such time as the Master Servicer, in its good faith
business judgment, would require were it the owner of the related Mortgage
Loans. The Master Servicer shall pay the costs of such enforcement at its
own
expense, and shall be reimbursed therefor initially (i) from a general recovery
resulting from such enforcement only to the extent, if any, that such recovery
exceeds all amounts due in respect of the related Mortgage Loans, (ii) from
a
specific recovery of costs, expenses or attorneys’ fees against the party
against whom such enforcement is directed, and then, (iii) to the extent
that
such amounts are insufficient to reimburse the Master Servicer for the costs
of
such enforcement, from the Collection Account.
163
(d) The
Master Servicer shall be entitled to conclusively rely on any certifications
or
other information provided by the Servicer under the terms of the Servicing
Agreement or relating to Section 9.04(b) of this Agreement, in its preparation
of any certifications, filings or reports, in accordance with the terms hereof
or as may be required by applicable law or regulation.
Section
9.06. Collection
of Taxes, Assessments and Similar Items.
(a) To
the
extent provided in the Servicing Agreement, the Master Servicer shall cause
the
Servicer to establish and maintain one or more custodial accounts at a
depository institution (which may be a depository institution with which
the
Master Servicer or the Servicer establishes accounts in the ordinary course
of
its servicing activities), the accounts of which are insured to the maximum
extent permitted by the FDIC (each, an “Escrow Account”) and to deposit therein
any collections of amounts received with respect to amounts due for taxes,
assessments, water rates, standard hazard insurance policy premiums, Payaheads,
if applicable, or any comparable items for the account of the Mortgagors.
Withdrawals from any Escrow Account may be made (to the extent amounts have
been
escrowed for such purpose) only in accordance with the Servicing Agreement.
The
Servicer shall be entitled to all investment income not required to be paid
to
Mortgagors on any Escrow Account maintained by the Servicer. The Master Servicer
shall make (or cause to be made) to the extent provided in the Servicing
Agreement advances to the extent necessary in order to effect timely payment
of
taxes, water rates, assessments, standard hazard insurance policy premiums
or
comparable items in connection with the related Mortgage Loan (to the extent
that the Mortgagor is required, but fails, to pay such items), provided that
it
or the Servicer has determined that the funds so advanced are recoverable
from
escrow payments, reimbursement pursuant to Section 4.02 or
otherwise.
(b) Costs
incurred by the Master Servicer or by the Servicer in effecting the timely
payment of taxes and assessments on the properties subject to the Mortgage
Loans
may be added to the amount owing under the related Mortgage Note where the
terms
of the Mortgage Note so permit; provided,
however,
that the
addition of any such cost shall not be taken into account for purposes of
calculating the distributions to be made to Certificateholders. Such costs,
to
the extent that they are unanticipated, extraordinary costs, and not ordinary
or
routine costs shall be recoverable as a Servicing Advance by the Master Servicer
pursuant to Section 4.02.
Section
9.07. Termination
of Servicing Agreement; Successor Servicers.
(a) The
Master Servicer shall be entitled to terminate the rights and obligations
of the
Servicer under the Servicing Agreement in accordance with the terms and
conditions of the Servicing Agreement and without any limitation by virtue
of
this Agreement other than seeking the NIMS Insurer’s consent to such
termination; provided,
however,
that in
the event of termination of the Servicing Agreement by the Master Servicer,
the
Master Servicer shall provide for the servicing of the Mortgage Loans by
a
successor Servicer to be appointed as provided in the Servicing Agreement
and
with the consent of the NIMS Insurer.
The
parties acknowledge that notwithstanding the preceding sentence, there may
be a
transition period, not to exceed 90 days, in order to effect the transfer
of
servicing to a successor Servicer. The Master Servicer shall be entitled
to be
reimbursed from the Servicer (or by the Trust Fund, if the Servicer is unable
to
fulfill its obligations hereunder) for all costs associated with the transfer
of
servicing from the predecessor servicer, including without limitation, any
costs
or expenses associated with the complete transfer of all servicing data and
the
completion, correction or manipulation of such servicing data, as may be
required by the Master Servicer to correct any errors or insufficiencies
in the
servicing data or otherwise to enable the Master Servicer to service the
Mortgage Loans properly and effectively.
164
(b) If
the
Master Servicer acts as a successor Servicer, it will not assume liability
for
the representations and warranties of the Servicer, if any, that it replaces.
The Master Servicer shall use reasonable efforts to have the successor Servicer
assume liability for the representations and warranties made by the terminated
Servicer in the Servicing Agreement, and in the event of any such assumption
by
the successor Servicer, the Trustee or the Master Servicer, as applicable,
may,
in the exercise of its business judgment, release the terminated Servicer
from
liability for such representations and warranties.
(c) If
the
Master Servicer acts as a successor Servicer, it will have the same obligations
to make Advances as the Servicer under the Servicing Agreement and to reimburse
the successor Servicer for unreimbursed Advances if required by the Servicing
Agreement but will have no obligation to make an Advance if it determines
in its
reasonable judgment that such Advance is non-recoverable. To the extent that
the
Master Servicer is unable to find a successor Servicer that is willing to
service the Mortgage Loans for the Servicing Fee because of the obligation
of
the Servicer to make Advances regardless of whether such Advance is recoverable,
the Servicing Agreement may be amended to provide that the successor Servicer
shall have no obligation to make an Advance if it determines in its reasonable
judgment that such Advance is non-recoverable and provides an Officer’s
Certificate to such effect to the Master Servicer, the Trustee and any NIMS
Insurer.
Section
9.08. Master
Servicer Liable for Enforcement.
Notwithstanding
anything contained in the Servicing Agreement to the contrary, the Master
Servicer shall remain obligated and liable to the Trustee and the
Certificateholders in accordance with the provisions of this Agreement, to
the
extent of its obligations hereunder, without diminution of such obligation
or
liability by virtue of the Servicing Agreement. The Master Servicer shall
use
commercially reasonable efforts to ensure that the Mortgage Loans are serviced
in accordance with the provisions of this Agreement and shall use commercially
reasonable efforts to enforce the provisions of the Servicing Agreement for
the
benefit of the Certificateholders and any NIMS Insurer. The Master Servicer
shall be entitled to enter into any agreement with the Servicer for
indemnification of the Master Servicer and nothing contained in this Agreement
shall be deemed to limit or modify such indemnification. Except as expressly
set
forth herein, the Master Servicer shall have no liability under this Agreement
or otherwise to any party for the acts or omissions of the Servicer in the
performance by the Servicer of its obligations under the Servicing Agreement.
The parties to this Agreement hereby agree and any third party beneficiaries
to
this Agreement shall be deemed to have agreed that, notwithstanding anything
in
this Agreement or any other agreement relating to the Mortgage Loans to the
contrary, the Master Servicer shall not be under any liability under this
Agreement or otherwise to any party for any acts or omissions of the Servicer
or
for information the Servicer has provided or has been required to provide
to the
Master Servicer relating to Section 9.04(b).
Section
9.09. No
Contractual Relationship Between the Servicer and Trustee or Depositor.
165
The
Servicing Agreement that may be entered into and any other transactions or
services relating to the Mortgage Loans involving the Servicer in its capacity
as such and not as an originator shall be deemed to be between the Servicer,
the
Seller and the Master Servicer, and the Trustee, any NIMS Insurer and the
Depositor shall not be deemed parties thereto and shall have no obligations,
duties or liabilities with respect to the Servicer except as set forth in
Section 9.10 hereof, but shall have rights thereunder as third party
beneficiaries. It is furthermore understood and agreed by the parties hereto
that the obligations of the Servicer are set forth in their entirety in the
Servicing Agreement and the Servicer has no obligations under and is not
otherwise bound by the terms of this Agreement.
Section
9.10. Assumption
of Servicing Agreement by Securities Administrator.
(a) In
the
event the Master Servicer shall for any reason no longer be the Master Servicer
(including by reason of any Event of Default under this Agreement), after
a
period not to exceed ninety days after the Securities Administrator receives
written notice from the Trustee pursuant to Section 6.14 or Section 9.28,
as
applicable, the Securities Administrator shall thereupon assume all of the
rights and obligations of such Master Servicer hereunder and under the Servicing
Agreement entered into with respect to the Mortgage Loans. The Securities
Administrator, its designee or any successor master servicer appointed by
the
Securities Administrator shall be deemed to have assumed all of the Master
Servicer’s interest herein and therein to the same extent as if the Servicing
Agreement had been assigned to the assuming party, except that the Master
Servicer shall not thereby be relieved of any liability or obligations of
the
Master Servicer under the Servicing Agreement accruing prior to its replacement
as Master Servicer, and shall be liable to the Securities Administrator and
any
NIMS Insurer, and hereby agrees to indemnify and hold harmless the Securities
Administrator and any NIMS Insurer from and against all costs, damages, expenses
and liabilities (including reasonable attorneys’ fees) incurred by the
Securities Administrator or any NIMS Insurer as a result of such liability
or
obligations of the Master Servicer and in connection with the Securities
Administrator’s assumption (but not its performance, except to the extent that
costs or liability of the Securities Administrator are created or increased
as a
result of negligent or wrongful acts or omissions of the Master Servicer
prior
to its replacement as Master Servicer) of the Master Servicer’s obligations,
duties or responsibilities thereunder.
(b) The
Master Servicer that has been terminated shall, upon request of the Securities
Administrator but at the expense of such Master Servicer, deliver to the
assuming party all documents and records relating to the Servicing Agreement
and
the related Mortgage Loans and an accounting of amounts collected and held
by it
and otherwise use its best efforts to effect the orderly and efficient transfer
of the Servicing Agreement to the assuming party.
Section
9.11. Due-on-Sale
Clauses; Assumption Agreements.
To
the
extent provided in the Servicing Agreement, to the extent Mortgage Loans
contain
enforceable due-on-sale clauses, the Master Servicer shall cause the Servicer
to
enforce such clauses in accordance with the 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 Servicing Agreement, and, as
a
consequence, a Mortgage Loan is assumed, the original Mortgagor may be released
from liability in accordance with the Servicing Agreement.
166
Section
9.12. Release
of Mortgage Files.
(a) Upon
(i)
becoming aware of the payment in full of any Mortgage Loan or (ii) the receipt
by the Master Servicer of a notification that payment in full has been or
will
be escrowed in a manner customary for such purposes, the Master Servicer
shall,
or shall cause the Servicer to, promptly notify the Trustee (or the Custodian)
and the Securities Administrator by a certification (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 Collection Account
maintained by the Master Servicer pursuant to Section 4.01 have been or will
be
so deposited) of a Servicing Officer and shall request (on the form attached
hereto as Exhibit C or on the form attached to the Custodial Agreement) the
Trustee or the Custodian, to deliver to the Servicer the related Mortgage
File.
Upon receipt of such certification and request, the Trustee or the Custodian
(with the consent, and at the direction of the Trustee), shall promptly release
the related Mortgage File to the Servicer and neither the Trustee nor the
Custodian shall have any further responsibility with regard to such Mortgage
File. Upon any such payment in full, the Master Servicer is authorized, and
the
Servicer, to the extent such authority is provided for under the Servicing
Agreement, is authorized, to give, as agent for the Trustee, as the mortgagee
under the Mortgage that secured the Mortgage Loan, an instrument of satisfaction
(or assignment of mortgage without recourse) regarding the Mortgaged Property
subject to the Mortgage, which instrument of satisfaction or assignment,
as the
case may be, shall be delivered to the Person or Persons entitled thereto
against receipt therefor of such payment, it being understood and agreed
that no
expenses incurred in connection with such instrument of satisfaction or
assignment, as the case may be, shall be chargeable to the Collection
Account.
(b) From
time
to time and as appropriate for the servicing or foreclosure of any Mortgage
Loan
and in accordance with Accepted Servicing Practices and the Servicing Agreement,
the Trustee shall execute such documents as shall be prepared and furnished
to
the Trustee by the Master Servicer, or by the Servicer (in form reasonably
acceptable to the Trustee) and as are necessary to the prosecution of any
such
proceedings. The Trustee or the Custodian, shall, upon request of the Master
Servicer, or of the Servicer, and delivery to the Trustee or the Custodian,
of a
request for release of documents and a receipt signed by a Servicing Officer
substantially in the form of Exhibit C, release the related Mortgage File
held
in its possession or control to the Master Servicer (or the Servicer). Such
receipt shall obligate the Master Servicer or Servicer to return the Mortgage
File to the Trustee or the Custodian, as applicable, when the need therefor
by
the Master Servicer or 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 receipt shall be released
by
the Trustee or the Custodian, as applicable, to the Master Servicer (or the
Servicer).
Section
9.13. Documents,
Records and Funds in Possession of Master Servicer to be Held for Trustee.
(a) The
Master Servicer shall transmit, or cause the Servicer to transmit, to the
Trustee such documents and instruments coming into the possession of the
Master
Servicer or the Servicer from time to time as are required by the terms hereof
or of the Servicing Agreement to be delivered to the Trustee or the Custodian.
Any funds received by the Master Servicer or by the Servicer in respect of
any
Mortgage Loan or which otherwise are collected by the Master Servicer or
the
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 Collection Account the Master Servicing Fee and other amounts provided
in this Agreement and to the right of the Servicer to retain its Servicing
Fee
and other amounts as provided in the Servicing Agreement. The Master Servicer
shall, and shall (to the extent provided in the Servicing Agreement) cause
the
Servicer to, provide access to information and documentation regarding the
Mortgage Loans to the Trustee, any NIMS Insurer, their respective agents
and
accountants at any time upon reasonable request and during normal business
hours, and to Certificateholders that are savings and loan associations,
banks
or insurance companies, the Office of Thrift Supervision, the FDIC and the
supervisory agents and examiners of such Office and Corporation or examiners
of
any other federal or state banking or insurance regulatory authority if so
required by applicable regulations of the Office of Thrift Supervision or
other
regulatory authority, such access to be afforded without charge but only
upon
reasonable request in writing and during normal business hours at the offices
of
the Master Servicer designated by it. In fulfilling such a request the Master
Servicer shall not be responsible for determining the sufficiency of such
information.
167
(b) All
Mortgage Files and funds collected or held by, or under the control of, the
Master Servicer, or the 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, or by the 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 the 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 the Servicer under this Agreement or the Servicing Agreement
and
shall be authorized to remit such funds to the Securities Administrator in
accordance with this Agreement.
(c) The
Master Servicer hereby acknowledges that concurrently with the execution
of this
Agreement, the Trustee shall own or, to the extent that a court of competent
jurisdiction shall deem the conveyance of the Mortgage Loans from the Seller
to
the Depositor not to constitute a sale, the Trustee shall have a security
interest in the Mortgage Loans and in all Mortgage Files representing such
Mortgage Loans and in all funds and investment property now or hereafter
held
by, or under the control of, the Servicer or the Master Servicer that are
collected by the Servicer or the Master Servicer in connection with the Mortgage
Loans, whether as scheduled installments of principal and interest or as
full or
partial prepayments of principal or interest or as Liquidation Proceeds or
Insurance Proceeds or otherwise, and in all proceeds of the foregoing and
proceeds of proceeds (but excluding any fee or other amounts to which the
Servicer is entitled under the Servicing Agreement, or the Master Servicer
or
the Depositor is entitled to hereunder); and the Master Servicer agrees that
so
long as the Mortgage Loans are assigned to and held by the Trustee or the
Custodian, all documents or instruments constituting part of the Mortgage
Files,
and such funds relating to the Mortgage Loans which come into the possession
or
custody of, or which are subject to the control of, the Master Servicer or
the
Servicer shall be held by the Master Servicer or the Servicer for and on
behalf
of the Trustee as the Trustee’s agent and bailee for purposes of perfecting the
Trustee’s security interest therein as provided by the applicable Uniform
Commercial Code or other applicable laws.
168
(d) The
Master Servicer agrees that it shall not, and shall not authorize the Servicer
to, create, incur or subject any Mortgage Loans, or any funds that are deposited
in any Custodial Account, Escrow Account or the Collection Account, or any
funds
that otherwise are or may become due or payable to the Trustee, to any claim,
lien, security interest, judgment, levy, writ of attachment or other
encumbrance, nor assert by legal action or otherwise any claim or right of
setoff against any Mortgage Loan or any funds collected on, or in connection
with, a Mortgage Loan.
Section
9.14. Representations
and Warranties of the Master Servicer.
(a) The
Master Servicer hereby represents and warrants to the Depositor, any NIMS
Insurer, the Securities Administrator and the Trustee, for the benefit of
the
Certificateholders, as of the Closing Date that:
(i) it
is
validly existing and in good standing under the laws of the state of its
formation, and as Master Servicer has full power and authority to transact
any
and all business contemplated by this Agreement and to execute, deliver and
comply with its obligations under the terms of this Agreement, the execution,
delivery and performance of which have been duly authorized by all necessary
company action on the part of the Master Servicer;
(ii) the
execution and delivery of this Agreement by the Master Servicer and its
performance and compliance with the terms of this Agreement will not (A)
violate
the Master Servicer’s certificate of formation or limited liability company
agreement, (B) violate any law or regulation or any administrative decree
or
order to which it is subject or (C) constitute a default (or an event which,
with notice or lapse of time, or both, would constitute a default) under,
or
result in the breach of, any material contract, agreement or other instrument
to
which the Master Servicer is a party or by which it is bound or to which
any of
its assets are subject, which violation, default or breach would materially
and
adversely affect the Master Servicer’s ability to perform its obligations under
this Agreement;
(iii) this
Agreement constitutes, assuming due authorization, execution and delivery
hereof
by the other respective parties hereto, a legal, valid and binding obligation
of
the Master Servicer, enforceable against it in accordance with the terms
hereof,
except as such enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium and other laws affecting the enforcement of
creditors’ rights in general, and by general equity principles (regardless of
whether such enforcement is considered in a proceeding in equity or at
law);
(iv) the
Master Servicer is not in default with respect to any order or decree of
any
court or any order or regulation of any federal, state, municipal or
governmental agency to the extent that any such default would materially
and
adversely affect its performance hereunder;
(v) the
Master Servicer is not a party to or bound by any agreement or instrument
or
subject to any certificate of formation or limited liability company agreement
provision or any other company restriction or any judgment, order, writ,
injunction, decree, law or regulation that may materially and adversely affect
its ability as Master Servicer to perform its obligations under this Agreement
or that requires the consent of any third person to the execution of this
Agreement or the performance by the Master Servicer of its obligations under
this Agreement;
169
(vi) no
litigation is pending or, to the best of the Master Servicer’s knowledge,
threatened against the Master Servicer which would prohibit its entering
into
this Agreement or performing its obligations under this Agreement;
(vii) the
Master Servicer, or an affiliate thereof the primary business of which is
the
servicing of conventional residential mortgage loans, is a Xxxxxx Xxx- or
Xxxxxxx Mac-approved seller/servicer;
(viii) no
consent, approval, authorization or order of any court or governmental agency
or
body is required for the execution, delivery and performance by the Master
Servicer of or compliance by the Master Servicer with this Agreement or the
consummation of the transactions contemplated by this Agreement, except for
such
consents, approvals, authorizations and orders (if any) as have been
obtained;
(ix) the
consummation of the transactions contemplated by this Agreement are in the
ordinary course of business of the Master Servicer;
(x) the
Master Servicer has obtained an Errors and Omissions Insurance Policy and
a
Fidelity Bond in accordance with Section 9.02 each of which is in full force
and
effect, and each of which provides at least such coverage as is required
hereunder; and
(xi) the
information about the Master Servicer under the heading “The Master Servicer” in
the Offering Documents relating to the Master Servicer does not include an
untrue statement of a material fact and does not omit to state a material
fact,
with respect to the statements made, necessary in order to make the statements
in light of the circumstances under which they were made not
misleading.
(b) It
is
understood and agreed that the representations and warranties set forth in
this
Section 9.14 shall survive the execution and delivery of this Agreement.
The
Master Servicer shall indemnify the Depositor, the Securities Administrator,
the
Trustee and any NIMS Insurer and hold them harmless against any loss, damages,
penalties, fines, forfeitures, legal fees and related costs, judgments, and
other costs and expenses resulting from any claim, demand, defense or assertion
based on or grounded upon, or resulting from, a breach of the Master Servicer’s
representations and warranties contained in Section 9.14(a). It is understood
and agreed that the enforcement of the obligation of the Master Servicer
set
forth in this Section to indemnify the Depositor, the Trustee, the Securities
Administrator and any NIMS Insurer as provided in this Section constitutes
the
sole remedy (other than as set forth in Section 6.14) of the Depositor, the
Trustee, the Securities Administrator and any NIMS Insurer, respecting a
breach
of the foregoing representations and warranties. Such indemnification shall
survive any termination of the Master Servicer as Master Servicer hereunder,
and
any termination of this Agreement.
170
Any
cause
of action against the Master Servicer relating to or arising out of the breach
of any representations and warranties made in this Section shall accrue upon
discovery of such breach by any of the Depositor, the Master Servicer, the
Trustee or any NIMS Insurer or notice thereof by any one of such parties
to the
other parties.
(c) It
is
understood and agreed that the representations and warranties of the Depositor
set forth in Sections 2.03(a)(i) through (vi) shall survive the execution
and
delivery of this Agreement. The Depositor shall indemnify the Master Servicer
and hold each harmless against any loss, damages, penalties, fines, forfeitures,
legal fees and related costs, judgments, and other costs and expenses resulting
from any claim, demand, defense or assertion based on or grounded upon, or
resulting from, a breach of the Depositor’s representations and warranties
contained in Sections 2.03(a)(i) through (vi) hereof. It is understood and
agreed that the enforcement of the obligation of the Depositor set forth
in this
Section to indemnify the Master Servicer as provided in this Section constitutes
the sole remedy hereunder of the Master Servicer respecting a breach by the
Depositor of the representations and warranties in Sections 2.03(a)(i) through
(vi) hereof.
(d) Any
cause
of action against the Master Servicer relating to or arising out of the breach
of any representations and warranties made in this Section shall accrue upon
discovery of such breach by either the Depositor, the Master Servicer, the
Trustee or any NIMS Insurer or notice thereof by any one of such parties
to the
other parties. Notwithstanding anything in this Agreement to the contrary,
the
Master Servicer shall not be liable for special, indirect or consequential
losses or damages of any kind whatsoever (including, but not limited to,
lost
profits); provided,
however,
that
this Subsection 9.14(d) shall not apply in connection with any failure by
the
Master Servicer to comply with the provisions of Sections 9.25 and 9.26
hereof.
Section
9.15. Opinion.
On
or
before the Closing Date, the Master Servicer shall cause to be delivered
to the
Depositor, the Seller, the Trustee, the Swap Counterparty and any NIMS Insurer
one or more Opinions of Counsel, dated the Closing Date, in form and substance
reasonably satisfactory to the Depositor and Xxxxxx Brothers Inc., as to
the due
authorization, execution and delivery of this Agreement by the Master Servicer
and the enforceability thereof.
Section
9.16. Standard
Hazard and Flood Insurance Policies.
For
each
Mortgage Loan (other than a Cooperative Loan), the Master Servicer shall
maintain, or cause to be maintained by the Servicer, standard fire and casualty
insurance and, where applicable, flood insurance, all in accordance with
the
provisions of this Agreement and the Servicing Agreement, as applicable.
It is
understood and agreed that such insurance shall be with insurers meeting
the
eligibility requirements set forth in the 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.
171
Pursuant
to Section 4.01, any amounts collected by the Master Servicer, or by the
Servicer, under any insurance policies maintained pursuant to this Section
9.16
or the Servicing Agreement (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 Servicing Agreement) shall be deposited
into
the Collection Account, subject to withdrawal pursuant to Section 4.02. Any
cost
incurred by the Master Servicer or the 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 the Servicer pursuant to Section
4.02.
Section
9.17. Presentment
of Claims and Collection of Proceeds.
The
Master Servicer shall cause the Servicer (to the extent provided in the
Servicing Agreement) to, prepare and present on behalf of the Trustee and
the
Certificateholders all claims under the Insurance Policies with respect to
the
Mortgage Loans, and take such actions (including the negotiation, settlement,
compromise or enforcement of the insured’s claim) as shall be necessary to
realize recovery under such policies. Any proceeds disbursed to the Master
Servicer (or disbursed to the Servicer and remitted to the Master Servicer)
in
respect of such policies or bonds shall be promptly deposited in the Collection
Account or the Custodial 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 requisite 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
9.18. Maintenance
of the Primary Mortgage Insurance Policies.
(a) The
Master Servicer shall cause Xxxxx Fargo Bank, N.A. to remit insurance premiums
relating to existing lender-paid Primary Mortgage Insurance Policies acquired
by
Xxxxx Fargo Bank, N.A. prior to the Closing Date. The Master Servicer shall
not
take, or knowingly permit the Servicer (consistent with the 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 the Servicer, would have been covered thereunder. The
Master
Servicer shall not, and shall not knowingly permit the Servicer to, cancel
or
refuse to renew any such Primary Mortgage Insurance Policy that is in effect
at
the date of the initial issuance of the Certificates and is required to be
kept
in force hereunder except in accordance with the provisions of this Agreement
and the Servicing Agreement, as applicable.
(b) The
Master Servicer agrees, to the extent provided in the Servicing Agreement,
to
cause the Servicer to present, on behalf of the Trustee and the
Certificateholders, claims to the insurer under any Primary Mortgage Insurance
Policies and, in this regard, to take such reasonable action as shall be
necessary to permit recovery under any Primary Mortgage Insurance Policies
respecting defaulted Mortgage Loans. Pursuant to Section 4.01, any amounts
collected by the Master Servicer or the Servicer under any Primary Mortgage
Insurance Policies shall be deposited in the Collection Account, subject
to
withdrawal pursuant to Section 4.02.
172
Section
9.19. Trustee
To Retain Possession of Certain Insurance Policies and Documents.
The
Trustee (or the Custodian on behalf of the Trustee) shall retain possession
and
custody of the originals of the Primary Mortgage Insurance Policies or
certificate of insurance if applicable and any certificates of renewal as
to the
foregoing as may be issued from time to time as contemplated by this Agreement.
Until all amounts distributable in respect of the Certificates have been
distributed in full and the Master Servicer otherwise has fulfilled its
obligations under this Agreement, the Trustee (or the 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 the Servicer to deliver to the Trustee (or the
Custodian), upon the execution or receipt thereof the originals of the Primary
Mortgage Insurance Policies and any certificates of renewal thereof, and
such
other documents or instruments that constitute portions of the Mortgage File
that come into the possession of the Master Servicer or the Servicer from
time
to time.
Section
9.20. [Reserved]
Section
9.21. Compensation
to the Master Servicer.
The
Master Servicer shall be entitled to withdraw from the Collection Account,
subject to Section 5.05, the Master Servicing Fee to the extent permitted
by
Section 4.02. Servicing compensation in the form of assumption fees, if any,
late payment charges, as collected, if any, or otherwise (but not including
any
Prepayment Charges) shall be retained by the Master Servicer (or the Servicer)
and shall not be deposited in the Collection Account. If the Master Servicer
does not retain or withdraw the Master Servicing Fee from the Collection
Account
as provided herein, the Master Servicer shall be entitled to direct the Trustee
to pay the Master Servicing Fee to such Master Servicer by withdrawal from
the
Certificate Account to the extent that payments have been received with respect
to the applicable Mortgage Loan. The Master Servicer shall be required to
pay
all expenses incurred by it in connection with its activities hereunder and
shall not be entitled to reimbursement therefor except as provided in this
Agreement. Pursuant to Sections 4.01(e) and 4.04(c), all income and gain
realized from any investment of funds in the Collection Account and Certificate
Account shall be for the benefit of the Master Servicer as additional
compensation. The provisions of this Section 9.21 are subject to the provisions
of Section 6.14.
Section
9.22. REO
Property.
(a) In
the
event the Trust Fund acquires ownership of any REO Property in respect of
any
Mortgage Loan, the deed or certificate of sale shall be issued to the Trustee,
or to its nominee, on behalf of the Certificateholders. The Master Servicer
shall use its reasonable best efforts to sell, or cause the Servicer, to
the
extent provided in the Servicing Agreement any REO Property as expeditiously
as
possible and in accordance with the provisions of this Agreement and the
Servicing Agreement, as applicable, but in all events within the time period,
and subject to the conditions set forth in Article X hereof. Pursuant to
its
efforts to sell such REO Property, the Master Servicer shall protect and
conserve, or cause the Servicer to protect and conserve, such REO Property
in
the manner and to such extent required by the Servicing Agreement, subject
to
Article X hereof.
173
(b) The
Master Servicer shall deposit or cause to be deposited all funds collected
and
received by it, or recovered from the Servicer, in connection with the operation
of any REO Property in the Collection Account.
(c) The
Master Servicer and the Servicer, upon the final disposition of any REO
Property, shall be entitled to reimbursement for any related unreimbursed
Advances and other unreimbursed advances as well as any unpaid Master Servicing
Fees or Servicing Fees from Liquidation Proceeds received in connection with
the
final disposition of such REO Property; provided,
that
(without
limitation of any other right of reimbursement that the Master Servicer or
the
Servicer shall have hereunder) any such unreimbursed Advances as well as
any
unpaid Net Master Servicing Fees or Servicing Fees may be reimbursed or paid,
as
the case may be, prior to final disposition, out of any net rental income
or
other net amounts derived from such REO Property.
(d) The
Liquidation Proceeds from the final disposition of the REO Property, net
of any
payment to the Master Servicer and the Servicer as provided above, shall
be
deposited in the Collection Account on or prior to the Determination Date
in the
month following receipt thereof and be remitted by wire transfer in immediately
available funds on the next succeeding Master Servicer Remittance Date to
the
Securities Administrator for
deposit into the Securities Administration Account.
Section
9.23. Notices
to the Depositor and the Securities Administrator
(a) The
Master Servicer shall promptly notify the Securities Administrator and the
Depositor (i) of any legal proceedings pending against the Master Servicer
of
the type described in Item 1117 (§ 229.1117) of Regulation AB and (ii) if the
Master Servicer shall become (but only to the extent not previously disclosed
to
the Master Servicer and the Depositor) at any time an affiliate of any of
the
parties listed on Exhibit V to this Agreement. On or before March 1st
of each
year, the Depositor shall distribute the information in Exhibit V to the
Master
Servicer.
(b) Not
later
than four Business Days prior to the Distribution Date of each month, the
Master
Servicer shall provide to the Securities Administrator, the Sponsor, any
NIMS
Insurer and the Depositor notice of the occurrence of any material
modifications, extensions or waivers of terms, fees, penalties or payments
relating to the Mortgage Loans during the related Collection Period or that
have
cumulatively become material over time (Item 1121(a)(11) of Regulation AB)
along
with all information, data, and materials related thereto as may be required
to
be included in the related Distribution Report on Form 10-D. The parties
to this
Agreement acknowledge that the performance by the Master Servicer of its
duties
under this Section 9.23(b) related to the timely preparation and delivery
of
such information is contingent upon the Servicer strictly observing all
requirements and deadlines in the performance of their duties under the
Servicing Agreement. The Master Servicer shall have no liability for any
loss,
expense, damage or claim arising out of or with respect to any failure to
properly prepare and/or timely deliver all such information where such failure
results from the Master Servicer’s inability or failure to obtain or receive, on
a timely basis, any information from the Servicer needed to prepare or deliver
such information, which failure does not result from the Master Servicer’s own
negligence, bad faith or willful misconduct.
174
Section
9.24. Reports
to the Trustee.
(a) Not
later
than 30 days after each Distribution Date, the Master Servicer shall, upon
request, forward to the Trustee, the Securities Administrator and any NIMS
Insurer a statement, deemed to have been certified by a Servicing Officer,
setting forth the status of the Collection Account maintained by the Master
Servicer as of the close of business on the related Distribution Date,
indicating that all distributions required by this Agreement to be made by
the
Master Servicer have been made (or if any required distribution has not been
made by the Master Servicer, specifying the nature and status thereof) and
showing, for the period covered by such statement, the aggregate of deposits
into and withdrawals from the Collection Account maintained by the Master
Servicer. Copies of such statement shall be provided by the Master Servicer,
upon request, to the Depositor, Attention: Contract Finance, any NIMS Insurer
and any Certificateholders (or by the Trustee at the Master Servicer’s expense
if the Master Servicer shall fail to provide such copies to the
Certificateholders (unless (i) the Master Servicer shall have failed to provide
the Trustee with such statement or (ii) the Trustee shall be unaware of the
Master Servicer’s failure to provide such statement)).
(b) Not
later
than two Business Days following each Distribution Date, the Master Servicer
shall deliver to one Person designated by the Depositor [[(and upon request
from
the NIMS Insurer, the Depositor shall forward a copy to the NIMS Insurer)]],
in
a format consistent with other electronic loan level reporting supplied by
the
Master Servicer in connection with similar transactions, “loan level”
information with respect to the Mortgage Loans as of the related Determination
Date, to the extent that such information has been provided to the Master
Servicer by the Servicer or by the Depositor.
(c) All
information, reports and statements prepared by the Master Servicer under
this
Agreement shall be based on information supplied to the Master Servicer by
the
Servicer without independent verification thereof and the Master Servicer
shall
be entitled to rely on such information.
Section
9.25. Assessment
of Compliance and Attestation Reports.
(a) Assessment
of Compliance
(i) By
March
15 of each year, commencing in March 2008, the Master Servicer, the Credit
Risk
Manager, the Paying Agent and the Securities Administrator, each at its own
expense, shall furnish, and each such party shall cause any Servicing Function
Participant engaged by it to furnish, each at its own expense, to the Sponsor,
the Depositor, the Master Servicer, any NIMS Insurer and the Securities
Administrator, a report on an assessment of compliance with the Relevant
Servicing Criteria that contains (A) a statement by such party of its
responsibility for assessing compliance with the Relevant Servicing Criteria,
(B) a statement that such party used the Servicing Criteria to assess compliance
with the Relevant Servicing Criteria, (C) such party’s assessment of compliance
with the Relevant Servicing Criteria as of and for the fiscal year covered
by
the Form 10-K required to be filed pursuant to Section 6.20(e), including,
if
there has been any material instance of noncompliance with the Relevant
Servicing Criteria, a discussion of each such failure and the nature and
status
thereof, and (D) a statement that a registered public accounting firm has
issued
an attestation report on such party’s assessment of compliance with the Relevant
Servicing Criteria as of and for such period.
175
(ii) When
the
Master Servicer, the Credit Risk Manager, the Paying Agent and the Securities
Administrator (or any Servicing Function Participant engaged by such party)
submit their assessments to the Securities Administrator, such parties will
also
at such time include the assessment (and attestation pursuant to subsection
(b)
of this Section 9.25) of each Servicing Function Participant engaged by it
and
shall indicate to the Securities Administrator what Relevant Servicing Criteria
will be addressed in any such reports prepared by any such Servicing Function
Participant.
(iii) Promptly
after receipt of each report on assessment of compliance, the Securities
Administrator shall confirm that the assessments, taken as a whole, address
all
applicable Servicing Criteria and taken individually address the Relevant
Servicing Criteria (and disclose the inapplicability of the Servicing Criteria
not determined to be Relevant Criteria) for each party as set forth on Exhibit
S
and on any similar exhibit set forth in the Servicing Agreement in respect
of
the Servicer, and the Custodial Agreement in respect of the Custodian, and
shall
notify the Depositor of any exceptions.
(b) Attestation
Reports
(i) By
March
15 of each year, commencing in March 2008, the Master Servicer, the Credit
Risk
Manager, the Paying Agent and the Securities Administrator, each at its own
expense, shall cause, and each such party shall cause any Servicing Function
Participant engaged by it to cause, each at its own expense, a registered
public
accounting firm (which may also render other services to the Master Servicer,
the Credit Risk Manager, the Paying Agent and the Securities Administrator,
as
the case may be) that is a member of the American Institute of Certified
Public
Accountants to furnish a report to the Sponsor, the Depositor, the Master
Servicer, the Securities Administrator and any NIMS Insurer, to the effect
that
(A) it has obtained a representation regarding certain matters from the
management of such party, which includes an assertion that such party has
complied with the Relevant Servicing Criteria, and (B) on the basis of an
examination conducted by such firm in accordance with standards for attestation
engagements issued or adopted by the PCAOB, it is expressing an opinion as
to
whether such party’s compliance with the Relevant Servicing Criteria was fairly
stated in all material respects, or it cannot express an overall opinion
regarding such party’s assessment of compliance with the Relevant Servicing
Criteria. In the event that an overall opinion cannot be expressed, such
registered public accounting firm shall state in such report why it was unable
to express such an opinion. Such report must be available for general use
and
not contain restricted use language.
(ii) Promptly
after receipt of such report from the Master Servicer, the Credit Risk Manager,
the Paying Agent, the Securities Administrator or any Servicing Function
Participant engaged by such parties, the Securities Administrator shall confirm
that each assessment submitted pursuant subsection (a) of this Section 9.25
is
coupled with an attestation meeting the requirements of this Section and
notify
the Depositor of any exceptions.
176
(iii) The
Paying Agent’s obligation to provide assessments of compliance and attestations
under this Section 9.25 shall terminate upon the filing of a Form 15 suspension
notice on behalf of the Trust Fund. Notwithstanding the foregoing, after
the
occurrence of such event, and provided that the Depositor is not otherwise
provided with such reports or copies of such reports, the Paying Agent shall
be
obligated to provide a copy of such reports, by March 15 of each year, to
the
Depositor.
Section
9.26. Annual
Statement of Compliance with Applicable Servicing Criteria.
The
Master Servicer shall deliver (and the Master Servicer shall cause any
Additional Servicer engaged by it to deliver) to the Sponsor, the Depositor,
the
Trustee, the Securities Administrator and any NIMS Insurer on or before March
15
of each year, commencing in March 2008, an Officer’s Certificate stating, as to
the signer thereof, that (A) a review of such party’s activities during the
preceding calendar year or portion thereof and of such party’s performance under
this Agreement, or such other applicable agreement in the case of an Additional
Servicer, has been made under such officer’s supervision and (B) to the best of
such officer’s knowledge, based on such review, such party has fulfilled all its
obligations under this Agreement, or such other applicable agreement in the
case
of an Additional Servicer, in all material respects throughout such year
or
portion thereof, or, if there has been a failure to fulfill any such obligation
in any material respect, specifying each such failure known to such officer
and
the nature and status thereof.
Section
9.27. Merger
or Consolidation.
Any
Person into which the Master Servicer may be merged or consolidated, or any
Person resulting from any merger, conversion, other change in form or
consolidation to which the Master Servicer shall be a party, or any Person
succeeding to the business of the Master Servicer, shall be the successor
to the
Master Servicer hereunder, without the execution or filing of any paper or
any
further act on the part of any of the parties hereto, anything herein to
the
contrary notwithstanding; provided,
however,
that the
successor or resulting Person to the Master Servicer shall be a Person that
shall be qualified and approved to service mortgage loans for Xxxxxx Xxx
or
Xxxxxxx Mac and shall have a net worth of not less than
$15,000,000.
Section
9.28. Resignation
of Master Servicer.
Except
as
otherwise provided in Sections 9.27 and 9.29 hereof, the Master Servicer
shall
not resign from the obligations and duties hereby imposed on it unless it
determines that the Master Servicer’s duties hereunder are no longer permissible
under applicable law or are in material conflict by reason of applicable
law
with any other activities carried on by it and cannot be cured. Any such
determination permitting the resignation of the Master Servicer shall be
evidenced by an Opinion of Counsel that shall be Independent to such effect
delivered to the Trustee and any NIMS Insurer. No such resignation shall
become
effective until the Securities Administrator shall have assumed, or a successor
master servicer acceptable to any NIMS Insurer and the Securities Administrator
shall have been appointed by the Trustee and until such successor shall have
assumed, the Master Servicer’s responsibilities and obligations under this
Agreement. Notice of such resignation shall be given promptly by the Master
Servicer and the Depositor to the Trustee, the Securities Administrator and
any
NIMS Insurer.
177
Section
9.29. Assignment
or Delegation of Duties by the Master Servicer.
(a) Except
as
expressly provided herein, the Master Servicer shall not assign or transfer
any
of its rights, benefits or privileges hereunder to any other Person, or delegate
to or subcontract with, or authorize or appoint any Subservicer, Subcontractor
or other Person to perform any of the duties, covenants or obligations to
be
performed by the Master Servicer hereunder; provided,
however,
that the
Master Servicer shall have the right without the prior written consent of
the
Trustee, any NIMS Insurer or the Depositor to delegate or assign to or
subcontract with or authorize or appoint an Affiliate of the Master Servicer
to
perform and carry out any duties, covenants or obligations to be performed
and
carried out by the Master Servicer hereunder. In no case, however, shall
any
such delegation, subcontracting or assignment to an Affiliate of the Master
Servicer relieve the Master Servicer of any liability hereunder. Notice of
such
permitted assignment, and the name of any such affiliated Subcontractor or
Subservicer shall be given promptly by the Master Servicer to the Depositor,
the
Trustee, the Securities Administrator and any NIMS Insurer. If, pursuant
to any
provision hereof, the duties of the Master Servicer are transferred to a
successor master servicer, the entire amount of the Master Servicing Fees
and
other compensation payable to the Master Servicer pursuant hereto, including
amounts payable to or permitted to be retained or withdrawn by the Master
Servicer pursuant to Section 9.21 hereof, shall thereafter be payable to
such
successor master servicer.
(b) Notwithstanding
the foregoing, for so long as reports are required to be filed with the
Commission under the Exchange Act with respect to the Trust, the Master Servicer
shall not utilize any Subcontractor for the performance of its duties hereunder
if such Subcontractor would be “participating in the servicing function” within
the meaning of Item 1122 of Regulation AB without (i) giving notice to the
Securities Administrator, the NIMS Insurer and the Depositor and (ii) requiring
any such Subcontractor to provide to the Master Servicer an attestation report
as provided for in Section 9.25 and an assessment report as provided in Section
9.26, which reports the Master Servicer shall include in its attestation
and
assessment reports.
Section
9.30. Limitation
on Liability of the Master Servicer and Others.
(a) The
Master Servicer undertakes to perform such duties and only such duties as
are
specifically set forth in this Agreement.
(b) No
provision of this Agreement shall be construed to relieve the Master Servicer
from liability for its own negligent action, its own negligent failure to
act or
its own willful misconduct; provided,
however,
that
the duties and obligations of the Master Servicer shall be determined solely
by
the express provisions of this Agreement, the Master Servicer shall not be
liable except for the performance of such duties and obligations as are
specifically set forth in this Agreement; no implied covenants or obligations
shall be read into this Agreement against the Master Servicer and, in absence
of
bad faith on the part of the Master Servicer, the Master Servicer may
conclusively rely, as to the truth of the statements and the correctness
of the
opinions expressed therein, upon any certificates or opinions furnished to
the
Master Servicer and conforming to the requirements of this
Agreement.
178
(c) None
of
the Master Servicer, the Seller or the Depositor or any of the directors,
officers, employees or agents of any of them shall be under any liability
to the
Trustee or the Certificateholders for any action taken or for refraining
from
the taking of any action in good faith pursuant to this Agreement, or for
errors
in judgment; provided,
however,
that
this provision shall not protect the Master Servicer, the Seller or the
Depositor or any such person against any liability that would otherwise be
imposed by reason of willful misfeasance, bad faith or negligence in its
performance of its duties or by reason of reckless disregard for its obligations
and duties under this Agreement. The Master Servicer and any director, officer,
employee or agent of any of them shall be entitled to indemnification by
the
Trust Fund and will be held harmless against any loss, liability or expense
incurred in connection with any legal action relating to this Agreement or
the
Certificates other than any loss, liability or expense incurred by reason
of
willful misfeasance, bad faith or negligence in the performance of its duties
hereunder or by reason of reckless disregard of his or its obligations and
duties hereunder. The Master Servicer, the Seller and the Depositor and any
director, officer, employee or agent of any of them may rely in good faith
on
any document of any kind prima facie properly executed and submitted by any
Person respecting any matters arising hereunder. The Master Servicer, the
Seller
and the Depositor shall be under no obligation to appear in, prosecute or
defend
any legal action that is not incidental to its duties to master service the
Mortgage Loans in accordance with this Agreement and that in its opinion
may
involve it in any expenses or liability; provided,
however,
that the
Master Servicer may in its sole discretion undertake any such action that
it may
deem necessary or desirable in respect to this Agreement and the rights and
duties of the parties hereto and the interests of the Certificateholders
hereunder. In such event, the legal expenses and costs of such action and
any
liability resulting therefrom shall be expenses, costs and liabilities of
the
Trust Fund and the Master Servicer shall be entitled to be reimbursed therefor
out of the Collection Account it maintains as provided by Section
4.02.
The
Master Servicer shall not be liable for any acts or omissions of the Servicer.
In particular, the Master Servicer shall not be liable for any course of
action
taken by the Servicer with respect to loss mitigation of defaulted Mortgage
Loans at the direction of the Credit Risk Manager or the Seller pursuant
to the
Credit Risk Management Agreement. Further, the Master Servicer shall not
be
liable for performance by the Servicer under the Credit Risk Management
Agreement. The
parties to this Agreement hereby agree and any third party beneficiaries
to this
Agreement,
including any NIMS Insurer, shall be deemed to have agreed that, notwithstanding
anything
in this Agreement or any other agreement relating to the Mortgage Loans to
the
contrary,
the Master Servicer shall not be under any liability under this Agreement
or
otherwise to
any NIMS Insurer for any losses, liabilities or expenses incurred in connection
with any Mortgage
Loan for which any consent or other authorization is required of the NIMS
Insurer (whether
or not granted by the NIMS Insurer) under this Agreement or the Servicing
Agreement.
Section
9.31. Indemnification;
Third-Party Claims.
The
Master Servicer agrees to indemnify the Depositor, the Sponsor, the Trustee
and
the Securities Administrator and their respective officers, directors,
agents and affiliates, and hold each of them harmless against any and all
claims, losses, penalties, fines, forfeitures, reasonable legal fees and
related
costs, judgments, and any other costs, liability, fees and expenses that
the
Depositor, the Sponsor, the Trustee or the Securities Administrator may sustain
arising out of or based upon (a) any material breach by the Master Servicer
of
any of its obligations hereunder, including particularly its obligations
to
provide any reports under Section 9.25(a), Section 9.25(b) or Section 9.26,
or
any information, data or materials required to be included in any Exchange
Act
report, (b) any material misstatement or omission in any information, data
or
materials provided by the Master Servicer, or (c) the negligence, bad faith
or
willful misconduct of the Master Servicer in connection with its performance
hereunder. The Depositor, the Sponsor, the Trustee and the Securities
Administrator shall immediately notify the Master Servicer if a claim is
made by
a third party with respect to this Agreement or the Mortgage Loans entitling
the
Depositor, the Sponsor, the Trustee or the Securities Administrator to
indemnification hereunder, whereupon the Master Servicer shall assume the
defense of any such claim and pay all expenses in connection therewith,
including counsel fees, and promptly pay, discharge and satisfy any judgment
or
decree which may be entered against it or them in respect of such claim.
This
indemnification shall survive the termination of this Agreement or the
termination of the Master Servicer as a party to this Agreement.
179
Section
9.32. Special
Servicing of Delinquent Mortgage Loans.
If
permitted under the terms of the Servicing Agreement, the Seller may appoint,
pursuant to the terms of the Servicing Agreement and with the written consent
of
the Depositor, the Master Servicer, the Trustee, the Securities Administrator
and any NIMS Insurer, a special servicer to special service any Distressed
Mortgage Loans. Any applicable termination fee related to the termination
of the
Servicer and the appointment of any special servicer shall be paid by the
Seller
from its own funds, without right of reimbursement from the Trust Fund. Any
fees
paid to any such special servicer shall not exceed the Servicing Fee
Rate.
Section
9.33. Alternative
Index.
In
the
event that the Index for any Mortgage Loan, as specified in the related Mortgage
Note, becomes unavailable for any reason, the Master Servicer shall select
an
alternative index, which in all cases shall be an index that constitutes
a
qualified rate on a regular interest under the REMIC Provisions, in accordance
with the terms of such Mortgage Note or, if such Mortgage Note does not make
provision for the selection of an alternative index in such event, the Master
Servicer shall, subject to applicable law, select an alternative index based
on
information comparable to that used in connection with the original Index
and,
in either case, such alternative index shall thereafter be the Index for
such
Mortgage Loan.
Section
9.34. Duties
of the Credit Risk Manager.
(a) The
Certificateholders, by their purchase and acceptance of the Certificates,
appoint Xxxxxxx Fixed Income Services Inc., as Credit Risk Manager. For and
on
behalf of the Depositor, the Credit Risk Manager will provide reports and
recommendations concerning certain delinquent and defaulted Mortgage Loans,
and
as to the collection of any Prepayment Charges with respect to the Mortgage
Loans. Such reports and recommendations will be based upon information provided
pursuant to Credit Risk Management Agreements to the Credit Risk Manager
by the
Servicers. The Credit Risk Manager shall look solely to the Servicers and/or
the
Master Servicer for all information and data (including loss and delinquency
information and data) and loan level information and data relating to the
servicing of the Mortgage Loans and the Trustee shall not have any obligation
to
provide any such information to the Credit Risk Manager and shall not otherwise
have any responsibility under the Credit Risk Management Agreement.
180
(b) On
or
about the 15th
calendar
day of each month, the Credit Risk Manager shall have prepared and shall
make
available to any NIMS Insurer, the Trustee, the Swap Counterparty and each
Certificateholder, the following reports (each such report to be made in
a
format compatible with XXXXX filing requirements):
(i) Watchlist
Report:
A
listing of individual Mortgage Loans that are of concern to the Credit Risk
Manager. Each Watchlist Report shall contain a listing of Mortgage Loans
in any
delinquency status, including current and paid-off loans, and may contain
the
comments of the Credit Risk Manager in its sole discretion. The Watchlist
Report
shall be presented in substantially the same format attached hereto as Exhibit
R-1;
(ii) Loss
Severity Report:
A
compilation and summary of all losses, indicating the loan loss severity
for
each Mortgage Pool. Each Loss Severity Report shall include detail of all
losses
reported by a Servicer or the Master Servicer as Realized Losses, except
those
for which a Servicer or the Master Servicer has not provided detail adequate
for
reporting purposes. The Loss Severity Report shall be presented in substantially
the same format attached hereto as Exhibit R-2;
(iii) Mortgage
Insurance Claims Report:
[Reserved}
(iv) Prepayment
Charges Report:
A
summary of Prepayment Charges assessed or waived by each Servicer. The
Prepayment Charges Report shall be presented in substantially the same format
attached hereto as Exhibit R-4; and
(v) Analytics
Report:
Analytics Reports shall include statistical and/or graphical portrayals
of:
(A) Delinquency
Trend:
The
delinquency trend, over time, of the Mortgage Loans;
(B) Prepayment
Analysis:
The
constant prepayment rate “CPR” experience of the Mortgage Loans;
and
(C) Standard
Default Assumption:
The
Standard Default Assumption experience of the Mortgage Loans.
The
Analytics Report shall be presented in substantially the same format attached
hereto as Exhibit R-5.
The
Credit Risk Manager shall make such reports and any additional information
reasonably requested by the Depositor available each month to
Certificateholders, the Trustee, the Securities Administrator, any NIMS Insurer
and the Rating Agencies via the Credit Risk Manager’s internet website. The
Credit Risk Manager’s internet website shall initially be located at
xxxxx://xxxxxxx.xxxxxxx.xxx.
The
user name for access to the website shall be the Certificateholder’s e-mail
address and the password shall be “SASCO 2007-WF1.” The Trustee shall not have
any obligation to review such reports or otherwise monitor or supervise the
activities of the Credit Risk Manager.
181
(c) [Reserved]
(d) The
Credit Risk Manager shall reasonably cooperate with the Depositor, the Trustee
and the Securities Administrator in connection with the Trust Fund’s satisfying
the reporting requirements under the Exchange Act with respect to reports
prepared by the Credit Risk Manager.
(e) The
Credit Risk Manager has not and shall not engage any Subcontractor without
(a)
giving notice to the Sponsor, the Trustee, the Securities Administrator,
the
Master Servicer and the Depositor and (b) requiring any such Subcontractor
to
provide to the Credit Risk Manager an assessment report as provided for in
Section 9.25(a) above and an attestation report as provided in Section 9.25(b)
above, which reports the Credit Risk Manager shall include in its assessment
and
attestation reports.
(f) By
March
15 of each year (or if such day is not a Business Day, the immediately preceding
Business Day), the Credit Risk Manager shall deliver a signed certification,
in
the form attached hereto as Exhibit U (the “Credit Risk Manager Certification”),
for the benefit of the Depositor, the Sponsor, the Master Servicer, the
Securities Administrator and the Trustee and for the benefit of the Person(s)
signing the Form 10-K Certification; provided
(i) that
the Credit Risk Manager Certification shall be so provided by March 15 of
such
year only to the extent that the Securities Administrator delivers a draft
(without exhibits) of the applicable Annual Report on Form 10-K to the Credit
Risk Manager by the fifth Business Day in March of such year and (ii) in
the
event that the Securities Administrator delivers the draft Form 10-K referred
to
in clause (i) after the fifth Business Day in March of such year, the Credit
Risk Manager shall deliver the Credit Risk Manager Certification as soon
as
practicable but no later than five calendar days of delivery to the Credit
Risk
Manager of such draft Form 10-K.
(g) In
the
event that prior to the filing date of the Form 10-K in March of each year,
the
Credit Risk Manager has knowledge or information material to the Credit Risk
Manager Certification, the Credit Risk Manager shall promptly notify the
Depositor, the Trustee and the Securities Administrator, in writing.
Section
9.35. Limitation
Upon Liability of the Credit Risk Manager.
Except
as
provided pursuant to Section 9.36 of this Agreement, neither the Credit Risk
Manager, nor any of the directors, officers, employees or agents of the Credit
Risk Manager, shall be under any liability to the Trustee, the Securities
Administrator, the Certificateholders or the Depositor for any action taken
or
for refraining from the taking of any action in good faith pursuant to this
Agreement, in reliance upon information provided by the Servicer under the
Credit Risk Management Agreement or for errors in judgment; provided, however,
that
this provision shall not protect the Credit Risk Manager or any such person
against liability that would otherwise be imposed by reason of willful
malfeasance, bad faith or gross negligence in its performance of its duties
or
by reason of reckless disregard for its obligations and duties under this
Agreement or the Credit Risk Management Agreement. The Credit Risk Manager
and
any director, officer, employee or agent of the Credit Risk Manager 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, and may
rely
in good faith upon the accuracy of information furnished by the Servicer
pursuant to the Credit Risk Management Agreement in the performance of its
duties thereunder and hereunder.
182
Section
9.36. Indemnification
by the Credit Risk Manager.
The
Credit Risk Manager agrees to indemnify the Depositor, the Master Servicer,
the
Trustee and the Securities Administrator, and each of their respective
directors, officers, employees and agents and the Trust Fund and hold each
of
them harmless from and against any losses, damages, penalties, fines,
forfeitures, legal fees and expenses and related costs, judgments, and any
other
costs, fees and expenses that any of them may sustain arising out of or based
upon the engagement of any Subcontractor in violation of Section 9.34(e)
or any
failure by the Credit Risk Manager to deliver any information, report,
certification, accountants’ letter or other material when and as required under
this Agreement, including any report under Sections 9.25(a) or (b).
Section
9.37. Removal
of Credit Risk Manager.
The
Credit Risk Manager may be removed as Credit Risk Manager by any NIMS Insurer
or
the Certificateholders holding not less than a 66-2/3% Voting Interests in
the
Trust, in the exercise of its or their sole discretion, at any time, without
cause, upon ten (10) days prior written notice. The NIMS Insurer or the
Certificateholders, as applicable, shall provide such written notice to the
Trustee and upon receipt of such notice, the Trustee shall provide written
notice to the Credit Risk Manager of its removal, effective upon receipt
of such
notice.
183
ARTICLE
X
REMIC
ADMINISTRATION
Section
10.01. REMIC
Administration.
(a) REMIC
elections as set forth in the Preliminary Statement shall be made on Forms
1066
or other appropriate federal tax or information return for the taxable year
ending on the last day of the calendar year in which the Certificates are
issued. The regular interests and residual interest in each REMIC shall be
as
designated in the Preliminary Statement. For purposes of such designations,
the
interest rate of any regular interest that is computed by taking into account
the weighted average of the Net Mortgage Rates of the Mortgage Loans shall
be
reduced by the amount of any expense paid by the Trust to the extent that
(i)
such expense was not taken into account in computing the Net Mortgage Rate
of
any Mortgage Loan, (ii) such expense does not constitute an “unanticipated
expense” of a REMIC within the meaning of Treasury Regulation Section
1.860G-1(b)(3)(ii) and (iii) the amount of such expense was not taken into
account in computing the interest rate of a more junior class of regular
interests.
(b) The
Closing Date is hereby designated as the “Startup Day” of each REMIC within the
meaning of section 860G(a)(9) of the Code. The latest possible maturity date
for
purposes of Treasury Regulation 1.860G-1(a)(4) will be the Latest Possible
Maturity Date.
(c) The
Securities Administrator shall represent the Trust Fund in any administrative
or
judicial proceeding relating to an examination or audit by any governmental
taxing authority with respect thereto. The Securities Administrator shall
pay
any and all tax related expenses (not including taxes) of each REMIC, including
but not limited to any professional fees or expenses related to audits or
any
administrative or judicial proceedings with respect to such REMIC that involve
the Internal Revenue Service or state tax authorities, but only to the extent
that (i) such expenses are ordinary or routine expenses, including expenses
of a
routine audit but not expenses of litigation (except as described in (ii));
or
(ii) such expenses or liabilities (including taxes and penalties) are
attributable to the negligence or willful misconduct of the Securities
Administrator in fulfilling its duties hereunder (including its duties as
tax
return preparer). The Securities Administrator shall be entitled to
reimbursement of expenses to the extent provided in clause (i) above from
the
Securities Administration Account, provided,
however,
the
Securities Administrator shall not be entitled to reimbursement for expenses
incurred in connection with the preparation of tax returns and other reports
as
required by Section 6.20 and this Section.
(d) The
Securities Administrator shall prepare, the Trustee shall sign and the
Securities Administrator shall file, all of each REMIC’s federal and appropriate
state tax and information returns as such REMIC’s direct representative. The
expenses of preparing and filing such returns shall be borne by the Securities
Administrator.
(e) The
Securities Administrator or its designee shall perform on behalf of each
REMIC
all reporting and other tax compliance duties that are the responsibility
of
such REMIC under the Code, the REMIC Provisions, or other compliance guidance
issued by the Internal Revenue Service or any state or local taxing authority.
Among its other duties, if required by the Code, the REMIC Provisions, or
other
such guidance, the Securities Administrator shall provide (i) to the Treasury
or
other governmental authority such information as is necessary for the
application of any tax relating to the transfer of a Residual Certificate
to any
disqualified person or organization pursuant to Treasury Regulation
1.860E-2(a)(5) and any person designated in Section 860E(e)(3) of the Code
and
(ii) to the Trustee such information as is necessary for the Trustee to provide
to the Certificateholders such information or reports as are required by
the
Code or REMIC Provisions.
184
The
Securities Administrator shall be entitled to receive reasonable compensation
from the Trust for the performance of its duties under this subsection (e);
provided,
however,
that
such compensation shall not exceed $5,000 per year.
(f) The
Trustee, the Securities Administrator, the Master Servicer and the Holders
of
Certificates shall take any action within their respective control and scope
of
their duties 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
Trustee, the Securities Administrator, the Master Servicer nor the Holder
of any
Residual Certificate shall knowingly take any action, cause any REMIC to
take
any action or fail to take (or fail to cause to be taken) any action within
their respective control and scope of their respective duties that, under
the
REMIC Provisions, if taken or not taken, as the case may be, could result
in an
Adverse REMIC Event unless the Trustee, the Securities Administrator, any
NIMS
Insurer and the Master Servicer have received an Opinion of Counsel addressed
to
the Trustee and the Securities Administrator (at the expense of the party
seeking to take such action) to the effect that the contemplated action will
not
result in an Adverse REMIC Event. In addition, prior to taking any action
with
respect to any REMIC or the assets therein, or causing any REMIC to take
any
action, which is not expressly permitted under the terms of this Agreement,
any
Holder of a Residual Certificate will consult with the Trustee, the Securities
Administrator, the Master Servicer, any NIMS Insurer or their respective
designees, in writing, with respect to whether such action could cause an
Adverse REMIC Event to occur with respect to any REMIC, and no such Person
shall
take any such action or cause any REMIC to take any such action as to which
the
Trustee, the Securities Administrator, the Master Servicer or any NIMS Insurer
has advised it in writing that an Adverse REMIC Event could occur.
(g) Each
Holder of a Residual Certificate shall pay when due any and all taxes imposed
on
the related REMIC by federal or state governmental authorities. To the extent
that such taxes are not paid by a Residual Certificateholder, the Trustee
(as
directed by 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 Collection Account, and shall reduce amounts
otherwise payable to holders of regular interests in any such REMIC, as the
case
may be.
(h) The
Securities Administrator shall, for federal income tax purposes, maintain
books
and records with respect to each REMIC on a calendar year and on an accrual
basis.
(i) No
additional contributions of assets shall be made to any REMIC, except as
expressly provided in this Agreement.
185
(j)
Neither
the Securities Administrator nor the Master Servicer shall enter into any
arrangement by which any REMIC will receive a fee or other compensation for
services.
(k)
On or
before October 15 of each calendar year beginning in 2008, the Securities
Administrator shall deliver to the Trustee and any NIMS Insurer an Officer’s
Certificate stating, without regard to any actions taken by any party other
than
the Securities Administrator, the Securities Administrator’s compliance with
provisions of this Section 10.01.
(l)
The
Securities Administrator shall treat each of the Basis Risk Reserve Fund
and the
Supplemental Interest Trust as an outside reserve fund within the meaning
of
Treasury Regulation Section 1.860G-2(h) that is owned by the Holders of the
Class X Certificates and that is not an asset of any REMIC and all amounts
deposited into the Basis Risk Reserve Fund or the Supplemental Interest Trust
shall be treated as amounts distributed to the Class X
Certificateholders.
(m)
For
federal income tax purposes, upon any sale of the property held by the Trust
Fund pursuant to Section 7.01(b), any NIM Redemption Amount paid by the Master
Servicer shall not be treated as a portion of the purchase price paid for
such
property but shall instead be treated as an amount paid by the Master Servicer
to the Holder of the Class X Certificates in exchange for an interest in
the
Class X Certificates immediately before the purchase of the property held
by the
Trust Fund.
(n) The
Securities Administrator shall treat the beneficial owners of Certificates
(other than the Class P, Class X, Class LT-R and Class R Certificates) as
having
entered into a notional principal contract with respect to the beneficial
owners
of the Class X Certificates. Pursuant to each such notional principal contract,
all beneficial owners of LIBOR Certificates shall be treated as having agreed
to
pay, on each Distribution Date, to the beneficial owners of the Class X
Certificates an aggregate amount equal to the excess, if any, of (i) the
amount
payable on such Distribution Date on the interest in the Upper Tier REMIC
corresponding to such Class of Certificates over
(ii)
the
amount payable on such Class of Certificates on such Distribution Date (such
excess, a “Class I Shortfall”). A Class I Shortfall payable from interest
collections shall be allocated to each Class of Certificates to the extent
that
interest accrued on such Class for the related Accrual Period at the Certificate
Interest Rate for a Class, computed by substituting “REMIC 3 Net Funds Cap” for
the applicable “Net Funds Cap” in the definition thereof, exceeds the amount of
interest accrued for the related Accrual Period based on the applicable Net
Funds Cap, and a Class I Shortfall payable from principal collections shall
be
allocated to the most subordinate Class of Certificates with an outstanding
principal balance to the extent of such balance. In addition, pursuant to
such
notional principal contract, the beneficial owner of the Class X Certificates
shall be treated as having agreed to pay Basis Risk Shortfalls and Unpaid
Basis
Risk Shortfalls to the Owners of the LIBOR Certificates in accordance with
the
terms of this Agreement. Any payments to the Certificates in light of the
foregoing shall not be payments with respect to a “regular interest” in a REMIC
within the meaning of Code Section 860G(a)(1). However, any payment from
the
Certificates of a Class I Shortfall shall be treated for tax purposes as
having
been received by the beneficial owners of such Certificates in respect of
their
Interests in the Upper Tier REMIC and as having been paid by such beneficial
owners to the Supplemental Interest Trust pursuant to the notional principal
contract. Thus, each Certificate (other than a Class P, Class R and Class
LT-R
Certificates) shall be treated as representing not only ownership of regular
interests in the Upper Tier REMIC, but also ownership of an interest in (and
obligations with respect to) a notional principal contract. For tax purposes,
the notional principal contract shall be deemed to have a value in favor
of the
Certificates entitled to receive Basis Risk Shortfalls and Unpaid Basis Risk
Shortfalls of $42,396.26 as of the Closing Date.
186
(o) Notwithstanding
the priority and sources of payments set forth in Article V hereof or otherwise,
the Securities Administrator shall account for all distributions on the
Certificates as set forth in this Section 10.01. In no event shall any payments
of Basis Risk Shortfalls or Unpaid Basis Risk Shortfalls provided for in
this
Section 10.01 be treated as payments with respect to a “regular interest” in a
REMIC within the meaning of Code Section 860G(a)(1).
Section
10.02. Prohibited
Transactions and Activities.
Neither
the Depositor, the Master Servicer nor the Trustee shall sell, dispose of,
or
substitute for any of the Mortgage Loans, except in a disposition pursuant
to
(i) the foreclosure of a Mortgage Loan, (ii) the bankruptcy of the Trust
Fund,
(iii) the termination of each REMIC pursuant to Article VII of this Agreement,
(iv) a substitution pursuant to Article II of this Agreement or (v) a repurchase
of Mortgage Loans pursuant to Article II of this Agreement, nor acquire any
assets for any REMIC, nor sell or dispose of any investments in the Certificate
Account for gain, nor accept any contributions to any REMIC after the Closing
Date, unless the Trustee and any NIMS Insurer has received an Opinion of
Counsel
addressed to the Trustee (at the expense of the party causing such sale,
disposition, or substitution) that such disposition, acquisition, substitution,
or acceptance will not (a) result in an Adverse REMIC Event, (b) affect the
distribution of interest or principal on the Certificates or (c) result in
the
encumbrance of the assets transferred or assigned to the Trust Fund (except
pursuant to the provisions of this Agreement).
Section
10.03. Indemnification
with Respect to Certain Taxes and Loss of REMIC Status.
Upon
the
occurrence of an Adverse REMIC Event due to the negligent performance by
the
Trustee or the Securities Administrator, as applicable, of its duties and
obligations set forth herein, the Trustee or the Securities Administrator,
as
applicable, shall indemnify any NIMS Insurer, the Holder of the related Residual
Certificate or the Trust Fund, as applicable, against any and all losses,
claims, damages, liabilities or expenses (“Losses”) resulting from such
negligence; provided,
however,
that
neither the Trustee nor the Securities Administrator shall be liable for
any
such Losses attributable to the action or inaction of the Master Servicer,
the
Depositor, the Class X Certificateholders, the Holder of such Residual
Certificate or the Securities Administrator (with regard to the Trustee),
as
applicable, nor for any such Losses resulting from misinformation provided
by
the Holder of such Residual Certificate on which the Securities Administrator
has relied. The foregoing shall not be deemed to limit or restrict the rights
and remedies of the Holder of such Residual Certificate now or hereafter
existing at law or in equity. Notwithstanding the foregoing, however, in
no
event shall the Trustee or the Securities Administrator, as applicable, 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 Servicing Agreement, (2) for any Losses other
than arising out of a negligent performance by the Trustee or the Securities
Administrator, as applicable, of its duties and obligations set forth herein,
and (3) for any special or consequential damages to Certificateholders (in
addition to payment of principal and interest on the Certificates); provided,
however,
that
this sentence shall not apply in connection with any failure by the Securities
Administrator to comply with the provisions of Subsections 6.01(l) hereof
and
Subsections 9.25(a) or (b) hereof. In addition, neither the Trustee nor the
Securities Administrator shall have any liability for the actions or failure
to
act of the other.
187
Section
10.04. REO
Property.
(a) Notwithstanding
any other provision of this Agreement, the Master Servicer, acting on behalf
of
the Trustee hereunder, shall not, except to the extent provided in the Servicing
Agreement, knowingly permit the Servicer to, rent, lease, or otherwise earn
income on behalf of any REMIC with respect to any REO Property which might
cause
an Adverse REMIC Event unless the Master Servicer has advised, or has caused
the
Servicer to advise, the Trustee and any NIMS Insurer in writing to the effect
that, under the REMIC Provisions, such action would not result in an Adverse
REMIC Event.
(b) The
Master Servicer shall cause the Servicer (to the extent provided in its
Servicing Agreement) to make reasonable efforts to sell any REO Property
for its
fair market value. In any event, however, the Master Servicer shall, or shall
cause the Servicer (to the extent provided in its Servicing Agreement) to,
dispose of any REO Property within three years of its acquisition by the
Trust
Fund unless the Master Servicer has received a grant of extension from the
Internal Revenue Service to the effect that, under the REMIC Provisions,
the
REMIC may hold REO Property for a longer period without causing an Adverse
REMIC
Event. If the Master Servicer has received such an extension, then the Trustee,
or the Master Servicer, acting on its behalf 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 the Trustee has not received such an extension and
the Master Servicer or the Servicer, acting on behalf of the Trustee hereunder,
is unable to sell the REO Property within 33 months after its acquisition
by the
Trust Fund or if the Master Servicer has received such an extension, and
the
Master Servicer or the Servicer is unable to sell the REO Property within
the
period ending three months before the close of the Extended Period, the Master
Servicer 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.
188
ARTICLE
XI
MISCELLANEOUS
PROVISIONS
Section
11.01. Binding
Nature of Agreement; Assignment.
This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and permitted assigns.
Section
11.02. Entire
Agreement.
This
Agreement contains the entire agreement and understanding among the parties
hereto with respect to the subject matter hereof, and supersedes all prior
and
contemporaneous agreements, understandings, inducements and conditions, express
or implied, oral or written, of any nature whatsoever with respect to the
subject matter hereof. The express terms hereof control and supersede any
course
of performance and/or usage of the trade inconsistent with any of the terms
hereof.
Section
11.03. Amendment.
(a) On
or
prior to a Section 7.01(c) Purchase Event, this Agreement may be amended
from
time to time by the Depositor, the Master Servicer, the Securities
Administrator, and the Trustee, with the consent of any NIMS Insurer, but
without the consent of the Credit Risk Manager or the Swap Counterparty (except
to the extent that the rights or obligations of (1) the Credit Risk Manager
or
the Swap Counterparty hereunder or (2) the Swap Counterparty under the Swap
Agreement are affected thereby, and except to the extent or the ability of
the
Trustee on behalf of the Supplemental Interest Trust and the Trust Fund to
perform fully and timely its obligations under the Swap Agreement is adversely
affected, in which case prior written consent of the Swap Counterparty is
required) and without notice to or the consent of any of the Holders, (i)
to
cure any ambiguity, (ii) to cause the provisions herein to conform to or
be
consistent with or in furtherance of the statements made with respect to
the
Certificates, the Trust Fund or this Agreement in any Offering Document,
or to
correct or supplement any provision herein which may be inconsistent with
any
other provisions herein or with the provisions of the Servicing Agreement,
(iii)
to make any other provisions with respect to matters or questions arising
under
this Agreement or (iv) to add, delete, or amend any provisions to the extent
necessary or desirable to comply with any requirements imposed by the Code
and
the REMIC Provisions as evidenced by an Opinion of Counsel. No such amendment
effected pursuant to the preceding sentence shall, as evidenced by an Opinion
of
Counsel, result in an Adverse REMIC Event, nor shall such amendment effected
pursuant to clause (iii) of such sentence adversely affect in any material
respect the interests of any Holder. Prior to entering into any amendment
without the consent of Holders pursuant to this paragraph, the Trustee, any
NIMS
Insurer and the Swap Counterparty shall be provided with an Opinion of Counsel
addressed to the Trustee, any NIMS Insurer and the Swap Counterparty (at
the
expense of the party requesting such amendment) to the effect that such
amendment is permitted under this Section. Any such amendment shall be deemed
not to adversely affect in any material respect any Holder, if the Trustee
receives written confirmation from each Rating Agency that such amendment
will
not cause such Rating Agency to reduce the then current rating assigned to
the
Certificates.
189
(b) On
or
prior to a Section 7.01(c) Purchase Event, this Agreement may also be amended
from time to time by the Depositor, the Master Servicer, the Securities
Administrator and the Trustee, with the consent of any NIMS Insurer, but
without
the consent of the Credit Risk Manager or the Swap Counterparty (except to
the
extent that the rights or obligations of (1) the Credit Risk Manager or the
Swap
Counterparty hereunder or (2) the Swap Counterparty under the Swap Agreement
are
affected thereby, and except to the extent the ability of the Trustee on
behalf
of the Supplemental Interest Trust and the Trust Fund to perform fully and
timely its obligations under the Swap Agreement is adversely affected, in
which
case prior written consent of the Swap Counterparty is required) and with
the
consent of the Holders of not less than 66-2/3% of the Class Principal Amount
(or Percentage Interest) of each Class of Certificates affected thereby for
the
purpose of adding any provisions to or changing in any manner or eliminating
any
of the provisions of this Agreement or of modifying in any manner the rights
of
the Holders; provided,
however,
that no
such amendment shall be made unless the Trustee and any NIMS Insurer receives
an
Opinion of Counsel addressed to the Trustee and the NIMS Insurer, at the
expense
of the party requesting the change, that such change will not cause an Adverse
REMIC Event; and provided further, that no such amendment may (i) reduce
in any
manner the amount of, or delay the timing of, payments received on Mortgage
Loans which are required to be distributed on any Certificate, without the
consent of the Holder of such Certificate or (ii) reduce the aforesaid
percentages of Class Principal Amount (or Percentage Interest) of Certificates
of each Class, the Holders of which are required to consent to any such
amendment without the consent of the Holders of 100% of the Class Principal
Amount (or Percentage Interest) of each Class of Certificates affected thereby.
For purposes of this paragraph, references to “Holder” or “Holders” shall be
deemed to include, in the case of any Class of Book-Entry Certificates, the
related Certificate Owners.
(c) After
a
Section 7.01(c) Purchase Event but on or prior to a Trust Fund Termination
Event, this Agreement may be amended from time to time by the Depositor,
the
Securities Administrator, the Master Servicer, the LTURI-holder, any NIMS
Insurer and the Trustee, but without the consent of the Credit Risk Manager
or
the Swap Counterparty (except to the extent that the rights or obligations
of
(1) the Credit Risk Manager or the Swap Counterparty hereunder or (2) the
Swap
Counterparty under the Swap Agreement are affected thereby, and except to
the
extent the ability of the Trustee on behalf of the Supplemental Interest
Trust
and the Trust Fund to perform fully and timely its obligations under the
Swap
Agreement is adversely affected, in which case prior written consent of the
Swap
Counterparty, as applicable, is required). Prior to entering into any amendment
without the consent of Holders pursuant to this paragraph, the Trustee and
the
Swap Counterparty shall be provided with an Opinion of Counsel addressed
to the
Trustee, any NIMS Insurer and the Swap Counterparty (at the expense of the
party
requesting such amendment) to the effect that such amendment is permitted
under
this Section and will not result in an Adverse REMIC Event.
(d) Promptly
after the execution of any such amendment, the Trustee shall furnish written
notification of the substance of such amendment to each Holder, the Securities
Administrator, the Depositor, the Swap Counterparty, any NIMS Insurer and
to the
Rating Agencies.
190
(e) It
shall
not be necessary for the consent of Holders under this Section 11.03 to approve
the particular form of any proposed amendment, but it shall be sufficient
if
such consent shall approve the substance thereof. The manner of obtaining
such
consents and of evidencing the authorization of the execution thereof by
Holders
shall be subject to such reasonable regulations as the Trustee may
prescribe.
(f) Notwithstanding
anything to the contrary in the Servicing Agreement, the Trustee shall not
consent to any amendment of the Servicing Agreement unless (i) such amendment
is
effected pursuant to the standards provided in Section 11.03(a) or 11.03(b)
with
respect to amendment of this Agreement and (ii) except for a Permitted Servicing
Amendment, any such amendment pursuant to Section 11.03(a)(iii) shall not
be
materially inconsistent with the provisions of such Servicing
Agreement.
(g) Notwithstanding
anything to the contrary in this Section 11.03, this Agreement may be amended
from time to time by the Depositor, the Master Servicer, the Securities
Administrator and the Trustee to the extent necessary, in the judgment of
the
Depositor and its counsel, to comply with the Rules.
Section
11.04. Voting
Rights.
Except
to
the extent that the consent of all affected Certificateholders is required
pursuant to this Agreement, with respect to any provision of this Agreement
requiring the consent of Certificateholders representing specified percentages
of aggregate outstanding Certificate Principal Amount (or Percentage Interest),
Certificates owned by the Depositor, the Master Servicer, the Securities
Administrator, the Trustee, the Servicer, the Credit Risk Manager or Affiliates
thereof are not to be counted so long as such Certificates are owned by the
Depositor, the Master Servicer, the Securities Administrator, the Trustee,
the
Servicer, the Credit Risk Manager or any Affiliate thereof.
Section
11.05. Provision
of Information.
(a) For
so
long as any of the Certificates of any Series or Class are “restricted
securities” within the meaning of Rule 144(a)(3) under the Act, each of the
Depositor, the Master Servicer and the Securities Administrator agree to
cooperate with each other to provide to any Certificateholders, any NIM Security
holder and to any prospective purchaser of Certificates designated by such
holder, upon the request of such holder or prospective purchaser, any
information required to be provided to such holder or prospective purchaser
to
satisfy the condition set forth in Rule 144A(d)(4) under the Act. Any
reasonable, out-of-pocket expenses incurred by the Master Servicer or the
Securities Administrator in providing such information shall be reimbursed
by
the Depositor.
(b) The
Securities Administrator shall provide to any person to whom a Prospectus
was
delivered, upon the request of such person specifying the document or documents
requested, (i) a copy (excluding exhibits) of any report on Form 8-K or Form
10-K filed with the Securities and Exchange Commission pursuant to Section
6.20(c) and (ii) a copy of any other document incorporated by reference in
the
Prospectus. Any reasonable out-of-pocket expenses incurred by the Securities
Administrator in providing copies of such documents shall be reimbursed by
the
Depositor.
191
(c) On
each
Distribution Date, the Securities Administrator shall deliver or cause to
be
delivered by first class mail or make available on its website to the Depositor,
Attention: Contract Finance, a copy of the report delivered to
Certificateholders pursuant to Section 4.03.
Section
11.06. Governing
Law.
THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE
STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS (OTHER
THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW), AND THE OBLIGATIONS,
RIGHTS
AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH
SUCH LAWS.
Section
11.07. Notices.
All
demands, notices and communications hereunder shall be in writing and shall
be
deemed to have been duly given when received by (a) in the case of the
Depositor, Structured Asset Securities Corporation, 000 Xxxxxxx Xxxxxx, 0xx
Xxxxx, Xxx Xxxx, XX 00000, Attention: Mortgage Finance SASCO 2007-WF1,
(b) in the case of the Seller, Xxxxxx Brothers Holdings Inc., 000 Xxxxxxx
Xxxxxx, 0xx Xxxxx, Xxx Xxxx, XX 00000, Attention: Mortgage Finance SASCO
2007-WF1,(c) in the case of the Trustee, the Corporate Trust Office, (d)
in the
case of the Master Servicer, Aurora Loan Services LLC, 00000 Xxxx Xxxxxxx
Xxxxx,
Xxxxxxxxx, Xxxxxxxx 00000; Attention: Master Servicing, SASCO 2007-WF1, (e)
in
the case of the Securities Administrator, Xxxxx Fargo Bank, N.A., X.X. Xxx
00,
Xxxxxxxx, Xxxxxxxx 00000, and for overnight deliveries 0000 Xxx Xxxxxxxxx
Xx.,
Xxxxxxxx, Xxxxxxxx 00000, Attention: SASCO 2007-WF1, telecopy number
000-000-0000 (f) in the case of the Swap Counterparty, at the address therefore
set forth in the Swap Agreement, (g) in the case of the Credit Risk Manager,
Xxxxxxx Fixed Income Services Inc., 0000 Xxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxx,
Xxxxxxxx 00000, Attention: General Counsel and (h) in the case of the NIMS
Insurer, Radian Insurance Inc., 0000 Xxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx
00000, Attention: SASCO NIMS Trust 2007-WF1, or, as to each party such other
address as may hereafter be furnished by such party to the other parties
in
writing. All demands, notices and communications to a party hereunder shall
be
in writing and shall be deemed to have been duly given when delivered to
such
party at the relevant address, facsimile number or electronic mail address
set
forth above or at such other address, facsimile number or electronic mail
address as such party may designate from time to time by written notice in
accordance with this Section 11.07.
Section
11.08. Severability
of Provisions.
If
any
one or more of the covenants, agreements, provisions or terms of this Agreement
shall be for any reason whatsoever held invalid, then such covenants,
agreements, provisions or terms shall be deemed severable from the remaining
covenants, agreements, provisions or terms of this Agreement and shall in
no way
affect the validity or enforceability of the other provisions of this Agreement
or of the Certificates or the rights of the Holders thereof.
192
Section
11.09. Indulgences;
No Waivers.
Neither
the failure nor any delay on the part of a party to exercise any right, remedy,
power or privilege under this Agreement shall operate as a waiver thereof,
nor
shall any single or partial exercise of any right, remedy, power or privilege
preclude any other or further exercise of the same or of any other right,
remedy, power or privilege, nor shall any waiver of any right, remedy, power
or
privilege with respect to any occurrence be construed as a waiver of such
right,
remedy, power or privilege with respect to any other occurrence. No waiver
shall
be effective unless it is in writing and is signed by the party asserted
to have
granted such waiver.
Section
11.10. Headings
Not To Affect Interpretation.
The
headings contained in this Agreement are for convenience of reference only,
and
they shall not be used in the interpretation hereof.
Section
11.11. Benefits
of Agreement.
The
Depositor shall promptly notify the Custodian and the Trustee in writing
of the
issuance of any Class of NIMS Securities insured by a NIMS Insurer and the
identity of such NIMS Insurer. Thereafter, any such NIMS Insurer shall be
deemed
a third-party beneficiary of this Agreement to the same extent as if it were
a
party hereto, and shall be subject to and have the right to enforce the
provisions of this Agreement so long as the NIMS Securities remaining
outstanding or such NIMS Insurer is owed amounts in respect of its guarantee
of
certain payments on such NIMS Securities. Nothing in this Agreement or in
the
Certificates, express or implied, shall give to any Person, other than the
parties to this Agreement and their successors hereunder, the Swap Counterparty
and its successors and assignees under the Swap Agreement, the Holders of
the
Certificates and the NIMS Insurer, any benefit or any legal or equitable
right,
power, remedy or claim under this Agreement, except to the extent specified
in
Sections 5.08 and 11.15, as applicable.
Section
11.12. Special
Notices to the Rating Agencies and any NIMS Insurer.
(a) The
Depositor shall give prompt notice to the Rating Agencies and any NIMS Insurer
of the occurrence of any of the following events of which it has
notice:
(i) any
amendment to this Agreement pursuant to Section 11.03;
(ii) any
Assignment by the Master Servicer of its rights hereunder or delegation of
its
duties hereunder;
(iii) the
occurrence of any Event of Default described in Section 6.14;
(iv) any
notice of termination given to the Master Servicer pursuant to Section 6.14
and
any resignation of the Master Servicer hereunder;
(v) the
appointment of any successor to any Master Servicer pursuant to Section 6.14;
193
(vi) the
making of a final payment pursuant to Section 7.02; and
(vii) any
termination of the rights and obligations of the Servicer under the Servicing
Agreement.
(b) All
notices to the Rating Agencies provided for in this Section shall be in writing
and sent by first class mail, telecopy or overnight courier, as
follows:
If
to
Moody’s, to:
Xxxxx’x
Investors Service, Inc.
00
Xxxxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Residential Pass-Through Monitoring
If
to
Fitch, to:
Fitch,
Inc.
Xxx
Xxxxx
Xxxxxx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Residential Mortgages
If
to
DBRS, to:
DBRS,
Inc.
00
Xxxxxxxx
Xxx
Xxxx,
XX 00000
Attention:
Residential Mortgages
(c) The
Securities Administrator shall provide or make available to the Rating Agencies
and the NIMS Insurer reports prepared pursuant to Section 4.03. In addition,
the
Securities Administrator shall, at the expense of the Trust Fund, make available
to each Rating Agency and any NIMS Insurer such information as such Rating
Agency or such NIMS Insurer, as applicable, may reasonably request regarding
the
Certificates or the Trust Fund, to the extent that such information is
reasonably available to the Securities Administrator.
Section
11.13. Conflicts.
To
the
extent that the terms of this Agreement conflict with the terms of the Servicing
Agreement, the Servicing Agreement shall govern, unless such provisions shall
adversely affect the Trustee or the Trust Fund.
Section
11.14. Counterparts.
This
Agreement may be executed in one or more counterparts, each of which shall
be
deemed to be an original, and all of which together shall constitute one
and the
same instrument.
Section
11.15. Transfer
of Servicing.
194
The
Seller agrees that it shall provide written notice to the Master Servicer,
the
Securities Administrator, the Swap Counterparty, any NIMS Insurer and the
Trustee thirty days prior to any proposed transfer or assignment by such
Seller
of its rights under the Servicing Agreement or of the servicing thereunder
or
delegation of its rights or duties thereunder or any portion thereof to any
other Person other than the initial Servicer under the Servicing Agreement.
In
addition, the ability of the Seller to transfer or assign its rights and
delegate its duties under the Servicing Agreement or to transfer the servicing
thereunder to a successor servicer shall be subject to the following
conditions:
(i) Satisfaction
of the conditions to such transfer as set forth in the Servicing Agreement
including, without limitation, receipt of written consent of any NIMS Insurer
and the Master Servicer to such transfer;
(ii) Such
successor servicer must be qualified to service loans for Xxxxxx Xxx or Xxxxxxx
Mac, and must be a member in good standing of MERS;
(iii) Such
successor servicer must satisfy the seller/servicer eligibility standards
in the
Servicing Agreement, exclusive of any experience in mortgage loan
origination;
(iv) Such
successor servicer must execute and deliver to the Trustee and the Master
Servicer an agreement, in form and substance reasonably satisfactory to the
Trustee and the Master Servicer, that contains an assumption by such successor
servicer of the due and punctual performance and observance of each covenant
and
condition to be performed and observed by the Servicer under the Servicing
Agreement;
(v) There
must be delivered to the Trustee, the Master Servicer and any NIMS Insurer
a
letter from each Rating Agency to the effect that such transfer of servicing
will not result in a qualification, withdrawal or downgrade of the then-current
rating of any of the Certificates; and
(vi) The
Seller shall, at its cost and expense, take such steps, or cause the terminated
Servicer to take such steps, as may be necessary or appropriate to effectuate
and evidence the transfer of the servicing of the Mortgage Loans to such
successor servicer, including, but not limited to, the following: (A) to
the
extent required by the terms of the Mortgage Loans and by applicable federal
and
state laws and regulations, the Seller shall cause the prior Servicer to
timely
mail to each obligor under a Mortgage Loan any required notices or disclosures
describing the transfer of servicing of the Mortgage Loans to the successor
servicer; (B) prior to the effective date of such transfer of servicing,
the
Seller shall cause the prior Servicer to transmit to any related insurer
notification of such transfer of servicing; (C) on or prior to the effective
date of such transfer of servicing, the Seller shall cause the prior Servicer
to
deliver to the successor servicer all Mortgage Loan Documents and any related
records or materials; (D) on or prior to the effective date of such transfer
of
servicing, the Seller shall cause the prior Servicer to transfer to the
successor servicer, all funds held by the prior Servicer in respect of the
Mortgage Loans; (E) on or prior to the effective date of such transfer of
servicing, the Seller shall cause the prior Servicer to, after the effective
date of the
195
transfer
of servicing to the successor servicer, continue to forward to such successor
servicer, within one Business Day of receipt, the amount of any payments
or
other recoveries received by the prior Servicer, and to notify the successor
servicer of the source and proper application of each such payment or recovery;
and (F) the Seller shall cause the prior Servicer to, after the effective
date
of transfer of servicing to the successor servicer, continue to cooperate
with
the successor servicer to facilitate such transfer in such manner and to
such
extent as the successor servicer may reasonably request. Notwithstanding
the
foregoing, the prior Servicer shall be obligated to perform the items listed
above to the extent provided in the Servicing Agreement.
196
IN
WITNESS WHEREOF, the parties hereto have caused their names to be signed
hereto
by their respective officers hereunto duly authorized as of the day and year
first above written.
STRUCTURED
ASSET SECURITIES
CORPORATION,
as Depositor
By:
/s/
Xxxxx X.
Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President
U.S.
BANK
NATIONAL ASSOCIATION,
as
Trustee
By:
/s/
Xxxxxxxxx
Xxxxxx
Name: Xxxxxxxxx Xxxxxx
Title: Assistant Vice President
AURORA
LOAN SERVICES LLC, as Master Servicer
By:
/s/
Xxxxx X.
Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President
XXXXX
FARGO BANK, N.A., as Securities Administrator
By:
/s/
Xxxxxxx
Xxxxxx
Name: Xxxxxxx Xxxxxx
Title: Vice President
XXXXXXX
FIXED INCOME SERVICES INC., as Credit Risk Manager
By:
/s/
Xxxxx X.
Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: President and General Counsel
Solely
for purposes of Sections 5.07(c), 6.11 and 11.15,
accepted
and agreed to by:
XXXXXX
BROTHERS HOLDINGS INC.
By:
/s/
Xxxxx X.
Xxx
Name:
Xxxxx X. Xxx
Title:
Authorized Signatory
EXHIBIT
A
FORMS
OF
CERTIFICATES
EXHIBIT
B-1
FORM
OF
INITIAL CERTIFICATION
Date
U.S.
Bank
National Association
Xxx
Xxxxxxx Xxxxxx, 0xx
Xxxxx
Xxxxxx,
Xxxxxxxxxxxxx 00000
Structured
Asset Securities Corporation
000
Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
[SERVICER]
| Re: |
Trust
Agreement dated as of March 1, 2007 (the “Trust Agreement”), by and among
Structured Asset Securities Corporation, as Depositor, U.S. Bank
National
Association, as Trustee, Aurora Loan Services LLC, as Master Servicer,
Xxxxx Fargo Bank, N.A., as Securities Administrator, and Xxxxxxx
Fixed
Income Services Inc., as Credit Risk Manager, with respect to Structured
Asset Securities Corporation
Mortgage Pass-Through Certificates, Series 2007-WF1
|
Ladies
and Gentlemen:
In
accordance with Section 2.02(a) of the Trust Agreement, subject to review
of the
contents thereof, the undersigned, as Custodian, hereby certifies that it
has
received the documents listed in Section 2.01(b) of the Trust Agreement for
each
Mortgage File pertaining to each Mortgage Loan listed on Schedule A, to the
Trust Agreement, subject to any exceptions noted on Schedule I
hereto.
Capitalized
words and phrases used herein and not otherwise defined herein shall have
the
respective meanings assigned to them in the Trust Agreement. This Certificate
is
subject in all respects to the terms of Section 2.02 of the Trust Agreement
and
the Trust Agreement sections cross-referenced therein.
[Custodian]
By:_____________________________________
Name:
Title:
X-0-0
XXXXXXX
X-0
FORM
OF
INTERIM CERTIFICATION
Date
U.S.
Bank
National Association
Xxx
Xxxxxxx Xxxxxx, 0xx
Xxxxx
Xxxxxx,
Xxxxxxxxxxxxx 00000
Structured
Asset Securities Corporation
000
Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
[SERVICER]
| Re: |
Trust
Agreement dated as of March 1, 2007 (the “Trust Agreement”), by and among
Structured Asset Securities Corporation, as Depositor, U.S. Bank
National
Association, as Trustee, Aurora Loan Services LLC, as Master Servicer,
Xxxxx Fargo Bank, N.A., as Securities Administrator, and Xxxxxxx
Fixed
Income Services Inc., as Credit Risk Manager, with respect to Structured
Asset Securities Corporation
Mortgage Pass-Through Certificates, Series 2007-WF1
|
Ladies
and Gentlemen:
In
accordance with Section 2.02(b) of the Trust Agreement, the undersigned,
as
Custodian, hereby certifies that as to each Mortgage Loan listed in the Mortgage
Loan Schedule (other than any Mortgage Loan paid in full or listed on Schedule
I
hereto) it has received the applicable documents listed in Section 2.01(b)
of
the Trust Agreement.
The
undersigned hereby certifies that as to each Mortgage Loan identified on
the
Mortgage Loan Schedule, other than any Mortgage Loan listed on Schedule I
hereto, it has reviewed the documents listed in Section 2.01(b) of the Trust
Agreement and has determined that each such document appears regular on its
face
and appears to relate to the Mortgage Loan identified in such
document.
Capitalized
words and phrases used herein shall have the respective meanings assigned
to
them in the Trust Agreement. This Certificate is qualified in all respects
by
the terms of said Trust Agreement including, but not limited to, Section
2.02(b).
[Custodian]
By:_____________________________________
Name:
Title:
X-0-0
XXXXXXX
X-0
FORM
OF
FINAL CERTIFICATION
Date
U.S.
Bank
National Association
Xxx
Xxxxxxx Xxxxxx, 0xx
Xxxxx
Xxxxxx,
Xxxxxxxxxxxxx 00000
Structured
Asset Securities Corporation
000
Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
[SERVICER]
| Re: |
Trust
Agreement dated as of March 1, 2007 (the “Trust Agreement”), by and among
Structured Asset Securities Corporation, as Depositor, U.S. Bank
National
Association, as Trustee, Aurora Loan Services LLC, as Master Servicer,
Xxxxx Fargo Bank, N.A., as Securities Administrator, and Xxxxxxx
Fixed
Income Services Inc., as Credit Risk Manager, with respect to Structured
Asset Securities Corporation
Mortgage Pass-Through Certificates, Series 2007-WF1
|
Ladies
and Gentlemen:
In
accordance with Section 2.02(d) of the Trust Agreement, the undersigned,
as
Custodian on behalf of the Trustee, hereby certifies that as to each Mortgage
Loan listed in the Mortgage Loan Schedule (other than any Mortgage Loan paid
in
full or listed on Schedule I hereto) it has received the applicable documents
listed in Section 2.01(b) of the Trust Agreement.
The
undersigned hereby certifies that as to each Mortgage Loan identified in
the
Mortgage Loan Schedule, other than any Mortgage Loan listed on Schedule I
hereto, it has reviewed the documents listed in Section 2.01(b) of the Trust
Agreement and has determined that each such document appears to be complete
and,
based on an examination of such documents, the information set forth in items
(i) through (vi) of the definition of Mortgage Loan Schedule is correct.
Capitalized
words and phrases used herein shall have the respective meanings assigned
to
them in the Trust Agreement. This Certificate is qualified in all respects
by
the terms of said Trust Agreement.
[Custodian]
By:_____________________________________
Name:
Title:
X-0-0
XXXXXXX
X-0
FORM
OF
ENDORSEMENT
Pay
to
the order of U.S. Bank National Association, as trustee (the “Trustee”) under
the Trust Agreement dated as of March 1, 2007 by and among Structured Asset
Securities Corporation, as Depositor, the Trustee, Aurora Loan Services LLC,
as
Master Servicer, Xxxxx Fargo Bank, N.A., as Securities Administrator, and
Xxxxxxx Fixed Income Services Inc., as Credit Risk Manager, relating to
Structured Asset Securities Corporation Mortgage Pass-Through Certificates,
Series 2007-WF1, without recourse.
__________________________________
[current
signatory on note]
By:_______________________________
Name:
Title:
B-4-1
EXHIBIT
C
REQUEST
FOR RELEASE OF DOCUMENTS AND RECEIPT
Date
[Addressed
to Trustee
or,
if
applicable, the Custodian]
In
connection with the administration of the mortgages held by you as Trustee
under
a certain Trust Agreement dated as of March 1, 2007 by and among Structured
Asset Securities Corporation, as Depositor, you, as Trustee, Aurora Loan
Services LLC, as Master Servicer, Xxxxx Fargo Bank, N.A., as Securities
Administrator, and Xxxxxxx Fixed Income Services Inc., as Credit Risk Manager
(the “Trust Agreement”), the undersigned Servicer hereby requests a release of
the Mortgage File held by you as Trustee with respect to the following described
Mortgage Loan for the reason indicated below.
Mortgagor’s
Name:
Address:
Loan
No.:
Reason
for requesting file:
1. Mortgage
Loan paid in full. (The Servicer hereby certifies that all amounts received
in
connection with the loan have been or will be credited to the Certificate
Account pursuant to the Trust Agreement.)
2. The
Mortgage Loan is being foreclosed.
3. Mortgage
Loan substituted. (The Servicer hereby certifies that a Qualifying Substitute
Mortgage Loan has been assigned and delivered to you along with the related
Mortgage File pursuant to the Trust Agreement.)
4. Mortgage
Loan repurchased. (The Servicer hereby certifies that the Purchase Price
or the
FPD Purchase Price (in the case of a First Payment Default Mortgage Loan)
has
been credited to the Certificate Account pursuant to the Trust
Agreement.)
5. Other.
(Describe)
The
undersigned acknowledges that the above Mortgage File will be held by the
undersigned in accordance with the provisions of the Trust Agreement and
will be
returned to you within ten (10) days of our receipt of the Mortgage File,
except
if the Mortgage Loan has been paid in full, or repurchased or substituted
for a
Qualifying Substitute Mortgage Loan (in which case the Mortgage File will
be
retained by us permanently) and except if the Mortgage Loan is being foreclosed
(in which case the Mortgage File will be returned when no longer required
by us
for such purpose).
C-1
Capitalized
terms used herein shall have the meanings ascribed to them in the Trust
Agreement.
__________________________________
[Name
of
Servicer]
By:_______________________________
Name:
Title: Servicing Officer
C-2
EXHIBIT
D-1
FORM
OF
RESIDUAL CERTIFICATE TRANSFER AFFIDAVIT (TRANSFEREE)
|
STATE
OF
|
)
|
|
)
ss.:
|
|
|
COUNTY
OF
|
)
|
[NAME
OF
OFFICER], _________________ being first duly sworn, deposes and
says:
|
1.
|
That
he [she] is [title of officer] ________________________ of [name
of
Purchaser] _________________________________________ (the “Purchaser”), a
_______________________ [description of type of entity] duly organized
and
existing under the laws of the [State of __________] [United States],
on
behalf of which he [she] makes this
affidavit.
|
|
2.
|
That
the Purchaser’s Taxpayer Identification Number is
.
|
|
3.
|
That
the Purchaser is not a “disqualified organization” within the meaning of
Section 860E(e)(5) of the Internal Revenue Code of 1986, as amended
(the
“Code”) and will not be a “disqualified organization” as of [date of
transfer], and that the Purchaser is not acquiring a Residual Certificate
(as defined in the Agreement) for the account of, or as agent (including
a
broker, nominee, or other middleman) for, any person or entity
from which
it has not received an affidavit substantially in the form of this
affidavit. For these purposes, a “disqualified organization” means the
United States, any state or political subdivision thereof, any
foreign
government, any international organization, any agency or instrumentality
of any of the foregoing (other than an instrumentality if all of
its
activities are subject to tax and a majority of its board of directors
is
not selected by such governmental entity), any cooperative organization
furnishing electric energy or providing telephone service to persons
in
rural areas as described in Code Section 1381(a)(2)(C), any “electing
large partnership” within the meaning of Section 775 of the Code, or any
organization (other than a farmers’ cooperative described in Code Section
521) that is exempt from federal income tax unless such organization
is
subject to the tax on unrelated business income imposed by Code
Section
511.
|
|
4.
|
That
the Purchaser (x) is not, and on __________________ [date of transfer]
will not be, an employee benefit plan or other retirement arrangement
subject to Section 406 of the Employee Retirement Income Security
Act of
1974, as amended (“ERISA”), or Section 4975 of the Code, (collectively, a
“Plan”) or a person acting on behalf of any such Plan or investing the
assets of any such Plan to acquire a Residual Certificate; (y)
if the
Residual Certificate has been the subject of an ERISA-Qualifying
Underwriting, is an insurance company that is purchasing the Residual
Certificate with funds contained in an “insurance company general account”
as defined in Section V(e) of Prohibited Transaction Class Exemption
(“PTCE”) 95-60 and the purchase and holding of the Residual Certificate
are covered under Sections I and III of PTCE 95-60; or (z) herewith
delivers to the Trustee an opinion of counsel (a “Benefit Plan Opinion”)
satisfactory to the Trustee, and upon which the Trustee, the Master
Servicer, the Servicer, the Securities Administrator, the Depositor
and
any NIMS Insurer shall be entitled to rely, to the effect that
the
purchase or holding of such Residual Certificate by the Investor
will not
result in any non-exempt prohibited transactions under Title I
of ERISA or
Section 4975 of the Code and will not subject the Trustee, the
Depositor,
the Master Servicer, the Servicer, the Securities Administrator
or any
NIMS Insurer to any obligation in addition to those undertaken
by such
entities in the Trust Agreement, which opinion of counsel shall
not be an
expense of the Trust Fund or any of the above
parties.
|
D-1-1
|
5.
|
That
the Purchaser hereby acknowledges that under the terms of the Trust
Agreement (the “Agreement”) by and among Structured Asset Securities
Corporation, as Depositor, U.S. Bank National Association, as Trustee,
Aurora Loan Services LLC, as Master Servicer, Xxxxx Fargo Bank,
N.A., as
Securities Administrator, and Xxxxxxx Fixed Income Services Inc.,
as
Credit Risk Manager, dated as of March 1, 2007, no transfer of
the
Residual Certificate shall be permitted to be made to any person
unless
the Depositor and Trustee have received a certificate from such
transferee
containing the representations in paragraphs 3 and 4
hereof.
|
|
6.
|
That
the Purchaser does not hold REMIC residual securities as nominee
to
facilitate the clearance and settlement of such securities through
electronic book-entry changes in accounts of participating organizations
(such entity, a “Book-Entry
Nominee”).
|
|
7.
|
That
the Purchaser does not have the intention to impede the assessment
or
collection of any federal, state or local taxes legally required
to be
paid with respect to such Residual
Certificate.
|
|
8.
|
That
the Purchaser will not transfer a Residual Certificate to any person
or
entity (i) as to which the Purchaser has actual knowledge that
the
requirements set forth in paragraph 3, paragraph 6 or paragraph
10 hereof
are not satisfied or that the Purchaser has reason to believe does
not
satisfy the requirements set forth in paragraph 7 hereof, and (ii)
without
obtaining from the prospective Purchaser an affidavit substantially
in
this form and providing to the Trustee a written statement substantially
in the form of Exhibit D-2 to the
Agreement.
|
|
9.
|
That
the Purchaser understands that, as the holder of a Residual Certificate,
the Purchaser may incur tax liabilities in excess of any cash flows
generated by the interest and that it intends to pay taxes associated
with
holding such Residual Certificate as they become
due.
|
|
10.
|
That
the Purchaser (i) is not a Non-U.S. Person or (ii) is a Non-U.S.
Person
that holds a Residual Certificate in connection with the conduct
of a
trade or business within the United States and has furnished the
transferor and the Trustee with an effective Internal Revenue Service
Form
W-8ECI (Certificate of Foreign Person’s Claim for Exemption From
Withholding on Income Effectively Connected With the Conduct of
a Trade or
Business in the United States) or successor form at the time and
in the
manner required by the Code or (iii) is a Non-U.S. Person that
has
delivered to both the transferor and the Trustee an opinion of
a
nationally recognized tax counsel to the effect that the transfer
of such
Residual Certificate to it is in accordance with the requirements
of the
Code and the regulations promulgated thereunder and that such transfer
of
a Residual Certificate will not be disregarded for federal income
tax
purposes. “Non-U.S. Person” means any person other than a “United States
person” within the meaning of Section 7701(a)(30) of the
Code.
|
D-1-2
|
11.
|
That
the Purchaser agrees to such amendments of the Trust Agreement
as may be
required to further effectuate the restrictions on transfer of
any
Residual Certificate to such a “disqualified organization,” an agent
thereof, a Book-Entry Nominee, or a person that does not satisfy
the
requirements of paragraph 7 and paragraph 10
hereof.
|
|
12.
|
That
the Purchaser consents to the designation of the Securities Administrator
as its agent to act as “tax matters person” of the Trust Fund pursuant to
the Trust Agreement.
|
D-1-3
IN
WITNESS WHEREOF, the Purchaser has caused this instrument to be executed
on its
behalf, pursuant to authority of its Board of Directors, by its [title of
officer] this _____ day of __________, 20__.
_________________________________
[Name
of
Purchaser]
By:______________________________
Name:
Title:
Personally
appeared before me the above-named [name of officer] ________________, known
or
proved to me to be the same person who executed the foregoing instrument
and to
be the [title of officer] _________________ of the Purchaser, and acknowledged
to me that he [she] executed the same as his [her] free act and deed and
the
free act and deed of the Purchaser.
Subscribed
and sworn before me this _____ day of __________, 20__.
NOTARY
PUBLIC
______________________________
COUNTY
OF_____________________
STATE
OF______________________
My
commission expires the _____ day of __________, 20__.
X-0-0
XXXXXXX
X-0
FORM
OF
RESIDUAL CERTIFICATE TRANSFER AFFIDAVIT (TRANSFEROR)
____________________________
Date
| Re: |
Structured
Asset Securities Corporation
Mortgage Pass-Through Certificates,
Series
2007-WF1
|
_______________________
(the “Transferor”) has reviewed the attached affidavit of
_____________________________ (the “Transferee”), and has no actual knowledge
that such affidavit is not true and has no reason to believe that the
information contained in paragraph 7 thereof is not true, and has no reason
to
believe that the Transferee has the intention to impede the assessment or
collection of any federal, state or local taxes legally required to be paid
with
respect to a Residual Certificate. In addition, the Transferor has conducted
a
reasonable investigation at the time of the transfer and found that the
Transferee had historically paid its debts as they came due and found no
significant evidence to indicate that the Transferee will not continue to
pay
its debts as they become due.
Very
truly yours,
_______________________________
Name:
Title:
D-2-1
EXHIBIT
E
NAME
OF
SERVICING AGREEMENT
|
1.
|
The
Reconstituted Servicing Agreement dated as of March 1, 2007, among
the
Seller and the Servicer and acknowledged by the Master Servicer
and the
Trustee.
|
E-1
EXHIBIT
F
FORM
OF
RULE 144A TRANSFER CERTIFICATE
| Re: |
Structured
Asset Securities Corporation
Mortgage Pass-Through Certificates
Series
2007-WF1
|
Reference
is hereby made to the Trust Agreement dated as of March 1, 2007 (the “Trust
Agreement”) by and among Structured Asset Securities Corporation, as Depositor,
U.S. Bank National Association, as Trustee, Aurora Loan Services LLC, as
Master
Servicer, Xxxxx Fargo Bank, N.A., as Securities Administrator and Xxxxxxx
Fixed
Income Services Inc., as Credit Risk Manager. Capitalized terms used but
not
defined herein shall have the meanings given to them in the Trust
Agreement.
This
letter relates to $__________ initial Certificate Balance of Class
Certificates
which are held in the form of Definitive Certificates registered in the name
of
(the
“Transferor”). The Transferor has requested a transfer of such Definitive
Certificates for Definitive Certificates of such Class registered in the
name of
[insert name of transferee].
In
connection with such request, and in respect of such Certificates, the
Transferor hereby certifies that such Certificates are being transferred
in
accordance with (i) the transfer restrictions set forth in the Trust Agreement
and the Certificates and (ii) Rule 144A under the Securities Act to a purchaser
that the Transferor reasonably believes is a “qualified institutional buyer”
within the meaning of Rule 144A purchasing for its own account or for the
account of a “qualified institutional buyer,” which purchaser is aware that the
sale to it is being made in reliance upon Rule 144A, in a transaction meeting
the requirements of Rule 144A and in accordance with any applicable securities
laws of any state of the United States or any other applicable
jurisdiction.
This
certificate and the statements contained herein are made for your benefit
and
the benefit of the Placement Agent and the Depositor.
_________________________________
[Name
of
Transferor]
By:______________________________
Name:
Title:
Dated:
___________, ____
F-1
EXHIBIT
G
FORM
OF
PURCHASER’S LETTER FOR
INSTITUTIONAL
ACCREDITED INVESTORS
Date
Dear
Sirs:
In
connection with our proposed purchase of $______________ principal amount
of
Structured Asset Securities Corporation Mortgage Pass-Through Certificates,
Series 2007-WF1, [Class B] Certificates (the “Privately Offered Certificates”)
of the Structured Asset Securities Corporation (the “Depositor”), we confirm
that:
|
(1)
|
We
understand that the Privately Offered Certificates have not been,
and will
not be, registered under the Securities Act of 1933, as amended
(the
“Securities Act”), and may not be sold except as permitted in the
following sentence. We agree, on our own behalf and on behalf of
any
accounts for which we are acting as hereinafter stated, that if
we should
sell any Privately Offered Certificates within two years of the
later of
the date of original issuance of the Privately Offered Certificates
or the
last day on which such Privately Offered Certificates are owned
by the
Depositor or any affiliate of the Depositor (which includes the
Placement
Agent) we will do so only (A) to the Depositor, (B) to “qualified
institutional buyers” (within the meaning of Rule 144A under the
Securities Act) in accordance with Rule 144A under the Securities
Act
(“QIBs”), (C) pursuant to the exemption from registration provided by
Rule
144 under the Securities Act, or (D) to an institutional “accredited
investor” within the meaning of Rule 501(a)(1), (2), (3) or (7) of
Regulation D under the Securities Act that is not a QIB (an “Institutional
Accredited Investor”) which, prior to such transfer, delivers to the
Trustee under the Trust Agreement dated as of March 1, 2007 by
and among
the Depositor, Aurora Loan Services LLC, as Master Servicer, U.S.
Bank
National Association, as Trustee (the “Trustee”), Xxxxx Fargo Bank, N.A.,
as Securities Administrator, and Xxxxxxx Fixed Income Services
Inc., as
Credit Risk Manager, a signed letter in the form of this letter;
and we
further agree, in the capacities stated above, to provide to any
person
purchasing any of the Privately Offered Certificates from us a
notice
advising such purchaser that resales of the Privately Offered Certificates
are restricted as stated herein.
|
|
(2)
|
We
understand that, in connection with any proposed resale of any
Privately
Offered Certificates to an Institutional Accredited Investor, we
will be
required to furnish to the Trustee and the Depositor a certification
from
such transferee in the form hereof to confirm that the proposed
sale is
being made pursuant to an exemption from, or in a transaction not
subject
to, the registration requirements of the Securities Act. We further
understand that the Privately Offered Certificates purchased by
us will
bear a legend to the foregoing
effect.
|
G-1
|
(3)
|
We
are acquiring the Privately Offered Certificates for investment
purposes
and not with a view to, or for offer or sale in connection with,
any
distribution in violation of the Securities Act. We have such knowledge
and experience in financial and business matters as to be capable
of
evaluating the merits and risks of our investment in the Privately
Offered
Certificates, and we and any account for which we are acting are
each able
to bear the economic risk of such
investment.
|
|
(4)
|
We
are an Institutional Accredited Investor and we are acquiring the
Privately Offered Certificates purchased by us for our own account
or for
one or more accounts (each of which is an Institutional Accredited
Investor) as to each of which we exercise sole investment
discretion.
|
(5) We
have
received such information as we deem necessary in order to make our investment
decision.
(6) If
we are
acquiring ERISA-Restricted Certificates, we understand that in accordance
with
ERISA, the Code and the Exemption, no Plan and no person acting on behalf
of
such a Plan may acquire such Certificate except in accordance with Section
3.03(d) of the Trust Agreement.
Terms
used in this letter which are not otherwise defined herein have the respective
meanings assigned thereto in the Trust Agreement.
G-2
You
and
the Depositor are entitled to rely upon this letter and are irrevocably
authorized to produce this letter or a copy hereof to any interested party
in
any administrative or legal proceeding or official inquiry with respect to
the
matters covered hereby.
Very
truly yours,
_________________________________
[Name
of
Purchaser]
By:______________________________
Name:
Title:
G-3
EXHIBIT
H
FORM
OF
ERISA TRANSFER AFFIDAVIT
|
STATE
OF NEW YORK
|
)
|
|
)
ss.:
|
|
|
COUNTY
OF NEW YORK
|
)
|
The
undersigned, being first duly sworn, deposes and says as follows:
1. The
undersigned is the ______________________ of (the “Investor”), a [corporation
duly organized] and existing under the laws of __________, on behalf of which
he
makes this affidavit.
2. In
the
case of an ERISA-Restricted Certificate, the Investor (x) is not, and on
__________________ [date of transfer] will not be, an employee benefit plan
or
other retirement arrangement subject to Section 406 of the Employee Retirement
Income Security Act of 1974, as amended (“ERISA”), or Section 4975 of the
Internal Revenue Code of 1986, as amended (the “Code”), (collectively, a “Plan”)
or a person acting on behalf of any such Plan or investing the assets of
any
such Plan to acquire a Certificate; (y) if the Certificate has been the subject
of an ERISA-Qualifying Underwriting, is an insurance company that is purchasing
the Certificate with funds contained in an “insurance company general account”
as defined in Section V(e) of Prohibited Transaction Class Exemption (“PTCE”)
95-60 and the purchase and holding of the Certificate are covered under Sections
I and III of PTCE 95-60; or (z) herewith delivers to the Trustee an opinion
of
counsel (a “Benefit Plan Opinion”) satisfactory to the Trustee, and upon which
the Trustee, the Master Servicer, the Servicer, the Securities Administrator,
the Depositor and any NIMS Insurer shall be entitled to rely, to the effect
that
the purchase or holding of such Certificate by the Investor will not result
in
any non-exempt prohibited transactions under Title I of ERISA or Section
4975 of
the Code and will not subject the Trustee, the Depositor, the Master Servicer,
the Servicer, the Securities Administrator or any NIMS Insurer to any obligation
in addition to those undertaken by such entities in the Trust Agreement,
which
opinion of counsel shall not be an expense of the Trust Fund or any of the
above
parties.
3. In
the
case of an ERISA-Restricted Trust Certificate, prior to the termination of
the
Swap Agreement and the Interest Rate Cap Agreement either (i) the Investor
is
neither a Plan nor a person acting on behalf of any such Plan or using the
assets of any such Plan to effect such transfer or (ii) the acquisition and
holding of the ERISA-Restricted Trust Certificate are eligible for exemptive
relief under the statutory exception for nonfiduciary service providers under
Section 4.08(b)(17) of ERISA and Section 4975(20) of the Code, XXXX 00-00,
XXXX
0-0, XXXX 91-38, PTCE 95-60 or PTCE 96-23 or some other applicable
exception.
H-1
4. The
Investor hereby acknowledges that under the terms of the Trust Agreement
(the
“Agreement”) by and among Structured Asset Securities Corporation, as Depositor,
U.S. Bank National Association, as Trustee, Aurora Loan Services LLC, as
Master
Servicer, Xxxxx Fargo Bank, N.A., as Securities Administrator, and Xxxxxxx
Fixed
Income Services Inc., as Credit Risk Manager, dated as of March 1, 2007,
no
transfer of the ERISA-Restricted Certificates or the ERISA-Restricted Trust
Certificates shall be permitted to be made to any person unless the Trustee
has
received a certificate from such transferee in the form hereof.
H-2
IN
WITNESS WHEREOF, the Investor has caused this instrument to be executed on
its
behalf, pursuant to proper authority, by its duly authorized officer, duly
attested, this ____ day of _______________, 20___.
_________________________________
[Investor]
By:______________________________
Name:
Title:
ATTEST:
_____________________________
|
STATE
OF
|
)
|
|
)
ss:
|
|
|
COUNTY
OF
|
)
|
Personally
appeared before me the above-named ________________, known or proved to me
to be
the same person who executed the foregoing instrument and to be the
____________________ of the Investor, and acknowledged that he executed the
same
as his free act and deed and the free act and deed of the Investor.
Subscribed
and sworn before me this _____ day of _________ 20___.
______________________________
NOTARY
PUBLIC
My
commission expires the
_____
day
of __________, 20___.
H-3
EXHIBIT
I
[Reserved]
I-1
EXHIBIT
J
[Reserved]
J-1
EXHIBIT
K
NAME
OF
CUSTODIAL AGREEMENT
|
1.
|
Custodial
Agreement dated as of March 1, 2007 between Xxxxx Fargo Bank, N.A.,
as
Custodian, and U.S. Bank National Association, as
Trustee.
|
K-1
EXHIBIT
L
NAME
OF
CREDIT RISK MANAGEMENT AGREEMENT
|
1.
|
The
Credit Risk Management Agreement dated March 30, 2007 between Xxxxxxx
Fixed Income Services Inc. and Xxxxx Fargo Bank,
N.A.
|
X-0
XXXXXXX
X-0
FORM
OF
TRANSFER CERTIFICATE
FOR
TRANSFER FROM RESTRICTED GLOBAL SECURITY
TO
REGULATION S GLOBAL SECURITY
(Transfers
pursuant to § 3.03(h)(B)
of the
Agreement)
| Re: |
Structured
Asset Securities Corporation
Mortgage
Pass-Through Certificates Series
2007-WF1
|
Reference
is hereby made to the Trust Agreement (the “Agreement”) by and among Structured
Asset Securities Corporation, as Depositor, Aurora Loan Services LLC, as
Master
Servicer, Xxxxxxx Fixed Income Services Inc., as Credit Risk Manager, U.S.
Bank
National Association, as Trustee, and Xxxxx Fargo Bank, N.A., as Securities
Administrator, dated as of March 1, 2007. Capitalized terms used but not
defined
herein shall have the meanings given to them in the Agreement.
This
letter relates to U.S. $
aggregate
principal amount of Securities which are held in the form of a Restricted
Global
Security with DTC in the name of [name of transferor]
(the
“Transferor”) to effect the transfer of the Securities in exchange for an
equivalent beneficial interest in a Regulation S Global Security.
In
connection with such request, the Transferor does hereby certify that such
transfer has been effected in accordance with the transfer restrictions set
forth in the Agreement and the Securities and in accordance with Rule 904
of
Regulation S, and that:
a. the
offer
of the Securities was not made to a person in the United States;
b. at
the
time the buy order was originated, the transferee was outside the United
States
or the Transferor and any person acting on its behalf reasonably believed
that
the transferee was outside the United States;
c. no
directed selling efforts have been made in contravention of the requirements
of
Rule 903 or 904 of Regulation S, as applicable;
d. the
transaction is not part of a plan or scheme to evade the registration
requirements of the United States Securities Act of 1933, as amended;
and
e.
the
transferee is not a U.S. person (as defined in Regulation
S).
M-1-1
You
are
entitled to rely upon this letter and are irrevocably authorized to produce
this
letter or a copy hereof to any interested party in any administrative or
legal
proceedings or official inquiry with respect to the matters covered hereby.
Terms used in this certificate have the meanings set forth in Regulation
S.
[Name
of
Transferor]
By:
Name:
Title:
Date:
,
X-0-0
XXXXXXX
X-0
FORM
OF
TRANSFER CERTIFICATE FOR TRANSFER
FROM
REGULATION S GLOBAL SECURITY
TO
RESTRICTED GLOBAL SECURITY
(Transfers
pursuant to § 3.03(h)(C)
of
the
Agreement)
Re: Structured
Asset Securities Corporation
Mortgage
Pass-Through Certificates Series 2007-WF1
Reference
is hereby made to the Trust Agreement (the “Agreement”) by and among Structured
Asset Securities Corporation, as Depositor, Aurora Loan Services LLC, as
Master
Servicer, Xxxxxxx Fixed Income Services Inc., as Credit Risk Manager, U.S.
Bank
National Association, as Trustee, and Xxxxx Fargo Bank, N.A., as Securities
Administrator, dated as of March 1, 2007. Capitalized terms used but not
defined
herein shall have the meanings given to them in the Agreement.
This
letter relates to U.S. $
aggregate
principal amount of Securities which are held in the form of a Regulations
S
Global Security in the name of [name of transferor]
(the
“Transferor”) to effect the transfer of the Securities in exchange for an
equivalent beneficial interest in a Restricted Global Security.
In
connection with such request, and in respect of such Securities, the Transferor
does hereby certify that such Securities are being transferred in accordance
with (i) the transfer restrictions set forth in the Agreement and the Securities
and (ii) Rule 144A under the United States Securities Act of 1933, as amended,
to a transferee that the Transferor reasonably believes is purchasing the
Securities for its own account or an account with respect to which the
transferee exercises sole investment discretion, the transferee and any such
account is a qualified institutional buyer within the meaning of Rule 144A,
in a
transaction meeting the requirements of Rule 144A and in accordance with
any
applicable securities laws of any state of the United States or any other
jurisdiction.
[Name
of
Transferor]
By:
Name:
Title:
Date:
,
M-2-1
EXHIBIT
N
INTEREST
RATE CAP AGREEMENT
N-1
EXHIBIT
O
SWAP
AGREEMENT
X-0
XXXXXXX
X-0
|
ADDITIONAL
FORM 10-D DISCLOSURE
|
|
|
Item
on Form 10-D
|
Party
Responsible
|
|
Item
1: Distribution and Pool Performance Information
|
|
|
Information
included in the Distribution Date Statement
|
Servicer(1)
Master
Servicer
Securities
Administrator
|
|
Any
information required by 1121 which is NOT included on the Distribution
Date Statement
|
Depositor
|
|
Item
2: Legal Proceedings
Any
legal proceeding pending against the following entities or their
respective property, that is material to Certificateholders, including
any
proceedings known to be contemplated by governmental
authorities:
|
|
|
▪
Issuing Entity (Trust Fund)
|
Trustee,
Master Servicer, Securities Administrator and Depositor
|
|
▪
Sponsor (Seller)
|
Seller
(if a party to the Trust Agreement) or Depositor
|
|
▪
Depositor
|
Depositor
|
|
▪
Trustee
|
Trustee
|
|
▪
Securities Administrator
|
Securities
Administrator
|
|
▪
Master Servicer
|
Master
Servicer
|
|
▪
Custodian
|
Custodian(2)
|
|
▪
1110(b) Originator
|
Depositor
|
|
▪
Any 1108(a)(2) Servicer (other than the Master Servicer or Securities
Administrator)
|
Servicer(1)
|
|
▪
Any other party contemplated by 1100(d)(1)
|
Depositor
|
|
Item
3: Sale of Securities and Use of Proceeds
Information
from Item 2(a) of Part II of Form 10-Q:
With
respect to any sale of securities by the sponsor, depositor or
issuing
entity, that are backed by the same asset pool or are otherwise
issued by
the issuing entity, whether or not registered, provide the sales
and use
of proceeds information in Item 701 of Regulation S-K. Pricing
information
can be omitted if securities were not registered.
|
Depositor
|
P-1-1
|
ADDITIONAL
FORM 10-D DISCLOSURE
|
|
|
Item
on Form 10-D
|
Party
Responsible
|
|
Item
4: Defaults Upon Senior Securities
Information
from Item 3 of Part II of Form 10-Q:
Report
the occurrence of any Event of Default (after expiration of any
grace
period and provision of any required notice)
|
Securities
Administrator
Trustee
|
|
Item
5: Submission of Matters to a Vote of Security
Holders
Information
from Item 4 of Part II of Form 10-Q
|
Trustee
|
|
Item
6: Significant Obligors of Pool Assets
Item
1112(b) - Significant
Obligor Financial Information*
|
Depositor
|
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Item.
|
|
|
Item
7: Significant Enhancement Provider Information
Item
1114(b)(2) - Credit Enhancement Provider Financial
Information*
|
|
|
▪
Determining applicable disclosure threshold
|
Depositor
|
|
▪
Requesting required financial information (including any required
accountants’ consent to the use thereof) or effecting incorporation by
reference
|
Depositor
|
|
Item
1115(b) - Derivative Counterparty Financial
Information*
|
|
|
▪
Determining current maximum probable exposure
|
Depositor
|
|
▪
Determining current significance percentage
|
Depositor
|
|
▪
Requesting required financial information (including any required
accountants’ consent to the use thereof) or effecting incorporation by
reference
|
Depositor
|
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Items.
|
|
|
Item
8: Other Information
Disclose
any information required to be reported on Form 8-K during the
period
covered by the Form 10-D but not reported
|
Any
party responsible for the applicable Form 8-K Disclosure
item
|
P-1-2
|
ADDITIONAL
FORM 10-D DISCLOSURE
|
|
|
Item
on Form 10-D
|
Party
Responsible
|
|
Item
9: Exhibits
|
|
|
Monthly
Statement to Certificateholders
|
Securities
Administrator
|
|
Exhibits
required by Item 601 of Regulation S-K, such as material
agreements
|
Depositor
|
_______________________
|
(1)
|
This
information to be provided pursuant to the Servicing
Agreement.
|
|
(2)
|
This
information to be provided pursuant to the Custodial
Agreement.
|
X-0-0
XXXXXXX
X-0
|
ADDITIONAL
FORM 10-K DISCLOSURE
|
|
|
Item
on Form 10-K
|
Party
Responsible
|
|
Item
1B: Unresolved Staff Comments
|
Depositor
|
|
Item
9B: Other Information
Disclose
any information required to be reported on Form 8-K during the
fourth
quarter covered by the Form 10-K but not reported
|
Any
party responsible for disclosure items on Form 8-K
|
|
Item
15: Exhibits, Financial Statement Schedules
|
Securities
Administrator
Depositor
|
|
Regulation
AB Item 1112(b): Significant Obligors of Pool
Assets
|
|
|
Significant
Obligor Financial Information*
|
Depositor
|
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Item.
|
|
|
Regulation
AB Item 1114(b)(2): Credit Enhancement Provider Financial
Information
|
|
|
▪
Determining applicable disclosure threshold
|
Depositor
|
|
▪
Requesting required financial information (including any required
accountants’ consent to the use thereof) or effecting incorporation by
reference
|
Depositor
|
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Items.
|
|
|
Regulation
AB Item 1115(b): Derivative Counterparty Financial
Information
|
|
|
▪
Determining current maximum probable exposure
|
Depositor
|
|
▪
Determining current significance percentage
|
Depositor
|
|
▪
Requesting required financial information (including any required
accountants’ consent to the use thereof) or effecting incorporation by
reference
|
Depositor
|
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Items.
|
|
|
Regulation
AB Item 1117: Legal Proceedings
Any
legal proceeding pending against the following entities or their
respective property, that is material to Certificateholders, including
any
proceedings known to be contemplated by governmental
authorities:
|
|
P-2-1
|
ADDITIONAL
FORM 10-K DISCLOSURE
|
|
|
Item
on Form 10-K
|
Party
Responsible
|
|
▪
Issuing Entity (Trust Fund)
|
Trustee,
Master Servicer, Securities Administrator and Depositor
|
|
▪
Sponsor (Seller)
|
Seller
(if a party to the Trust Agreement) or Depositor
|
|
▪
Depositor
|
Depositor
|
|
▪
Trustee
|
Trustee
|
|
▪
Securities Administrator
|
Securities
Administrator
|
|
▪
Master Servicer
|
Master
Servicer
|
|
▪
Custodian
|
Custodian(1)
|
|
▪
1110(b) Originator
|
Depositor
|
|
▪
Any 1108(a)(2) Servicer (other than the Master Servicer or Securities
Administrator)
|
Servicer(2)
|
|
▪
Any other party contemplated by 1100(d)(1)
|
Depositor
|
|
Regulation
AB Item 1119: Affiliations and Relationships
|
|
|
Whether
(a) the Sponsor (Seller), Depositor or Issuing Entity is an affiliate
of
the following parties, and (b) to the extent known and material,
any of
the following parties are affiliated with one another:
|
Depositor
as to (a)
|
|
▪
Master Servicer
|
Master
Servicer
|
|
▪
Securities Administrator
|
Securities
Administrator
|
|
▪
Trustee
|
Trustee
|
|
▪
Any other 1108(a)(3) servicer
|
Servicer(2)
|
|
▪
Any 1110 Originator
|
Depositor
|
|
▪
Any 1112(b) Significant Obligor
|
Depositor
|
|
▪
Any 1114 Credit Enhancement Provider
|
Depositor
|
|
▪
Any 1115 Derivate Counterparty Provider
|
Depositor
|
|
▪
Any other 1101(d)(1) material party
|
Depositor
|
|
Whether
there are any “outside the ordinary course business arrangements” other
than would be obtained in an arm’s length transaction between (a) the
Sponsor (Seller), Depositor or Issuing Entity on the one hand,
and (b) any
of the following parties (or their affiliates) on the other hand,
that
exist currently or within the past two years and that are material
to a
Certificateholder’s understanding of the Certificates:
|
Depositor
as to (a)
|
|
▪
Master Servicer
|
Master
Servicer
|
P-2-2
|
ADDITIONAL
FORM 10-K DISCLOSURE
|
|
|
Item
on Form 10-K
|
Party
Responsible
|
|
▪
Securities Administrator
|
Securities
Administrator
|
|
▪
Trustee
|
Trustee
|
|
▪
Any other 1108(a)(3) servicer
|
Servicer(2)
|
|
▪
Any 1110 Originator
|
Depositor
|
|
▪
Any 1112(b) Significant Obligor
|
Depositor
|
|
▪
Any 1114 Credit Enhancement Provider
|
Depositor
|
|
▪
Any 1115 Derivate Counterparty Provider
|
Depositor
|
|
▪
Any other 1101(d)(1) material party
|
Depositor
|
|
Whether
there are any specific relationships involving the transaction
or the pool
assets between (a) the Sponsor (Seller), Depositor or Issuing Entity
on
the one hand, and (b) any of the following parties (or their affiliates)
on the other hand, that exist currently or within the past two
years and
that are material:
|
Depositor
as to (a)
|
|
▪
Master Servicer
|
Master
Servicer
|
|
▪
Securities Administrator
|
Securities
Administrator
|
|
▪
Trustee
|
Trustee
|
|
▪
Any other 1108(a)(3) servicer
|
Servicer(2)
|
|
▪
Any 1110 Originator
|
Depositor
|
|
▪
Any 1112(b) Significant Obligor
|
Depositor
|
|
▪
Any 1114 Credit Enhancement Provider
|
Depositor
|
|
▪
Any 1115 Derivate Counterparty Provider
|
Depositor
|
|
▪
Any other 1101(d)(1) material party
|
Depositor
|
|
(1)
|
This
information to be provided pursuant to the Custodial
Agreement.
|
|
(2)
|
This
information to be provided pursuant to the Servicing
Agreement.
|
X-0-0
XXXXXXX
X-0
|
XXXX
0-X DISCLOSURE INFORMATION
|
|
|
Item
on Form 8-K
|
Party
Responsible
|
|
Item
1.01- Entry into a Material Definitive Agreement
Disclosure
is required regarding entry into or amendment of any definitive
agreement
that is material to the securitization, even if depositor is not
a party.
Examples:
servicing agreement, custodial agreement.
Note:
disclosure not required as to definitive agreements that are fully
disclosed in the prospectus
|
All
parties (with respect to any agreement entered into by such
party)
|
|
Item
1.02- Termination of a Material Definitive Agreement
Disclosure
is required regarding termination of any definitive agreement that
is
material to the securitization (other than expiration in accordance
with
its terms), even if depositor is not a party.
Examples:
servicing agreement, custodial agreement.
|
All
parties (with respect to any agreement entered into by such
party)
|
|
Item
1.03- Bankruptcy or Receivership
Disclosure
is required regarding the bankruptcy or receivership, with respect
to any
of the following:
|
Depositor
|
|
▪
Sponsor (Seller)
|
Depositor/Sponsor
(Seller)
|
|
▪
Depositor
|
Depositor
|
|
▪
Master Servicer
|
Master
Servicer
|
|
▪
Affiliated Servicer
|
Servicer(1)
|
|
▪
Other Servicer servicing 20% or more of the pool assets at the
time of the
report
|
Servicer(1)
|
|
▪
Other material servicers
|
Servicer(1)
|
|
▪
Trustee
|
Trustee
|
|
▪
Securities Administrator
|
Securities
Administrator
|
|
▪
Significant Obligor
|
Depositor
|
|
▪
Credit Enhancer (10% or more)
|
Depositor
|
|
▪
Derivative Counterparty
|
Depositor
|
|
▪
Custodian
|
Custodian(2)
|
P-3-1
|
FORM
8-K DISCLOSURE INFORMATION
|
|
|
Item
on Form 8-K
|
Party
Responsible
|
|
Item
2.04- Triggering Events that Accelerate or Increase a Direct Financial
Obligation or an Obligation under an Off-Balance Sheet
Arrangement
Includes
an early amortization, performance trigger or other event, including
event
of default, that would materially alter the payment priority/distribution
of cash flows/amortization schedule.
Disclosure
will be made of events other than waterfall triggers which are
disclosed
in the monthly statements to the certificateholders.
|
Depositor
Master
Servicer
Securities
Administrator
|
|
Item
3.03- Material Modification to Rights of Security
Holders
Disclosure
is required of any material modification to documents defining
the rights
of Certificateholders, including the Trust Agreement.
|
Securities
Administrator
Trustee
(with respect to each, only to the extent it is a party to any
such
documents)
Depositor
|
|
Item
5.03- Amendments of Articles of Incorporation or Bylaws; Change
of Fiscal
Year
Disclosure
is required of any amendment “to the governing documents of the issuing
entity”.
|
Depositor
|
|
Item
6.01- ABS Informational and Computational
Material
|
Depositor
|
|
Item
6.02- Change of Servicer or Securities Administrator
Requires
disclosure of any removal, replacement, substitution or addition
of any
master servicer, affiliated servicer, other servicer servicing
10% or more
of pool assets at time of report, other material servicers or
trustee.
|
Master
Servicer/Securities Administrator/Depositor/
Servicer(1)/Trustee
(as to itself and the Master Servicer)
|
|
Regulation
AB disclosure about any new servicer or master servicer is also
required.
|
Servicer(1)/Master
Servicer/Depositor
|
|
Regulation
AB disclosure about any new Trustee is also required.
|
Successor
Trustee
|
|
Item
6.03- Change in Credit Enhancement or External
Support
Covers
termination of any enhancement in manner other than by its terms,
the
addition of an enhancement, or a material change in the enhancement
provided. Applies to external credit enhancements as well as derivatives.
|
Depositor/Securities
Administrator/Trustee
|
P-3-2
|
FORM
8-K DISCLOSURE INFORMATION
|
|
|
Item
on Form 8-K
|
Party
Responsible
|
|
Regulation
AB disclosure about any new enhancement provider is also
required.
|
Depositor
|
|
Item
6.04- Failure to Make a Required Distribution
|
Securities
Administrator
Trustee
(so long as the Trustee is the Paying Agent)
|
|
Item
6.05- Securities Act Updating Disclosure
If
any material pool characteristic differs by 5% or more at the time
of
issuance of the securities from the description in the final prospectus,
provide updated Regulation AB disclosure about the actual asset
pool.
|
Depositor
|
|
If
there are any new servicers or originators required to be disclosed
under
Regulation AB as a result of the foregoing, provide the information
called
for in Items 1108 and 1110 respectively.
|
Depositor
|
|
Item
7.01- Regulation FD Disclosure
|
All
parties
|
|
Item
8.01- Other Events
Any
event, with respect to which information is not otherwise called
for in
Form 8-K, that the registrant deems of importance to
certificateholders.
|
Depositor
|
|
Item
9.01- Financial Statements and Exhibits
|
Responsible
party for reporting/disclosing the financial statement or
exhibit
|
|
(1)
|
This
information to be provided pursuant to the Servicing
Agreement.
|
|
(2)
|
This
information to be provided pursuant to the Custodial
Agreement.
|
X-0-0
XXXXXXX
X-0
ADDITIONAL
DISCLOSURE NOTIFICATION
Structured
Asset Securities Corporation
000
Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx
Xxxx,
XX 00000
Xxxxx
Fargo Bank, N.A., as Securities Administrator
Xxx
Xxxxxxxxx Xxxx
Xxxxxxxx,
Xxxxxxxx 00000
Attn:
Corporate Trust Services - SASCO 2007-WF1 - SEC Report Processing
RE:
**Additional Form [10-D][10-K][8-K] Disclosure** Required
Ladies
and Gentlemen:
In
accordance with Section [ ] of the Trust Agreement, dated as of March 1,
2007,
by and among Structured Asset Securities Corporation, as Depositor, Xxxxx
Fargo
Bank, N.A., as Securities Administrator, Aurora Loan Services LLC, as Master
Servicer, Xxxxxxx Fixed Income Services Inc., as Credit Risk Manager, and
U.S.
Bank 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:
P-4-1
Any
inquiries related to this notification should be directed to [ ], phone number:
[ ]; email address: [ ].
[NAME
OF
PARTY],
as
[role]
By:
___________________________
Name:
Title:
|
cc:
|
U.S.
Bank National Association
|
|
Xxx
Xxxxxxx Xxxxxx, 0xx
Xxxxx
|
|
Xxxxxx,
Xxxxxxxxxxxxx 00000
|
X-0-0
XXXXXXX
X-0
FORM
OF
BACK-UP XXXXXXXX-XXXXX CERTIFICATION
[ ]
[ ]
[ ]
Re: Structure
Asset Securities Corporation Mortgage Pass-Through Certificates,
Series 2007-WF1
[_______],
the [_______] of [_______] (the “Company”) hereby certifies to the Depositor,
the Master Servicer, the Securities Administrator, the Credit Risk Manager
and
the Trustee, 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 Securities
Administrator 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
Q-1-1
(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
Trust Agreement, dated as of March 1, 2007 (the “Trust Agreement”) by and among
Structured Asset Securities Corporation, as Depositor, U.S. Bank National
Association, as Trustee, Aurora Loan Services LLC, as Master Servicer, Xxxxxxx
Fixed Income Services Inc., as Credit Risk Manager, and Xxxxx Fargo Bank,
N.A.,
as Securities Administrator. Capitalized terms used but not defined herein
shall
have the meanings given to them in the Trust Agreement.
[_______]
as
[_______]
By:
Name:
Title:
Date:
Q-1-2
EXHIBIT
Q-2
FORM
OF
BACK-UP XXXXXXXX-XXXXX CERTIFICATION TO BE PROVIDED
BY
THE
PAYING AGENT
| Re: |
Structured
Asset Securities Corporation Mortgage Loan Trust 2007-WF1 (the
“Trust”),
Mortgage Pass-Through Certificates, Series 2007-WF1, issued pursuant
to
the Trust Agreement, dated as of March 1, 2007, among Structured
Asset
Securities Corporation, as Depositor, Aurora Loan Services, LLC,
as Master
Servicer, Xxxxx Fargo Bank, N.A., as Securities Administrator,
Xxxxxxx
Fixed Income Services Inc., as Credit Risk Manager, and
U.S. Bank National Association,
as Trustee
|
U.S.
Bank
National Association, solely in its capacity as Paying Agent under the
Agreement, hereby certifies to the depositor and the Master Servicer, and
their
respective officers, directors and affiliates, and with the knowledge and
intent
that they will rely upon this certification, that:
(1) To
report
on assessment of compliance with servicing criteria applicable to the Paying
Agent for asset-backed securities of the Paying Agent and its related
attestation report on assessment of compliance with servicing criteria
applicable to it for inclusion in the Trust’s annual report on Form 10-K for the
fiscal year [____] in accordance with Item 1122 of Regulation AB and Exchange
Act Rules 13a-18 and 15d-18 has been delivered to the Securities Administrator,
Depositor [and the Master Servicer] pursuant to Section 6.20 of the Trust
Agreement. Any material instances of non-compliance by the Paying Agent with
the
applicable servicing criteria as described in such report.;
(2) The
assessment of compliance and related attestation reported referred to above,
taken as a whole, do not contain any untrue statement of material fact or
omit
to state a material fact necessary to make the statements made, in light
of the
circumstances under which such statements were made, not misleading with
respect
to the period covered by such assessment of compliance and attestation report;
and
(3) Any
information required to be delivered pursuant to Section 3.08(b) of the
Agreement has been provided to the Sponsor, the Depositor, the Master Servicer
and the Securities Administrator.
U.S.
Bank
National Association, as Paying Agent
______________________________
[Signature]
[Title]
Date:
__________________________
Q-2-1
EXHIBIT
Q-3
FORM
OF
BACK-UP XXXXXXXX-XXXXX CERTIFICATION TO BE PROVIDED BY THE SECURITIES
ADMINISTRATOR
| Re: |
Structured
Asset Securities Corporation Mortgage Loan Trust 2007-WF1 (the
“Trust”),
Mortgage Pass-Through Certificates, Series 2007-WF1, issued pursuant
to
the Trust Agreement, dated as of March 1, 2007, among Structured
Asset
Securities Corporation, as Depositor, Aurora Loan Services, LLC,
as Master
Servicer, Xxxxx Fargo Bank, N.A., as Securities Administrator,
Xxxxxxx
Fixed Income Services Inc., as Credit Risk Manager, and
U.S. Bank National Association,
as Trustee
|
The
Securities Administrator hereby certifies to the Depositor and the Master
Servicer, and their respective officers, directors and affiliates, and with
the
knowledge and intent that they will rely upon this certification,
that:
(1) I
have
reviewed the annual report on Form 10-K for the fiscal year [____] (the “Annual
Report”), and all reports on Form 10-D required to be filed in respect of period
covered by the Annual Report (collectively with the Annual Report, the
“Reports”), of the Trust;
(2) To
my
knowledge, (a) the Reports, taken as a whole, do not contain any untrue
statement of a material fact or omit to state a material fact necessary to
make
the statements made, in light of the circumstances under which such statements
were made, not misleading with respect to the period covered by the Annual
Report, and (b) the Securities Administrator’s assessment of compliance and
related attestation report referred to below, taken as a whole, do not contain
any untrue statement of a material fact or omit to state a material fact
necessary to make the statements made, in light of the circumstances under
which
such statements were made, not misleading with respect to the period covered
by
such assessment of compliance and attestation report;
(3) To
my
knowledge, the distribution information required to be provided by the
Securities Administrator under the Trust Agreement for inclusion in the Reports
is included in the Reports;
(4) I
am
responsible for reviewing the activities performed by the Securities
Administrator under the Trust Agreement, and based on my knowledge and the
compliance review conducted in preparing the assessment of compliance of
the
Securities Administrator required by the Trust Agreement, and except as
disclosed in the Reports, the Securities Administrator has fulfilled its
obligations under the Trust Agreement in all material respects; and
(5) The
report on assessment of compliance with servicing criteria applicable to
the
Securities Administrator for asset-backed securities of the Securities
Administrator and each Subcontractor utilized by the Securities Administrator
and related attestation report on assessment of compliance with servicing
criteria applicable to it required to be included in the Annual Report in
accordance with Item 1122 of Regulation AB and Exchange Act Rules 13a-18
and
15d-18 has been included as an exhibit to the Annual Report. Any material
instances of non-compliance are described in such report and have been disclosed
in the Annual Report.
Q-3-1
In
giving
the certifications above, the Securities Administrator has reasonably relied
on
information provided to it by the following unaffiliated parties: [names
of
servicer(s), master servicer, subservicer(s), depositor, trustee,
custodian(s)]
Date:
__________________________________
__________________________________
[Signature]
[Title]
Q-3-2
EXHIBIT
R-1
WATCH
LIST REPORT
X-0-0
XXXXXXX
X-0
FORM
OF
LOSS SEVERITY REPORT
X-0-0
XXXXXXX
X-0
FORM
OF
MORTGAGE INSURANCE CLAIM REPORT
[Reserved]
X-0-0
XXXXXXX
X-0
FORM
OF
PREPAYMENT CHARGES REPORT
X-0-0
XXXXXXX
X-0
FORM
OF
ANALYTICS REPORT
R-5-1
EXHIBIT
S
SERVICING
CRITERIA TO BE ADDRESSED IN
REPORT
ON
ASSESSMENT OF COMPLIANCE
TO: [ ]
Where
there are multiple checks for criteria the attesting party will identify
in
their management assertion that they are attesting only to the portion of
the
distribution chain they are responsible for in the related transaction
agreements. Capitalized terms used herein but not defined herein shall have
the
meanings assigned to them in the Trust Agreement dated as of March 1, 2007,
by
and among Structured Asset Securities Corporation, as Depositor, U.S. Bank
National Association, as Trustee, Aurora Loan Services LLC, as Master Servicer,
Xxxxx Fargo Bank, N.A., as Securities Administrator, and Xxxxxxx Fixed Income
Services Inc., as Credit Risk Manager.
|
Regulation
AB Reference
|
Servicing
Criteria
|
Paying
Agent
(including
the Trustee if acting as Paying Agent)
|
Credit
Risk Manager
|
Trustee
|
Master
Servicer
|
Securities
Administrator
|
|
General Servicing
Considerations
|
||||||
|
1122(d)(1)(i)
|
Policies
and procedures are instituted to monitor any performance or other
triggers
and events of default in accordance with the transaction
agreements.
|
X
|
||||
|
1122(d)(1)(ii)
|
If
any material servicing activities are outsourced to third parties,
policies and procedures are instituted to monitor the third party’s
performance and compliance with such servicing activities.
|
|||||
|
1122(d)(1)(iii)
|
Any
requirements in the transaction agreements to maintain a back-up
servicer
for the pool assets are maintained.
|
|
|
X
|
||
|
1122(d)(1)(iv)
|
A
fidelity bond and errors and omissions policy is in effect on the
party
participating in the servicing function throughout the reporting
period in
the amount of coverage required by and otherwise in accordance
with the
terms of the transaction agreements.
|
X
|
S-1
|
Regulation
AB Reference
|
Servicing
Criteria
|
Paying
Agent
(including
the Trustee if acting as Paying Agent)
|
Credit
Risk Manager
|
Trustee
|
Master
Servicer
|
Securities
Administrator
|
|
Cash Collection and Administration
|
||||||
|
1122(d)(2)(i)
|
Payments
on pool assets are deposited into the appropriate custodial bank
accounts
and related bank clearing accounts no more than two business days
following receipt, or such other number of days specified in the
transaction agreements.
|
X
|
X
|
X
|
||
|
1122(d)(2)(ii)
|
Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made
only by authorized personnel.
|
X
|
X
|
|||
|
1122(d)(2)(iii)
|
Advances
of funds or guarantees regarding collections, cash flows or distributions,
and any interest or other fees charged for such advances, are made,
reviewed and approved as specified in the transaction agreements.
|
X
|
||||
|
1122(d)(2)(iv)
|
The
related accounts for the transaction, such as cash reserve accounts
or
accounts established as a form of over collateralization, are separately
maintained (e.g., with respect to commingling of cash) as set forth
in the
transaction agreements.
|
X
|
X
|
X
|
||
|
1122(d)(2)(v)
|
Each
custodial account is maintained at a federally insured depository
institution as set forth in the transaction agreements. For purposes
of
this criterion, “federally insured depository institution” with respect to
a foreign financial institution means a foreign financial institution
that
meets the requirements of Rule 13k-1(b)(1) of the Securities Exchange
Act.
|
X
|
X
|
|||
|
1122(d)(2)(vi)
|
Unissued
checks are safeguarded so as to prevent unauthorized access.
|
X
|
X
|
|||
|
1122(d)(2)(vii)
|
Reconciliations
are prepared on a monthly basis for all asset-backed securities
related
bank accounts, including custodial accounts and related bank clearing
accounts. These reconciliations are (A) mathematically accurate;
(B)
prepared within 30 calendar days after the bank statement cutoff
date, or
such other number of days specified in the transaction agreements;
(C)
reviewed and approved by someone other than the person who prepared
the
reconciliation; and (D) contain explanations for reconciling items.
These
reconciling items are resolved within 90 calendar days of their
original
identification, or such other number of days specified in the transaction
agreements.
|
X
|
X
|
S-2
|
Regulation
AB Reference
|
Servicing
Criteria
|
Paying
Agent
(including
the Trustee if acting as Paying Agent)
|
Credit
Risk Manager
|
Trustee
|
Master
Servicer
|
Securities
Administrator
|
|
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 pool assets serviced by the Servicer.
|
X
|
X
|
X
|
||
|
1122(d)(3)(ii)
|
Amounts
due to investors are allocated and remitted in accordance with
timeframes,
distribution priority and other terms set forth in the transaction
agreements.
|
X
|
X
|
X
|
S-3
|
Regulation
AB Reference
|
Servicing
Criteria
|
Paying
Agent
(including
the Trustee if acting as Paying Agent)
|
Credit
Risk Manager
|
Trustee
|
Master
Servicer
|
Securities
Administrator
|
|
1122(d)(3)(iii)
|
Disbursements
made to an investor are posted within two business days to the
Servicer’s
investor records, or such other number of days specified in the
transaction agreements.
|
X
|
X
|
|||
|
1122(d)(3)(iv)
|
Amounts
remitted to investors per the investor reports agree with cancelled
checks, or other form of payment, or custodial bank statements.
|
X
|
X
|
|||
|
Pool
Asset Administration
|
||||||
|
1122(d)(4)(i)
|
Collateral
or security on pool assets is maintained as required by the transaction
agreements or related pool asset documents.
|
|
||||
|
1122(d)(4)(ii)
|
Pool
assets and related documents are safeguarded as required by the
transaction agreements
|
|
||||
|
1122(d)(4)(iii)
|
Any
additions, removals or substitutions to the asset pool are made,
reviewed
and approved in accordance with any conditions or requirements
in the
transaction agreements.
|
|
X
|
|||
|
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.
|
X
|
S-4
|
Regulation
AB Reference
|
Servicing
Criteria
|
Paying
Agent
(including
the Trustee if acting as Paying Agent)
|
Credit
Risk Manager
|
Trustee
|
Master
Servicer
|
Securities
Administrator
|
|
1122(d)(4)(vii)
|
Loss
mitigation or recovery actions (e.g., forbearance plans, modifications
and
deeds in lieu of foreclosure, foreclosures and repossessions, as
applicable) are initiated, conducted and concluded in accordance
with the
timeframes or other requirements established by the transaction
agreements.
|
X
|
||||
|
1122(d)(4)(viii)
|
Records
documenting collection efforts are maintained during the period
a pool
asset is delinquent in accordance with the transaction agreements.
Such
records are maintained on at least a monthly basis, or such other
period
specified in the transaction agreements, and describe the entity’s
activities in monitoring delinquent pool assets including, for
example,
phone calls, letters and payment rescheduling plans in cases where
delinquency is deemed temporary (e.g., illness or unemployment).
|
|||||
|
1122(d)(4)(ix)
|
Adjustments
to interest rates or rates of return for pool assets with variable
rates
are computed based on the related pool asset documents.
|
|||||
|
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.
|
S-5
|
Regulation
AB Reference
|
Servicing
Criteria
|
Paying
Agent
(including
the Trustee if acting as Paying Agent)
|
Credit
Risk Manager
|
Trustee
|
Master
Servicer
|
Securities
Administrator
|
|
1122(d)(4)(xi)
|
Payments
made on behalf of an obligor (such as tax or insurance payments)
are made
on or before the related penalty or expiration dates, as indicated
on the
appropriate bills or notices for such payments, provided that such
support
has been received by the servicer at least 30 calendar days prior
to these
dates, or such other number of days specified in the transaction
agreements.
|
|
||||
|
1122(d)(4)(xii)
|
Any
late payment penalties in connection with any payment to be made
on behalf
of an obligor are paid from the Servicer’s funds and not charged to the
obligor, unless the late payment was due to the obligor’s error or
omission.
|
|
||||
|
1122(d)(4)(xiii)
|
Disbursements
made on behalf of an obligor are posted within two business days
to the
obligor’s records maintained by the servicer, or such other number of days
specified in the transaction agreements.
|
|
||||
|
1122(d)(4)(xiv)
|
Delinquencies,
charge-offs and uncollectible accounts are recognized and recorded
in
accordance with the transaction agreements.
|
X
|
||||
|
1122(d)(4)(xv)
|
Any
external enhancement or other support, identified in Item 1114(a)(1)
through (3) or Item 1115 of Regulation AB, is maintained as set
forth in
the transaction agreements.
|
X
|
S-6
EXHIBIT
T
[RESERVED]
T-1
EXHIBIT
U
FORM
OF
CERTIFICATION
TO
BE
PROVIDED BY THE CREDIT RISK MANAGER
FORM
OF
CERTIFICATION
| Re: |
Structured
Asset Securities Corporation Mortgage Pass-Through Certificates
Series
2007-WF1 issued pursuant to the Trust Agreement dated as of March
1, 2007,
among Structured Asset Securities Corporation, as Depositor (the
“Depositor”), Aurora Loan Services LLC, as Master Servicer, Xxxxxxx Fixed
Income Services Inc., as Credit Risk Manager, U.S. Bank National
Association, as Trustee (the “Trustee”), and Xxxxx Fargo Bank, N.A., as
Securities Administrator.
|
XXXXXXX
FIXED INCOME SERVICES INC. (the “Credit Risk Manager”) certifies to the
Depositor, the Sponsor, the Master Servicer, the Trustee, the Securities
Administrator and [10-K Signatory Entity], its officers, directors and
affiliates, and with the knowledge and intent that they will rely upon this
certification, that:
|
1.
|
Based
on the knowledge of the Credit Risk Manager, taken as a whole,
the
information in the reports provided during the calendar year immediately
preceding the date of this certificate (the “Relevant Year”) by the Credit
Risk Manager pursuant to the Credit Risk Management Agreement dated
as of
March 30, 2007 (the “Credit Risk Management Agreement”), by and between
the Credit Risk Manager and Xxxxx Fargo Bank, N.A. does 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 as of the date
that each
of such reports was provided; and
|
|
2.
|
The
Credit Risk Manager has fulfilled its obligations under the Credit
Risk
Management Agreement throughout the Relevant
Year.
|
XXXXXXX
FIXED INCOME SERVICES INC.
By:
______________________________________
Name:
____________________________________
Title:
_____________________________________
U-1
EXHIBIT
V
TRANSACTION
PARTIES
Sponsor
and Seller: Xxxxxx Brothers Holdings Inc.
Depositor:
Structured Asset Securities Corporation
Trustee:
U.S. Bank National Association
Securities
Administrator: Xxxxx Fargo Bank, N.A.
Master
Servicer: Aurora Loan Services LLC
Credit
Risk Manager: Xxxxxxx Fixed Income Services Inc.
Swap
Counterparty: Swiss Re Financial Products Corporation
Cap
Counterparty: Swiss Re Financial Products Corporation
Servicer(s):
Xxxxx Fargo Bank, N.A.
Originator(s):
Xxxxx Fargo Bank, N.A.
Custodian(s):
Xxxxx Fargo Bank, N.A.
Paying
Agent: U.S. Bank National Association
V-1
EXHIBIT
W
FORM
OF
CALL OPTION NOTICE
[Date]
[___________]
[___________]
[___________]
Attention:
[___________]
|
Re:
|
CALL
OPTION NOTICE
|
|
Trust
Agreement relating to the Structured Asset Securities Corporation
Mortgage
Pass-Through Certificates, Series 2007-WF1, dated as of March 1,
2007,
among Structured Asset Securities Corporation, as Depositor, Aurora
Loan
Services LLC, as Master Servicer, Xxxxxxx Fixed Income Services
Inc., as
Credit Risk Manager, Xxxxx Fargo Bank, N.A., as Securities Administrator,
and U.S. Bank
National Association, as Trustee
|
Ladies
and Gentlemen:
In
accordance with Section 7.01(d)(i) of the above-referenced Trust Agreement,
Aurora Loan Services LLC, as Master Servicer, hereby notifies you that the
option to purchase the Mortgage Loans and certain other property of the Trust
Fund may be exercised on the Distribution Date of this month. The Bid Due
Date
for this month is [_____] [__], 20[__].
[In
accordance with Section 7.01(d)(vii) of the Trust Agreement, if no Call Option
Holder submits a Purchaser Call Option Notice on or before such Bid Due Date,
then, on the immediately succeeding Distribution Date, the Master Servicer
may
exercise the option to purchase the Mortgage Loans and certain other property
of
the Trust Fund pursuant to Section 7.01(b) or Section 7.01(c) of the Trust
Agreement.]
Capitalized
terms used and not defined herein are used as defined in the Trust
Agreement.
Very
truly yours,
Aurora
Loan Services LLC
By:
___________________________
Name:
_________________________
Title:
__________________________
W-1
EXHIBIT
X
FORM
OF
PURCHASER CALL OPTION NOTICE
[Date]
Aurora
Loan Services LLC
00000
Xxxx Xxxxxxx Xxxxx
Xxxxxxxxx,
Xxxxxxxx 00000
Attn:
SASCO 2007-WF1
|
Re:
|
PURCHASER
CALL OPTION NOTICE
|
|
Trust
Agreement relating to the Structured Asset Securities Corporation
Mortgage
Pass-Through Certificates, Series 2007-WF1, dated as of March 1,
2007,
among Structured Asset Securities Corporation, as Depositor, Aurora
Loan
Services LLC, as Master Servicer, Xxxxxxx Fixed Income Services
Inc., as
Credit Risk Manager, Xxxxx Fargo Bank, N.A., as Securities Administrator,
and U.S. Bank National
Association, as Trustee
|
Ladies
and Gentlemen:
In
accordance with Section 7.01(d)(iii) of the above-referenced Trust Agreement,
[NIM Residual Securities holder][Class X Certificateholder] hereby requests
Aurora Loan Services LLC (the “Master Servicer”) to exercise the option to
purchase on its behalf with respect to all, but no fewer than all, of the
Mortgage Loans and other property of the Trust Fund relating to the Structured
Asset Securities Corporation Mortgage Loan Trust Mortgage Pass-Through
Certificates, Series 2007-WF1.
The
Bid
Price for such assets shall be $___________.
Capitalized
terms used and not defined herein are used as defined in the Trust
Agreement.
Very
truly yours,
[CALL
OPTION HOLDER]
By:
___________________________
Name:
_________________________
Title:
__________________________
X-1
SCHEDULE
A
MORTGAGE
LOAN SCHEDULE
[To
be
retained in a separate closing binder entitled “SASCO 2007-WF1 Mortgage Loan
Schedule” at XxXxx Xxxxxx LLP]
Schedule-A-1
SCHEDULE
B
FIRST
PAYMENT DEFAULT MORTGAGE LOANS
[To
be
retained in a separate closing binder entitled “SASCO 2007-WF1 First Payment
Default Mortgage Loans” at XxXxx Xxxxxx LLP]
Schedule-B-1
