EXHIBIT 4.1
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.,
Depositor
WILSHIRE CREDIT CORPORATION,
Servicer
and
U.S. BANK NATIONAL ASSOCIATION,
Trustee
----------
POOLING AND SERVICING AGREEMENT
Dated as of April 1, 2007
----------
SPECIALTY UNDERWRITING AND RESIDENTIAL FINANCE TRUST
MORTGAGE LOAN ASSET-BACKED CERTIFICATES, SERIES 2007-BC2
TABLE OF CONTENTS
PAGE
----
ARTICLE I DEFINITIONS................................................. 12
ARTICLE II CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND
WARRANTIES.................................................. 62
SECTION 2.01. Conveyance of Mortgage Loans....................... 62
SECTION 2.02. Acceptance by Trustee of the Mortgage Loans........ 65
SECTION 2.03. Representations, Warranties and Covenants of the
Depositor.......................................... 66
SECTION 2.04. Representations and Warranties of the Servicer..... 69
SECTION 2.05. Substitutions and Repurchases of Mortgage Loans
Which Are Not "Qualified Mortgages"................ 71
SECTION 2.06. Authentication and Delivery of Certificates........ 71
SECTION 2.07. REMIC Elections.................................... 71
SECTION 2.08. Covenants of the Servicer.......................... 76
SECTION 2.09. [RESERVED]......................................... 76
SECTION 2.10. [RESERVED]......................................... 76
SECTION 2.11. Permitted Activities of the Issuing Entity......... 76
SECTION 2.12. Qualification of Special Purpose Entity............ 77
SECTION 2.13. Depositor Notification of NIM Notes................ 77
ARTICLE III ADMINISTRATION AND SERVICING OF MORTGAGE LOANS.............. 77
SECTION 3.01. Servicer to Service Mortgage Loans................. 77
SECTION 3.02. Servicing and Subservicing; Enforcement of the
Obligations of Servicer............................ 79
SECTION 3.03. Rights of the Depositor and the Trustee in Respect
of the Servicer.................................... 79
SECTION 3.04. Trustee to Act as Servicer......................... 80
SECTION 3.05. Collection of Mortgage Loan Payments; Collection
Account; Certificate Account....................... 81
SECTION 3.06. Collection of Taxes, Assessments and Similar
Items; Escrow Accounts............................. 84
SECTION 3.07. Access to Certain Documentation and Information
Regarding the Mortgage Loans....................... 84
SECTION 3.08. Permitted Withdrawals from the Collection Account
and Certificate Account............................ 84
SECTION 3.09. [RESERVED]......................................... 87
SECTION 3.10. Maintenance of Hazard Insurance.................... 87
SECTION 3.11. Enforcement of Due-On-Sale Clauses; Assumption
Agreements......................................... 87
i
TABLE OF CONTENTS
(continued)
PAGE
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SECTION 3.12. Realization Upon Defaulted Mortgage Loans;
Determination of Excess Proceeds................... 89
SECTION 3.13. Trustee to Cooperate; Release of Mortgage Files.... 93
SECTION 3.14. Documents Records and Funds in Possession of
Servicer to be Held for the Trustee................ 94
SECTION 3.15. Servicing Compensation............................. 94
SECTION 3.16. Access to Certain Documentation.................... 95
SECTION 3.17. Annual Statement as to Compliance.................. 95
SECTION 3.18. Assessment of Compliance; Accountant's
Attestation........................................ 95
SECTION 3.19. Subordination Liens................................ 98
SECTION 3.20. Periodic Filings................................... 98
SECTION 3.21. Indemnification by Trustee......................... 102
SECTION 3.22. Indemnification by Servicer........................ 102
SECTION 3.23. Prepayment Charge Reporting Requirements........... 103
SECTION 3.24. Statements to Trustee.............................. 103
SECTION 3.25. Further Indemnification by the Servicer............ 103
SECTION 3.26. Solicitation....................................... 104
SECTION 3.27. Existing Servicing Agreement....................... 104
SECTION 3.28. High Cost Mortgage Loans........................... 104
SECTION 3.29. Rights of the NIMs Insurer......................... 104
ARTICLE IV DISTRIBUTIONS............................................... 104
SECTION 4.01. Advances........................................... 104
SECTION 4.02. Reduction of Servicing Compensation in Connection
with Prepayment Interest Shortfalls................ 105
SECTION 4.03. Distributions on the REMIC Interests............... 106
SECTION 4.04. Distributions...................................... 106
SECTION 4.05. Monthly Statements to Certificateholders........... 115
ARTICLE V THE CERTIFICATES............................................ 119
SECTION 5.01. The Certificates................................... 119
SECTION 5.02. Certificate Register; Registration of Transfer
and Exchange of Certificates....................... 120
SECTION 5.03. Mutilated, Destroyed, Lost or Stolen Certificates.. 124
SECTION 5.04. Persons Deemed Owners.............................. 124
SECTION 5.05. Access to List of Certificateholders' Names and
Addresses.......................................... 125
ii
TABLE OF CONTENTS
(continued)
PAGE
----
SECTION 5.06. Book-Entry Certificates............................ 125
SECTION 5.07. Notices to Depository.............................. 126
SECTION 5.08. Definitive Certificates............................ 126
SECTION 5.09. Maintenance of Office or Agency.................... 126
SECTION 5.10. Authenticating Agents.............................. 127
ARTICLE VI THE DEPOSITOR AND THE SERVICER.............................. 127
SECTION 6.01. Respective Liabilities of the Depositor and the
Servicer........................................... 127
SECTION 6.02. Merger or Consolidation of the Depositor or the
Servicer........................................... 127
SECTION 6.03. Limitation on Liability of the Depositor, the
Servicer and Others................................ 128
SECTION 6.04. Limitation on Resignation of Servicer.............. 128
SECTION 6.05. Errors and Omissions Insurance; Fidelity Bonds..... 129
ARTICLE VII DEFAULT; TERMINATION OF SERVICER............................ 129
SECTION 7.01. Events of Default.................................. 129
SECTION 7.02. [RESERVED]......................................... 131
SECTION 7.03. Trustee to Act; Appointment of Successor........... 131
SECTION 7.04. Notification to Certificateholders................. 132
ARTICLE VIII CONCERNING THE TRUSTEE...................................... 132
SECTION 8.01. Duties of Trustee.................................. 132
SECTION 8.02. Certain Matters Affecting the Trustee.............. 134
SECTION 8.03. Trustee Not Liable for Mortgage Loans.............. 135
SECTION 8.04. Trustee May Own Certificates....................... 135
SECTION 8.05. Trustee's Fees..................................... 135
SECTION 8.06. Indemnification of Trustee; Expenses............... 135
SECTION 8.07. Eligibility Requirements for Trustee............... 136
SECTION 8.08. Resignation and Removal of Trustee................. 137
SECTION 8.09. Successor Trustee.................................. 138
SECTION 8.10. Merger or Consolidation of Trustee................. 138
SECTION 8.11. Appointment of Co-Trustee or Separate Trustee...... 138
SECTION 8.12. Tax Matters........................................ 139
ARTICLE IX TERMINATION................................................. 141
SECTION 9.01. Termination upon Liquidation or Repurchase of all
Mortgage Loans..................................... 141
SECTION 9.02. Final Distribution on the Certificates............. 144
iii
TABLE OF CONTENTS
(continued)
PAGE
----
SECTION 9.03. Additional Termination Requirements................ 145
ARTICLE X MISCELLANEOUS PROVISIONS.................................... 146
SECTION 10.01. Amendment.......................................... 146
SECTION 10.02. Counterparts....................................... 147
SECTION 10.03. Governing Law...................................... 148
SECTION 10.04. Intention of Parties............................... 148
SECTION 10.05. Notices............................................ 148
SECTION 10.06. Severability of Provisions......................... 149
SECTION 10.07. Assignment......................................... 149
SECTION 10.08. Limitation on Rights of Certificateholders......... 149
SECTION 10.09. Inspection and Audit Rights........................ 150
SECTION 10.10. Certificates Nonassessable and Fully Paid.......... 150
SECTION 10.11. [RESERVED]......................................... 150
SECTION 10.12. Additional Rights of the NIMs Insurer.............. 150
SECTION 10.13. Third Party Rights................................. 151
SECTION 10.14. Assignment; Sales; Advance Facilities.............. 151
iv
EXHIBIT A FORMS OF OFFERED CERTIFICATES
EXHIBIT B MORTGAGE LOAN SCHEDULE - MORTGAGE POOL
EXHIBIT C [RESERVED]
EXHIBIT D FORM OF TRUSTEE CERTIFICATION
EXHIBIT E-1 FORM OF TRANSFEREE'S LETTER AND AFFIDAVIT
EXHIBIT E-2 FORM OF TRANSFEROR'S AFFIDAVIT
EXHIBIT F FORM OF TRANSFEROR CERTIFICATE FOR CLASS P AND CLASS C CERTIFICATES
EXHIBIT G FORM OF INVESTMENT LETTER
EXHIBIT H FORM OF RULE 144A INVESTMENT LETTER
EXHIBIT I REQUEST FOR RELEASE OF DOCUMENTS
EXHIBIT J FORM OF POWER OF ATTORNEY
EXHIBIT K FORM OF OFFICER'S CERTIFICATE OF TRUSTEE
EXHIBIT L FORM OF OFFICER'S CERTIFICATE OF SERVICER
EXHIBIT M [RESERVED]
EXHIBIT N FORM OF AUCTION PROCEDURES
EXHIBIT O-1 FORM OF CLASS A-1 CORRIDOR CONTRACT
EXHIBIT O-2 FORM OF CLASS A-2 CORRIDOR CONTRACT
EXHIBIT O-3 FORM OF SUBORDINATE CERTIFICATE CONTRACT
EXHIBIT O-4 FORM OF CREDIT SUPPORT ANNEX FOR THE CORRIDOR CONTRACTS
EXHIBIT P [RESERVED]
EXHIBIT Q FORM OF ASSESSMENT OF COMPLIANCE
EXHIBIT R SERVICING CRITERIA TO BE ADDRESSED
EXHIBIT S FORM OF XXXXXXXX-XXXXX CERTIFICATION
EXHIBIT T FORM OF ITEM 1123 CERTIFICATION OF SERVICER
EXHIBIT U-1 FORM OF SWAP AGREEMENT
EXHIBIT U-2 FORM OF CREDIT SUPPORT ANNEX FOR THE SWAP AGREEMENT
SCHEDULE V ITEMS FOR FORM 8-K
SCHEDULE W ITEMS FOR FORM 10-D
SCHEDULE X ITEMS FOR FORM 10-K
v
POOLING AND SERVICING AGREEMENT, dated as of April 1, 2007 (the
"Agreement"), among XXXXXXX XXXXX MORTGAGE INVESTORS, INC., a Delaware
corporation, as depositor (the "Depositor"), WILSHIRE CREDIT CORPORATION, a
Nevada corporation, as servicer (the "Servicer"), and U.S. BANK NATIONAL
ASSOCIATION, a national banking association, as trustee (the "Trustee").
The Depositor is the owner of the Trust Fund that is hereby conveyed to the
Trustee in return for the Certificates. The Trust Fund for federal income tax
purposes will consist of (i) three real estate mortgage investment conduits in a
tiered structure, (ii) the right to receive the payments distributable to the
Class P Certificates pursuant to Section 4.04(b)(i) hereof, (iii) each Corridor
Contract and the Corridor Contract Account, (iv) the grantor trusts described in
Section 2.07 hereof and (v) the Supplemental Interest Trust, which in turn will
hold the Swap Agreement. The SWAP REMIC will consist of all of the assets
constituting the Trust Fund (other than the assets described in clauses (ii),
(iii), (iv) and (v) above, other than the SWAP REMIC Regular Interests and other
than the Lower Tier REMIC Regular Interests) and will be evidenced by the SWAP
REMIC Regular Interests (which will be uncertificated and will represent the
"regular interests" in the SWAP REMIC) and the Class SWR Interest as the single
"residual interest" in the SWAP REMIC. The Lower Tier REMIC will consist of SWAP
REMIC Regular Interests and will be evidenced by the Lower Tier REMIC Regular
Interests (which will be uncertificated and will represent the "regular
interests" in the Lower Tier REMIC) and the Class LTR Interest as the single
"residual interest" in the Lower Tier REMIC. The Trustee will hold the Lower
Tier REMIC Regular Interests. The Upper Tier REMIC will consist of the Lower
Tier REMIC Regular Interests and will be evidenced by the REMIC Regular
Interests (which will represent the "regular interests" in the Upper Tier REMIC)
and the Residual Interest as the single "residual interest" in the Upper Tier
REMIC. The Class R Certificate will represent beneficial ownership of the Class
SWR Interest, the Class LTR Interest and the Residual Interest. The "latest
possible maturity date" for federal income tax purposes of all interests created
hereby will be the Latest Possible Maturity Date.
All covenants and agreements made by the Sponsor in the Sale Agreement and
by the Depositor 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, the NIMs Insurer.
THE SWAP REMIC
The following table sets forth the designations, initial principal balances and
interest rates for each interest in the SWAP REMIC:
Class Initial Principal Balance Interest Rate
----- ------------------------- -------------
1-SW1 $32,785,920.351 (1)
1-SW1A $ 2,634,059.661 (2)
1-SW1B $ 2,634,059.661 (3)
1-SW2A $ 3,202,747.070 (2)
1-SW2B $ 3,202,747.070 (3)
1-SW3A $ 3,554,418.745 (2)
1-SW3B $ 3,554,418.745 (3)
1-SW4A $ 3,410,416.901 (2)
1-SW4B $ 3,410,416.901 (3)
1-SW5A $ 3,109,114.033 (2)
1-SW5B $ 3,109,114.033 (3)
1-SW6A $ 2,834,409.235 (2)
1-SW6B $ 2,834,409.235 (3)
1-SW7A $ 2,646,688.616 (2)
1-SW7B $ 2,646,688.616 (3)
1-SW8A $ 2,486,376.854 (2)
1-SW8B $ 2,486,376.854 (3)
1-SW9A $ 2,350,919.811 (2)
1-SW9B $ 2,350,919.811 (3)
1-SW10A $ 2,234,751.145 (2)
1-SW10B $ 2,234,751.145 (3)
1-SW11A $ 2,144,572.239 (2)
1-SW11B $ 2,144,572.239 (3)
1-SW12A $ 2,109,187.277 (2)
1-SW12B $ 2,109,187.277 (3)
1-SW13A $ 2,323,537.365 (2)
1-SW13B $ 2,323,537.365 (3)
1-SW14A $ 3,392,574.911 (2)
1-SW14B $ 3,392,574.911 (3)
1-SW15A $ 4,499,133.398 (2)
1-SW15B $ 4,499,133.398 (3)
1-SW16A $ 3,786,910.723 (2)
1-SW16B $ 3,786,910.723 (3)
1-SW17A $ 2,958,930.495 (2)
1-SW17B $ 2,958,930.495 (3)
1-SW18A $ 2,417,319.471 (2)
1-SW18B $ 2,417,319.471 (3)
1-SW19A $ 2,062,328.063 (2)
1-SW19B $ 2,062,328.063 (3)
1-SW20A $ 1,784,130.399 (2)
1-SW20B $ 1,784,130.399 (3)
1-SW21A $ 1,678,477.597 (2)
1-SW21B $ 1,678,477.597 (3)
1-SW22A $ 1,577,977.380 (2)
1-SW22B $ 1,577,977.380 (3)
1-SW23A $ 1,461,979.205 (2)
1-SW23B $ 1,461,979.205 (3)
1-SW24A $ 1,394,426.603 (2)
1-SW24B $ 1,394,426.603 (3)
1-SW25A $ 1,443,086.684 (2)
1-SW25B $ 1,443,086.684 (3)
1-SW26A $ 2,300,394.599 (2)
1-SW26B $ 2,300,394.599 (3)
1-SW27A $ 3,215,599.043 (2)
1-SW27B $ 3,215,599.043 (3)
1-SW28A $ 2,712,372.566 (2)
1-SW28B $ 2,712,372.566 (3)
1-SW29A $ 2,051,348.557 (2)
1-SW29B $ 2,051,348.557 (3)
1-SW30A $ 1,674,448.022 (2)
2
1-SW30B $ 1,674,448.022 (3)
1-SW31A $ 188,995.633 (2)
1-SW31B $ 188,995.633 (3)
1-SW32A $ 1,097,350.504 (2)
1-SW32B $ 1,097,350.504 (3)
1-SW33A $ 1,002,532.246 (2)
1-SW33B $ 1,002,532.246 (3)
1-SW34A $ 908,150.634 (2)
1-SW34B $ 908,150.634 (3)
1-SW35A $ 830,926.993 (2)
1-SW35B $ 830,926.993 (3)
1-SW36A $ 778,176.301 (2)
1-SW36B $ 778,176.301 (3)
1-SW37A $ 753,306.910 (2)
1-SW37B $ 753,306.910 (3)
1-SW38A $ 725,434.411 (2)
1-SW38B $ 725,434.411 (3)
1-SW39A $ 688,382.980 (2)
1-SW39B $ 688,382.980 (3)
1-SW40A $ 643,900.663 (2)
1-SW40B $ 643,900.663 (3)
1-SW41A $ 590,743.551 (2)
1-SW41B $ 590,743.551 (3)
1-SW42A $ 544,523.164 (2)
1-SW42B $ 544,523.164 (3)
1-SW43A $ 533,480.568 (2)
1-SW43B $ 533,480.568 (3)
1-SW44A $ 493,994.431 (2)
1-SW44B $ 493,994.431 (3)
1-SW45A $ 466,275.697 (2)
1-SW45B $ 466,275.697 (3)
1-SW46A $ 440,981.692 (2)
1-SW46B $ 440,981.692 (3)
1-SW47A $ 424,183.189 (2)
1-SW47B $ 424,183.189 (3)
1-SW48A $ 404,692.042 (2)
1-SW48B $ 404,692.042 (3)
1-SW49A $ 380,677.748 (2)
1-SW49B $ 380,677.748 (3)
1-SW50A $ 356,216.831 (2)
1-SW50B $ 356,216.831 (3)
1-SW51A $ 347,679.954 (2)
1-SW51B $ 347,679.954 (3)
1-SW52A $ 325,553.679 (2)
1-SW52B $ 325,553.679 (3)
1-SW53A $ 9,671,623.090 (2)
1-SW53B $ 9,671,623.090 (3)
2-SW2 $23,078,068.379 (4)
3
2-SW1A $ 1,854,119.339 (5)
2-SW1B $ 1,854,119.339 (6)
2-SW2A $ 2,254,419.430 (5)
2-SW2B $ 2,254,419.430 (6)
2-SW3A $ 2,501,961.755 (5)
2-SW3B $ 2,501,961.755 (6)
2-SW4A $ 2,400,598.599 (5)
2-SW4B $ 2,400,598.599 (6)
2-SW5A $ 2,188,510.967 (5)
2-SW5B $ 2,188,510.967 (6)
2-SW6A $ 1,995,145.765 (5)
2-SW6B $ 1,995,145.765 (6)
2-SW7A $ 1,863,008.884 (5)
2-SW7B $ 1,863,008.884 (6)
2-SW8A $ 1,750,165.146 (5)
2-SW8B $ 1,750,165.146 (6)
2-SW9A $ 1,654,816.689 (5)
2-SW9B $ 1,654,816.689 (6)
2-SW10A $ 1,573,045.355 (5)
2-SW10B $ 1,573,045.355 (6)
2-SW11A $ 1,509,568.261 (5)
2-SW11B $ 1,509,568.261 (6)
2-SW12A $ 1,484,660.723 (5)
2-SW12B $ 1,484,660.723 (6)
2-SW13A $ 1,635,542.135 (5)
2-SW13B $ 1,635,542.135 (6)
2-SW14A $ 2,388,039.589 (5)
2-SW14B $ 2,388,039.589 (6)
2-SW15A $ 3,166,948.102 (5)
2-SW15B $ 3,166,948.102 (6)
2-SW16A $ 2,665,613.277 (5)
2-SW16B $ 2,665,613.277 (6)
2-SW17A $ 2,082,796.505 (5)
2-SW17B $ 2,082,796.505 (6)
2-SW18A $ 1,701,555.529 (5)
2-SW18B $ 1,701,555.529 (6)
2-SW19A $ 1,451,676.437 (5)
2-SW19B $ 1,451,676.437 (6)
2-SW20A $ 1,255,852.601 (5)
2-SW20B $ 1,255,852.601 (6)
2-SW21A $ 1,181,483.403 (5)
2-SW21B $ 1,181,483.403 (6)
2-SW22A $ 1,110,741.120 (5)
2-SW22B $ 1,110,741.120 (6)
2-SW23A $ 1,029,089.795 (5)
2-SW23B $ 1,029,089.795 (6)
2-SW24A $ 981,539.397 (5)
2-SW24B $ 981,539.397 (6)
4
2-SW25A $ 1,015,791.316 (5)
2-SW25B $ 1,015,791.316 (6)
2-SW26A $ 1,619,251.901 (5)
2-SW26B $ 1,619,251.901 (6)
2-SW27A $ 2,263,465.957 (5)
2-SW27B $ 2,263,465.957 (6)
2-SW28A $ 1,909,243.934 (5)
2-SW28B $ 1,909,243.934 (6)
2-SW29A $ 1,443,947.943 (5)
2-SW29B $ 1,443,947.943 (6)
2-SW30A $ 1,178,646.978 (5)
2-SW30B $ 1,178,646.978 (6)
2-SW31A $ 133,034.367 (5)
2-SW31B $ 133,034.367 (6)
2-SW32A $ 772,426.996 (5)
2-SW32B $ 772,426.996 (6)
2-SW33A $ 705,684.254 (5)
2-SW33B $ 705,684.254 (6)
2-SW34A $ 639,248.866 (5)
2-SW34B $ 639,248.866 (6)
2-SW35A $ 584,891.007 (5)
2-SW35B $ 584,891.007 (6)
2-SW36A $ 547,759.699 (5)
2-SW36B $ 547,759.699 (6)
2-SW37A $ 530,254.090 (5)
2-SW37B $ 530,254.090 (6)
2-SW38A $ 510,634.589 (5)
2-SW38B $ 510,634.589 (6)
2-SW39A $ 484,554.020 (5)
2-SW39B $ 484,554.020 (6)
2-SW40A $ 453,242.837 (5)
2-SW40B $ 453,242.837 (6)
2-SW41A $ 415,825.449 (5)
2-SW41B $ 415,825.449 (6)
2-SW42A $ 383,290.836 (5)
2-SW42B $ 383,290.836 (6)
2-SW43A $ 375,517.932 (5)
2-SW43B $ 375,517.932 (6)
2-SW44A $ 347,723.569 (5)
2-SW44B $ 347,723.569 (6)
2-SW45A $ 328,212.303 (5)
2-SW45B $ 328,212.303 (6)
2-SW46A $ 310,407.808 (5)
2-SW46B $ 310,407.808 (6)
2-SW47A $ 298,583.311 (5)
2-SW47B $ 298,583.311 (6)
2-SW48A $ 284,863.458 (5)
2-SW48B $ 284,863.458 (6)
5
2-SW49A $ 267,959.752 (5)
2-SW49B $ 267,959.752 (6)
2-SW50A $ 250,741.669 (5)
2-SW50B $ 250,741.669 (6)
2-SW51A $ 244,732.546 (5)
2-SW51B $ 244,732.546 (6)
2-SW52A $ 229,157.821 (5)
2-SW52B $ 229,157.821 (6)
2-SW53A $ 6,807,872.910 (5)
2-SW53B $ 6,807,872.910 (6)
SWR (7) (7)
(1) The interest rate on the Class 1-SW1 Interest shall be a per annum rate
equal to the Group One Net WAC.
(2) For any Distribution Date, the interest rate on each SWAP REMIC Regular
Interest beginning with the designation "1" and ending with the designation
"A" shall be a per annum rate equal to 2 times the Group One Net WAC,
subject to a maximum rate of 2 times the REMIC Swap Rate for such
Distribution Date.
(3) For any Distribution Date, the interest rate on each SWAP REMIC Regular
Interest beginning with the designation "1" and ending with the designation
"B" shall be a per annum rate equal to the greater of (x) the excess, if
any, of (i) 2 times the Group One Net WAC over (ii) 2 times the REMIC Swap
Rate for such Distribution Date and (y) 0.00%.
(4) The interest rate on the Class 2-SW2 Interest shall be a per annum rate
equal to the Group Two Net WAC.
(5) For any Distribution Date, the interest rate on each SWAP REMIC Regular
Interest beginning with the designation "2" and ending with the designation
"A" shall be a per annum rate equal to 2 times the Group Two Net WAC,
subject to a maximum rate of 2 times the REMIC Swap Rate for such
Distribution Date.
(6) For any Distribution Date, the interest rate on each SWAP REMIC Regular
Interest beginning with the designation "2" and ending with the designation
"B" shall be a per annum rate equal to the greater of (x) the excess, if
any, of (i) 2 times the Group Two Net WAC over (ii) 2 times the REMIC Swap
Rate for such Distribution Date and (y) 0.00%.
(7) The Class SWR Interest shall have no principal amount and shall bear no
interest.
THE LOWER TIER REMIC
The following table sets forth the designations, initial principal
balances, interest rates, Corresponding Classes of Certificates and related
Mortgage Group for each interest in the Lower Tier REMIC:
Class(es) of
Corresponding
Initial Principal Certificates or Related
Class Balance Interest Rate Mortgage Group
----- ----------------- ------------- -----------------------
LTA-1 (1) (8) A-1, R
LTA-2A (1) (8) A-2A
LTA-2B (1) (8) A-2B
LTA-2C (1) (8) A-2C
LTA-2D (1) (8) A-2D
LTM-1 (1) (8) M-1
6
LTM-2 (1) (8) M-2
LTM-3 (1) (8) M-3
LTM-4 (1) (8) M-4
LTM-5 (1) (8) M-5
LTM-6 (1) (8) M-6
LTB-1 (1) (8) B-1
LTB-2 (1) (8) B-2
LTB-3 (1) (8) B-3
LTIX (2) (8) N/A
LTII1A (3) (8) Group One
LTII1B (4) (9) Group One
LTII2A (5) (8) Group Two
LTII2B (6) (10) Group Two
LTIIX (7) (8) N/A
LT-IO (11) (11) N/A
LTR (12) (12) N/A
(1) The initial principal balance of each of these Lower Tier REMIC Regular
Interests shall equal 1/4 of the initial Certificate Principal Balance of
its Corresponding Certificates.
(2) The initial principal balance of the Class LTIX Interest shall equal the
excess of (i) 50% of the aggregate Cut-off Date Principal Balance of the
Mortgage Loans over (ii) the initial principal balance of the Lower Tier
REMIC I Marker Interests.
(3) The initial principal balance of the Class LTII1A Interest shall equal
0.05% of the excess of (i) the aggregate Cut-off Date Principal Balance of
the Group One Mortgage Loans over (ii) the aggregate of the initial
Certificate Principal Balances of Certificate Group One.
(4) The initial principal balance of the Class LTII1B Interest shall equal
0.05% of the aggregate Cut-off Date Principal Balance of the Group One
Mortgage Loans.
(5) The initial principal balance of the Class LTII2A Interest shall equal
0.05% of the excess of (i) the aggregate Cut-off Date Principal Balance of
the Group Two Mortgage Loans over (ii) the aggregate of the initial
Certificate Principal Balances of Certificate Group Two.
(6) The initial principal balance of the Class LTII2B Interest shall equal
0.05% of the aggregate Cut-off Date Principal Balance of the Group Two
Mortgage Loans.
(7) The initial principal balance of the Class LTIIX Interest shall equal the
excess of (i) 50% of the aggregate Cut-off Date Principal Balance of the
Mortgage Loans over (ii) the initial principal balance of the Lower Tier
REMIC II Marker Interests.
(8) For each Distribution Date, the interest rate for each of the Lower Tier
REMIC Regular Interests (other than the Class LTII1B, the Class LTII2B and
the Class LT-IO Interests) shall be a per annum rate (but not less than
zero) equal to the product of (i) the weighted average of the interest
rates on the SWAP REMIC Regular Interests for such Distribution Date and
(ii) a fraction the numerator of which is 30 and the denominator of which
is the actual number of days in the Accrual Period for the LIBOR
Certificates, provided however, that for any Distribution Date on which the
Class LT-IO Interest is entitled to a portion of interest accruals on a
SWAP REMIC Regular Interest ending with a designation "A" as described in
footnote 11 below, such weighted average shall be computed by first
subjecting the rate on such SWAP REMIC Regular Interest to a cap equal to
Swap LIBOR for such Distribution Date.
7
(9) For each Distribution Date, the interest rate for the Class LTII1B Interest
shall be a per annum rate equal to the product of (i) the weighted average
of the interest rates on the SWAP REMIC Regular Interests beginning with
the designation "1" for such Distribution Date and (ii) a fraction the
numerator of which is 30 and the denominator of which is the actual number
of days in the Accrual Period for the LIBOR Certificates, provided,
however, that for any Distribution Date on which the Class LT-IO Interest
is entitled to a portion of interest accruals on a SWAP REMIC Regular
Interest ending with a designation "A" as described in footnote 11 below,
such weighted average shall be computed by first subjecting the rate on
such SWAP REMIC Regular Interest to a cap equal to Swap LIBOR for such
Distribution Date.
(10) For each Distribution Date, the interest rate for the Class LTII2B Interest
shall be a per annum rate equal to the product of (i) the weighted average
of the interest rates on the SWAP REMIC Regular Interests beginning with
the designation "2" for such Distribution Date and (ii) a fraction the
numerator of which is 30 and the denominator of which is the actual number
of days in the Accrual Period for the LIBOR Certificates, provided,
however, that for any Distribution Date on which the Class LT-IO Interest
is entitled to a portion of interest accruals on a SWAP REMIC Regular
Interest ending with a designation "A" as described in footnote 11 below,
such weighted average shall be computed by first subjecting the rate on
such SWAP REMIC Regular Interest to a cap equal to Swap LIBOR for such
Distribution Date.
(11) The Class LT-IO Interest is an interest-only class that does not have a
principal balance. For only those Distribution Dates listed in the first
column of the table below, the Class LT-IO Interest shall be entitled to
interest accrued on the SWAP REMIC Regular Interest listed in the second
column below at a per annum rate equal to the excess, if any, of (i) the
interest rate for such SWAP REMIC Regular Interest for such Distribution
Date over (ii) Swap LIBOR for such Distribution Date.
SWAP REMIC
Distribution Date Regular Interest
----------------- ----------------
7 Class 1-SW1A
Class 2-SW1A
7-8 Class 1-SW2A
Class 2-SW2A
7-9 Class 1-SW3A
Class 2-SW3A
7-10 Class 1-SW4A
Class 2-SW4A
7-11 Class 1-SW5A
Class 2-SW5A
7-12 Class 1-SW6A
Class 2-SW6A
7-13 Class 1-SW7A
Class 2-SW7A
7-14 Class 1-SW8A
Class 2-SW8A
7-15 Class 1-SW9A
Class 2-SW9A
7-16 Class 1-SW10A
Class 2-SW10A
7-17 Class 1-SW11A
Class 2-SW11A
7-18 Class 1-SW12A
Class 2-SW12A
7-19 Class 1-SW13A
Class 2-SW13A
7-20 Class 1-SW14A
Class 2-SW14A
8
7-21 Class 1-SW15A
Class 2-SW15A
7-22 Class 1-SW16A
Class 2-SW16A
7-23 Class 1-SW17A
Class 2-SW17A
7-24 Class 1-SW18A
Class 2-SW18A
7-25 Class 1-SW19A
Class 2-SW19A
7-26 Class 1-SW20A
Class 2-SW20A
7-27 Class 1-SW21A
Class 2-SW21A
7-28 Class 1-SW22A
Class 2-SW22A
7-29 Class 1-SW23A
Class 2-SW23A
7-30 Class 1-SW24A
Class 2-SW24A
7-31 Class 1-SW25A
Class 2-SW25A
7-32 Class 1-SW26A
Class 2-SW26A
7-33 Class 1-SW27A
Class 2-SW27A
7-34 Class 1-SW28A
Class 2-SW28A
7-35 Class 1-SW29A
Class 2-SW29A
7-36 Class 1-SW30A
Class 2-SW30A
7-38 Class 1-SW31A
Class 2-SW31A
7-39 Class 1-SW32A
Class 2-SW32A
7-40 Class 1-SW33A
Class 2-SW33A
7-41 Class 1-SW34A
Class 2-SW34A
7-42 Class 1-SW35A
Class 2-SW35A
7-43 Class 1-SW36A
Class 2-SW36A
7-44 Class 1-SW37A
Class 2-SW37A
7-45 Class 1-SW38A
Class 2-SW38A
7-46 Class 1-SW39A
Class 2-SW39A
7-47 Class 1-SW40A
Class 2-SW40A
7-48 Class 1-SW41A
Class 2-SW41A
7-49 Class 1-SW42A
Class 2-SW42A
9
7-50 Class 1-SW43A
Class 2-SW43A
7-51 Class 1-SW44A
Class 2-SW44A
7-52 Class 1-SW45A
Class 2-SW45A
7-53 Class 1-SW46A
Class 2-SW46A
7-54 Class 1-SW47A
Class 2-SW47A
7-55 Class 1-SW48A
Class 2-SW48A
7-56 Class 1-SW49A
Class 2-SW49A
7-57 Class 1-SW50A
Class 2-SW50A
7-58 Class 1-SW51A
Class 2-SW51A
7-59 Class 1-SW52A
Class 2-SW52A
7-60 Class 1-SW53A
Class 2-SW53A
(12) The Class LTR Interest shall have no principal amount and shall bear no
interest.
UPPER TIER REMIC
The following table sets forth the designation, the initial principal balances,
the interest rates and Classes of Related Certificates for each of the interests
in the Upper Tier REMIC.
Initial
Principal Class of Related
Class Balance Rate Certificates
----- --------- ---- ----------------
UTA-1 (1) (2) A-1
UTA-2A (1) (2) A-2A
UTA-2B (1) (2) A-2B
UTA-2C (1) (2) A-2C
UTA-2D (1) (2) A-2D
UTM-1 (1) (2) M-1
UTM-2 (1) (2) M-2
UTM-3 (1) (2) M-3
UTM-4 (1) (2) M-4
UTM-5 (1) (2) M-5
UTM-6 (1) (2) M-6
UTB-1 (1) (2) B-1
UTB-2 (1) (2) B-2
UTB-3 (1) (2) B-3
Uncertificated Class C Interest (3) (3) N/A
UT-IO (4) (4) N/A
Residual Interest (1) (2) R
10
(1) The initial principal balance of each of these REMIC Regular Interests and
the Residual Interest shall equal the initial principal balance of its
Class of Related Certificates.
(2) The interest rates on each of these REMIC Regular Interests shall be an
annual rate equal to the Pass-Through Rate for the Class of Related
Certificates, provided that in lieu of the applicable Available Funds Caps
set forth in the definition of an applicable Pass-Through Rate, the
applicable Upper Tier REMIC Net WAC Cap shall be used.
(3) The Uncertificated Class C Interest shall have an initial principal balance
equal to the initial Overcollateralization Amount. The Uncertificated Class
C Interest shall accrue interest on a notional balance set forth in the
definition of Class C Current Interest at a rate equal to the Class C
Distributable Interest Rate. The Uncertificated Class C Interest shall be
represented by the Class C Certificates.
(4) The Class UT-IO Interest shall have no principal amount and will not have
an interest rate, but will be entitled to 100% of the interest accrued with
respect to the Class LT-IO Interest. The Class UT-IO Interest shall be
represented by the Class C Certificates.
THE CERTIFICATES
The following table sets forth the Class designation, interest rate and initial
Class principal amount for each Class of Certificates comprising interests in
the Trust Fund.
Class Initial Class Principal Amount Interest Rate
----- ------------------------------ -------------
A-1 (1) (2)
A-2A (1) (2)
A-2B (1) (2)
A-2C (1) (2)
A-2D (1) (2)
M-1 (1) (2)
M-2 (1) (2)
M-3 (1) (2)
M-4 (1) (2)
M-5 (1) (2)
M-6 (1) (2)
B-1 (1) (2)
B-2 (1) (2)
B-3 (1) (2)
C (3) (3)
P (4) (4)
R (1) (2)(5)
(1) Each of these Classes of Certificates shall have initial principal balances
as set forth in Section 5.01 hereof.
(2) Each of these Classes of Certificates shall bear interest at a per annum
rate equal to the Pass-Through Rate for such Certificates set forth in the
definitions herein.
(3) For federal income tax purposes, the Class C Certificate shall represent
(i) the right to receive all distributions with respect to the REMIC
Regular Interests represented by the Uncertificated Class C Interest and
the Class UT-IO Interest and (ii) certain rights and obligations with
respect to notional principal contracts as described in Section 2.07.
11
(4) The Class P Certificates shall be entitled to the amounts distributable
pursuant to Section 4.04(b) hereof and shall not represent a REMIC regular
interest.
(5) The Class R Interest represents ownership of the Class SWR Interest, the
Class LTR Interest and the Residual Interest.
In consideration of the mutual agreements herein contained, the Depositor,
the Servicer and the Trustee hereby agree as follows:
ARTICLE I
DEFINITIONS
Whenever used in this Agreement, the following words and phrases, unless
the context otherwise requires, shall have the following meanings:
Accepted Servicing Practices: The Servicer's normal servicing practices,
which will conform to the mortgage servicing practices of prudent mortgage
lending institutions that service for their own account mortgage loans of the
same type as the Mortgage Loans in the jurisdictions in which the related
Mortgaged Properties are located.
Accountant's Attestation: As defined in Section 3.18(b) hereof.
Accrual Period: With respect to each Class of the LIBOR Certificates, their
Corresponding REMIC Regular Interests and the Lower Tier REMIC Interests and any
Distribution Date, the period commencing on the immediately preceding
Distribution Date (or, in the case of the first Distribution Date, the Closing
Date) and ending on the day immediately preceding such Distribution Date, and
with respect to the SWAP REMIC Regular Interests and any Distribution Date, the
calendar month immediately preceding the month in which such Distribution Date
occurs. All calculations of interest on each Class of the LIBOR Certificates,
their Corresponding REMIC Regular Interests and the Lower Tier REMIC Interests
will be made on the basis of the actual number of days elapsed in the related
Accrual Period and a 360 day year, and all calculations of interest on the SWAP
REMIC Regular Interests will be made on the basis of a 360-day year consisting
of twelve 30-day months.
Additional Form 10-D Disclosure: As defined in Section 3.20 hereof.
Adjustable Rate Mortgage Loan: A Mortgage Loan identified in the Mortgage
Loan Schedule as having a Mortgage Rate that is adjustable.
Adjustment Date: As to each Adjustable Rate Mortgage Loan, each date on
which the related Mortgage Rate is subject to adjustment, as provided in the
related Mortgage Note.
Advance: The aggregate of the advances required to be made by the Servicer
with respect to any Distribution Date pursuant to Section 4.01, the amount of
any such advances being equal to the sum of the aggregate amount of all payments
of principal and interest (or, with respect to the interest-only Mortgage Loans,
payments of scheduled interest) (net of the Servicing Fee) on the related
Mortgage Loans that were due during the applicable Due Period and not received
as of the close of business on the related Determination Date, except as
provided in Section 4.01 hereof, less the aggregate amount of any such
Delinquent payments that the Servicer has determined would constitute a
Non-Recoverable Advance were an advance to be made with respect thereto;
provided, however, that with respect to (i) any Mortgage Loan that is 150 days
delinquent or more (whether or not the Mortgage Loan has been converted to an
REO Property), (ii) shortfalls due to bankruptcy proceedings or the application
of the
12
Relief Act or similar law and (iii) the principal portion of any amount paid on
a Balloon Loan, there will be no obligation to make advances and, provided
further, however, that with respect to any Mortgage Loan that has been converted
to an REO Property which is less than 150 days delinquent, the obligation to
make Advances shall only be to payments of interest (subject to the exceptions
described above and net of the related Servicing Fees), to be calculated after
taking into account any rental income.
Advance Facility: A financing or other facility as described in Section
10.14(a).
Advance Facility Notice: As defined in Section 10.14(b).
Advance Financing Person: As defined in Section 10.14(a).
Advance Reimbursement Amounts: As defined in Section 10.14(a).
Affiliate: With respect to any specified Person, any other Person
controlling, controlled by or under common control with such Person. For the
purposes of this definition, "control" means the power to direct the management
and policies of a Person, directly or indirectly, whether through ownership of
voting securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
Aggregate Certificate Principal Balance: For any date of determination, the
sum of the Class A-1 Certificate Principal Balance, the Class A-2A Certificate
Principal Balance, the Class A-2B Certificate Principal Balance, the Class A-2C
Certificate Principal Balance, the Class A-2D Certificate Principal Balance, the
Class R Certificate Principal Balance, the Class M-1 Certificate Principal
Balance, the Class M-2 Certificate Principal Balance, the Class M-3 Certificate
Principal Balance, the Class M-4 Certificate Principal Balance, the Class M-5
Certificate Principal Balance, the Class M-6 Certificate Principal Balance, the
Class B-1 Certificate Principal Balance, the Class B-2 Certificate Principal
Balance, and the Class B-3 Certificate Principal Balance, in each case as of
such date of determination.
Agreement: This Pooling and Servicing Agreement and any and all amendments
or supplements hereto made in accordance with the terms herein.
Applied Realized Loss Amount: With respect to any Distribution Date, the
amount, if any, by which, the sum of (i) the Aggregate Certificate Principal
Balance and (ii) the Class C Certificate Principal Balance after distributions
of principal on such Distribution Date exceeds the aggregate Stated Principal
Balance of the Mortgage Loans as of such Distribution Date.
Appraised Value: With respect to a Mortgage Loan the proceeds of which were
used to purchase the related Mortgaged Property, the "Appraised Value" of a
Mortgaged Property is the lesser of (1) the appraised value based on an
appraisal made for the Sponsor by an independent fee appraiser at the time of
the origination of the related Mortgage Loan, and (2) the sales price of such
Mortgaged Property at such time of origination. With respect to a Mortgage Loan
the proceeds of which were used to refinance an existing mortgage loan, the
"Appraised Value" is the appraised value of the Mortgaged Property based upon
the appraisal obtained at the time of refinancing.
Assessment of Compliance: As defined in Section 3.18(a) hereof.
Assignment of Mortgage: An assignment of the Mortgage, notice of transfer
or equivalent instrument, in recordable form, sufficient under the laws of the
jurisdiction where the related Mortgaged Property is located to reflect of
record the sale and assignment of the Mortgage Loan to the Trustee, which
assignment, notice of transfer or equivalent instrument may, if permitted by
law, be in the form of
13
one or more blanket assignments covering Mortgages secured by Mortgaged
Properties located in the same county.
Auction Termination: The termination of the Trust Fund hereunder pursuant
to Section 9.01(a)(i) hereof.
Auction Termination Amount: The purchase price received by the Trustee in
connection with any purchase of all of the Mortgage Loans pursuant to Section
9.01(a)(i).
Auction Termination Date: The first Distribution Date on which the
aggregate Stated Principal Balance of the Mortgage Loans (or if such Mortgage
Loan is an REO Property, the fair market value of such REO Property) is equal to
or less than 10% of the aggregate Stated Principal Balance of the Mortgage Loans
as of the Cut-off Date.
Auction Termination Price: In the case of an Auction Termination, as of the
initial Distribution Date on or after the Auction Termination Date, an amount
equal to the sum of (a) the aggregate Stated Principal Balance of each Mortgage
Loan (other than any Mortgage Loan that has become an REO Property), plus
accrued interest thereon at the applicable Mortgage Rate through the Due Date
preceding distribution of the proceeds, (b) the fair market value of any REO
Property, plus accrued interest thereon at the applicable Mortgage Rate, (c) any
unreimbursed fees, indemnification amounts, out-of-pocket costs and expenses
owed to the Trustee or the Servicer (including any costs and expenses incurred
in connection with the Auction Termination) and any unreimbursed Servicing Fees,
Advances and Servicing Advances, (d) all interest accrued on, as well as amounts
necessary to retire, the principal balance of any NIM Notes, (e) any costs and
damages incurred by the Issuing Entity (or the Trustee on behalf of the Issuing
Entity) in connection with any violation of any anti-predatory or anti-abusive
lending laws and (f) any Swap Termination Payment, other than a Defaulted Swap
Termination Payment, owed to the Swap Counterparty; such Swap Termination
Payment shall include any payment resulting from the termination of the Swap
Agreement after the Auction Termination Date but prior to the final distribution
to the Certificates.
Authenticating Agent: As defined in Section 5.10.
Available Funds Cap: Any of the Class A-1 Available Funds Cap, the Class
A-2 Available Funds Cap, and the Subordinate Certificate Available Funds Cap.
Balloon Loan: A Mortgage Loan having an original term to stated maturity of
approximately 15 or 30 years which provides for level monthly payments of
principal and interest based on a 30-, 40-, 45- or 50-year amortization
schedule, with a balloon payment of the remaining outstanding principal balance
due on such Mortgage Loan at its stated maturity.
Book-Entry Certificates: Any of the Certificates that shall be registered
in the name of the Depository or its nominee, the ownership of which is
reflected on the books of the Depository or on the books of a Person maintaining
an account with the Depository (directly, as a "Depository Participant", or
indirectly, as an indirect participant in accordance with the rules of the
Depository and as described in Section 5.06). As of the Closing Date, each of
the Class A, Class M and Class B Certificates constitute a Class of Book-Entry
Certificates.
Business Day: Any day other than (1) a Saturday or a Sunday, or (2) a day
on which the New York Stock Exchange or banking institutions in the State of
Oregon or Minnesota or in the City of New York, New York are authorized or
obligated by law or executive order to be closed.
14
Cap Contract Counterparty: Bear Xxxxxxx Financial Products Inc., and any
successor thereto.
Certificate: Any one of the certificates of any Class executed by the
Trustee and authenticated by the Authenticating Agent in substantially the forms
attached hereto as Exhibit A.
Certificate Account: The separate Eligible Account created and maintained
by the Trustee pursuant to Section 3.05(f) in the name of the Trustee for the
benefit of the Certificateholders and designated "U.S. Bank National
Association, as trustee, in trust for registered holders of Specialty
Underwriting and Residential Finance Trust, Mortgage Loan Asset-Backed
Certificates, Series 2007-BC2." Funds in the Certificate Account shall be held
in trust for the Certificateholders for the uses and purposes set forth in this
Agreement.
Certificate Group: Either of Certificate Group One or Certificate Group
Two.
Certificate Group One: The Class A-1 and Class R Certificates. For purposes
of Section 2.07 hereof, Certificate Group One shall be related to Group One.
Certificate Group Two: The Class A-2 Certificates. For purposes of Section
2.07 hereof, Certificate Group Two shall be related to Group Two.
Certificate Owner: With respect to a Book-Entry Certificate, the Person
that is the beneficial owner of such Book-Entry Certificate.
Certificate Principal Balance: As to any Certificate and as of any
Distribution Date, the Initial Certificate Principal Balance of such Certificate
less the sum of (1) all amounts distributed with respect to such Certificate in
reduction of the Certificate Principal Balance thereof on previous Distribution
Dates pursuant to Section 4.04, and (2) any Applied Realized Loss Amounts
allocated to such Certificate on previous Distribution Dates pursuant to Section
4.04(h). On each Distribution Date, after all distributions of principal on such
Distribution Date, a portion of the Class C Interest Carry Forward Amount in an
amount equal to the excess of the Overcollateralization Amount on such
Distribution Date over the Overcollateralization Amount as of the preceding
Distribution Date (or, in the case of the first Distribution Date, the initial
Overcollateralization Amount (based on the Stated Principal Balance of the
Mortgage Loans as of the Cut-off Date)) will be added to the aggregate
Certificate Principal Balance of the Class C Certificates (on a pro rata basis).
Notwithstanding the immediately preceding sentence, however, to the extent any
excess referred to in the immediately preceding sentence is attributable to
distributions of proceeds of the Swap Agreement, such sentence shall be applied
by substituting the "Class C Unpaid Realized Loss Amount" for the "Class C
Interest Carry Forward Amount". Notwithstanding the foregoing on any
Distribution Date relating to a Due Period in which a Subsequent Recovery has
been received by the Servicer, the Certificate Principal Balance of any Class of
Certificates then outstanding for which any Applied Realized Loss Amount has
been allocated will be increased, in order of seniority, by an amount equal to
the lesser of (i) the Unpaid Realized Loss Amount for such Class of Certificates
and (ii) the total of any Subsequent Recovery distributed on such date to the
Certificateholders (reduced by the amount of the increase in the Certificate
Principal Balance of any more senior Class of Certificates pursuant to this
sentence on such Distribution Date).
Certificate Register: The register maintained pursuant to Section 5.02
hereof.
Certificateholder or Holder: The Person in whose name a Certificate is
registered in the Certificate Register (initially, Cede & Co., as nominee for
the Depository) in the case of any Class of Regular Certificates or the Class R
Certificate, except that solely for the purpose of giving any consent pursuant
to this Agreement, any Certificate registered in the name of the Depositor or
any Affiliate of the
15
Depositor shall be deemed not to be Outstanding and the Percentage Interest
evidenced thereby shall not be taken into account in determining whether the
requisite amount of Percentage Interests necessary to effect such consent has
been obtained; provided, however, that if any such Person (including the
Depositor) owns 100% of the Percentage Interests evidenced by a Class of
Certificates, such Certificates shall be deemed to be Outstanding for purposes
of any provision hereof that requires the consent of the Holders of Certificates
of a particular Class as a condition to the taking of any action hereunder. The
Trustee is entitled to rely conclusively on a certification of the Depositor or
any Affiliate of the Depositor in determining which Certificates are registered
in the name of an Affiliate of the Depositor.
Class: All Certificates bearing the same Class designation as set forth in
Section 5.01 hereof.
Class A Certificate Principal Balance: As of any date of determination, the
sum of the Class A-1 Certificate Principal Balance, the Class A-2A Certificate
Principal Balance, the Class A-2B Certificate Principal Balance, the Class A-2C
Certificate Principal Balance and the Class A-2D Certificate Principal Balance.
Class A Certificates: Any of the Class A-1, Class A-2A, Class A-2B, Class
A-2C and Class A-2D Certificates.
Class A Principal Distribution Amount: With respect to any Distribution
Date (1) prior to the related Stepdown Date or any Distribution Date on which a
Stepdown Trigger Event exists, 100% of the Principal Distribution Amount for
such Distribution Date and (2) on or after the Stepdown Date where a Stepdown
Trigger Event does not exist, the excess of (A) the Certificate Principal
Balance of the Class A and Class R Certificates immediately prior to such
Distribution Date over (B) the lesser of (1) 52.60% of the aggregate Stated
Principal Balance of the Mortgage Loans, and (2) the excess of the aggregate
Stated Principal Balance of the Mortgage Loans over the Minimum Required
Overcollateralization Amount; provided, however, that in no event will the Class
A Principal Distribution Amount with respect to any Distribution Date exceed the
aggregate Certificate Principal Balance of the Class A and Class R Certificates.
Class A-1 Available Funds Cap: With respect to a Distribution Date, the per
annum rate equal to the product of (i) 12, (ii) the quotient of (x) the total
scheduled interest on the Mortgage Loans in Group One based on the Net Mortgage
Rates in effect on the related Due Date, less the pro rata portion (calculated
based on the ratio of the Stated Principal Balance of the Mortgage Loans in
Group One to the Stated Principal Balance of the total pool of Mortgage Loans)
allocable to the Mortgage Loans in Group One of any Net Swap Payments or Swap
Termination Payments (other than Defaulted Swap Termination Payments) owed to
the Swap Counterparty for such Distribution Date, and (y) the aggregate Stated
Principal Balance of the Mortgage Loans in Group One as of the first day of the
related Accrual Period (or, in the case of the first Distribution Date, as of
the Cut-off Date) and (iii) a fraction, the numerator of which is 30, and the
denominator of which is the actual number of days in the related Accrual Period.
The Class A-1 Available Funds Cap shall be related to the Class A-1 Certificates
and the Class R Certificates.
Class A-1 Certificate: Any Certificate designated as a "Class A-1
Certificate" on the face thereof, executed by the Trustee and authenticated by
the Authenticating Agent in substantially the form set forth in Exhibit A,
representing the right to distributions as set forth herein.
Class A-1 Certificate Principal Balance: As of any date of determination,
the aggregate Certificate Principal Balance of the Class A-1 Certificates.
16
Class A-1 Corridor Contract: The confirmation and agreement (together with
the schedule thereto) and any related credit support annex (in the form of
Exhibit O-4 hereto), between the Trustee, on behalf of the Issuing Entity, and
the Cap Contract Counterparty (in the form of Exhibit O-1 hereto), with respect
to the Class A-1 Certificates.
Class A-1 Corridor Contract Notional Balance: With respect to any
Distribution Date, the Class A-1 Corridor Contract Notional Balance set forth
for such Distribution Date in the Class A-1 One Month LIBOR Cap Table attached
hereto as Schedule I to Exhibit O-1.
Class A-1 Corridor Contract Termination Date: The Distribution Date after
the Distribution Date in October 2007.
Class A-1 Current Interest: As of any Distribution Date, the interest
accrued during the related Accrual Period at the Class A-1 Pass-Through Rate on
the Class A-1 Certificate Principal Balance as of such Distribution Date plus
the portion of any previous distributions on such Class in respect of Class A-1
Current Interest or a Class A-1 Interest Carry Forward Amount that is recovered
as a voidable preference by a trustee in bankruptcy, less any Non-Supported
Interest Shortfall allocated on such Distribution Date to the Class A-1
Certificates.
Class A-1 Interest Carry Forward Amount: As of any Distribution Date, the
sum of (1) the excess of (A) the Class A-1 Current Interest with respect to
prior Distribution Dates over (B) the amount actually distributed to the Class
A-1 Certificates with respect to Current Interest or Interest Carry Forward
Amounts on such prior Distribution Dates and (2) interest on such excess (to the
extent permitted by applicable law) at the Class A-1 Pass-Through Rate for the
related Accrual Period.
Class A-1 Margin: As of any Distribution Date up to and including the
Auction Termination Date for the Certificates, 0.2300% per annum and, as of any
Distribution Date after the Auction Termination Date, 0.4600% per annum.
Class A-1 Maximum Rate Cap: With respect to a Distribution Date, the per
annum rate equal to the product of (i) 12, (ii) the quotient of (x) the total
scheduled interest that would have been due on the Group One Mortgage Loans had
the Adjustable Rate Mortgage Loans provided for interest at their maximum
lifetime Net Mortgage Rates and the Fixed Rate Mortgage Loans provided for
interest at their Net Mortgage Rates less the pro rata portion (calculated based
on the ratio of the Stated Principal Balance of the Group One Mortgage Loans to
the Stated Principal Balance of the total pool of Mortgage Loans) allocable to
the Group One Mortgage Loans of any Net Swap Payments or Swap Termination
Payments owed to the Swap Counterparty for such Distribution Date (other than
Defaulted Swap Termination Payments), and (y) the aggregate Stated Principal
Balance of the Group One Mortgage Loans as of the first day of the related
Accrual Period (or, in the case of the first Distribution Date, as of the
Cut-off Date) and (iii) a fraction, the numerator of which is 30 and the
denominator of which is the actual number of days in the related Accrual Period.
The Class A-1 Maximum Rate Cap shall be related to the Class A-1 Certificates
and Class R Certificates.
Class A-1 Pass-Through Rate: For the first Distribution Date, 5.5500% per
annum. As of any Distribution Date thereafter, the least of (1) One-Month LIBOR
plus the Class A-1 Margin, (2) the Class A-1 Available Funds Cap, and (3) the
Class A-1 Maximum Rate Cap for such Distribution Date.
Class A-1 Upper Collar: With respect to each Distribution Date with respect
to which payments are received on the Class A-1 Corridor Contract, a rate equal
to the lesser of One-Month Cap LIBOR and 10.770% per annum.
17
Class A-2 Available Funds Cap: With respect to a Distribution Date, the per
annum rate equal to the product of (i) 12, (ii) the quotient of (x) the total
scheduled interest on the Mortgage Loans in Group Two based on the Net Mortgage
Rates in effect on the related Due Date, less the pro rata portion (calculated
based on the ratio of the Stated Principal Balance of the Mortgage Loans in
Group Two to the Stated Principal Balance of the total pool of Mortgage Loans)
allocable to the Mortgage Loans in Group Two of any Net Swap Payments or Swap
Termination Payments (other than Defaulted Swap Termination Payments) owed to
the Swap Counterparty for such Distribution Date, and (y) the aggregate Stated
Principal Balance of the Mortgage Loans in Group Two as of the first day of the
related Accrual Period (or, in the case of the first Distribution Date, as of
the Cut-off Date) and, (iii) a fraction, the numerator of which is 30, and the
denominator of which is the actual number of days in the related Accrual Period.
The Class A-2 Available Funds Cap shall be related to the Class A-2
Certificates.
Class A-2 Certificates: The Class A-2A, Class A-2B, Class A-2C and Class
A-2D Certificates.
Class A-2 Corridor Contract: The confirmation and agreement (together with
the schedule thereto) and any related credit support annex (in the form of
Exhibit O-4 hereto), between the Trustee, on behalf of the Issuing Entity, and
the Cap Contract Counterparty (in the form of Exhibit O-2 hereto), with respect
to the Class A-2 Certificates.
Class A-2 Corridor Contract Notional Balance: With respect to any
Distribution Date, the Class A-2 Corridor Contract Notional Balance set forth
for such Distribution Date in the Class A-2 One Month LIBOR Cap Table attached
hereto as Schedule I to Exhibit O-2.
Class A-2 Corridor Contract Termination Date: The Distribution Date after
the Distribution Date in October 2007.
Class A-2 Maximum Rate Cap: With respect to a Distribution Date, the per
annum rate equal to the product of (i) 12 and (ii) the quotient of (x) the total
scheduled interest that would have been due on the Group Two Mortgage Loans had
the Adjustable Rate Mortgage Loans provided for interest at their maximum
lifetime Net Mortgage Rates and the Fixed Rate Mortgage Loans provided for
interest at their Net Mortgage Rates less the pro rata portion (calculated based
on the ratio of the Stated Principal Balance of the Group Two Mortgage Loans to
the total pool of Stated Principal Balance of the Mortgage Loans) allocable to
the Group Two Mortgage Loans of any Net Swap Payments or Swap Termination
Payments owed to the Swap Counterparty for such Distribution Date (other than
Defaulted Swap Termination Payments), and (y) the aggregate Stated Principal
Balance of the Group Two Mortgage Loans as of the first day of the related
Accrual Period (or, in the case of the first Distribution Date, as of the
Cut-off Date) and (iii) a fraction, the numerator of which is 30 and the
denominator of which is the actual number of days in the related Accrual Period.
The Class A-2 Maximum Rate Cap shall be related to the Class A-2 Certificates.
Class A-2 Upper Collar: With respect to each Distribution Date with respect
to which payments are received on the Class A-2 Corridor Contract, a rate equal
to the lesser of One-Month Cap LIBOR and 10.260% per annum.
Class A-2A Certificate: Any Certificate designated as a "Class A-2A
Certificate" on the face thereof, executed by the Trustee and authenticated by
the Authenticating Agent in substantially the form set forth in Exhibit A,
representing the right to distributions as set forth herein.
Class A-2A Certificate Principal Balance: As of any date of determination,
the aggregate Certificate Principal Balance of the Class A-2A Certificates.
18
Class A-2A Current Interest: As of any Distribution Date, the interest
accrued during the related Accrual Period at the Class A-2A Pass-Through Rate on
the Class A-2A Certificate Principal Balance as of such Distribution Date plus
the portion of any previous distributions on such Class in respect of Class A-2A
Current Interest or a Class A-2A Interest Carry Forward Amount that is recovered
as a voidable preference by a trustee in bankruptcy, less any Non-Supported
Interest Shortfall allocated on such Distribution Date to the Class A-2A
Certificates.
Class A-2A Interest Carry Forward Amount: As of any Distribution Date, the
sum of (1) the excess of (A) the Class A-2A Current Interest with respect to
prior Distribution Dates over (B) the amount actually distributed to the Class
A-2A Certificates with respect to Current Interest or Interest Carry Forward
Amounts on such prior Distribution Dates and (2) interest on such excess (to the
extent permitted by applicable law) at the Class A-2A Pass-Through Rate for the
related Accrual Period.
Class A-2A Margin: As of any Distribution Date up to and including the
Auction Termination Date for the Certificates, 0.1200% per annum and, as of any
Distribution Date after the Auction Termination Date, 0.2400% per annum.
Class A-2A Pass-Through Rate: For the first Distribution Date, 5.4400% per
annum. As of any Distribution Date thereafter, the least of (1) One-Month LIBOR
plus the Class A-2A Margin, (2) the Class A-2 Available Funds Cap and (3) the
Class A-2 Maximum Rate Cap for such Distribution Date.
Class A-2B Certificate: Any Certificate designated as a "Class A-2B
Certificate" on the face thereof, executed by the Trustee and authenticated by
the Authenticating Agent in substantially the form set forth in Exhibit A,
representing the right to distributions as set forth herein.
Class A-2B Certificate Principal Balance: As of any date of determination,
the aggregate Certificate Principal Balance of the Class A-2B Certificates.
Class A-2B Current Interest: As of any Distribution Date, the interest
accrued during the related Accrual Period at the Class A-2B Pass-Through Rate on
the Class A-2B Certificate Principal Balance as of such Distribution Date plus
the portion of any previous distributions on such Class in respect of Class A-2B
Current Interest or a Class A-2B Interest Carry Forward Amount that is recovered
as a voidable preference by a trustee in bankruptcy, less any Non-Supported
Interest Shortfall allocated on such Distribution Date to the Class A-2B
Certificates.
Class A-2B Interest Carry Forward Amount: As of any Distribution Date, the
sum of (1) the excess of (A) the Class A-2B Current Interest with respect to
prior Distribution Dates over (B) the amount actually distributed to the Class
A-2B Certificates with respect to Current Interest or Interest Carry Forward
Amounts on such prior Distribution Dates and (2) interest on such excess (to the
extent permitted by applicable law) at the Class A-2B Pass-Through Rate for the
related Accrual Period.
Class A-2B Margin: As of any Distribution Date up to and including the
Auction Termination Date for the Certificates, 0.2000% per annum and, as of any
Distribution Date after the Auction Termination Date, 0.4000% per annum.
Class A-2B Pass-Through Rate: For the first Distribution Date, 5.5200% per
annum. As of any Distribution Date thereafter, the least of (1) One-Month LIBOR
plus the Class A-2B Margin, (2) the Class A-2 Available Funds Cap and (3) the
Class A-2 Maximum Rate Cap for such Distribution Date.
19
Class A-2C Certificate: Any Certificate designated as a "Class A-2C
Certificate" on the face thereof, executed by the Trustee and authenticated by
the Authenticating Agent in substantially the form set forth in Exhibit A,
representing the right to distributions as set forth herein.
Class A-2C Certificate Principal Balance: As of any date of determination,
the aggregate Certificate Principal Balance of the Class A-2C Certificates.
Class A-2C Current Interest: As of any Distribution Date, the interest
accrued during the related Accrual Period at the Class A-2C Pass-Through Rate on
the Class A-2C Certificate Principal Balance as of such Distribution Date plus
the portion of any previous distributions on such Class in respect of Class A-2C
Current Interest or a Class A-2C Interest Carry Forward Amount that is recovered
as a voidable preference by a trustee in bankruptcy, less any Non-Supported
Interest Shortfall allocated on such Distribution Date to the Class A-2C
Certificates.
Class A-2C Interest Carry Forward Amount: As of any Distribution Date, the
sum of (1) the excess of (A) the Class A-2C Current Interest with respect to
prior Distribution Dates over (B) the amount actually distributed to the Class
A-2C Certificates with respect to Current Interest or Interest Carry Forward
Amounts on such prior Distribution Dates and (2) interest on such excess (to the
extent permitted by applicable law) at the Class A-2C Pass-Through Rate for the
related Accrual Period.
Class A-2C Margin: As of any Distribution Date up to and including the
Auction Termination Date for the Certificates, 0.2700% per annum and, as of any
Distribution Date after the Auction Termination Date, 0.5400% per annum.
Class A-2C Pass-Through Rate: For the first Distribution Date, 5.5900% per
annum. As of any Distribution Date thereafter, the least of (1) One-Month LIBOR
plus the Class A-2C Margin, (2) the Class A-2 Available Funds Cap and (3) the
Class A-2 Maximum Rate Cap for such Distribution Date.
Class A-2D Certificate: Any Certificate designated as a "Class A-2D
Certificate" on the face thereof, executed by the Trustee and authenticated by
the Authenticating Agent in substantially the form set forth in Exhibit A,
representing the right to distributions as set forth herein.
Class A-2D Certificate Principal Balance: As of any date of determination,
the aggregate Certificate Principal Balance of the Class A-2D Certificates.
Class A-2D Current Interest: As of any Distribution Date, the interest
accrued during the related Accrual Period at the Class A-2D Pass-Through Rate on
the Class A-2D Certificate Principal Balance as of such Distribution Date plus
the portion of any previous distributions on such Class in respect of Class A-2D
Current Interest or a Class A-2D Interest Carry Forward Amount that is recovered
as a voidable preference by a trustee in bankruptcy, less any Non-Supported
Interest Shortfall allocated on such Distribution Date to the Class A-2D
Certificates.
Class A-2D Interest Carry Forward Amount: As of any Distribution Date, the
sum of (1) the excess of (A) the Class A-2D Current Interest with respect to
prior Distribution Dates over (B) the amount actually distributed to the Class
A-2D Certificates with respect to Current Interest or Interest Carry Forward
Amounts on such prior Distribution Dates and (2) interest on such excess (to the
extent permitted by applicable law) at the Class A-2D Pass-Through Rate for the
related Accrual Period.
Class A-2D Margin: As of any Distribution Date up to and including the
Auction Termination Date for the Certificates, 0.3500% per annum and, as of any
Distribution Date after the Auction Termination Date, 0.7000% per annum.
20
Class A-2D Pass-Through Rate: For the first Distribution Date, 5.6700% per
annum. As of any Distribution Date thereafter, the least of (1) One-Month LIBOR
plus the Class A-2D Margin, (2) the Class A-2 Available Funds Cap and (3) the
Class A-2 Maximum Rate Cap for such Distribution Date.
Class B Certificates: The Class B-1 Certificates, Class B-2 Certificates,
and the Class B-3 Certificates.
Class B-1 Applied Realized Loss Amount: As of any Distribution Date, the
sum of all Applied Realized Loss Amounts with respect to the Mortgage Loans
which have been applied to the reduction of the Certificate Principal Balance of
the Class B-1 Certificates.
Class B-1 Certificate: Any Certificate designated as a "Class B-1
Certificate" on the face thereof, executed by the Trustee and authenticated by
the Authenticating Agent in substantially the form set forth in Exhibit A,
representing the right to distributions as set forth herein.
Class B-1 Certificate Principal Balance: As of any date of determination,
the aggregate Certificate Principal Balance of the Class B-1 Certificates.
Class B-1 Current Interest: As of any Distribution Date, the interest
accrued during the related Accrual Period at the Class B-1 Pass-Through Rate on
the Class B-1 Certificate Principal Balance as of such Distribution Date plus
the portion of any previous distributions on such Class in respect of Class B-1
Current Interest or a Class B-1 Interest Carry Forward Amount that is recovered
as a voidable preference by a trustee in bankruptcy, less any Non-Supported
Interest Shortfall allocated on such Distribution Date to the Class B-1
Certificates.
Class B-1 Interest Carry Forward Amount: As of any Distribution Date, the
sum of (1) the excess of (A) the Class B-1 Current Interest with respect to
prior Distribution Dates over (B) the amount actually distributed to the Class
B-1 Certificates with respect to Current Interest or Interest Carry Forward
Amounts on such prior Distribution Dates and (2) interest on such excess (to the
extent permitted by applicable law) at the Class B-1 Pass-Through Rate for the
related Accrual Period.
Class B-1 Margin: As of any Distribution Date up to and including the
Auction Termination Date for the Certificates, 2.0500% per annum and, as of any
Distribution Date after the Auction Termination Date, 3.0750% per annum.
Class B-1 Pass-Through Rate: For the first Distribution Date, 7.3700% per
annum. As of any Distribution Date thereafter, the least of (1) One-Month LIBOR
plus the Class B-1 Margin, (2) the Subordinate Certificate Available Funds Cap
and (3) the Subordinate Certificate Maximum Rate Cap for such Distribution Date.
Class B-1 Principal Distribution Amount: With respect to any Distribution
Date on or after the Stepdown Date, 100% of the Principal Distribution Amount
for such Distribution Date if the aggregate Certificate Principal Balance of the
Class A, Class R and Class M Certificates has been reduced to zero and a
Stepdown Trigger Event exists, or as long as a Stepdown Trigger Event does not
exist, the excess of (1) the sum of (A) the aggregate Certificate Principal
Balance of the Class A and Class R Certificates (after taking into account
distributions of the Class A Principal Distribution Amount for such Distribution
Date), (B) the Class M-1 Certificate Principal Balance (after taking into
account distributions of the Class M-1 Principal Distribution Amount on such
Distribution Date), (C) the Class M-2 Certificate Principal Balance (after
taking into account distributions of the Class M-2 Principal Distribution Amount
on such Distribution Date), (D) the Class M-3 Certificate Principal Balance
(after taking into account distributions of the Class M-3 Principal Distribution
Amount on such Distribution Date), (E) the Class M-4 Certificate Principal
Balance (after taking into account distributions of the Class M-4 Principal
Distribution Amount
21
on such Distribution Date), (F) the Class M-5 Certificate Principal Balance
(after taking into account distributions of the Class M-5 Principal Distribution
Amount on such Distribution Date), (G) the Class M-6 Certificate Principal
Balance (after taking into account distributions of the Class M-6 Principal
Distribution Amount on such Distribution Date), and (H) the Class B-1
Certificate Principal Balance immediately prior to such Distribution Date over
(2) the lesser of (A) 85.00% of the Stated Principal Balances of the Mortgage
Loans and (B) the excess of the Stated Principal Balances of the Mortgage Loans
over the Minimum Required Overcollateralization Amount. Notwithstanding the
foregoing, (I) on any Distribution Date prior to the Stepdown Date on which the
Certificate Principal Balance of each Class of the Class A Certificates, Class R
Certificate and Class M Certificates has been reduced to zero, the Class B-1
Principal Distribution Amount will equal the lesser of (x) the outstanding
Certificate Principal Balance of the Class B-1 Certificates and (y) 100% of the
Principal Distribution Amount remaining after any distributions on such Class A,
Class R and Class M Certificates and (II) in no event will the Class B-1
Principal Distribution Amount with respect to any Distribution Date exceed the
Class B-1 Certificate Principal Balance.
Class B-1 Unpaid Realized Loss Amount: As of any Distribution Date, the
excess of (1) the Class B-1 Applied Realized Loss Amount over (2) the sum of (x)
all distributions in reduction of the Class B-1 Unpaid Realized Loss Amounts on
all previous Distribution Dates and (y) all increases in the Certificate
Principal Balance of such Class B-1 Certificates pursuant to the last sentence
of the definition of "Certificate Principal Balance."
Class B-2 Applied Realized Loss Amount: As of any Distribution Date, the
sum of all Applied Realized Loss Amounts with respect to the Mortgage Loans
which have been applied to the reduction of the Certificate Principal Balance of
the Class B-2 Certificates.
Class B-2 Certificate: Any Certificate designated as a "Class B-2
Certificate" on the face thereof, executed by the Trustee and authenticated by
the Authenticating Agent in substantially the form set forth in Exhibit A,
representing the right to distributions as set forth herein.
Class B-2 Certificate Principal Balance: As of any date of determination,
the aggregate Certificate Principal Balance of the Class B-2 Certificates.
Class B-2 Current Interest: As of any Distribution Date, the interest
accrued during the related Accrual Period at the Class B-2 Pass-Through Rate on
the Class B-2 Certificate Principal Balance as of such Distribution Date plus
the portion of any previous distributions on such Class in respect of Class B-2
Current Interest or a Class B-2 Interest Carry Forward Amount that is recovered
as a voidable preference by a trustee in bankruptcy, less any Non-Supported
Interest Shortfall allocated on such Distribution Date to the Class B-2
Certificates.
Class B-2 Interest Carry Forward Amount: As of any Distribution Date, the
sum of (1) the excess of (A) the Class B-2 Current Interest with respect to
prior Distribution Dates over (B) the amount actually distributed to the Class
B-2 Certificates with respect to Current Interest or Interest Carry Forward
Amounts on such prior Distribution Dates and (2) interest on such excess (to the
extent permitted by applicable law) at the Class B-2 Pass-Through Rate for the
related Accrual Period.
Class B-2 Margin: As of any Distribution Date up to and including the
Auction Termination Date for the Certificates, 2.0500% per annum and, as of any
Distribution Date after the Auction Termination Date, 3.0750% per annum.
Class B-2 Pass-Through Rate: For the first Distribution Date, 7.3700% per
annum. As of any Distribution Date thereafter, the least of (1) One-Month LIBOR
plus the Class B-2 Margin, (2) the
22
Subordinate Certificate Available Funds Cap and (3) the Subordinate Certificate
Maximum Rate Cap for such Distribution Date.
Class B-2 Principal Distribution Amount: With respect to any Distribution
Date on or after the Stepdown Date, 100% of the Principal Distribution Amount
for such Distribution Date if the Certificate Principal Balances of the Class A,
Class R, Class M and Class B-1 Certificates have been reduced to zero and a
Stepdown Trigger Event exists, or as long as a Stepdown Trigger Event does not
exist, the excess of (1) the sum of (A) the Certificate Principal Balances of
the Class A and Class R Certificates (after taking into account distributions of
the Class A Principal Distribution Amount on such Distribution Date), (B) the
Class M-1 Certificate Principal Balance (after taking into account distributions
of the Class M-1 Principal Distribution Amount on such Distribution Date), (C)
the Class M-2 Certificate Principal Balance (after taking into account
distributions of the Class M-2 Principal Distribution Amount on such
Distribution Date), (D) the Class M-3 Certificate Principal Balance (after
taking into account distributions of the Class M-3 Principal Distribution Amount
on such Distribution Date), (E) the Class M-4 Certificate Principal Balance
(after taking into account distributions of the Class M-4 Principal Distribution
Amount on such Distribution Date), (F) the Class M-5 Certificate Principal
Balance (after taking into account distributions of the Class M-5 Principal
Distribution Amount on such Distribution Date), (G) the Class M-6 Certificate
Principal Balance (after taking into account distributions of the Class M-6
Principal Distribution Amount on such Distribution Date), (H) the Class B-1
Certificate Principal Balance (after taking into account distributions of the
Class B-1 Principal Distribution Amount on such Distribution Date, and (I) the
Class B-2 Certificate Principal Balance immediately prior to such Distribution
Date over (2) the lesser of (A) 87.10% of the Stated Principal Balances of the
Mortgage Loans and (B) the excess of the Stated Principal Balances of the
Mortgage Loans over the Minimum Required Overcollateralization Amount.
Notwithstanding the foregoing, (I) on any Distribution Date prior to the
Stepdown Date on which the Certificate Principal Balance of each Class of the
Class A Certificates, Class R Certificate, Class M Certificates and Class B-1
Certificates has been reduced to zero, the Class B-2 Principal Distribution
Amount will equal the lesser of (x) the outstanding Certificate Principal
Balance of the Class B-2 Certificates and (y) 100% of the Principal Distribution
Amount remaining after any distributions on such Class A, Class R, Class M and
Class B-1 Certificates and (II) in no event will the Class B-2 Principal
Distribution Amount with respect to any Distribution Date exceed the Class B-2
Certificate Principal Balance.
Class B-2 Unpaid Realized Loss Amount: As of any Distribution Date, the
excess of (1) the Class B-2 Applied Realized Loss Amount over (2) the sum of (x)
all distributions in reduction of the Class B-2 Unpaid Realized Loss Amounts on
all previous Distribution Dates and (y) all increases in the Certificate
Principal Balance of such Class B-2 Certificates pursuant to the last sentence
of the definition of "Certificate Principal Balance."
Class B-3 Applied Realized Loss Amount: As of any Distribution Date, the
sum of all Applied Realized Loss Amounts with respect to the Mortgage Loans
which have been applied to the reduction of the Certificate Principal Balance of
the Class B-3 Certificates.
Class B-3 Certificate: Any Certificate designated as a "Class B-3
Certificate" on the face thereof, executed by the Trustee and authenticated by
the Authenticating Agent in substantially the form set forth in Exhibit A,
representing the right to distributions as set forth herein.
Class B-3 Certificate Principal Balance: As of any date of determination,
the aggregate Certificate Principal Balance of the Class B-3 Certificates.
Class B-3 Current Interest: As of any Distribution Date, the interest
accrued during the related Accrual Period at the Class B-3 Pass-Through Rate on
the Class B-3 Certificate Principal Balance as of
23
such Distribution Date plus the portion of any previous distributions on such
Class in respect of Class B-3 Current Interest or a Class B-3 Interest Carry
Forward Amount that is recovered as a voidable preference by a trustee in
bankruptcy, less any Non-Supported Interest Shortfall allocated on such
Distribution Date to the Class B-3 Certificates.
Class B-3 Interest Carry Forward Amount: As of any Distribution Date, the
sum of (1) the excess of (A) the Class B-3 Current Interest with respect to
prior Distribution Dates over (B) the amount actually distributed to the Class
B-3 Certificates with respect to Current Interest or Interest Carry Forward
Amounts on such prior Distribution Dates and (2) interest on such excess (to the
extent permitted by applicable law) at the Class B-3 Pass-Through Rate for the
related Accrual Period.
Class B-3 Margin: As of any Distribution Date up to and including the
Auction Termination Date for the Certificates, 2.0500% per annum and, as of any
Distribution Date after the Auction Termination Date, 3.0750% per annum.
Class B-3 Pass-Through Rate: For the first Distribution Date, 7.3700% per
annum. As of any Distribution Date thereafter, the least of (1) One-Month LIBOR
plus the Class B-3 Margin, (2) the Subordinate Certificate Available Funds Cap
and (3) the Subordinate Certificate Maximum Rate Cap for such Distribution Date.
Class B-3 Principal Distribution Amount: With respect to any Distribution
Date on or after the Stepdown Date, 100% of the Principal Distribution Amount
for such Distribution Date if the Certificate Principal Balances of the Class A,
Class R, Class M, Class B-1 and Class B-2 Certificates have been reduced to zero
and a Stepdown Trigger Event exists, or as long as a Stepdown Trigger Event does
not exist, the excess of (1) the sum of (A) the Certificate Principal Balances
of the Class A and Class R Certificates (after taking into account distributions
of the Class A Principal Distribution Amount on such Distribution Date), (B) the
Class M-1 Certificate Principal Balance (after taking into account distributions
of the Class M-1 Principal Distribution Amount on such Distribution Date), (C)
the Class M-2 Certificate Principal Balance (after taking into account
distributions of the Class M-2 Principal Distribution Amount on such
Distribution Date), (D) the Class M-3 Certificate Principal Balance (after
taking into account distributions of the Class M-3 Principal Distribution Amount
on such Distribution Date), (E) the Class M-4 Certificate Principal Balance
(after taking into account distributions of the Class M-4 Principal Distribution
Amount on such Distribution Date), (F) the Class M-5 Certificate Principal
Balance (after taking into account distributions of the Class M-5 Principal
Distribution Amount on such Distribution Date), (G) the Class M-6 Certificate
Principal Balance (after taking into account distributions of the Class M-6
Principal Distribution Amount on such Distribution Date), (H) the Class B-1
Certificate Principal Balance (after taking into account distributions of the
Class B-1 Principal Distribution Amount on such Distribution Date), (I) the
Class B-2 Certificate Principal Balance (after taking into account distributions
of the Class B-2 Principal Distribution Amount on such Distribution Date), and
(J) the Class B-3 Certificate Principal Balance immediately prior to such
Distribution Date over (2) the lesser of (A) 90.00% of the Stated Principal
Balances of the Mortgage Loans and (B) the excess of the Stated Principal
Balances of the Mortgage Loans over the Minimum Required Overcollateralization
Amount. Notwithstanding the foregoing, (I) on any Distribution Date prior to the
Stepdown Date on which the Certificate Principal Balance of each Class of the
Class A Certificates, Class R Certificate, Class M Certificates, Class B-1 and
Class B-2 Certificates has been reduced to zero, the Class B-3 Principal
Distribution Amount will equal the lesser of (x) the outstanding Certificate
Principal Balance of the Class B-3 Certificates and (y) 100% of the Principal
Distribution Amount remaining after any distributions on such Class A, Class R,
Class M, Class B-1 and Class B-2 Certificates and (II) in no event will the
Class B-3 Principal Distribution Amount with respect to any Distribution Date
exceed the Class B-3 Certificate Principal Balance.
24
Class B-3 Unpaid Realized Loss Amount: As of any Distribution Date, the
excess of (1) the Class B-3 Applied Realized Loss Amount over (2) the sum of (x)
all distributions in reduction of the Class B-3 Unpaid Realized Loss Amounts on
all previous Distribution Dates and (y) all increases in the Certificate
Principal Balance of such Class B-3 Certificates pursuant to the last sentence
of the definition of "Certificate Principal Balance."
Class C Applied Realized Loss Amount: As of any Distribution Date, the sum
of all Applied Realized Loss Amounts with respect to the Mortgage Loans which
have been applied to the reduction of the Certificate Principal Balance of the
Class C Certificates.
Class C Certificate: Any Certificate designated as a "Class C Certificate"
on the face thereof, executed by the Trustee and authenticated by the
Authenticating Agent in substantially the form set forth in Exhibit A,
representing the right to distributions as set forth herein.
Class C Certificate Principal Balance: As of any date of determination, the
aggregate Certificate Principal Balance of the Class C Certificates.
Class C Current Interest: As of any Distribution Date, the interest accrued
during the related Accrual Period at the Class C Distributable Interest Rate on
a notional amount equal to the aggregate principal balance of the Lower Tier
REMIC Regular Interests immediately prior to such Distribution Date plus the
interest portion of any previous distributions on such Class that is recovered
as a voidable preference by a trustee in bankruptcy, less any Non-Supported
Interest Shortfall allocated on such Distribution Date to the Class C
Certificates.
Class C Distributable Interest Rate: The excess, if any, of (a) the
weighted average of the interest rates on the Lower Tier REMIC Regular Interests
(other than the Class LT-IO Interest) over (b) two times the weighted average of
the interest rates on the Lower Tier REMIC I Marker Interests and the Class LTIX
Interest (treating for purposes of this clause (b) the interest rate on each of
the Lower Tier REMIC I Marker Interests as being subject to a cap and a floor
equal to the interest rate of the Corresponding REMIC Regular Interest of the
Corresponding Certificates (as adjusted, if necessary, for the length of the
Accrual Period for the LIBOR Certificates) and treating the Class LTIX Interest
as being capped at zero). The averages described in the preceding sentence shall
be weighted on the basis of the respective principal balances of the Lower Tier
REMIC Regular Interests immediately prior to any date of determination.
Class C Interest Carry Forward Amount: As of any Distribution Date, the
excess of (A) the Class C Current Interest with respect to prior Distribution
Dates over (B) the amount actually distributed to the Class C Certificates with
respect to interest on such prior Distribution Dates or added to the aggregate
Certificate Principal Balance of the Class C Certificates (other than amounts so
added attributable to Subsequent Recoveries or proceeds of the Swap Agreement).
Class C Unpaid Realized Loss Amount: As of any Distribution Date, the
excess of (1) the Class C Applied Realized Loss Amount over (2) the sum of (x)
all distributions in reduction of the Class C Unpaid Realized Loss Amount on all
previous Distribution Dates and (y) all increases in the Certificate Principal
Balance of such Class C Certificates (A) pursuant to the last sentence of the
definition of "Certificate Principal Balance" or (B) attributable to
distributions of proceeds of the Swap Agreement.
Class LTA-1 Interest: An uncertificated regular interest in the Lower Tier
REMIC with an initial principal balance equal to 1/4 of the initial principal
balance of its Corresponding Certificates and an interest rate equal to the Net
Rate.
25
Class LTA-2A Interest: An uncertificated regular interest in the Lower Tier
REMIC with an initial principal balance equal to 1/4 of the initial principal
balance of its Corresponding Certificate and an interest rate equal to the Net
Rate.
Class LTA-2B Interest: An uncertificated regular interest in the Lower Tier
REMIC with an initial principal balance equal to 1/4 of the initial principal
balance of its Corresponding Certificate and an interest rate equal to the Net
Rate.
Class LTA-2C Interest: An uncertificated regular interest in the Lower Tier
REMIC with an initial principal balance equal to 1/4 of the initial principal
balance of its Corresponding Certificate and an interest rate equal to the Net
Rate.
Class LTA-2D Interest: An uncertificated regular interest in the Lower Tier
REMIC with an initial principal balance equal to 1/4 of the initial principal
balance of its Corresponding Certificate and an interest rate equal to the Net
Rate.
Class LTB-1 Interest: An uncertificated regular interest in the Lower Tier
REMIC with an initial principal balance equal to 1/4 of the initial principal
balance of its Corresponding Certificate and an interest rate equal to the Net
Rate.
Class LTB-2 Interest: An uncertificated regular interest in the Lower Tier
REMIC with an initial principal balance equal to 1/4 of the initial principal
balance of its Corresponding Certificate and an interest rate equal to the Net
Rate.
Class LTB-3 Interest: An uncertificated regular interest in the Lower Tier
REMIC with an initial principal balance equal to 1/4 of the initial principal
balance of its Corresponding Certificate and an interest rate equal to the Net
Rate.
Class LT-IO Interest: An uncertificated regular interest in the Lower Tier
REMIC with the characteristics set forth in the description of the Lower Tier
REMIC in the Preliminary Statement.
Class LTII1A Interest: An uncertificated regular interest in the Lower Tier
REMIC with an initial principal balance equal to 0.05% of the excess of (i) the
aggregate Cut-off Date Principal Balance of the Group One Mortgage Loans over
(ii) the aggregate of the initial Certificate Principal Balances of Certificate
Group One, and with an interest rate equal to the Net Rate.
Class LTII1B Interest: An uncertificated regular interest in the Lower Tier
REMIC with an initial principal balance equal to 0.05% of the aggregate Cut-off
Date Principal Balance of the Group One Mortgage Loans, and with an interest
rate equal to the rate set forth in footnote 9 to the description of the Lower
Tier REMIC in the Preliminary Statement.
Class LTII2A Interest: An uncertificated regular interest in the Lower Tier
REMIC with an initial principal balance equal to 0.05% of the excess of (i) the
aggregate Cut-off Date Principal Balance of the Group Two Mortgage Loans over
(ii) the aggregate of the initial Certificate Principal Balances of Certificate
Group Two, and with an interest rate equal to the Net Rate.
Class LTII2B Interest: An uncertificated regular interest in the Lower Tier
REMIC with an initial principal balance equal to 0.05% of the aggregate Cut-off
Date Principal Balance of the Group Two Mortgage Loans, and with an interest
rate equal to the rate set forth in footnote 10 to the description of the Lower
Tier REMIC in the Preliminary Statement.
26
Class LTIX Interest: An uncertificated regular interest in the Lower Tier
REMIC with an initial principal balance equal to the excess of (i) 50% of the
aggregate Cut-off Date Principal Balance of the Mortgage Loans over (ii) the
initial principal balance of the Lower Tier REMIC I Marker Interests, and with
an interest rate equal to the Net Rate.
Class LTIIX Interest: An uncertificated regular interest in the Lower Tier
REMIC with an initial principal balance equal to the excess of (i) 50% of the
aggregate Cut-off Date Principal Balance of the Mortgage Loans over (ii) the
initial principal balance of the Lower Tier REMIC II Marker Interests, and with
an interest rate equal to the Net Rate.
Class LTM-1 Interest: An uncertificated regular interest in the Lower Tier
REMIC with an initial principal balance equal to 1/4 of the initial principal
balance of its Corresponding Certificate and an interest rate equal to the Net
Rate.
Class LTM-2 Interest: An uncertificated regular interest in the Lower Tier
REMIC with an initial principal balance equal to 1/4 of the initial principal
balance of its Corresponding Certificate and an interest rate equal to the Net
Rate.
Class LTM-3 Interest: An uncertificated regular interest in the Lower Tier
REMIC with an initial principal balance equal to 1/4 of the initial principal
balance of its Corresponding Certificate and an interest rate equal to the Net
Rate.
Class LTM-4 Interest: An uncertificated regular interest in the Lower Tier
REMIC with an initial principal balance equal to 1/4 of the initial principal
balance of its Corresponding Certificate and an interest rate equal to the Net
Rate.
Class LTM-5 Interest: An uncertificated regular interest in the Lower Tier
REMIC with an initial principal balance equal to 1/4 of the initial principal
balance of its Corresponding Certificate and an interest rate equal to the Net
Rate.
Class LTM-6 Interest: An uncertificated regular interest in the Lower Tier
REMIC with an initial principal balance equal to 1/4 of the initial principal
balance of its Corresponding Certificate and an interest rate equal to the Net
Rate.
Class LTR Interest: The sole class of "residual interest" in the Lower Tier
REMIC.
Class M Certificates: Any of the Class M-1, Class M-2, Class M-3, Class
M-4, Class M-5 and Class M-6 Certificates.
Class M-1 Applied Realized Loss Amount: As of any Distribution Date, the
sum of all Applied Realized Loss Amounts with respect to the Mortgage Loans
which have been applied to the reduction of the Certificate Principal Balance of
the Class M-1 Certificates.
Class M-1 Certificate: Any Certificate designated as a "Class M-1
Certificate" on the face thereof, executed by the Trustee and authenticated by
the Authenticating Agent in substantially the form set forth in Exhibit A,
representing the right to distributions as set forth herein.
Class M-1 Certificate Principal Balance: As of any date of determination,
the aggregate Certificate Principal Balance of the Class M-1 Certificates.
27
Class M-1 Current Interest: As of any Distribution Date, the interest
accrued during the related Accrual Period at the Class M-1 Pass-Through Rate on
the Class M-1 Certificate Principal Balance as of such Distribution Date plus
the portion of any previous distributions on such Class in respect of Class M-1
Current Interest or a Class M-1 Interest Carry Forward Amount that is recovered
as a voidable preference by a trustee in bankruptcy, less any Non-Supported
Interest Shortfall allocated on such Distribution Date to the Class M-1
Certificates.
Class M-1 Interest Carry Forward Amount: As of any Distribution Date, the
sum of (1) the excess of (A) the Class M-1 Current Interest with respect to
prior Distribution Dates over (B) the amount actually distributed to the Class
M-1 Certificates with respect to Current Interest or Interest Carry Forward
Amounts on such prior Distribution Dates and (2) interest on such excess (to the
extent permitted by applicable law) at the Class M-1 Pass-Through Rate for the
related Accrual Period.
Class M-1 Margin: As of any Distribution Date up to and including the
Auction Termination Date for the Certificates, 0.4500% per annum and, as of any
Distribution Date after the Auction Termination Date, 0.6750% per annum.
Class M-1 Pass-Through Rate: For the first Distribution Date, 5.7700% per
annum. As of any Distribution Date thereafter, the least of (1) One-Month LIBOR
plus the Class M-1 Margin and (2) the Subordinate Certificate Available Funds
Cap and (3) the Subordinate Certificate Maximum Rate Cap for such Distribution
Date.
Class M-1 Principal Distribution Amount: With respect to any Distribution
Date on or after the Stepdown Date, 100% of the Principal Distribution Amount
for such Distribution Date if the Certificate Principal Balances of the Class A
and Class R Certificates have been reduced to zero and a Stepdown Trigger Event
exists, or as long as a Stepdown Trigger Event does not exist, the excess of (1)
the sum of (A) the Certificate Principal Balances of the Class A and Class R
Certificates (after taking into account distributions of the Class A Principal
Distribution Amount on such Distribution Date) and (B) the Class M-1 Certificate
Principal Balance immediately prior to such Distribution Date over (2) the
lesser of (A) 60.60% of the Stated Principal Balances of the Mortgage Loans and
(B) the excess of the Stated Principal Balances for the Mortgage Loans over the
Minimum Required Overcollateralization Amount. Notwithstanding the foregoing,
(I) on any Distribution Date prior to the Stepdown Date on which the Certificate
Principal Balance of each Class of the Class A Certificates and Class R
Certificate has been reduced to zero, the Class M-1 Principal Distribution
Amount will equal the lesser of (x) the outstanding Certificate Principal
Balance of the Class M-1 Certificates and (y) 100% of the Principal Distribution
Amount remaining after any distributions on such Class A Certificates and Class
R Certificate and (II) in no event will the Class M-1 Principal Distribution
Amount with respect to any Distribution Date exceed the Class M-1 Certificate
Principal Balance.
Class M-1 Unpaid Realized Loss Amount: As of any Distribution Date, the
excess of (1) the Class M-1 Applied Realized Loss Amount over (2) the sum of (x)
all distributions in reduction of the Class M-1 Unpaid Realized Loss Amounts on
all previous Distribution Dates and (y) all increases in the Certificate
Principal Balance of such Class M-1 Certificates pursuant to the last sentence
of the definition of "Certificate Principal Balance."
Class M-2 Applied Realized Loss Amount: As of any Distribution Date, the
sum of all Applied Realized Loss Amounts with respect to the Mortgage Loans
which have been applied to the reduction of the Certificate Principal Balance of
the Class M-2 Certificates.
28
Class M-2 Certificate: Any Certificate designated as a "Class M-2
Certificate" on the face thereof, executed by the Trustee and authenticated by
the Authenticating Agent in substantially the form set forth in Exhibit A,
representing the right to distributions as set forth herein.
Class M-2 Certificate Principal Balance: As of any date of determination,
the aggregate Certificate Principal Balance of the Class M-2 Certificates.
Class M-2 Current Interest: As of any Distribution Date, the interest
accrued during the related Accrual Period at the Class M-2 Pass-Through Rate on
the Class M-2 Certificate Principal Balance as of such Distribution Date plus
the portion of any previous distributions on such Class in respect of Class M-2
Current Interest or a Class M-2 Interest Carry Forward Amount that is recovered
as a voidable preference by a trustee in bankruptcy, less any Non-Supported
Interest Shortfall allocated on such Distribution Date to the Class M-2
Certificates.
Class M-2 Interest Carry Forward Amount: As of any Distribution Date, the
sum of (1) the excess of (A) the Class M-2 Current Interest with respect to
prior Distribution Dates over (B) the amount actually distributed to the Class
M-2 Certificates with respect to Current Interest or Interest Carry Forward
Amounts on such prior Distribution Dates and (2) interest on such excess (to the
extent permitted by applicable law) at the Class M-2 Pass-Through Rate for the
related Accrual Period.
Class M-2 Margin: As of any Distribution Date up to and including the
Auction Termination Date for the Certificates, 0.5000% per annum and, as of any
Distribution Date after the Auction Termination Date, 0.7500% per annum.
Class M-2 Pass-Through Rate: For the first Distribution Date, 5.8200% per
annum. As of any Distribution Date thereafter, the least of (1) One-Month LIBOR
plus the Class M-2 Margin, (2) the Subordinate Certificate Available Funds Cap
and (3) the Subordinate Certificate Maximum Rate Cap for such Distribution Date.
Class M-2 Principal Distribution Amount: With respect to any Distribution
Date on or after the Stepdown Date, 100% of the Principal Distribution Amount
for such Distribution Date if the Certificate Principal Balances of the Class A,
Class R and Class M-1 Certificates have been reduced to zero and a Stepdown
Trigger Event exists, or as long as a Stepdown Trigger Event does not exist, the
excess of (1) the sum of (A) the Certificate Principal Balances of the Class A
and Class R Certificates (after taking into account distributions of the Class A
Principal Distribution Amount on such Distribution Date), (B) the Class M-1
Certificate Principal Balance (after taking into account distribution of the
Class M-1 Principal Distribution Amount on such Distribution Date) and (C) the
Class M-2 Certificate Principal Balance immediately prior to such Distribution
Date over (2) the lesser of (A) 67.70% of the Stated Principal Balances of the
Mortgage Loans and (B) the excess of the Stated Principal Balances for the
Mortgage Loans over the Minimum Required Overcollateralization Amount.
Notwithstanding the foregoing, (I) on any Distribution Date prior to the
Stepdown Date on which the Certificate Principal Balance of each Class of the
Class A Certificates and Class R Certificate has been reduced to zero, the Class
M-2 Principal Distribution Amount will equal the lesser of (x) the outstanding
Certificate Principal Balance of the Class M-2 Certificates and (y) 100% of the
Principal Distribution Amount remaining after any distributions on such Class A,
Class R and Class M-1 Certificates and (II) in no event will the Class M-2
Principal Distribution Amount with respect to any Distribution Date exceed the
Class M-2 Certificate Principal Balance.
Class M-2 Unpaid Realized Loss Amount: As of any Distribution Date, the
excess of (1) the Class M-2 Applied Realized Loss Amount over (2) the sum of (x)
all distributions in reduction of the Class M-2 Unpaid Realized Loss Amounts on
all previous Distribution Dates and (y) all increases in the
29
Certificate Principal Balance of such Class M-2 Certificates pursuant to the
last sentence of the definition of "Certificate Principal Balance."
Class M-3 Applied Realized Loss Amount: As of any Distribution Date, the
sum of all Applied Realized Loss Amounts with respect to the Mortgage Loans
which have been applied to the reduction of the Certificate Principal Balance of
the Class M-3 Certificates.
Class M-3 Certificate: Any Certificate designated as a "Class M-3
Certificate" on the face thereof, executed by the Trustee and authenticated by
the Authenticating Agent in substantially the form set forth in Exhibit A,
representing the right to distributions as set forth herein.
Class M-3 Certificate Principal Balance: As of any date of determination,
the aggregate Certificate Principal Balance of the Class M-3 Certificates.
Class M-3 Current Interest: As of any Distribution Date, the interest
accrued during the related Accrual Period at the Class M-3 Pass-Through Rate on
the Class M-3 Certificate Principal Balance as of such Distribution Date plus
the portion of any previous distributions on such Class in respect of Class M-3
Current Interest or a Class M-3 Interest Carry Forward Amount that is recovered
as a voidable preference by a trustee in bankruptcy, less any Non-Supported
Interest Shortfall allocated on such Distribution Date to the Class M-3
Certificates.
Class M-3 Interest Carry Forward Amount: As of any Distribution Date, the
sum of (1) the excess of (A) the Class M-3 Current Interest with respect to
prior Distribution Dates over (B) the amount actually distributed to the Class
M-3 Certificates with respect to Current Interest or Interest Carry Forward
Amounts on such prior Distribution Dates and (2) interest on such excess (to the
extent permitted by applicable law) at the Class M-3 Pass-Through Rate for the
related Accrual Period.
Class M-3 Margin: As of any Distribution Date up to and including the
Auction Termination Date for the Certificates, 0.6500% per annum and, as of any
Distribution Date after the Auction Termination Date, 0.9750% per annum.
Class M-3 Pass-Through Rate: For the first Distribution Date, 5.9700% per
annum. As of any Distribution Date thereafter, the least of (1) One-Month LIBOR
plus the Class M-3 Margin, (2) the Subordinate Certificate Available Funds Cap
and (3) the Subordinate Certificate Maximum Rate Cap for such Distribution Date.
Class M-3 Principal Distribution Amount: With respect to any Distribution
Date on or after the Stepdown Date, 100% of the Principal Distribution Amount
for such Distribution Date if the Certificate Principal Balances of the Class A,
Class R, Class M-1 and Class M-2 Certificates have been reduced to zero and a
Stepdown Trigger Event exists, or as long as a Stepdown Trigger Event does not
exist, the excess of (1) the sum of (A) the Certificate Principal Balances of
the Class A and Class R Certificates (after taking into account distributions of
the Class A Principal Distribution Amount on such Distribution Date), (B) the
Class M-1 Certificate Principal Balance (after taking into account distribution
of the Class M-1 Principal Distribution Amount on such Distribution Date), (C)
the Class M-2 Certificate Principal Balance (after taking into account
distribution of the Class M-2 Principal Distribution Amount on such Distribution
Date), and (D) the Class M-3 Certificate Principal Balance immediately prior to
such Distribution Date over (2) the lesser of (A) 71.90% of the Stated Principal
Balances of the Mortgage Loans and (B) the excess of the Stated Principal
Balances for the Mortgage Loans over the Minimum Required Overcollateralization
Amount. Notwithstanding the foregoing, (I) on any Distribution Date prior to the
Stepdown Date on which the Certificate Principal Balance of each Class of the
Class A Certificates and Class R Certificate has been reduced to zero, the Class
M-3 Principal Distribution
30
Amount will equal the lesser of (x) the outstanding Certificate Principal
Balance of the Class M-3 Certificates and (y) 100% of the Principal Distribution
Amount remaining after any distributions on such Class A, Class R, Class M-1 and
Class M-2 Certificates and (II) in no event will the Class M-3 Principal
Distribution Amount with respect to any Distribution Date exceed the Class M-3
Certificate Principal Balance.
Class M-3 Unpaid Realized Loss Amount: As of any Distribution Date, the
excess of (1) the Class M-3 Applied Realized Loss Amount over (2) the sum of (x)
all distributions in reduction of the Class M-3 Unpaid Realized Loss Amounts on
all previous Distribution Dates and (y) all increases in the Certificate
Principal Balance of such Class M-3 Certificates pursuant to the last sentence
of the definition of "Certificate Principal Balance."
Class M-4 Applied Realized Loss Amount: As of any Distribution Date, the
sum of all Applied Realized Loss Amounts with respect to the Mortgage Loans
which have been applied to the reduction of the Certificate Principal Balance of
the Class M-4 Certificates.
Class M-4 Certificate: Any Certificate designated as a "Class M-4
Certificate" on the face thereof, executed by the Trustee and authenticated by
the Authenticating Agent in substantially the form set forth in Exhibit A,
representing the right to distributions as set forth herein.
Class M-4 Certificate Principal Balance: As of any date of determination,
the aggregate Certificate Principal Balance of the Class M-4 Certificates.
Class M-4 Current Interest: As of any Distribution Date, the interest
accrued during the related Accrual Period at the Class M-4 Pass-Through Rate on
the Class M-4 Certificate Principal Balance as of such Distribution Date plus
the portion of any previous distributions on such Class in respect of Class M-4
Current Interest or a Class M-4 Interest Carry Forward Amount that is recovered
as a voidable preference by a trustee in bankruptcy, less any Non-Supported
Interest Shortfall allocated on such Distribution Date to the Class M-4
Certificates.
Class M-4 Interest Carry Forward Amount: As of any Distribution Date, the
sum of (1) the excess of (A) the Class M-4 Current Interest with respect to
prior Distribution Dates over (B) the amount actually distributed to the Class
M-4 Certificates with respect to Current Interest or Interest Carry Forward
Amounts on such prior Distribution Dates and (2) interest on such excess (to the
extent permitted by applicable law) at the Class M-4 Pass-Through Rate for the
related Accrual Period.
Class M-4 Margin: As of any Distribution Date up to and including the
Auction Termination Date for the Certificates, 1.0500% per annum and, as of any
Distribution Date after the Auction Termination Date, 1.5750% per annum.
Class M-4 Pass-Through Rate: For the first Distribution Date, 6.3700% per
annum. As of any Distribution Date thereafter, the least of (1) One-Month LIBOR
plus the Class M-4 Margin, (2) the Subordinate Certificate Available Funds Cap
and (3) the Subordinate Certificate Maximum Rate Cap for such Distribution Date.
Class M-4 Principal Distribution Amount: With respect to any Distribution
Date on or after the Stepdown Date, 100% of the Principal Distribution Amount
for such Distribution Date if the Certificate Principal Balances of the Class A,
Class R, Class M-1, Class M-2 and Class M-3 Certificates have been reduced to
zero and a Stepdown Trigger Event exists, or as long as a Stepdown Trigger Event
does not exist, the excess of (1) the sum of (A) the Certificate Principal
Balances of the Class A and Class R Certificates (after taking into account
distributions of the Class A Principal Distribution Amount on such
31
Distribution Date), (B) the Class M-1 Certificate Principal Balance (after
taking into account distributions of the Class M-1 Principal Distribution Amount
on such Distribution Date), (C) the Class M-2 Certificate Principal Balance
(after taking into account distribution of the Class M-2 Principal Distribution
Amount on such Distribution Date), (D) the Class M-3 Certificate Principal
Balance (after taking into account distribution of the Class M-3 Principal
Distribution Amount on such Distribution Date), and (E) the Class M-4
Certificate Principal Balance immediately prior to such Distribution Date over
(2) the lesser of (A) 75.40% of the Stated Principal Balances of the Mortgage
Loans and (B) the excess of the Stated Principal Balances for the Mortgage Loans
over the Minimum Required Overcollateralization Amount. Notwithstanding the
foregoing, (I) on any Distribution Date prior to the Stepdown Date on which the
Certificate Principal Balance of each Class of the Class A Certificates, the
Class R Certificate, the Class M-1 Certificates, the Class M-2 and the Class M-3
Certificates has been reduced to zero, the Class M-4 Principal Distribution
Amount will equal the lesser of (x) the outstanding Certificate Principal
Balance of the Class M-3 Certificates and (y) 100% of the Principal Distribution
Amount remaining after any distributions on such Class A, Class R, Class M-1,
Class M-2 and Class M-3 Certificates and (II) in no event will the Class M-4
Principal Distribution Amount with respect to any Distribution Date exceed the
Class M-4 Certificate Principal Balance.
Class M-4 Unpaid Realized Loss Amount: As of any Distribution Date, the
excess of (1) the Class M-4 Applied Realized Loss Amount over (2) the sum of (x)
all distributions in reduction of the Class M-4 Unpaid Realized Loss Amounts on
all previous Distribution Dates and (y) all increases in the Certificate
Principal Balance of such Class M-4 Certificates pursuant to the last sentence
of the definition of "Certificate Principal Balance."
Class M-5 Applied Realized Loss Amount: As of any Distribution Date, the
sum of all Applied Realized Loss Amounts with respect to the Mortgage Loans
which have been applied to the reduction of the Certificate Principal Balance of
the Class M-5 Certificates.
Class M-5 Certificate: Any Certificate designated as a "Class M-5
Certificate" on the face thereof, executed by the Trustee and authenticated by
the Authenticating Agent in substantially the form set forth in Exhibit A,
representing the right to distributions as set forth herein.
Class M-5 Certificate Principal Balance: As of any date of determination,
the aggregate Certificate Principal Balance of the Class M-5 Certificates.
Class M-5 Current Interest: As of any Distribution Date, the interest
accrued during the related Accrual Period at the Class M-5 Pass-Through Rate on
the Class M-5 Certificate Principal Balance as of such Distribution Date plus
the portion of any previous distributions on such Class in respect of Class M-5
Current Interest or a Class M-5 Interest Carry Forward Amount that is recovered
as a voidable preference by a trustee in bankruptcy, less any Non-Supported
Interest Shortfall allocated on such Distribution Date to the Class M-5
Certificates.
Class M-5 Interest Carry Forward Amount: As of any Distribution Date, the
sum of (1) the excess of (A) the Class M-5 Current Interest with respect to
prior Distribution Dates over (B) the amount actually distributed to the Class
M-5 Certificates with respect to Current Interest or Interest Carry Forward
Amounts on such prior Distribution Dates and (2) interest on such excess (to the
extent permitted by applicable law) at the Class M-5 Pass-Through Rate for the
related Accrual Period.
Class M-5 Margin: As of any Distribution Date up to and including the
Auction Termination Date for the Certificates, 1.4500% per annum and, as of any
Distribution Date after the Auction Termination Date, 2.1750% per annum.
32
Class M-5 Pass-Through Rate: For the first Distribution Date, 6.7700% per
annum. As of any Distribution Date thereafter, the least of (1) One-Month LIBOR
plus the Class M-5 Margin, (2) the Subordinate Certificate Available Funds Cap
and (3) the Subordinate Certificate Maximum Rate Cap for such Distribution Date.
Class M-5 Principal Distribution Amount: With respect to any Distribution
Date on or after the Stepdown Date, 100% of the Principal Distribution Amount
for such Distribution Date if the Certificate Principal Balances of the Class A,
Class R, Class M-1, Class M-2, Class M-3 and Class M-4 Certificates have been
reduced to zero and a Stepdown Trigger Event exists, or as long as a Stepdown
Trigger Event does not exist, the excess of (1) the sum of (A) the Certificate
Principal Balances of the Class A and Class R Certificates (after taking into
account distributions of the Class A Principal Distribution Amount on such
Distribution Date), (B) the Class M-1 Certificate Principal Balance (after
taking into account distributions of the Class M-1Principal Distribution Amount
on such Distribution Date), (C) the Class M-2 Certificate Principal Balance
(after taking into account distribution of the Class M-2 Principal Distribution
Amount on such Distribution Date), (D) the Class M-3 Certificate Principal
Balance (after taking into account distribution of the Class M-3 Principal
Distribution Amount on such Distribution Date), (E) the Class M-4 Certificate
Principal Balance (after taking into account distributions of the Class M-4
Principal Distribution Amount on such Distribution Date) and (F) the Class M-5
Certificate Principal Balance immediately prior to such Distribution Date over
(2) the lesser of (A) 78.90% of the Stated Principal Balances of the Mortgage
Loans and (B) the excess of the Stated Principal Balances for the Mortgage Loans
over the Minimum Required Overcollateralization Amount. Notwithstanding the
foregoing, (I) on any Distribution Date prior to the Stepdown Date on which the
Certificate Principal Balance of each Class of the Class A Certificates, the
Class R Certificate, the Class M-1 Certificates, the Class M-2, the Class M-3
and the Class M-4 Certificates has been reduced to zero, the Class M-5 Principal
Distribution Amount will equal the lesser of (x) the outstanding Certificate
Principal Balance of the Class M-5 Certificates and (y) 100% of the Principal
Distribution Amount remaining after any distributions on such Class A, Class R,
Class M-1, Class M-2, Class M-3 and Class M-4 Certificates and (II) in no event
will the Class M-5 Principal Distribution Amount with respect to any
Distribution Date exceed the Class M-5 Certificate Principal Balance.
Class M-5 Unpaid Realized Loss Amount: As of any Distribution Date, the
excess of (1) the Class M-5 Applied Realized Loss Amount over (2) the sum of (x)
all distributions in reduction of the Class M-5 Unpaid Realized Loss Amounts on
all previous Distribution Dates and (y) all increases in the Certificate
Principal Balance of such Class M-5 Certificates pursuant to the last sentence
of the definition of "Certificate Principal Balance."
Class M-6 Applied Realized Loss Amount: As of any Distribution Date, the
sum of all Applied Realized Loss Amounts with respect to the Mortgage Loans
which have been applied to the reduction of the Certificate Principal Balance of
the Class M-6 Certificates.
Class M-6 Certificate: Any Certificate designated as a "Class M-6
Certificate" on the face thereof, executed by the Trustee and authenticated by
the Authenticating Agent in substantially the form set forth in Exhibit A,
representing the right to distributions as set forth herein.
Class M-6 Certificate Principal Balance: As of any date of determination,
the aggregate Certificate Principal Balance of the Class M-6 Certificates.
Class M-6 Current Interest: As of any Distribution Date, the interest
accrued during the related Accrual Period at the Class M-6 Pass-Through Rate on
the Class M-6 Certificate Principal Balance as of such Distribution Date plus
the portion of any previous distributions on such Class in respect of Class M-6
Current Interest or a Class M-6 Interest Carry Forward Amount that is recovered
as a voidable
33
preference by a trustee in bankruptcy, less any Non-Supported Interest Shortfall
allocated on such Distribution Date to the Class M-6 Certificates.
Class M-6 Interest Carry Forward Amount: As of any Distribution Date, the
sum of (1) the excess of (A) the Class M-6 Current Interest with respect to
prior Distribution Dates over (B) the amount actually distributed to the Class
M-6 Certificates with respect to Current Interest or Interest Carry Forward
Amounts on such prior Distribution Dates and (2) interest on such excess (to the
extent permitted by applicable law) at the Class M-6 Pass-Through Rate for the
related Accrual Period.
Class M-6 Margin: As of any Distribution Date up to and including the
Auction Termination Date for the Certificates, 2.0000% per annum and, as of any
Distribution Date after the Auction Termination Date, 3.0000% per annum.
Class M-6 Pass-Through Rate: For the first Distribution Date, 7.3200% per
annum. As of any Distribution Date thereafter, the least of (1) One-Month LIBOR
plus the Class M-6 Margin, (2) the Subordinate Certificate Available Funds Cap
and (3) the Subordinate Certificate Maximum Rate Cap for such Distribution Date.
Class M-6 Principal Distribution Amount: With respect to any Distribution
Date on or after the Stepdown Date, 100% of the Principal Distribution Amount
for such Distribution Date if the Certificate Principal Balances of the Class A,
Class R, Class M-1, Class M-2, Class M-3, Class M-4 and Class M-5 Certificates
have been reduced to zero and a Stepdown Trigger Event exists, or as long as a
Stepdown Trigger Event does not exist, the excess of (1) the sum of (A) the
Certificate Principal Balances of the Class A and Class R Certificates (after
taking into account distributions of the Class A Principal Distribution Amount
on such Distribution Date), (B) the Class M-1 Certificate Principal Balance
(after taking into account distributions of the Class M-1Principal Distribution
Amount on such Distribution Date), (C) the Class M-2 Certificate Principal
Balance (after taking into account distribution of the Class M-2 Principal
Distribution Amount on such Distribution Date), (D) the Class M-3 Certificate
Principal Balance (after taking into account distribution of the Class M-3
Principal Distribution Amount on such Distribution Date), (E) the Class M-4
Certificate Principal Balance (after taking into account distributions of the
Class M-4 Principal Distribution Amount on such Distribution Date), (F) the
Class M-5 Certificate Principal Balance (after taking into account distributions
of the Class M-5 Principal Distribution Amount on such Distribution Date) and
(G) the Class M-6 Certificate Principal Balance immediately prior to such
Distribution Date over (2) the lesser of (A) 82.00% of the Stated Principal
Balances of the Mortgage Loans and (B) the excess of the Stated Principal
Balances for the Mortgage Loans over the Minimum Required Overcollateralization
Amount. Notwithstanding the foregoing, (I) on any Distribution Date prior to the
Stepdown Date on which the Certificate Principal Balance of each Class of the
Class A Certificates, the Class R Certificate, the Class M-1 Certificates, the
Class M-2, the Class M-3, the Class M-4 and the Class M-5 Certificates has been
reduced to zero, the Class M-6 Principal Distribution Amount will equal the
lesser of (x) the outstanding Certificate Principal Balance of the Class M-6
Certificates and (y) 100% of the Principal Distribution Amount remaining after
any distributions on such Class A, Class R, Class M-1, Class M-2, Class M-3,
Class M-4 and Class M-5 Certificates and (II) in no event will the Class M-6
Principal Distribution Amount with respect to any Distribution Date exceed the
Class M-6 Certificate Principal Balance.
Class M-6 Unpaid Realized Loss Amount: As of any Distribution Date, the
excess of (1) the Class M-6 Applied Realized Loss Amount over (2) the sum of (x)
all distributions in reduction of the Class M-6 Unpaid Realized Loss Amounts on
all previous Distribution Dates and (y) all increases in the Certificate
Principal Balance of such Class M-6 Certificates pursuant to the last sentence
of the definition of "Certificate Principal Balance."
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Class P Certificate: Any Certificate designated as a "Class P Certificate"
on the face thereof, executed by the Trustee and authenticated by the
Authenticating Agent in substantially the form set forth in Exhibit A,
representing the right to distributions as set forth herein.
Class R Certificate: Any Certificate designated as a "Class R Certificate"
on the face thereof, executed by the Trustee and authenticated by the
Authenticating Agent in substantially the form set forth in Exhibit A,
representing the right to distributions as set forth herein.
Class R Certificate Principal Balance: As of any date of determination, the
aggregate Certificate Principal Balance of the Class R Certificate.
Class R Current Interest: As of any Distribution Date, the interest accrued
during the related Accrual Period at the Class R Pass-Through Rate on the Class
R Certificate Principal Balance as of such Distribution Date plus the portion of
any previous distributions on such Class in respect of Class R Current Interest
or a Class R Interest Carry Forward Amount that is recovered as a voidable
preference by a trustee in bankruptcy, less any Non-Supported Interest Shortfall
allocated on such Distribution Date to the Class R Certificate.
Class R Interest Carry Forward Amount: As of any Distribution Date, the sum
of (1) the excess of (A) the Class R Current Interest with respect to prior
Distribution Dates over (B) the amount actually distributed to the Class R
Certificate with respect to Current Interest or Interest Carry Forward Amounts
on such prior Distribution Dates and (2) interest on such excess (to the extent
permitted by applicable law) at the Class R Pass-Through Rate for the related
Accrual Period.
Class R Margin: As of any Distribution Date up to and including the Auction
Termination Date for the Certificates, 0.2300% per annum and, as of any
Distribution Date after the Auction Termination Date, 0.4600% per annum.
Class R Pass-Through Rate: For the first Distribution Date, 5.5500% per
annum. As of any Distribution Date thereafter, the least of (1) One-Month LIBOR
plus the Class R Margin, (2) the Class A-1 Available Funds Cap for such
Distribution Date and (3) the Class A-1 Maximum Rate Cap.
Class SWR Interest: The sole class of "residual interest" in the SWAP
REMIC.
Clean Up Call: The termination of the Trust Fund hereunder pursuant to
Section 9.01(a)(ii).
Clean Up Call Date: The second Distribution Date immediately following the
Auction Termination Date.
Clean Up Call Price: An amount equal to the sum of (a) the aggregate Stated
Principal Balance of each Mortgage Loan (other than any Mortgage Loan that is an
REO Property), plus accrued interest thereon at the applicable Mortgage Rate
through the Due Date preceding distribution of the proceeds, (b) the fair market
value of any REO Property, plus accrued interest thereon, (c) any unreimbursed
fees, out-of-pocket expenses owed to the Trustee or the Servicer (including the
costs and expenses of conducting the auction described in Section 9.01(a)) and
any unreimbursed Servicing Fees, Advances or Servicing Advances, (d) all
interest accrued on, as well as amounts necessary to retire, the principal
balance of the NIM Notes, (e) any costs and damages incurred by the Issuing
Entity (or the Trustee on behalf of the Issuing Entity) in connection with any
violation by the affected Mortgage Loan of any anti-predatory or anti-abusive
lending laws and (f) any Swap Termination Payment, other than a Defaulted Swap
Termination Payment, owed to the Swap Counterparty; such Swap Termination
Payment shall include
35
any payment resulting from the termination of the Swap Agreement after the Clean
Up Call Date but prior to the final distribution to the Certificates.
Closing Date: April 24, 2007.
Code: The Internal Revenue Code of 1986, including any successor or
amendatory provisions.
Collection Account: The separate Eligible Account created and initially
maintained by the Servicer pursuant to Section 3.05(d) in the name of the
Trustee for the benefit of the Certificateholders and designated "Wilshire
Credit Corporation, in trust for registered holders of Specialty Underwriting
and Residential Finance Trust, Mortgage Loan Asset-Backed Certificates, Series
2007-BC2". Funds in the Collection Account shall be held in trust for the
Certificateholders for the uses and purposes set forth in this Agreement.
Combined Loan-to-Value Ratio: For any Mortgage Loan in a second lien
position, the fraction, expressed as a percentage, the numerator of which is the
sum of (1) the original principal balance of the related Mortgage Loan and (2)
any outstanding principal balances of Mortgage Loans the liens on which are
senior to the lien on such related Mortgage Loan (such sum calculated at the
date of origination of such related Mortgage Loan) and the denominator of which
is the lesser of (A) the Appraised Value of the related Mortgaged Property and
(B) the sales price of the related Mortgaged Property at time of origination.
Commission: The Securities and Exchange Commission.
Compensating Interest: For any Distribution Date and all Principal
Prepayments in full in respect of a Mortgage Loan that are received during the
period from the first day of the related Prepayment Period through the last day
of the calendar month preceding such Distribution Date, a payment made by the
Servicer in an amount not to exceed the product of (a) one-twelfth of 0.25% and
(b) the aggregate Stated Principal Balance of the Mortgage Loans for such
Distribution Date, equal to the amount of interest at the Net Mortgage Rate for
that Mortgage Loan from the date of prepayment through the last day of such
preceding calendar month.
Condemnation Proceeds: All awards or settlements in respect of a Mortgaged
Property, whether permanent or temporary, partial or entire, by exercise of the
power of eminent domain or condemnation, to the extent not required to be
released either to a Mortgagor in accordance with the terms of the related
mortgage loan documents or to the holder of a senior lien on the Mortgaged
Property.
Corresponding Certificates: With respect to the Class LTA-1 Interest, the
Class A-1 and Class R Certificates. With respect to the Class LTA-2A Interest,
the Class A-2A Certificates. With respect to the Class LTA-2B Interest, the
Class A-2B Certificates. With respect to the Class LTA-2C Interest, the Class
A-2C Certificates. With respect to the Class LTA-2D Interest, the Class A-2D
Certificates. With respect to the Class LTM-1 Interest, the Class M-1
Certificates. With respect to the Class LTM-2 Interest, the Class M-2
Certificates. With respect to the Class LTM-3 Interest, the Class M-3
Certificates. With respect to the Class LTM-4 Interest, the Class M-4
Certificates. With respect to the Class LTM-5 Interest, the Class M-5
Certificates. With respect to the Class LTM-6 Interest, the Class M-6
Certificates. With respect to the Class LTB-1 Interest, the Class B-1
Certificates. With respect to the Class LTB-2 Interest, the Class B-2
Certificates. With respect to the Class LTB-3 Interest, the Class B-3
Certificates.
Corresponding REMIC Regular Interest: For each Class of Certificates, the
interest in the Upper Tier REMIC listed on the same row in the table entitled
"Upper Tier REMIC" in the Preliminary Statement.
36
Corridor Contract: Any of the Class A-1 Corridor Contract, the Class A-2
Corridor Contract or the Subordinate Certificate Corridor Contract.
Corridor Contract Account: The separate Eligible Account created and
maintained by the Trustee pursuant to Section 4.04(j) in the name of the Trustee
for the benefit of the Issuing Entity and designated "U.S. Bank National
Association, as trustee, in trust for registered holders of Specialty
Underwriting and Residential Finance Trust, Mortgage Loan Asset-Backed
Certificates, Series 2007-BC2." Funds in the Corridor Contract Account shall be
held in trust for the Issuing Entity for the uses and purposes set forth in this
Agreement.
Corridor Contract Notional Balance: Any of the Class A-1 Corridor Contract
Notional Balance, the Class A-2 Corridor Contract Notional Balance or the
Subordinate Certificate Corridor Contract Notional Balance.
Corridor Contract Termination Date: Any of the Class A-1 Corridor Contract
Termination Date, the Class A-2 Corridor Contract Termination Date or the
Subordinate Certificate Corridor Contract Termination Date.
Corridor Posted Collateral Account: The segregated Eligible Account that
may be created and maintained by the Trustee pursuant to Section 4.04(j)(iv) in
the name of the Trustee for the benefit of the Issuing Entity and designated
"U.S. Bank National Association, as trustee, in trust for registered holders of
Specialty Underwriting and Residential Finance Trust, Mortgage Loan Asset-Backed
Certificates, Series 2007-BC2." Funds in the Posted Collateral Account shall be
held in trust for the Issuing Entity for the uses and purposes set forth in this
Agreement.
Current Interest: Any of the Class A-1 Current Interest, the Class A-2A
Current Interest, the Class A-2B Current Interest, the Class A-2C Current
Interest, the Class A-2D Current Interest, the Class R Current Interest, the
Class M-1 Current Interest, the Class M-2 Current Interest, the Class M-3
Current Interest, the Class M-4 Current Interest, the Class M-5 Current
Interest, the Class M-6 Current Interest, the Class B-1 Current Interest, the
Class B-2 Current Interest, the Class B-3 Current Interest and the Class C
Current Interest.
Cut-off Date: April 1, 2007.
Cut-off Date Principal Balance: As to any Mortgage Loan, the unpaid
principal balance thereof as of the close of business on the calendar day
immediately preceding the Cut-off Date after application of all payments of
principal due on or prior to the Cut-off Date, whether or not received, and all
Principal Prepayments received prior to the Cut-off Date, but without giving
effect to any installments of principal received in respect of Due Dates after
the Cut-off Date.
Defaulted Swap Termination Payment: Any payment required to be made by the
Supplemental Interest Trust to the Swap Counterparty pursuant to the Swap
Agreement as a result of an event of default under the Swap Agreement with
respect to which the Swap Counterparty is the defaulting party or a termination
event (including a Downgrade Termination Event) under that agreement (other than
illegality or a tax event) with respect to which the Swap Counterparty is the
sole Affected Party (as defined in the Swap Agreement).
Definitive Certificates: As defined in Section 5.06.
Deleted Mortgage Loan: A Mortgage Loan replaced or to be replaced by a
Replacement Mortgage Loan.
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Delinquent: A Mortgage Loan is "delinquent" if any payment due thereon is
not made pursuant to the terms of such Mortgage Loan by the close of business on
the day such payment is scheduled to be due. A Mortgage Loan is "30 days
delinquent" if such payment has not been received by the close of business on
the corresponding day of the month immediately succeeding the month in which
such payment was due, or, if there is no such corresponding day (e.g., as when a
30-day month follows a 31-day month in which a payment was due on the 31st day
of such month), then on the last day of such immediately succeeding month.
Similarly for "60 days delinquent," "90 days delinquent" and so on.
Denomination: With respect to each Certificate, the amount set forth on the
face thereof as the "Initial Principal Balance of this Certificate."
Depositor: Xxxxxxx Xxxxx Mortgage Investors, Inc., a Delaware corporation,
or any successor in interest.
Depository: The initial Depository shall be The Depository Trust Company
("DTC"), the nominee of which is Cede & Co., or any other organization
registered as a "clearing agency" pursuant to Section 17A of the Securities
Exchange Act of 1934, as amended. The Depository shall initially be the
registered Holder of the Book-Entry Certificates. The Depository shall at all
times be a "clearing corporation" as defined in Section 8-102(3) of the Uniform
Commercial Code of the State of New York.
Depository Agreement: With respect to Classes of Book-Entry Certificates,
the agreement between the Trustee and the initial Depository.
Depository Participant: A broker, dealer, bank or other financial
institution or other Person for whom from time to time a Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
Designated Transaction: A transaction in which the assets underlying the
Certificates consist of single-family residential, multi-family residential,
home equity, manufactured housing and/or commercial mortgage obligations that
are secured by single family residential, multi-family residential, commercial
real property or leasehold interests therein.
Determination Date: With respect to any Distribution Date, the 15th day of
the month of such Distribution Date or, if such 15th day is not a Business Day,
the immediately preceding Business Day.
Disqualified Organization: (1) the United States, any state or political
subdivision thereof, any foreign government, any international organization, or
any agency or instrumentality of any of the foregoing, (2) any organization
(other than a cooperative described in Section 521 of the Code) which is exempt
from tax under Chapter 1 of Subtitle A of the Code unless such organization is
subject to the tax imposed by Section 511 of the Code and (3) any organization
described in Section 1381(a)(2)(C) of the Code.
Distribution Date: The 25th day of each calendar month after the initial
issuance of the Certificates, or if such 25th day is not a Business Day, the
next succeeding Business Day, commencing in May 2007.
Downgrade Termination Event: An event whereby (x) the Swap Counterparty (or
its guarantor) ceases to have short term unsecured and/or long term debt ratings
at least equal to the levels specified in the Swap Agreement, and (y) at least
one of the following events has not occurred (except to the extent otherwise
approved by the Rating Agencies): (i) the Swap Counterparty fails to post
collateral securing its obligations under the Swap Agreement, (ii) the Swap
Counterparty fails to obtain a guarantor or a
38
substitute swap counterparty acceptable to the Supplemental Interest Trust
Trustee and the Rating Agencies (if required under the Swap Agreement) that will
assume the obligations of the Swap Counterparty under the Swap Agreement or
(iii) the Swap Counterparty is defaulting on certain obligations required as a
result of the ratings downgrade and the Supplemental Interest Trust Trustee
obtains a guarantor or secures a substitute swap counterparty acceptable to the
Rating Agencies (if required under the Swap Agreement) that will assume the
obligations of the Swap Counterparty under the Swap Agreement.
Due Date: With respect to any Distribution Date and any Mortgage Loan, the
day during the related Due Period on which a Scheduled Payment is due.
Due Period: With respect to any Distribution Date, the period beginning on
the second day of the calendar month preceding the calendar month in which such
Distribution Date occurs and ending on the first day of the month in which such
Distribution Date occurs.
Eligible Account: An account that is (i) maintained with a depository
institution the long-term unsecured debt obligations of which are rated by each
Rating Agency in one of its two highest rating categories, or (ii) maintained
with the corporate trust department of a bank which (A) has a rating of at least
Baa3 or P-3 by Xxxxx'x and (B) is either the Depositor or the corporate trust
department of a national banking association or banking corporation which has a
rating of at least A-1 by S&P or F1 by Fitch, or (iii) an account or accounts
the deposits in which are fully insured by the FDIC, or (iv) an account or
accounts, acceptable to each Rating Agency without reduction or withdrawal of
the rating of any Class of Certificates, as evidenced in writing, by a
depository institution in which such accounts are insured by the FDIC (to the
limit established by the FDIC), the uninsured deposits in which accounts are
otherwise secured such that, as evidenced by an Opinion of Counsel delivered to
and acceptable to the Trustee and each Rating Agency, the Certificateholders
have a claim with respect to the funds in such account and a perfected first
security interest against any collateral (which shall be limited to Permitted
Investments) securing such funds that is superior to claims of any other
depositors or creditors of the depository institution with which such account is
maintained, or (v) maintained at an eligible institution whose commercial paper,
short-term debt or other short-term deposits are rated at least A-1+ by S&P and
F-1+ by Fitch, or (vi) maintained with a federal or state chartered depository
institution the deposits in which are insured by the FDIC to the applicable
limits and the short-term unsecured debt obligations of which (or, in the case
of a depository institution that is a subsidiary of a holding company, the
short-term unsecured debt obligations of such holding company) are rated A-1 by
S&P or Prime-1 by Xxxxx'x at the time any deposits are held on deposit therein,
or (vii) a segregated trust account or accounts maintained with a federal or
state chartered depository institution or trust company acting in its fiduciary
capacity, or (viii) otherwise acceptable to each Rating Agency, as evidenced by
a letter from each Rating Agency to the Trustee.
ERISA: The Employee Retirement Income Security Act of 1974, including any
successor or amendatory provisions.
ERISA-Qualifying Underwriting: A best efforts or firm commitment
underwriting or private placement that would satisfy the requirements of
Prohibited Transaction Exemption 90-29, Exemption Application No. D-8012, 55
Fed. Reg. 21459 (1990), as amended, granted to the Underwriter by the United
States Department of Labor (or any other applicable underwriter's exemption
granted by the United States Department of Labor), except, in relevant part, for
the requirement that the certificates have received a rating at the time of
acquisition that is in one of the three (or four, in the case of a "designated
transaction") highest generic rating categories by at least one of the Rating
Agencies.
39
ERISA Restricted Certificates: The Class C and Class P Certificates and any
other Certificate, as long as the acquisition and holding of such other
Certificate is not covered by and exempt under any applicable underwriter's
exemption granted by the United States Department of Labor.
Escrow Account: As defined in Section 3.06 hereof.
Event of Default: As defined in Section 7.01 hereof.
Exception Report: As defined in Section 2.02 hereof.
Excess Interest: On any Distribution Date, for any Class of the Class A
Certificates, Class R Certificates, Class M Certificates and Class B
Certificates, the excess, if any, of (1) the amount of interest such Class of
Certificates is entitled to receive on such Distribution Date over (2) the
amount of interest such Class of Certificates would have been entitled to
receive on such Distribution Date at an interest rate equal to the REMIC
Pass-Through Rate.
Excess Proceeds: With respect to any Liquidated Loan, any Liquidation
Proceeds that are in excess of the sum of (1) the unpaid principal balance of
such Liquidated Loan as of the date of such liquidation plus (2) interest at the
Mortgage Rate from the Due Date as to which interest was last paid or advanced
to Certificateholders (and not reimbursed to the Servicer) up to the Due Date in
the month in which such Liquidation Proceeds are required to be distributed on
the unpaid principal balance of such Liquidated Loan outstanding during each Due
Period as to which such interest was not paid or advanced.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Existing Servicing Agreement: The Servicing Agreement between Xxxxxxx Xxxxx
Mortgage Lending, Inc., as Owner, and Wilshire Credit Corporation, as Servicer,
dated as of January 1, 2005, as at any time amended and in effect.
Extra Principal Distribution Amount: With respect to each Distribution
Date, (1) prior to the Stepdown Date, the excess of (A) the sum of (i) the
Aggregate Certificate Principal Balance immediately preceding such Distribution
Date reduced by the Principal Funds with respect to such Distribution Date and
(ii) $19,500,028 over (B) the Pool Stated Principal Balance of the Mortgage
Loans as of such Distribution Date and (2) on and after the Stepdown Date, the
excess, if any, of (A) the sum of (i) the Aggregate Certificate Principal
Balance immediately preceding such Distribution Date, reduced by the Principal
Funds with respect to such Distribution Date and (ii) the greater of (a) 10.000%
of the Pool Stated Principal Balance of the Mortgage Loans and (b) the Minimum
Required Overcollateralization Amount less (B) the Pool Stated Principal Balance
of the Mortgage Loans as of such Distribution Date; provided, however, that if
on any Distribution Date a Stepdown Trigger Event is in effect, the Extra
Principal Distribution Amount will not be reduced to the applicable percentage
of the then-current Stated Principal Balance of the Mortgage Loans (and will
remain fixed at the applicable percentage of the Stated Principal Balance of the
Mortgage Loans as of the Due Date immediately prior to the Stepdown Trigger
Event) until the next Distribution Date on which the Stepdown Trigger Event is
not in effect.
Xxxxxx Mae: 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.
Fitch: Fitch, Inc., or its successor in interest.
40
Fixed Rate Mortgage Loan: A Mortgage Loan identified in the Mortgage Loan
Schedule as having a Mortgage Rate which is fixed.
Floating Rate Certificate Carryover: With respect to a Distribution Date,
in the event that the Pass-Through Rate for a Class of Class A, Class R, Class M
or Class B Certificates is based upon the related Available Funds Cap or the
related Maximum Rate Cap, the sum of (A) the excess of (1) the amount of
interest that such Class would have been entitled to receive on such
Distribution Date had the Pass-Through Rate for that Class not been calculated
based on the related Available Funds Cap or the related Maximum Rate Cap, up to
but not exceeding the greater of (a) the related Maximum Rate Cap or (b) the sum
of (i) the related Available Funds Cap and (ii) the product of (AA) a fraction,
the numerator of which is 360 and the denominator of which is the actual number
of days in the related Accrual Period and (BB) the sum of (x) the quotient of
(I) an amount equal to the proceeds, if any, payable under the related Corridor
Contract and (II) the aggregate Certificate Principal Balance of each Class of
Certificates to which such Corridor Contract relates for such Distribution Date
and (y) the quotient obtained by dividing (I) an amount equal to any Net Swap
Payments owed by the Swap Counterparty for such Distribution Date by (II) the
aggregate Stated Principal Balance of the Mortgage Loans as of the immediately
preceding Distribution Date over (2) the amount of interest such Class was
entitled to receive on such Distribution Date based on the applicable Available
Funds Cap; (B) the unpaid portion of any such excess from prior Distribution
Dates (and interest accrued thereon at the then applicable Pass-Through Rate,
without giving effect to the applicable Available Funds Cap) and (C) any amount
previously distributed with respect to Floating Rate Certificate Carryover for
such Class that is recovered as a voidable preference by a trustee in
bankruptcy.
Xxxxxxx Mac: 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.
Grantor Trusts: The grantor trusts described in Section 2.07 hereof.
Gross Margin: The percentage set forth in the related Mortgage Note for
each of the Adjustable Rate Mortgage Loans which is to be added to the
applicable index for use in determining the Mortgage Rate on each Adjustment
Date, and which is set forth in the Mortgage Loan Schedule for each Adjustable
Rate Mortgage Loan.
Group One: The portion of the Mortgage Pool identified as "Group One" in
the Prospectus Supplement.
Group One Mortgage Loan: Any Mortgage Loan at any time identified as a
Mortgage Loan in Group One in the Mortgage Loan Schedule.
Group One Net WAC: The Net WAC of Group One.
Group One Principal Distribution Amount: As of any Distribution Date, the
amount equal to the lesser of (i) the aggregate Certificate Principal Balance of
the Class A-1 and Class R Certificates and (ii) the product of (x) the Group One
Principal Distribution Percentage and (y) the Class A Principal Distribution
Amount; provided, however, that (A) with respect to any Distribution Date on
which the Class A-1 and Class R Certificates are outstanding and the Certificate
Principal Balance of the Class A-2 Certificates has been reduced to zero, the
Group Two Principal Distribution Amount in excess of the amount necessary to
reduce the Certificate Principal Balance of the Class A-2 Certificates to zero
will be applied to increase the Group One Principal Distribution Amount and (B)
with respect to any Distribution Date thereafter, the Group One Principal
Distribution Amount will equal the Class A Principal Distribution Amount.
41
Group One Principal Distribution Percentage: With respect to any
Distribution Date, a fraction expressed as a percentage, the numerator of which
is the amount of Principal Funds received with respect to Mortgage Loans in
Group One and the denominator of which is the amount of Principal Funds received
from all of the Mortgage Loans in the mortgage pool.
Group Two: The portion of the Mortgage Pool identified as "Group Two" in
the Prospectus Supplement.
Group Two Mortgage Loan: Any Mortgage Loan at any time identified as a
Mortgage Loan in Group Two in the Mortgage Loan Schedule.
Group Two Net WAC: The Net WAC of Group Two.
Group Two Principal Distribution Amount: As of any Distribution Date, the
amount equal to the lesser of (i) the aggregate Certificate Principal Balance of
the Class A-2 Certificates and (ii) the product of (x) the Group Two Principal
Distribution Percentage and (y) the Class A Principal Distribution Amount;
provided, however, that (A) with respect to any Distribution Date on which the
Class A-2 Certificates are outstanding and the Certificate Principal Balances of
the Class A-1 and Class R Certificates have been reduced to zero, the Group One
Principal Distribution Amount in excess of the amount necessary to reduce the
Certificate Principal Balance of the Class A-1 Certificates and Class R
Certificates to zero will be applied to increase the Group Two Principal
Distribution Amount and (B) with respect to any Distribution Date thereafter,
the Group Two Principal Distribution Amount will equal the Class A Principal
Distribution Amount.
Group Two Principal Distribution Percentage: With respect to any
Distribution Date, a fraction expressed as a percentage, the numerator of which
is the amount of Principal Funds received with respect to Mortgage Loans in
Group Two and the denominator of which is the amount of Principal Funds received
from all of the Mortgage Loans in the mortgage pool.
Indenture: An indenture relating to the issuance of the NIM Notes
guaranteed by the NIMs Insurer.
Initial Adjustment Date: As to any Adjustable Rate Mortgage Loan, the first
Adjustment Date following the origination of such Mortgage Loan.
Initial Certificate Principal Balance: With respect to any Certificate
(other than the Class P Certificates), the Certificate Principal Balance of such
Certificate or any predecessor Certificate on the Closing Date as set forth in
Section 5.01 hereof.
Initial Mortgage Rate: As to each Mortgage Loan, the Mortgage Rate in
effect prior to the Initial Adjustment Date.
Insurance Policy: With respect to any Mortgage Loan included in the Trust
Fund, any insurance policy, including all riders and endorsements thereto in
effect with respect to such Mortgage Loan, including any replacement policy or
policies for any insurance policies.
Insurance Proceeds: Proceeds paid in respect of the Mortgage Loans pursuant
to any Insurance Policy or any other insurance policy covering a Mortgage Loan,
to the extent such proceeds are payable to the mortgagee under the Mortgage, the
Servicer or the trustee under the deed of trust and are not applied to the
restoration of the related Mortgaged Property or released to either the
Mortgagor or to the holder of a senior lien on the related Mortgage Property in
accordance with the procedures that the Servicer would
42
follow in servicing mortgage loans held for its own account, in each case other
than any amount included in such Insurance Proceeds in respect of Insured
Expenses.
Insured Expenses: Expenses covered by an Insurance Policy or any other
insurance policy with respect to the Mortgage Loans.
Interest Carry Forward Amount: Any of the Class A-1 Interest Carry Forward
Amount, the Class A-2A Interest Carry Forward Amount, the Class A-2B Interest
Carry Forward Amount, the Class A-2C Interest Carry Forward Amount, the Class
A-2D Interest Carry Forward Amount, the Class R Interest Carry Forward Amount,
the Class M-1 Interest Carry Forward Amount, the Class M-2 Interest Carry
Forward Amount, the Class M-3 Interest Carry Forward Amount, the Class M-4
Interest Carry Forward Amount, the Class M-5 Interest Carry Forward Amount, the
Class M-6 Interest Carry Forward Amount, the Class B-1 Interest Carry Forward
Amount, the Class B-2 Interest Carry Forward Amount, the Class B-3 Interest
Carry Forward Amount or the Class C Interest Carry Forward Amount, as the case
may be.
Interest Determination Date: With respect to the LIBOR Certificates, for
any Accrual Period, the second LIBOR Business Day preceding the commencement of
such Accrual Period.
Interest Funds: With respect to any Distribution Date, the sum, without
duplication, of (1) all scheduled interest due during the related Due Period and
received before the related Servicer Remittance Date less the Servicing Fee, (2)
all Advances relating to interest with respect to the Mortgage Loans, (3) all
Compensating Interest with respect to the Mortgage Loans, (4) Liquidation
Proceeds with respect to the Mortgage Loans (to the extent such Liquidation
Proceeds relate to interest) collected during the related Prepayment Period, (5)
proceeds of any purchase pursuant to Sections 2.02, 2.03 or 9.01 (to the extent
such proceeds relate to interest) and (6) prepayment charges received with
respect to the Mortgage Loans during the related Prepayment Period less (A) all
Non-Recoverable Advances relating to interest and (B) other amounts reimbursable
to the Servicer and the Trustee pursuant to this Agreement and allocable to
interest.
Issuing Entity: Specialty Underwriting and Residential Finance Trust,
Series 2007-BC2.
Last Scheduled Distribution Date: With respect to any Class of
Certificates, the Distribution Date in April 2037.
Latest Possible Maturity Date: The first Distribution Date following the
third anniversary of the scheduled maturity date of the Mortgage Loan in the
Trust Fund having the latest scheduled maturity date as of the Cut-off Date.
Lender: As defined in Section 10.14(a).
LIBOR Business Day: Any day on which banks in the City of London, England
and New York City, U.S.A. are open and conducting transactions in foreign
currency and exchange.
LIBOR Certificates: The Class A, Class M, Class B and Class R Certificates.
Liquidated Loan: With respect to any Distribution Date, a defaulted
Mortgage Loan that either (a) pursuant to Section 3.12 has been realized upon or
liquidated through deed-in-lieu of foreclosure, foreclosure sale, trustee's sale
or other realization as provided by applicable law governing the real property
subject to the related Mortgage and any security agreements and as to which the
Servicer has certified (in accordance with Section 3.12) in the related
Prepayment Period that it has received all amounts it expects to receive in
connection with such liquidation or (b) as to which is not a first lien
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Mortgage Loan and is delinquent 180 days or longer, the Servicer has certified
in a certificate of an officer of the Servicer delivered to the Depositor and
the Trustee that it does not believe that there is a reasonable likelihood that
any further net proceeds will be received or recovered with respect to such
Mortgage Loan.
Liquidation Proceeds: Amounts, including Insurance Proceeds, received in
connection with the partial or complete liquidation of Mortgage Loans, whether
through trustee's sale, foreclosure sale, sale by the Servicer pursuant to this
Agreement or otherwise or amounts received in connection with any condemnation
or partial release of a Mortgaged Property and any other proceeds received in
connection with an REO Property, less the sum of related unreimbursed Advances,
Servicing Fees, Servicing Advances and any other expenses related to such
Mortgage Loan.
Loan-to-Value Ratio: With respect to any Mortgage Loan, the fraction,
expressed as a percentage, the numerator of which is the original principal
balance of the related Mortgage Loan and the denominator of which is the lesser
of (x) the Appraised Value of the related Mortgaged Property and (y) the sales
price of the related Mortgaged Property at the time of origination.
Losses: Any losses, claims, damages, liabilities or expenses collectively.
Lower Tier REMIC: As described in the Preliminary Statement and Section
2.07.
Lower Tier REMIC I Marker Interests: Each of the classes of Lower Tier
REMIC Regular Interests other than the Class LTIX Interest, the Class LTIIX
Interest, the Class LTII1A Interest, the Class LTII1B Interest, the Class LTII2A
Interest, the Class LTII2B Interest and the Class LT-IO Interest.
Lower Tier REMIC II Marker Interests: Each of the Class LTII1A Interest,
the Class LTII1B Interest, the Class LTII2A Interest and the Class LTII2B
Interest.
Lower Tier REMIC Interests: Each of the Class LTA-1 Interest, the Class
LTA-2A Interest, the Class LTA-2B Interest, the Class LTA-2C Interest, the Class
LTA-2D Interest, the Class LTM-1 Interest, the Class LTM-2 Interest, the Class
LTM-3 Interest, the Class LTM-4 Interest, the Class LTM-5 Interest, the Class
LTM-6 Interest, the Class LTB-1 Interest, the Class LTB-2 Interest, the Class
LTB-3 Interest, the Class LTII1A Interest, the Class LTII1B Interest, the Class
LTII2A Interest, the Class LTII2B Interest, the Class LTIX Interest, the Class
LTIIX Interest, the Class LT-IO Interest and the Class LTR Interest.
Lower Tier REMIC Regular Interests: Each of the Lower Tier REMIC Interests
other than the Class LTR Interest.
Lower Tier REMIC Subordinate Balance Ratio: The ratio of (i) the principal
balance of the Class LTII1A Interest to (ii) the principal balance of the Class
LTII2A Interest that is equal to the ratio of (i) the excess of (A) the
aggregate Stated Principal Balance of Group One over (B) the current Certificate
Principal Balance of the Class A-1 and Class R Certificates to (ii) the excess
of (A) the aggregate Stated Principal Balance of Group Two over (B) the current
Certificate Principal Balance of the Class A-2 Certificates.
Maximum Mortgage Rate: With respect to each Adjustable Rate Mortgage Loan,
the maximum rate of interest set forth as such in the related Mortgage Note and
with respect to each Fixed Rate Mortgage Loan, the rate of interest set forth in
the related Mortgage Note.
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Maximum Rate Cap: Any of the Class A-1 Maximum Rate Cap, the Class A-2
Maximum Rate Cap, or the Subordinate Certificate Maximum Rate Cap.
MERS: Mortgage Electronic Registration Systems, Inc., a corporation
organized and existing under the laws of the State of Delaware, or any successor
thereto.
MERS Loan: Any Mortgage Loan registered with MERS on the MERS System.
MERS System: The system of recording transfers of mortgage electronically
maintained by MERS.
MIN: The loan number for any MERS Loan.
Minimum Mortgage Rate: With respect to each Adjustable Rate Mortgage Loan,
the minimum rate of interest set forth as such in the related Mortgage Note.
Minimum Required Overcollateralization Amount: An amount equal to the
product of (x) 0.50% and (y) the Stated Principal Balance of the Mortgage Loans
as of the Cut-off Date.
MOM Loan: Any Mortgage Loan as to which MERS is acting as mortgagee, solely
as nominee for the originator of such Mortgage Loan and its successors and
assigns.
Monthly Statement: The statement delivered to the Certificateholders
pursuant to Section 4.05.
Moody's: Xxxxx'x Investors Service, Inc. or any successor in interest.
Mortgage: With respect to a Mortgage Loan, the mortgage, deed of trust or
other instrument creating a first or second lien or a first or second priority
ownership interest in an estate in fee simple in real property securing a
Mortgage Note.
Mortgage File: The mortgage documents listed in Section 2.01 hereof
pertaining to a particular Mortgage Loan and any additional documents delivered
to the Trustee to be added to the Mortgage File pursuant to this Agreement.
Mortgage Group: Either of Group One or Group Two.
Mortgage Loan Schedule: The list of Mortgage Loans (as from time to time
amended by the Sponsor to reflect the deletion of Deleted Mortgage Loans and the
addition of Replacement Mortgage Loans pursuant to the provisions of this
Agreement) transferred to the Trustee as part of the Trust Fund and from time to
time subject to this Agreement, attached hereto as Exhibit B, setting forth the
following information with respect to each Mortgage Loan:
(i) the loan number;
(ii) the unpaid principal balance of the Mortgage Loans;
(iii) the Initial Mortgage Rate;
(iv) the maturity date and the months remaining before maturity date;
(v) the original principal balance;
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(vi) the Cut-off Date Principal Balance;
(vii) the first payment date of the Mortgage Loan;
(viii) the Loan-to-Value Ratio at origination with respect to a first lien
Mortgage Loan or the Combined Loan-to-Value Ratio with respect to a
second lien Mortgage Loan;
(ix) a code indicating whether the residential dwelling at the time of
origination was represented to be owner-occupied;
(x) a code indicating the property type;
(xi) with respect to each Adjustable Rate Mortgage Loan:
(a) the frequency of each Adjustment Date;
(b) the next Adjustment Date;
(c) the Maximum Mortgage Rate;
(d) the Minimum Mortgage Rate;
(e) the Mortgage Rate as of the Cut-off Date;
(f) the related Periodic Rate Cap;
(g) the Gross Margin; and
(h) the lifetime rate cap;
(xii) the location of the related Mortgaged Property;
(xiii) a code indicating whether a prepayment charge is applicable;
(a) the period during which such prepayment charge is in effect;
(b) the amount of such prepayment charge;
(c) any limitations or other conditions on the enforceability of such
prepayment charge; and
(d) any other information pertaining to the prepayment charge
specified in the related Mortgage Note;
(xiv) the Credit Score and date obtained; and
(xv) the MIN.
Mortgage Loans: Such of the mortgage loans transferred and assigned to the
Trustee pursuant to the provisions hereof as from time to time are held as a
part of the Trust Fund (including any REO Property), the mortgage loans so held
being identified in the Mortgage Loan Schedule, notwithstanding foreclosure or
other acquisition of title of the related Mortgaged Property. Any mortgage loan
that was
46
intended by the parties hereto to be transferred to the Trust Fund as indicated
by such Mortgage Loan Schedule which is in fact not so transferred for any
reason shall continue to be a Mortgage Loan hereunder until the Purchase Price
with respect thereto has been paid to the Trust Fund.
Mortgage Note: The original executed note or other evidence of indebtedness
evidencing the indebtedness of a Mortgagor under a Mortgage Loan and all
amendments, modifications and attachments thereto.
Mortgage Pool: The aggregate of the Mortgage Loans identified in the
Mortgage Loan Schedule.
Mortgage Rate: The annual rate of interest borne by a Mortgage Note from
time to time.
Mortgaged Property: The underlying property securing a Mortgage Loan.
Mortgagor: The obligor on a Mortgage Note.
Net Mortgage Rate: As to each Mortgage Loan, and at any time, the per annum
rate equal to the then current Mortgage Rate less the Servicing Fee Rate.
Net Rate: The per annum rate set forth in footnote 8 to the description of
the Lower Tier REMIC in the Preliminary Statement hereto (such rate being based
on the weighted average of the interest rates on the SWAP REMIC Regular
Interests as adjusted and as set forth in such footnote).
Net Swap Payment: With respect to any Distribution Date, any net payment
(other than a Swap Termination Payment or Defaulted Swap Termination Payment)
made by the Supplemental Interest Trust to the Swap Counterparty on the related
Fixed Rate Payer Payment Date (as defined in the Swap Agreement) or made by the
Swap Counterparty to the Supplemental Interest Trust on the related Floating
Rate Payer Payment Date (as defined in the Swap Agreement). In each case, the
Net Swap Payment shall not be less than zero.
Net WAC: With respect to any Distribution Date and for any Mortgage Group,
the weighted average Net Mortgage Rate for the Mortgage Loans in such Mortgage
Group calculated based on the respective Net Mortgage Rates and the Stated
Principal Balances of such Mortgage Loans as of the preceding Distribution Date
(or, in the case of the first Distribution Date, as of the Cut-off Date).
NIMs Insurer: Any of the one or more insurers, if any, that is guaranteeing
certain payments under any NIM Notes; provided, that upon the payment in full of
the NIM Notes, all rights of the NIMs Insurer hereunder shall terminate.
NIM Notes: Any net interest margin or excess cashflow securities to be
issued pursuant to an Indenture.
NIMs Insurer Default: As defined in Section 10.13.
Non-Recoverable Advance: Any portion of an Advance previously made or
proposed to be made by the Servicer that, in the good faith judgment of the
Servicer, will not or, in the case of a current delinquency, would not, be
ultimately recoverable by the Servicer from the related Mortgagor, related
Liquidation Proceeds or otherwise with respect to the related Mortgage Loan.
Non-Recoverable Servicing Advance: Any portion of a Servicing Advance
previously made or proposed to be made by the Servicer that, in the good faith
judgment of the Servicer, will not or, in the
47
case of a current Servicing Advance, would not, be ultimately recoverable by the
Servicer from the related Mortgagor, related Liquidation Proceeds or otherwise
with respect to the related Mortgage Loan.
Non-Supported Interest Shortfall: As defined in Section 4.02.
Offered Certificates: The Class A Certificates, Class M Certificates, Class
B Certificates and Class R Certificates.
Officer's Certificate: A certificate (1) signed by the Chairman of the
Board, the Vice Chairman of the Board, the President, a vice president (however
denominated), an Assistant Vice President, the Treasurer, the Secretary, or one
of the assistant treasurers or assistant secretaries of the Depositor, the
Servicer or the Trustee (or any other officer customarily performing functions
similar to those performed by any of the above designated officers and also to
whom, with respect to a particular matter, such matter is referred because of
such officer's knowledge of and familiarity with a particular subject) or (2),
if provided for in this Agreement, signed by a Servicing Officer, as the case
may be, and delivered to the Depositor, the Servicer or the Trustee, as the case
may be, as required by this Agreement.
One-Month Cap LIBOR: As defined in the related Corridor Contract.
One-Month LIBOR: With respect to any Accrual Period, the rate determined by
the Trustee on the related Interest Determination Date on the basis of (a) the
offered rates for one-month United States dollar deposits, as such rates appear
on Telerate page 3750, as of 11:00 a.m. (London time) on such Interest
Determination Date or (b) if such rate does not appear on Telerate Page 3750 as
of 11:00 a.m. (London time), the offered rates of the Reference Banks for
one-month United States dollar deposits, as such rates appear on the Reuters
Screen LIBO Page, as of 11:00 a.m. (London time) on such Interest Determination
Date. If One-Month LIBOR is determined pursuant to clause (b) above, on each
Interest Determination Date, One-Month LIBOR for the related Accrual Period will
be established by the Trustee as follows:
(i) If on such Interest Determination Date two or more Reference
Banks provide such offered quotations, One-Month LIBOR for the
related Accrual Period shall be the arithmetic mean of such
offered quotations (rounded upwards if necessary to the nearest
whole multiple of 0.03125%).
(ii) If on such Interest Determination Date fewer than two Reference
Banks provide such offered quotations, One-Month LIBOR for the
related Accrual Period shall be the higher of (i) One-Month LIBOR
as determined on the previous Interest Determination Date and
(ii) the Reserve Interest Rate.
Notwithstanding the foregoing, this definition of One-Month LIBOR for the
purposes of the Corridor Contracts and Swap Agreement will be determined in
accordance with such agreements.
Opinion of Counsel: A written opinion of counsel, who may be counsel for
the Depositor or the Servicer, reasonably acceptable to each addressee of such
opinion; provided, however, that with respect to Section 6.04 or 10.01, or the
interpretation or application of the REMIC Provisions, such counsel must (1) in
fact be independent of the Depositor and the Servicer, (2) not have any direct
financial interest in the Depositor or the Servicer or in any Affiliate of
either, and (3) not be connected with the Depositor or the Servicer as an
officer, employee, promoter, underwriter, trustee, partner, director or person
performing similar functions.
OTS: The Office of Thrift Supervision.
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Outstanding: With respect to the Certificates as of any date of
determination, all Certificates theretofore executed and authenticated under
this Agreement except: (1) Certificates theretofore canceled by the Trustee or
delivered to the Trustee for cancellation; and (2) Certificates in exchange for
which or in lieu of which other Certificates have been executed by the Trustee
and delivered by the Trustee pursuant to this Agreement.
Outstanding Mortgage Loan: As of any Distribution Date, a Mortgage Loan
with a Stated Principal Balance greater than zero that was not the subject of a
Principal Prepayment in full, and that did not become a Liquidated Loan, prior
to the end of the related Due Period.
Overcollateralization Amount: As of any date of determination, the excess
of (1) the Stated Principal Balance of the Mortgage Loans over (2) the
Certificate Principal Balance of the Certificates (other than the Class P
Certificates and the Class C Certificates).
Overcollateralization Deficiency Amount: As of any date of determination,
if the Overcollateralization Amount is less than the Targeted
Overcollateralization Amount, then the amount equal to the Targeted
Overcollateralization Amount over the Overcollateralization Amount; otherwise,
zero.
Overcollateralization Release Amount: As of any date of determination, if
the Overcollateralization Amount is greater than the Targeted
Overcollateralization Amount, then the amount equal to the Overcollateralization
Amount over the Targeted Overcollateralization Amount; otherwise, zero.
Ownership Interest: As to any Certificate, any ownership interest in such
Certificate including any interest in such Certificate as the Holder thereof and
any other interest therein, whether direct or indirect, legal or beneficial.
Pass-Through Rate: With respect to any Class of Certificates, the
corresponding Pass-Through Rate for such Class of Certificates.
Percentage Interest: With respect to:
(i) any Class, the percentage interest in the undivided beneficial
ownership interest evidenced by such Class which shall be equal
to the Certificate Principal Balance of such Class divided by the
aggregate Certificate Principal Balance of all Classes; and
(ii) any Certificate, the Percentage Interest evidenced thereby of the
related Class shall equal the percentage obtained by dividing the
Denomination of such Certificate by the aggregate of the
Denominations of all Certificates of such Class; except that in
the case of any Class P Certificates, the Percentage Interest
with respect to such Certificate shown on the face of such
Certificate.
Periodic Rate Cap: As to each Adjustable Rate Mortgage Loan and the related
Mortgage Note, the provision therein that limits permissible increases and
decreases in the Mortgage Rate on any Adjustment Date.
Permitted Activities: The primary activities of the Issuing Entity created
pursuant to this Agreement which shall be:
49
(i) holding Mortgage Loans transferred from the Depositor and other
assets of the Issuing Entity, including the Corridor Contracts
and the Supplemental Interest Trust subtrust, which in turn holds
the Swap Agreement, and any credit enhancement and passive
derivative financial instruments that pertain to beneficial
interests issued or sold to parties other than the Depositor, its
Affiliates, or its agents;
(ii) issuing Certificates and other interests in the assets of the
Issuing Entity;
(iii) through the appropriate subtrust, as applicable, receiving
collections on the Mortgage Loans and the Swap Agreement and
making payments on such Certificates and interests in accordance
with the terms of this Agreement; and
(iv) engaging in other activities that are necessary or incidental to
accomplish these limited purposes, which activities cannot be
contrary to the status of the Issuing Entity as a qualified
special purpose entity under existing accounting literature.
Permitted Investments: At any time, any one or more of the following
obligations and securities:
(i) obligations of the United States or any agency thereof, provided
such obligations are backed by the full faith and credit of the
United States;
(ii) general obligations of or obligations guaranteed by any state of
the United States or the District of Columbia receiving the
highest long-term debt rating of each Rating Agency rating the
Certificates;
(iii) commercial or finance company paper, other than commercial or
finance company paper issued by the Depositor, the Trustee or any
of their Affiliates, which is then receiving the highest
commercial or finance company paper rating of each such Rating
Agency;
(iv) certificates of deposit, demand or time deposits, or bankers'
acceptances (other than banker's acceptances issued by the
Trustee or any of its Affiliates) issued by any depository
institution or trust company incorporated under the laws of the
United States or of any state thereof and subject to supervision
and examination by federal and/or state banking authorities,
provided that the commercial paper and/or long term unsecured
debt obligations of such depository institution or trust company
are then rated one of the two highest long-term and the highest
short-term ratings of each such Rating Agency for such
securities;
(v) demand or time deposits or certificates of deposit issued by any
bank or trust company or savings institution to the extent that
such deposits are fully insured by the FDIC;
(vi) guaranteed reinvestment agreements issued by any bank, insurance
company or other corporation rated in the two highest long-term
or the highest short-term ratings of each Rating Agency
containing, at the time of the issuance of such agreements, such
terms and conditions as will not result in the downgrading or
withdrawal of the rating then assigned to the Certificates by any
such Rating Agency as evidenced by a letter from each Rating
Agency;
(vii) repurchase obligations with respect to any security described in
clauses (i) and (ii) above, in either case entered into with a
depository institution or trust company (acting as principal)
described in clause (v) above;
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(viii) securities (other than stripped bonds, stripped coupons or
instruments sold at a purchase price in excess of 115% of the
face amount thereof) bearing interest or sold at a discount
issued by any corporation, other than the Trustee or any of its
Affiliates, incorporated under the laws of the United States or
any state thereof which, at the time of such investment, have one
of the two highest long term ratings of each Rating Agency;
(ix) interests in any money market fund (including those managed or
advised by the Trustee or its Affiliates) which at the date of
acquisition of the interests in such fund and throughout the time
such interests are held in such fund has the highest applicable
long term rating by each such Rating Agency; and
(x) short term investment funds sponsored by any trust company or
national banking association incorporated under the laws of the
United States or any state thereof, including the Trustee or any
of its Affiliates, which on the date of acquisition has been
rated by each such Rating Agency in their respective highest
applicable rating category;
provided, that no such instrument shall be a Permitted Investment if such
instrument (i) evidences the right to receive interest only payments with
respect to the obligations underlying such instrument, (ii) is purchased at a
premium or above par or (iii) is purchased at a deep discount; provided,
further, that no such instrument shall be a Permitted Investment (A) if such
instrument evidences principal and interest payments derived from obligations
underlying such instrument and the 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, or (B) if it may be redeemed at
a price below the purchase price (the foregoing clause (B) not to apply to
investments in units of money market funds pursuant to clause (ix) above); and
provided, further, (I) that no amount beneficially owned by any REMIC
(including, without limitation, any amounts collected by the Servicer but not
yet deposited in the Collection Account) may be invested in investments (other
than money market funds) treated as equity interests for Federal income tax
purposes, unless the Servicer and/or the Trustee, shall receive an Opinion of
Counsel acceptable to the Servicer and/or the Trustee, at the expense of the
party requesting that such investment be made, to the effect that such
investment will not adversely affect the status of the any REMIC provided for
herein as a REMIC under the Code or result in imposition of a tax on the Issuing
Entity or any REMIC provided for herein and (II) any such investment must be a
"permitted investment" within the meaning of Section 860G(a)(5) of the Code.
Permitted Investments that are subject to prepayment or call may not be
purchased at a price in excess of par. Any Permitted Investment may be held by
or through the Trustee or any of its Affiliates.
Permitted Transferee: Any Person other than (i) the United States, any
State or political subdivision thereof, or any agency or instrumentality of any
of the foregoing, (ii) a foreign government, International Organization or any
agency or instrumentality of either of the foregoing, (iii) an organization
(except certain farmers' cooperatives described in Section 521 of the Code) that
is exempt from tax imposed by Chapter 1 of the Code (including the tax imposed
by Section 511 of the Code on unrelated business taxable income) on any excess
inclusions (as defined in Section 860E(c)(1) of the Code) with respect to the
Class R Certificate, (iv) rural electric and telephone cooperatives described in
Section 1381(a)(2)(C) of the Code, and (v) a Person that is not a citizen or
resident of the United States, a corporation or partnership (or other entity
treated as a corporation or partnership for United States federal income tax
purposes) created or organized in or under the laws of the United States or any
State thereof or the District of Columbia or an estate whose income from sources
without the United States is includable in gross income for United States
federal income tax purposes regardless of its connection with the conduct of a
trade or business within the United States, or a trust if a court within the
United States is able to exercise primary supervision over the administration of
the trust and one or more United States persons have authority to control all
substantial decisions of the trust, unless, in the case of this clause (v), such
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Person has furnished the transferor and the Trustee with a duly completed
Internal Revenue Service Form W-8ECI or applicable successor form. The terms
"United States," "State" and "International Organization" shall have the
meanings set forth in Section 7701 of the Code. A corporation will not be
treated as an instrumentality of the United States or of any State thereof for
these purposes if all of its activities are subject to tax and, with the
exception of the Federal Home Loan Mortgage Corporation, a majority of its board
of directors is not selected by such government unit.
Person: Any individual, corporation, partnership, limited liability
company, joint venture, association, joint-stock company, trust, unincorporated
organization or government, or any agency or political subdivision thereof.
Pool Stated Principal Balance: As to any Distribution Date, the aggregate
of the Stated Principal Balances, as of such Distribution Date, of the Mortgage
Loans that were Outstanding Mortgage Loans as of such date.
Posted Collateral: As defined in the Swap Agreement or the Corridor
Contracts, as applicable.
Prepayment Assumption: A rate of prepayment, as described in the Prospectus
Supplement in the definition of "Modeling Assumptions," relating to the
Certificates.
Prepayment Interest Excess: With respect to any Servicer Remittance Date,
for each Mortgage Loan that was the subject of a Principal Prepayment in full
during the portion of the related Prepayment Period occurring between the first
day of the calendar month in which such Servicer Remittance Date occurs and the
last day of the related Prepayment Period, an amount equal to interest (to the
extent received) at the applicable Net Mortgage Rate on the amount of such
Principal Prepayment for the number of days commencing on the first day of the
calendar month in which such Servicer Remittance Date occurs and ending on the
date on which such Principal Prepayment is so applied.
Prepayment Interest Shortfall: With respect to any Distribution Date, for
each Mortgage Loan that was the subject of a Principal Prepayment in full (other
than a Principal Prepayment in full resulting from the purchase of a Mortgage
Loan pursuant to Section 2.02, 2.03 or 9.01 hereof and other than a Principal
Prepayment in full on a Mortgage Loan received during the period from and
including the first day to and including the 14th day of the month of such
Distribution Date), the amount, if any, by which (i) one month's interest at the
applicable Net Mortgage Rate on the Stated Principal Balance of such Mortgage
Loan as of the preceding Distribution Date exceeds (ii) the amount of interest
paid or collected in connection with such Principal Prepayment.
Prepayment Period: As to any Distribution Date, for prepayments or
liquidations in full and any prepayment charges associated with such payments in
full, the period from and including the 15th date of the calendar month
preceding the month in which such Distribution Date occurs (or, in the case of
the first Distribution Date, beginning on the Cut-off Date) and including the
14th day of the calendar month in which such Distribution Date occurs and for
partial prepayments or liquidations and any prepayment charges associated with
such partial prepayments, the calendar month preceding the calendar month in
which such Distribution Date occurs.
Principal Distribution Amount: With respect to each Distribution Date, the
sum of (i) the Principal Funds for such Distribution Date and (ii) any Extra
Principal Distribution Amount for such Distribution Date.
Principal Funds: With respect to the Mortgage Loans and any Distribution
Date, the sum, without duplication, of (1) the scheduled principal due during
the related Due Period and received before
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the related Servicer Remittance Date or required to be advanced by the Servicer
on or before the related Servicer Remittance Date, (2) Principal Prepayments in
full collected in the related Prepayment Period, (3) the Stated Principal
Balance of each Mortgage Loan that was purchased by the Depositor or the
Servicer during the related Prepayment Period or, in the case of a purchase
pursuant to Section 9.01, on the Business Day prior to such Distribution Date,
(4) the amount, if any, by which the aggregate unpaid principal balance of any
Replacement Mortgage Loan is less than the aggregate unpaid principal of the
related Deleted Mortgage Loans delivered by the Sponsor in connection with a
substitution of a Mortgage Loan pursuant to Section 2.03(c), (5) all Liquidation
Proceeds collected during the related Prepayment Period (to the extent such
Liquidation Proceeds relate to principal and represent payment in full), (6)
Subsequent Recoveries received during the preceding calendar month and (7) all
other collections and recoveries in respect of principal during the preceding
calendar month, less (A) all Non-Recoverable Advances relating to principal with
respect to the Mortgage Loans and (B) other amounts reimbursable to the Servicer
and the Trustee pursuant to this Agreement and allocable to principal.
Principal Prepayment: Any Mortgagor payment or other recovery of (or
proceeds with respect to) principal on a Mortgage Loan (including Mortgage Loans
purchased or repurchased under Sections 2.02, 2.03 and 9.01 hereof) that is
received in advance of its scheduled Due Date and is not accompanied by an
amount as to interest representing scheduled interest due on any date or dates
in any month or months subsequent to the month of prepayment. Partial Principal
Prepayments shall be applied by the Servicer in accordance with the terms of the
related Mortgage Note.
Prospectus Supplement: The Prospectus Supplement, dated April 23, 2007,
relating to the public offering of the Offered Certificates.
PUD: A Planned Unit Development.
Purchase Price: With respect to any Mortgage Loan required to be
repurchased by the Sponsor pursuant to Section 2.02 or 2.03 hereof, or purchased
by the Servicer pursuant to Section 3.12(c) hereof, an amount equal to the sum
of (i) 100% of the unpaid principal balance of the Mortgage Loan as of the date
of such purchase together with any unreimbursed Servicing Advances, (ii) accrued
interest thereon at the applicable Mortgage Rate from (a) the date through which
interest was last paid by the Mortgagor to (b) the Due Date in the month in
which the Purchase Price is to be distributed to Certificateholders and (iii)
any costs and damages incurred by the Issuing Entity (or the Trustee on behalf
of the Issuing Entity) in connection with any violation by the affected Mortgage
Loan of any anti-predatory or anti-abusive lending laws. With respect to any REO
Property purchased by the Servicer pursuant to Section 3.12(c) hereof, an amount
equal to the fair market value of such REO Property, as determined in good faith
by the Servicer.
Rating Agency: Either of Xxxxx'x or S&P. If any such organization or its
successor is no longer in existence, "Rating Agency" shall be a nationally
recognized statistical rating organization, or other comparable Person,
designated by the Depositor, notice of which designation shall be given to the
Trustee. References herein to a given rating category of a Rating Agency shall
mean such rating category without giving effect to any modifiers.
Rating Agency Condition: As defined in the Swap Agreement.
Realized Loss: With respect to (1) a Liquidated Loan, the amount, if any,
by which the Stated Principal Balance and accrued interest thereon at the Net
Mortgage Rate exceeds the amount actually recovered by the Servicer with respect
thereto (net of reimbursement of Advances and Servicing Advances) at the time
such Mortgage Loan became a Liquidated Loan or (2) with respect to a Mortgage
Loan which is not a Liquidated Loan, any amount of principal that the Mortgagor
is no longer legally
53
required to pay (except for the extinguishment of debt that results from the
exercise of remedies due to default by the Mortgagor).
Record Date: With respect to any Distribution Date, the close of business
on the last Business Day of the month preceding the month in which the
applicable Distribution Date occurs (or with respect to the first Distribution
Date, the Closing Date).
Reference Banks: Barclays Bank PLC, U.S. Bank National Association,
Citibank, N.A., and NatWest, N.A.; provided that if any of the foregoing banks
are not suitable to serve as a Reference Bank, then any leading banks selected
by the Trustee which are engaged in transactions in Eurodollar deposits in the
international Eurocurrency market (i) with an established place of business in
London, England and (ii) whose quotations appear on the Reuters Screen LIBO Page
on the relevant Interest Determination Date.
Regular Certificate: Any one of the Class A, Class R, Class M and Class B
Certificates.
Regulation AB: Subpart 229.1100 - Asset Backed Securities (Regulation AB),
17 C.F.R. Sections 229.1100-229.1123, as such may be amended from time to time,
and subject to such clarification and interpretation as have been provided by
the Commission in the adopting release (Asset-Backed Securities, Securities Act
Release No. 33-8518, 70 Fed Reg. 1,506, 1.531 (Jan. 7, 2005)) or by the staff of
the Commission, or as may be provided by the Commission or its staff from time
to time.
Related Certificates: For each interest in the Upper Tier REMIC, the Class
of Certificates listed on the same row in the table entitled "Upper Tier REMIC"
in the Preliminary Statement.
Relief Act: The Servicemembers Civil Relief Act or any similar state laws
or regulations.
REMIC: A "real estate mortgage investment conduit" within the meaning of
section 860D of the Code. References herein to "the REMICs" or "a REMIC" shall
mean any (or, as the context requires, all) of the SWAP REMIC, the Lower Tier
REMIC and the Upper Tier REMIC.
REMIC Pass-Through Rate: In the case of a Class of the Class A, Class M and
Class B Certificates, the Upper Tier REMIC Net WAC Cap for the Corresponding
REMIC Regular Interest.
REMIC Provisions: 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 proposed,
temporary and final regulations and published rulings, notices and announcements
promulgated thereunder, as the foregoing may be in effect from time to time as
well as provisions of applicable state laws.
REMIC Regular Interests: Each of the interests in the Upper Tier REMIC as
set forth in the Preliminary Statement other than the Residual Interest.
REMIC SWAP Rate: For each Distribution Date (and the related Accrual
Period), a per annum rate equal to the Fixed Rate under the Swap Agreement for
such Distribution Date, as set forth in the Prospectus Supplement.
Remittance Report: As defined in Section 4.04(k) hereof.
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REO Property: A Mortgaged Property acquired by the Servicer, on behalf of
the Trustee for the benefit of the Certificateholders, through foreclosure or
deed-in-lieu of foreclosure in connection with a defaulted Mortgage Loan.
Replacement Mortgage Loan: A Mortgage Loan substituted by the Depositor for
a Deleted Mortgage Loan, which must, on the date of such substitution, as
confirmed in a Request for Release, substantially in the form of Exhibit I (1)
have a Stated Principal Balance (or in the case of a substitution of more than
one Mortgage Loan for a Deleted Mortgage Loan, an aggregate Stated Principal
Balance), after deduction of the principal portion of the Scheduled Payment due
in the month of substitution, not in excess of, and not less than 90% of the
Stated Principal Balance of the Deleted Mortgage Loan; (2) with respect to any
Fixed Rate Mortgage Loan, have a Mortgage Rate not less than or no more than 1%
per annum higher than the Mortgage Rate of the Deleted Mortgage Loan and, with
respect to any Adjustable Rate Mortgage Loan: (A) have a Maximum Mortgage Rate
no more than 1% per annum higher or lower than the Maximum Mortgage Rate of the
Deleted Mortgage Loan; (B) have a Minimum Mortgage Rate no more than 1% per
annum higher or lower than the Minimum Mortgage Rate of the Deleted Mortgage
Loan; (C) have the same index and Periodic Rate Cap as that of the Deleted
Mortgage Loan and a Gross Margin not more than 1% per annum higher or lower than
that of the Deleted Mortgage Loan; (D) not permit conversion of the related
Mortgage Rate to a fixed Mortgage Rate and (F) currently be accruing interest at
a rate not more than 1% per annum higher or lower than that of the Deleted
Mortgage Loan; (3) have a similar or higher FICO score or credit grade than that
of the Deleted Mortgage Loan; (4) have a Loan-to-Value Ratio (or a Combined
Loan-to-Value Ratio, in the case of Mortgage Loans in a second lien position) no
higher than that of the Deleted Mortgage Loan; (5) have a remaining term to
maturity no greater than (and not more than one year less than) that of the
Deleted Mortgage Loan; (6) provide for a prepayment charge on terms
substantially similar to those of the prepayment charge, if any, of the Deleted
Mortgage Loan; (7) have the same lien priority as the Deleted Mortgage Loan; (8)
constitute the same occupancy type as the Deleted Mortgage Loan; and (9) comply
with each representation and warranty set forth in Section 2.03 hereof.
Request for Release: The Request for Release of Documents submitted by the
Servicer to the Trustee, substantially in the form of Exhibit I hereto.
Required Insurance Policy: With respect to any Mortgage Loan, any insurance
policy that is required to be maintained from time to time under this Agreement.
Required Percentage: With respect to any Distribution Date following a
Stepdown Date, the quotient of (1) the excess of (A) the aggregate Stated
Principal Balance of the Mortgage Loans as of the prior Distribution Date, over
(B) the Certificate Principal Balance of the most senior Class of Certificates
outstanding as of such Distribution Date, prior to giving effect to
distributions to be made on such Distribution Date and (2) the aggregate Stated
Principal Balance of the Mortgage Loans as of the prior Distribution Date.
Requirements: Any rules or regulations promulgated pursuant to the
Xxxxxxxx-Xxxxx Act of 2002 (as such may be amended from time to time).
Reserve Interest Rate: With respect to any Interest Determination Date, the
rate per annum that the Trustee determines to be (1) the arithmetic mean
(rounded upwards if necessary to the nearest whole multiple of 0.03125%) of the
one-month United States dollar lending rates which New York City banks selected
by the Trustee are quoting on the relevant Interest Determination Date to the
principal London offices of leading banks in the London interbank market or (2)
in the event that the Trustee can determine no such arithmetic mean, the lowest
one-month United States dollar lending rate which New York City banks selected
by the Trustee are quoting on such Interest Determination Date to leading
European banks.
55
Residual Certificate: The Class R Certificate.
Residual Interest: An interest in the Upper Tier REMIC that is entitled to
all distributions of principal and interest on the Class R Certificate other
than (i) distributions in respect of the Class SWR Interest and the Class LTR
Interest, and (ii) distributions on the Class R Certificate in respect of Excess
Interest.
Responsible Officer: When used with respect to the Trustee or Servicer, any
officer of the Trustee or Servicer with direct responsibility for the
administration of this Agreement and also means any other officer to whom, with
respect to a particular matter, such matter is referred because of such
officer's knowledge of and familiarity with the particular subject.
Reuters Screen LIBO Page: The display designated as page "LIBO" on the
Reuters Monitor Money Rates Service (or such other page as may replace such LIBO
page on that service for the purpose of displaying London interbank offered
rates of major banks).
S&P: Standard & Poor's Ratings Services, a division of The XxXxxx-Xxxx
Companies, Inc., or its successor in interest.
Sale Agreement: The Mortgage Loan Sale and Assignment Agreement, dated as
of April 1, 2007, between the Depositor and the Sponsor.
Xxxxxxxx-Xxxxx Certification: As defined in Section 3.20 hereof.
Scheduled Payment: The scheduled monthly payment on a Mortgage Loan due on
any Due Date allocable to principal and/or interest on such Mortgage Loan.
Section 302 Requirements: Any rules or regulations promulgated pursuant to
the Xxxxxxxx-Xxxxx Act of 2002 (as such may be amended from time to time).
Securities Act: The Securities Act of 1933, as amended.
Servicer: Wilshire Credit Corporation, a Nevada corporation, or its
successor in interest.
Servicer Remittance Date: With respect to any Distribution Date, the later
of (x) the date that is two Business Days after the 15th day of the month in
which the related Distribution Date occurs and (y) the 18th day (or, if such day
is not a Business Day, the next succeeding Business Day) of the month in which
the related Distribution Date occurs.
Servicer's Assignee: As defined in Section 10.14(a).
Servicing Advances: All customary, reasonable and necessary "out of pocket"
costs and expenses incurred in the performance by the Servicer of its servicing
obligations hereunder, including, but not limited to, the cost of (1) the
preservation, restoration and protection of a Mortgaged Property, including
without limitation advances in respect of prior liens, real estate taxes and
assessments, (2) any collection, enforcement or judicial proceedings, including
without limitation foreclosures, collections and liquidations, (3) the
conservation, management, sale and liquidation of any REO Property (4) executing
and recording instruments of satisfaction, deeds of reconveyance, substitutions
of trustees on deeds of trust or assignments of mortgage to the extent not
otherwise recovered from the related Mortgagor or payable under this Agreement,
(5) correcting errors of prior servicers; tax tracking; title research; flood
certification; and lender paid mortgage insurance, (6) obtaining or correcting
any legal documentation
56
required to be included in the Mortgage Files and reasonably necessary for the
Servicer to perform its obligations under this Agreement and (7) compliance with
the obligations under Sections 3.01 and 3.10.
Servicing Criteria: The "servicing criteria" set forth in Item 1122(d) of
Regulation AB, as such may be amended from time to time, and in Exhibit R of
this Agreement.
Servicing Fee: As to each Mortgage Loan and any Distribution Date, an
amount equal to the product of (x) one-twelfth of the Servicing Fee Rate and (y)
the Stated Principal Balance of such Mortgage Loan as of the preceding
Distribution Date or, in the event of any payment of interest that accompanies a
Principal Prepayment in full made by the Mortgagor, interest at the Servicing
Fee Rate on the Stated Principal Balance of such Mortgage Loan as of the
preceding Distribution Date for the period covered by such payment of interest.
Servicing Fee Rate: 0.500% per annum for each Mortgage Loan.
Servicing Officer: Any officer of the Servicer involved in, or responsible
for, the administration and servicing of the Mortgage Loans whose name and
facsimile signature appear on a list of servicing officers furnished to the
Trustee by the Servicer on the Closing Date pursuant to this Agreement, as such
lists may from time to time be amended.
Servicing Rights Pledgee: One or more lenders, selected by the Servicer, to
which the Servicer may pledge and assign all of its right, title and interest
in, to and under this Agreement.
Servicing Transfer Costs: In the event that the Servicer does not reimburse
the Trustee under the this Agreement, all costs associated with the transfer of
servicing from the predecessor Servicer, including, without limitation, any
costs or expenses associated with the termination of the predecessor Servicer,
the appointment of a successor servicer, the complete transfer of all servicing
data and the completion, correction or manipulation of such servicing data as
may be required by the Trustee or any successor servicer to correct any errors
or insufficiencies in the servicing data or otherwise to enable the Trustee or
successor servicer to service the Mortgage Loans properly and effectively.
SFAS 140: Statement of Financial Accounting Standard No. 140, Accounting
for Transfers and Servicing of Financial Assets and Extinguishments of
Liabilities dated September 2000, published by the Financial Accounting
Standards Board of the Financial Accounting Foundation.
Significance Estimate: With respect to any Distribution Date, and in
accordance with Item 1115 of Regulation AB, shall be an amount determined based
on the reasonable good-faith estimate by the Depositor or its affiliate of the
aggregate maximum probable exposure of the outstanding Certificates to the Swap
Agreement.
Significance Percentage: With respect to any Distribution Date, and in
accordance with Item 1115 of Regulation AB, shall be a percentage equal to the
Significance Estimate divided by the aggregate outstanding Stated Principal
Balance of the Mortgage Loans, prior to the distribution of the Principal
Distribution Amount on such Distribution Date.
Sponsor: Xxxxxxx Xxxxx Mortgage Lending, Inc., a Delaware corporation, or
its successor in interest.
SPV: As defined in Section 10.14(a).
Startup Day: As defined in Section 2.07 hereof.
57
Stated Principal Balance: With respect to any Mortgage Loan or related REO
Property (1) as of the Cut-off Date, the Cut-off Date Principal Balance thereof,
and (2) as of any Distribution Date, such Cut-off Date Principal Balance, minus
the sum of (A) the principal portion of the Scheduled Payments (x) due with
respect to such Mortgage Loan during each Due Period ending prior to such
Distribution Date and (y) that were received by the Servicer as of the close of
business on the Determination Date related to such Distribution Date or with
respect to which Advances were made on the Servicer Remittance Date prior to
such Distribution Date and (B) all Principal Prepayments with respect to such
Mortgage Loan received on or prior to the last day of the related Prepayment
Period, and all Liquidation Proceeds to the extent applied by the Servicer as
recoveries of principal in accordance with Section 3.12 with respect to such
Mortgage Loan, that were received by the Servicer as of the close of business on
the last day of the related Prepayment Period. Notwithstanding the foregoing,
the Stated Principal Balance of a Liquidated Loan shall be deemed to be zero.
Stepdown Date: The earlier to occur of (1) the first Distribution Date on
which the Class A Certificate Principal Balance and the Class R Certificate
Principal Balance have been reduced to zero and (2) the later to occur of (A)
the Distribution Date in May 2010 or (B) the first Distribution Date on which
the Class A Certificate Principal Balance (after giving effect to distributions
of the Principal Funds amount for such Distribution Date) is less than or equal
to 52.60% of the aggregate Stated Principal Balance of the Mortgage Loans as of
the end of the immediately preceding Due Period.
Stepdown Required Loss Percentage: For any Distribution Date, the
applicable percentage for such Distribution Date set forth in the following
table:
DISTRIBUTION DATE OCCURRING IN STEPDOWN REQUIRED LOSS PERCENTAGE
------------------------------ ------------------------------------------------------------
May 2009 - April 2010 1.70% with respect to May 2009, plus an additional 1/12th of
2.10% for each month thereafter
May 2010 -April 2011 3.80% with respect to May 2010, plus an additional 1/12th of
2.15% for each month thereafter
May 2011 -April 2012 5.95% with respect to May 2011, plus an additional 1/12th of
1.75% for each month thereafter
May 2012 - April 2013 7.70% with respect to May 2012, plus an additional 1/12th of
1.00% for each month thereafter
May 2013 and thereafter 8.70%
Stepdown Trigger Event: With respect to the Certificates on or after the
Stepdown Date, a Distribution Date on which (1) the quotient of (A) the
aggregate Stated Principal Balance of all Mortgage Loans which are sixty (60) or
more days Delinquent measured on a rolling three month basis (including, for the
purposes of this calculation, Mortgage Loans in foreclosure, REO Properties and
Mortgage Loans with respect to which the applicable Mortgagor is in bankruptcy)
and (B) the Stated Principal Balance of the Mortgage Loans as of the preceding
Servicer Remittance Date, equals or exceeds the product of (i) 33.75% and (ii)
the Required Percentage or (2) the quotient (expressed as a percentage) of (A)
the aggregate Realized Losses incurred from the Cut-off Date through the last
day of the calendar month preceding such Distribution Date and (B) the aggregate
principal balance of the Mortgage Loans as of the Cut-off Date exceeds the
Stepdown Required Loss Percentage. For purposes hereof, for any Distribution
Date, the calculation of "rolling three-month basis" requires first, the
calculation of the quotient described in (a) of this definition for each of the
three (3) Due Periods immediately prior to such Distribution Date, second, the
addition of such 3 quotients and third, dividing the sum of such 3 quotients by
3.
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Subcontractor: Any outsourcer that performs one or more discrete functions
identified in Item 1122(d) of Regulation AB with respect to 5% or more of the
Mortgage Loans under the direction or authority of a Servicer (measured by
aggregate Stated Principal Balance of the Mortgage Loans, annually at the
commencement of the calendar year prior to the year in which an Assessment of
Compliance is required to be delivered, multiplied by a fraction, the numerator
of which is the number of months during which such Subcontractor performs such
discrete functions and the denominator of which is 12, or, in the case of the
year in which the Closing Date occurs, the number of months elapsed in such
calendar year).
Subordinate Certificate Available Funds Cap: With respect to a Distribution
Date, the per annum rate equal to the weighted average (weighted in proportion
to the results of subtracting from the aggregate Stated Principal Balance of
each Mortgage Group, the current Certificate Principal Balance of the Class A-1
and Class R Certificates, in the case of Group One, or the Class A-2A, Class
A-2B, Class A-2C and Class A-2D Certificates, in the case of Group Two) of the
Class A-1 Available Funds Cap and the Class A-2 Available Funds Cap.
Subordinate Certificate Corridor Contract: The confirmation and agreement
(together with the schedule thereto) and any related credit support annex (in
the form of Exhibit O-4 hereto), between the Trustee, on behalf of the Issuing
Entity, and the Cap Contract Counterparty (in the form of Exhibit O-3 hereto),
with respect to the Subordinate Certificates.
Subordinate Certificate Corridor Contract Notional Balance: With respect to
any Distribution Date, the Subordinate Certificate Corridor Contract Notional
Balance set forth for such Distribution Date in the Subordinate Certificate One
Month LIBOR Cap Table attached hereto as Schedule I to Exhibit O-3.
Subordinate Certificate Corridor Contract Termination Date: The day after
the Distribution Date in October 2007.
Subordinate Certificate Maximum Rate Cap: With respect to a Distribution
Date, the per annum rate equal to the weighted average (weighted in proportion
to the results of subtracting from the aggregate Stated Principal Balance of
each Mortgage Group, the current Certificate Principal Balance of the Class A-1
and Class R Certificates, in the case of Group One, or the Class A-2A, Class
A-2B, Class A-2C and Class A-2D Certificates, in the case of Group Two) of the
Class A-1 Maximum Rate Cap and the Class A-2 Maximum Rate Cap.
Subordinate Certificate Upper Collar: With respect to each Distribution
Date with respect to which payments are received on the Subordinate Certificate
Corridor Contract, a rate equal to the lesser of One-Month Cap LIBOR and 8.440%
per annum.
Subordinate Certificates: The Class M and Class B Certificates.
Subsequent Recovery: The amount, if any, recovered by the Servicer with
respect to a Liquidated Loan with respect to which a Realized Loss has been
incurred after liquidation and disposition of such Mortgage Loan.
Subservicer: Any Person that services Mortgage Loans on behalf of the
Servicer pursuant to a subservicing agreement and is responsible for the
performance of the material servicing functions required to be performed by the
Servicer under this Agreement that are identified in Item 1122(d) of Regulation
AB with respect to 10% or more of the Mortgage Loans under the direction or
authority of the Servicer (measured by aggregate Stated Principal Balance of the
Mortgage Loans, annually at the commencement of the calendar year prior to the
year in which an Assessment of Compliance is required to be delivered,
multiplied by a fraction, the numerator of which is the number of months during
which such Subservicer services the related Mortgage Loans and the denominator
of which is 12, or, in the case
59
of the year in which the Closing Date occurs, the number of months elapsed in
such calendar year). Any subservicer shall meet the qualifications set forth in
Section 3.02.
Subservicing Agreement: As defined in Section 3.02(a).
Substitution Adjustment Amount: The meaning ascribed to such term pursuant
to Section 2.03(c).
Supplemental Interest Trust: The separate trust, established pursuant to
Section 4.04(l) of this Agreement and held by the Trustee for the benefit of the
holders of the Certificates as a segregated subtrust of the Trust Fund, in which
the Swap Agreement will be held, out of which any Swap Termination Payments or
Net Swap Payments owed to the Swap Counterparty will be paid, certain
distributions to Certificateholders will be made, and into which any Swap
Termination Payments or Net Swap Payments received from the Swap Counterparty
will be deposited as set forth in Section 4.04 hereof.
Supplemental Interest Trust Trustee: U.S. Bank National Association, a
national banking association, not in its individual capacity, but solely in its
capacity as trustee of the Supplemental Interest Trust under this Agreement, and
any successor thereto, and any corporation or national banking association
resulting from or surviving any consolidation or merger to which it or its
successors may be a party and any successor trustee as may from time to time be
serving as successor trustee hereunder.
Swap Account: The separate Eligible Account created and maintained by the
Supplemental Interest Trust Trustee pursuant to Section 4.04(l) in the name of
the Supplemental Interest Trust Trustee for the benefit of the Supplemental
Interest Trust Trustee and designated "U.S. Bank National Association, as
trustee, in trust for registered holders of Specialty Underwriting and
Residential Finance Trust, Mortgage Loan Asset-Backed Certificates, Series
2007-BC2." Funds in the Swap Account shall be held in trust for the Supplemental
Interest Trust for the uses and purposes set forth in this Agreement.
Swap Agreement: The interest rate swap agreement (together with the
schedule thereto), including the credit support annex (in the form of Exhibit
U-2) and any related confirmation thereto, between the Swap Counterparty and the
Supplemental Interest Trust Trustee for the benefit of the Issuing Entity (in
the form of Exhibit U-1).
Swap Counterparty: Bear Xxxxxxx Financial Products Inc., or any successor
counterparty who meets the requirements set forth in the Swap Agreement.
Swap LIBOR: With respect to any Distribution Date (and the related Accrual
Period) 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 Lower Tier REMIC
Interests divided by (b) 30.
Swap Payment Date: For so long as the Swap Agreement is in effect or
amounts remain unpaid thereunder, two Business Days immediately preceding each
Distribution Date.
Swap Posted Collateral Account: The segregated Eligible Account that may be
created and maintained by the Supplemental Interest Trust Trustee pursuant to
Section 4.04(l) in the name of the Supplemental Interest Trust Trustee for the
benefit of the Supplemental Interest Trust and designated "U.S. Bank National
Association, as trustee, in trust for registered holders of Specialty
Underwriting and Residential Finance Trust, Mortgage Loan Asset-Backed
Certificates, Series 2007-BC2." Funds in the
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Swap Posted Collateral Account shall be held in trust for the Supplemental
Interest Trust for the uses and purposes set forth in the Swap Agreement.
SWAP REMIC: As described in the Preliminary Statement and Section 2.07.
SWAP REMIC Interests: Each of the interests in the SWAP REMIC as set forth
in the Preliminary Statement.
SWAP REMIC Regular Interests: Each of the SWAP REMIC Interests other than
the Class SWR Interest.
Swap Termination Payment: Any payment payable by the Supplemental Interest
Trust or the Swap Counterparty upon termination of the Swap Agreement as a
result of termination of the Swap Agreement.
Targeted Overcollateralization Amount: As of any Determination Date, (a)
prior to the Stepdown Date, 5.0000% of the Cut-Off Date Principal Balance of the
Mortgage Loans and (b) on or after the Stepdown Date, 10.0000% of the Stated
Principal Balance of the Mortgage Loans.
Tax Matters Person: The Person designated as "tax matters person" in the
manner provided under Treasury regulation Section 1.860F-4(d) and Treasury
regulation Section 301.6231(a)(7)-1.
Transfer: Any direct or indirect transfer or sale of any Ownership Interest
in a Certificate.
Trust Fund: The corpus of the Issuing Entity created hereunder consisting
of (i) the Mortgage Loans and all interest and principal received on or with
respect thereto on and after the Cut-off Date to the extent not applied in
computing the Cut-off Date Principal Balance thereof, exclusive of interest not
required to be deposited in the Collection Account; (ii) the Collection Account
and the Certificate Account and all amounts deposited therein pursuant to the
applicable provisions of this Agreement; (iii) property that secured a Mortgage
Loan and has been acquired by foreclosure, deed in lieu of foreclosure or
otherwise; (iv) the mortgagee's rights under the Insurance Policies with respect
to the Mortgage Loans and/or the related Mortgaged Properties; (v) all proceeds
of the conversion, voluntary or involuntary, of any of the foregoing into cash
or other liquid property; (vi) the Corridor Contracts and the Corridor Contract
Account; and (vii) the Supplemental Interest Trust that in turn holds the Swap
Agreement.
Trustee: U.S. Bank National Association, a national banking association,
not in its individual capacity, but solely in its capacity as trustee for the
benefit of the Certificateholders under this Agreement, and any successor
thereto, and any corporation or national banking association resulting from or
surviving any consolidation or merger to which it or its successors may be a
party and any successor trustee as may from time to time be serving as successor
trustee hereunder.
Uncertificated Class C Interest: An uncertificated REMIC Regular Interest
having the characteristics described in the Preliminary Statement.
Unpaid Realized Loss Amount: The Class M-1 Unpaid Realized Loss Amount,
Class M-2 Unpaid Realized Loss Amount, Class M-3 Unpaid Realized Loss Amount,
Class M-4 Unpaid Realized Loss Amount, Class M-5 Unpaid Realized Loss Amount,
Class M-6 Unpaid Realized Loss Amount, Class B-1 Unpaid Realized Loss Amount,
Class B-2 Unpaid Realized Loss Amount, Class B-3 Unpaid Realized Loss Amount and
Class C Unpaid Realized Loss Amount, collectively.
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Upper Collar: Any of the Class A-1 Upper Collar, the Class A-2 Upper Collar
or the Subordinate Certificate Upper Collar.
Upper Tier REMIC: As described in the Preliminary Statement and
Section 2.07.
Upper Tier REMIC Net WAC Cap: In the case of the Class UTA-1 Interest and
the Residual Interest, a per annum rate equal to the weighted average of the
interest rate of the Class LTII1B Interest for such Distribution Date. In the
case of the Class UTA-2A, Class UTA-2B, Class UTA-2C and Class UTA-2D Interests,
a per annum rate equal to the weighted average of the interest rate for the
Class LTII2B for such Distribution Date. In the case of the Class UTM-1, Class
UTM-2, Class UTM-3, Class UTM-4, Class UTM-5, Class UTM-6, Class UTB-1, Class
UTB-2 and Class UTB-3 Interests, a per annum rate equal to the weighted average
of the interest rates of Class LTII1B and Class LTII2B Interests for such
Distribution Date weighted, respectively, on the basis of the uncertificated
principal balances of the Class LTII1A and the Class LTII2A Interests. In the
case of any interest in the Upper Tier REMIC that accrues interest on a "30/360"
basis, the per annum rates described in this definition shall be adjusted to
reflect accruals on such basis.
Voting Rights: The portion of the voting rights of all the Certificates
that is allocated to any of the Certificates for purposes of the voting
provisions hereunder. Voting Rights allocated to each Class of Certificates
shall be allocated 98% to the Offered Certificates, 2% to the Class C and Class
P Certificates, with the allocation among the Offered Certificates to be in
proportion to the Class Certificate Principal Balance of each Class relative to
the Class Certificate Principal Balance of all other Classes. Voting Rights will
be allocated among the Certificates of each such Class in accordance with their
respective Percentage Interests.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES
SECTION 2.01. Conveyance of Mortgage Loans.
The Depositor, concurrently with the execution and delivery hereof, does
hereby sell, transfer, assign, set over and convey to the Trustee without
recourse all the right, title and interest of the Depositor in and to the assets
of the Trust Fund. Such assignment includes all interest and principal received
on or with respect to the Mortgage Loans on or after the Cut-off Date (other
than Scheduled Payments due on the Mortgage Loans on or before the Cut-off
Date).
In connection with such assignment, the Depositor does hereby deliver to,
and deposit with, the Trustee the following documents or instruments with
respect to each Mortgage Loan so assigned:
(a) all pages of the original Mortgage Note, signed by the borrower(s) and
endorsed, "Pay to the order of blank, without recourse" and signed in the name
of the prior holder by an authorized officer. Such signature on the endorsement
shall be an original signature of such authorized officer and have printed the
endorser's name, title and company name. To the extent that there is no room on
the face of the Mortgage Note for endorsements, the endorsement may be contained
on an allonge, if the law by which such Mortgage Note is governed so permits.
The Mortgage Note shall include all intervening endorsements showing a complete
chain of title from the originator to the Sponsor;
(b) all original pages of any riders referred to in the Mortgage Note;
(c) for each Mortgage Loan that is not a MOM Mortgage Loan, the original
recorded Mortgage, together with all riders referred to in the Mortgage, and
legal description, with evidence of
62
recording thereon or if the original is not available, a copy certified by the
applicable public recording office. If the original Mortgage has not yet been
returned from the recording office, a copy of the original Mortgage, together
with all riders thereto, that has been delivered for recording in the
appropriate recording office of the jurisdiction in which the Mortgaged Property
is located;
(d) for each Mortgage Loan that is not a MERS Mortgage Loan, the original
Mortgage Assignment, executed in blank, in form and substance acceptable for
recording and signed in the name of the last endorsee by an authorized officer;
(e) the policy of title insurance (or a preliminary title report if the
original title insurance policy has not been received from the title insurance
company);
(f) for each Mortgage Loan that is not a MERS Mortgage Loan, originals of
any intervening Mortgage Assignments, with evidence of recording thereon, or if
the original is not available, a copy certified by the applicable public
recording office. If the original intervening assignment has not yet been
returned from the recording office, a copy of such assignment which has been
sent for recording in the appropriate jurisdiction in which the Mortgaged
Property is located, showing a complete chain of title from the originator to
the Seller;
(g) in the case of each MOM Loan, the original Mortgage, together with all
riders thereto, with evidence of recording thereon, noting the presence of the
MIN of the Mortgage Loan and language indicating that the Mortgage Loan is a MOM
Loan or if the original Mortgage is not available, a copy certified by the
applicable public recording office. If the original Mortgage has not yet been
returned from the recording office, a copy of such Mortgage which has been sent
for recording in the appropriate jurisdiction in which the Mortgaged Property is
located;
(h) in the case of each MERS Mortgage Loan that is not a MOM Loan, the
original Mortgage Assignment or if the original Mortgage is not available, a
copy certified by the applicable public recording office, with evidence of
recording thereon, and all intervening Mortgage Assignments, with evidence of
recording thereon, showing a complete chain of title from the originator to
MERS;
(i) all original pages of assumption, modification, consolidation or
extension agreements, if any, with evidence of recording thereon;
(j) with respect to a Mortgage Loan that, according to the Mortgage Loan
Schedule is covered by a primary mortgage insurance policy, the original or a
copy of the policy of primary mortgage insurance; and
(k) if the Mortgage Note or the Mortgage has been signed by any Person on
behalf of the Mortgagor, the original power of attorney or other instrument that
authorized and empowered such Person to sign, or a copy of such power of
attorney that has been delivered for recording in the appropriate recording
office of the jurisdiction in which the Mortgaged Property is located.
If in connection with any Mortgage Loan, the Depositor cannot deliver the
Mortgage, Assignments of Mortgage or assumption, consolidation or modification,
as the case may be, with evidence of recording thereon, if applicable,
concurrently with the execution and delivery of this Agreement solely because of
a delay caused by the public recording office where such Mortgage, Assignments
of Mortgage or assumption, consolidation or modification, as the case may be,
has been delivered for recordation, the Depositor shall deliver or cause to be
delivered to the Trustee written notice stating that such Mortgage or
assumption, consolidation or modification, as the case may be, has been
delivered to the appropriate public recording office for recordation.
Thereafter, the Depositor shall
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deliver or cause to be delivered to the Trustee such Mortgage, Assignments of
Mortgage or assumption, consolidation or modification, as the case may be, with
evidence of recording indicated thereon, if applicable, upon receipt thereof
from the public recording office. To the extent any required endorsement is not
contained on a Mortgage Note or an Assignment of Mortgage, the Depositor shall
make or cause to be made such endorsement.
With respect to any Mortgage Loan, none of the Depositor, the Servicer or
the Trustee shall be obligated to cause to be recorded the Assignment of
Mortgage referred to in this Section 2.01. In the event that any Assignment of
Mortgage is not recorded or is improperly recorded, the Servicer shall have no
liability for its failure to receive or act on notices related to such
Assignment of Mortgage.
The ownership of each Mortgage Note, the Mortgage and the contents of the
related Mortgage File is vested in the Trustee. Neither the Depositor nor the
Servicer shall take any action inconsistent with such ownership and shall not
claim any ownership interest therein. The Depositor and the Servicer shall
respond to any third party inquiries with respect to ownership of the Mortgage
Loans by stating that such ownership is held by the Trustee on behalf of the
Certificateholders. Mortgage documents relating to the Mortgage Loans not
delivered to the Trustee are and shall be held in trust by the Servicer, for the
benefit of the Trustee as the owner thereof, and the Servicer's possession of
the contents of each Mortgage File so retained is for the sole purpose of
servicing the related Mortgage Loan, and such retention and possession by the
Servicer is in a custodial capacity only. The Depositor agrees to take no action
inconsistent with the Trustee's ownership of the Mortgage Loans, to promptly
indicate to all inquiring parties that the Mortgage Loans have been sold and to
claim no ownership interest in the Mortgage Loans.
It is the intention of this Agreement that the conveyance of the
Depositor's right, title and interest in and to the Trust Fund pursuant to this
Agreement shall constitute a purchase and sale and not a loan. If a conveyance
of Mortgage Loans from the Sponsor to the Depositor is characterized as a pledge
and not a sale, then the Depositor shall be deemed to have transferred to the
Trustee all of the Depositor's right, title and interest in, to and under the
obligations of the Sponsor deemed to be secured by said pledge; and it is the
intention of this Agreement that the Depositor shall also be deemed to have
granted to the Trustee a first priority security interest in all of the
Depositor's right, title, and interest in, to and under the obligations of the
Sponsor to the Depositor deemed to be secured by said pledge and that the
Trustee shall be deemed to be an independent custodian for purposes of
perfection of the security interest granted to the Depositor. If the conveyance
of the Mortgage Loans from the Depositor to the Trustee is characterized as a
pledge, it is the intention of this Agreement that this Agreement shall
constitute a security agreement under applicable law, and that the Depositor
shall be deemed to have granted to the Trustee a first priority security
interest in all of the Depositor's right, title and interest in, to and under
the Mortgage Loans, all payments of principal of or interest on such Mortgage
Loans, all other rights relating to and payments made in respect of the Trust
Fund, and all proceeds of any thereof. If the trust created by this Agreement
terminates prior to the satisfaction of the claims of any Person in any
Certificates, 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.
In addition to the conveyance made in the first paragraph of this
Section 2.01, the Depositor does hereby convey, assign and set over to the
Trustee for the benefit of the Certificateholders its rights and interests under
the Sale Agreement, including the Depositor's right, title and interest in the
representations and warranties contained in the Sale Agreement and the benefit
of the repurchase obligations and the obligation of the Sponsor contained in the
Sale Agreement to take, at the request of the Depositor or the Trustee, all
action on its part which is reasonably necessary to ensure the enforceability of
a Mortgage Loan. The Trustee hereby accepts such assignment, and shall be
entitled to exercise all rights of the Depositor under the Sale Agreement as if,
for such purpose, it were the Depositor. The foregoing sale,
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transfer, assignment, set-over, deposit and conveyance does not and is not
intended to result in creation or assumption by the Trustee of any obligation of
the Depositor, the Sponsor, or any other Person in connection with the Mortgage
Loans or any other agreement or instrument relating thereto.
The parties hereto agree and understand that it is not intended that any
Mortgage Loan be included in the Trust that is, without limitation, a "High-Cost
Home Loan" as defined by the Home Ownership and Equity Protection Act of 1994 or
any other applicable anti-predatory lending laws, including but not limited to
(i) a "High-Cost Home Loan" as defined in the New Jersey Home Ownership Act
effective November 27, 2003; (ii) a "High-Cost Home Loan" as defined in the New
Mexico Home Loan Protection Act effective January 1, 2004; (iii) a "High-Cost
Home Loan" as defined in the Massachusetts Predatory Home Loan Practices Act
effective November 7, 2004; (iv) a "High-Cost Home Loan" as defined by the
Indiana High Cost Home Loan Law effective January 1, 2005 or (v) a "High-Cost
Home Loan" as defined by the Illinois High Risk Home Loan Act effective January
1, 2004.
SECTION 2.02. Acceptance by Trustee of the Mortgage Loans.
Except as set forth in the Exception Report delivered contemporaneously
herewith (the "Exception Report"), the Trustee acknowledges receipt of the
Mortgage Note for each Mortgage Loan and delivery of a Mortgage File (but does
not acknowledge receipt of all documents required to be included in such
Mortgage File) with respect to each Mortgage Loan and declares that it holds and
will hold such documents and any other documents constituting a part of the
Mortgage Files delivered to it in trust for the use and benefit of all present
and future Certificateholders. The Depositor will cause the Sponsor to
repurchase any Mortgage Loan to which a material exception was taken in the
Exception Report unless such exception is cured to the satisfaction of the
Depositor and the Trustee within forty-five (45) Business Days of the Closing
Date.
The Trustee acknowledges receipt of the three Corridor Contracts (forms of
which are attached hereto as Exhibits O-1, O-2 and O-3) and is hereby instructed
to enter into the Corridor Contracts, not in its individual capacity, but solely
as Trustee of the Issuing Entity. The Trustee also acknowledges receipt of the
Sale Agreement.
The Trustee acknowledges receipt of the Swap Agreement that will be held in
the Supplemental Interest Trust and is hereby instructed to enter into the Swap
Agreement, not in its individual capacity, but solely as the Supplemental
Interest Trust Trustee.
The Trustee agrees, for the benefit of Certificateholders, and the NIMs
Insurer, to review each Mortgage File delivered to it within sixty (60) days
after the Closing Date to ascertain and to certify, within seventy (70) days of
the Closing Date, to the NIMs Insurer, the Depositor and the Servicer that all
documents required by Section 2.01, except those listed on the exception report
attached thereto, have been executed and received, and that such documents
relate to the Mortgage Loans identified in Exhibit B that have been conveyed to
it. If the Trustee finds any document or documents constituting a part of a
Mortgage File to be missing or defective (that is, mutilated, damaged, defaced
or unexecuted) in any material respect, the Trustee shall promptly (and in any
event within no more than five Business Days) after such finding so notify the
NIMs Insurer, the Servicer, the Sponsor and the Depositor. In addition, the
Trustee shall also notify the NIMs Insurer, the Servicer, the Sponsor and the
Depositor if the original Mortgage with evidence of recording thereon with
respect to a Mortgage Loan is not received within seventy (70) days of the
Closing Date; if it has not been received because of a delay caused by the
public recording office where such Mortgage has been delivered for recordation,
the Depositor shall deliver or cause to be delivered to the Trustee written
notice stating that such Mortgage has been delivered to the appropriate public
recording office for recordation and thereafter the Depositor shall deliver or
cause to be delivered such Mortgage with evidence of recording thereon upon
receipt thereof from the public
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recording office. The Trustee shall request that the Sponsor correct or cure
such omission, defect or other irregularity, or substitute a Mortgage Loan
pursuant to the provisions of Section 2.03(c), within ninety (90) days from the
date the Sponsor was notified of such omission or defect and, if the Sponsor
does not correct or cure such omission or defect within such period, that the
Sponsor purchase such Mortgage Loan from the Issuing Entity within ninety (90)
days from the date the Trustee notified the Sponsor of such omission, defect or
other irregularity at the Purchase Price of such Mortgage Loan. The Purchase
Price for any Mortgage Loan purchased pursuant to this Section 2.02 shall be
paid to the Servicer and deposited by the Servicer in the Collection Account
promptly upon receipt, and, upon receipt by the Trustee of written notification
of such deposit signed by a Servicing Officer, the Trustee, upon receipt of a
Request for Release, shall promptly release to the Sponsor the related Mortgage
File and the Trustee shall execute and deliver such instruments of transfer or
assignment, without recourse, representation or warranty, as shall be necessary
to vest in the Sponsor or its designee, as the case may be, any Mortgage Loan
released pursuant hereto, and the Trustee shall have no further responsibility
with regard to such Mortgage Loan. It is understood and agreed that the
obligation of the Sponsor to purchase, cure or substitute any Mortgage Loan as
to which a material defect in or omission of a constituent document exists shall
constitute the sole remedy respecting such defect or omission available to the
Trustee on behalf of Certificateholders and the NIMs Insurer. The preceding
sentence shall not, however, limit any remedies available to the
Certificateholders, the NIMs Insurer, the Depositor or the Trustee pursuant to
the Sale Agreement. The Trustee shall be under no duty or obligation to inspect,
review and examine such documents, instruments, certificates or other papers to
determine that they are genuine, enforceable, recordable or appropriate to the
represented purpose, or that they have actually been recorded, or that they are
other than what they purport to be on their face. The Trustee shall keep
confidential the name of each Mortgagor and the Trustee shall not solicit any
such Mortgagor for the purpose of refinancing the related Mortgage Loan. It is
understood and agreed that all rights and benefits relating to the solicitation
of any Mortgagors and the attendant rights, title and interest in and to the
list of Mortgagors and data relating to their Mortgages shall be retained by the
Servicer.
Within seventy (70) days of the Closing Date, the Trustee shall deliver to
the NIMs Insurer, the Depositor and the Servicer the Trustee's Certification,
substantially in the form of Exhibit D attached hereto, evidencing the
completeness of the Mortgage Files, with any exceptions noted thereto.
SECTION 2.03. Representations, Warranties and Covenants of the Depositor.
(a) The Depositor hereby represents and warrants to the NIMs Insurer, the
Servicer and the Trustee as follows, as of the date hereof
(i) The Depositor is duly organized and is validly existing as a
corporation in good standing under the laws of the State of Delaware and
has full power and authority (corporate and other) necessary to own or hold
its properties and to conduct its business as now conducted by it and to
enter into and perform its obligations under this Agreement and the Sale
Agreement.
(ii) The Depositor has the full corporate power and authority to
execute, deliver and perform, and to enter into and consummate the
transactions contemplated by, this Agreement and the Sale Agreement and has
duly authorized, by all necessary corporate action on its part, the
execution, delivery and performance of this Agreement and the Sale
Agreement; and this Agreement and the Sale Agreement, assuming the due
authorization, execution and delivery hereof by the other parties hereto,
constitutes a legal, valid and binding obligation of the Depositor,
enforceable against the Depositor in accordance with its terms, subject, as
to enforceability, to (i) bankruptcy, insolvency, reorganization,
moratorium and other similar laws affecting creditors' rights generally and
(ii) general principles of equity, regardless of whether enforcement is
sought in a proceeding in equity or at law.
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(iii) The execution and delivery of this Agreement and the Sale
Agreement by the Depositor, the consummation of the transactions
contemplated by this Agreement and the Sale Agreement, and the fulfillment
of or compliance with the terms hereof are in the ordinary course of
business of the Depositor and will not (A) result in a material breach of
any term or provision of the charter or by-laws of the Depositor or (B)
materially conflict with, result in a violation or acceleration of, or
result in a material default under, the terms of any other material
agreement or instrument to which the Depositor is a party or by which it
may be bound or (C) constitute a material violation of any statute, order
or regulation applicable to the Depositor of any court, regulatory body,
administrative agency or governmental body having jurisdiction over the
Depositor; and the Depositor is not in breach or violation of any material
indenture or other material agreement or instrument, or in violation of any
statute, order or regulation of any court, regulatory body, administrative
agency or governmental body having jurisdiction over it which breach or
violation may materially impair the Depositor's ability to perform or meet
any of its obligations under this Agreement.
(iv) No litigation is pending or, to the best of the Depositor's
knowledge, threatened, against the Depositor that would materially and
adversely affect the execution, delivery or enforceability of this
Agreement and the Sale Agreement or the ability of the Depositor to perform
its obligations under this Agreement and the Sale Agreement in accordance
with the terms hereof.
(v) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Depositor of, or compliance by the Depositor with, this
Agreement and the Sale Agreement or the consummation of the transactions
contemplated hereby, or if any such consent, approval, authorization or
order is required, the Depositor has obtained the same. The Depositor
hereby represents and warrants to the Trustee with respect to each Mortgage
Loan as of the Closing Date, and following the transfer of the Mortgage
Loans to it by the Sponsor, the Depositor had good title to the Mortgage
Loans and the Mortgage Notes were subject to no offsets, claims, liens,
mortgage, pledge, charge, security interest, defenses or counterclaims.
(vi) Each Mortgage Loan in Group One has a Stated Principal Balance as
of the Cut-off Date that complies with the loan limitations of Xxxxxx Xxx
and Xxxxxxx Mac as in effect on the Cut-off Date.
(b) To the extent that any fact, condition or event with respect to a
Mortgage Loan constitutes a breach of a representation or warranty of the
Sponsor under the Sale Agreement, the only right or remedy of the Trustee or of
any Certificateholder shall be the Trustee's right to enforce the obligations of
the Sponsor under any applicable representation or warranty made by it. The
Trustee 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)(v)) under any
circumstances.
(c) Upon discovery by any of the NIMs Insurer, the Depositor, the Servicer,
or the Trustee of a breach of any of representations and warranties set forth in
the Sale Agreement that adversely and materially affects the value of the
related Mortgage Loan, prepayment charges or the interests of the
Certificateholders, the party discovering such breach shall give prompt written
notice to the other parties. Within ninety (90) days of the discovery of a
breach of any representation or warranty given to the Trustee by the Depositor,
the Sponsor and assigned by the Depositor to the Trustee, the Depositor, or the
Sponsor 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 (c) within the two year
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period following the Closing Date, substitute a Replacement Mortgage Loan for
the affected Mortgage Loan. In the event of discovery of a breach of any
representation and warranty of the Sponsor or the Depositor, the Trustee shall
enforce its rights under the Sale Agreement or thereunder for the benefit of
Certificateholders and the NIMs Insurer. In the event of a breach of the
representations and warranties with respect to the Mortgage Loans set forth in a
Sale Agreement, the Trustee shall enforce the right of the Issuing Entity to be
indemnified for such breach of representation and warranty. In the event that
such breach relates solely to the unenforceability of a prepayment charge,
amounts received in respect of such indemnity up to the amount of such
prepayment charge shall be distributed pursuant to Section 4.04(b)(i)(B). As
provided in the Sale Agreement, if the Sponsor substitutes for a Mortgage Loan
for which there is a breach of any representations and warranties which
adversely and materially affects the value of such Mortgage Loan and such
substitute mortgage loan is not a Replacement Mortgage Loan, under the terms of
the Sale Agreement, the Sponsor will, in exchange for such substitute Mortgage
Loan, (i) provide the applicable Purchase Price for the affected Mortgage Loan
or (ii) within two years of the Closing Date, substitute such affected Mortgage
Loan with a Replacement Mortgage Loan. Any such substitution shall not be
effected prior to the additional delivery to the Trustee of a Request for
Release substantially in the form of Exhibit I and shall not be effected unless
it is within two years of the Startup Day. As provided in the Sale Agreement,
the Sponsor indemnifies and holds the Issuing Entity, the Trustee, the
Depositor, the Servicer, the 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 Issuing Entity, the Trustee, the Depositor, the Servicer,
the NIMs Insurer and any Certificateholder may sustain in connection with any
actions of the Sponsor relating to a repurchase of a Mortgage Loan other than in
compliance with the terms of this Section 2.03 and the Sale Agreement, to the
extent that any such action causes (i) any federal or state tax to be imposed on
the Issuing Entity or any REMIC provided for herein, including without
limitation, any federal tax imposed on "prohibited transactions" under Section
860F(a)(1) of the Code or on "contributions after the startup day" under Section
860G(d)(1) of the Code, or (ii) any REMIC created hereunder to fail to qualify
as a REMIC at any time that any Certificate is outstanding.
With respect to any Mortgage Loan repurchased by the Depositor pursuant to
this Agreement or by the Sponsor pursuant to the Sale Agreement, the principal
portion of the funds received by the Servicer in respect of such repurchase of a
Mortgage Loan will be considered a Principal Prepayment and shall be deposited
by the Servicer in the Certificate Account pursuant to Section 3.05. The
Trustee, upon receipt of the full amount of the Purchase Price for a Deleted
Mortgage Loan, or upon receipt of the Mortgage File for a Replacement Mortgage
Loan substituted for a Deleted Mortgage Loan, shall release or cause to be
released and reassign to the Depositor or the Sponsor, 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 Trustee, and the Trustee shall not have any further responsibility with
respect to the Mortgage File relating to such Deleted Mortgage Loan.
With respect to each Replacement Mortgage Loan to be delivered to the
Trustee pursuant to the terms of this Article II in exchange for a Deleted
Mortgage Loan: (i) the Depositor or the Sponsor, as applicable, must deliver to
the Trustee the Mortgage File for the Replacement Mortgage Loan containing the
documents set forth in Section 2.01 along with a written certification
certifying as to the delivery of such Mortgage File and containing the granting
language set forth in the first sentence of Section 2.01; and (ii) the Depositor
will be deemed to have made, with respect to such Replacement Mortgage Loan,
each of the representations and warranties made by it with respect to the
related Deleted Mortgage Loan. The Trustee shall review the Mortgage File with
respect to each Replacement Mortgage Loan and certify to the Depositor that all
documents required by Section 2.01 have been executed and received.
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For any month in which the Sponsor substitutes one or more Replacement
Mortgage Loans for one or more Deleted Mortgage Loans, the Sponsor will
determine the amount (if any) by which the aggregate principal balance of all
such Replacement Mortgage Loans as of the date of substitution and the aggregate
prepayment charges with respect to such Replacement Mortgage Loans is less than
the aggregate Stated Principal Balance (after application of the principal
portion of the Scheduled Payment due in the month of substitution) and aggregate
prepayment charges of all such Deleted Mortgage Loans. An amount equal to the
aggregate of the deficiencies described in the preceding sentence (such amount,
the "Substitution Adjustment Amount") shall be delivered by the Sponsor to the
Servicer for deposit into the Collection Account on the Determination Date for
the Distribution Date relating to the Prepayment Period during which the related
Mortgage Loan became required to be purchased or replaced hereunder.
The Sponsor shall give or cause to be given written notice to the
Certificateholders that such substitution has taken place, shall amend the
Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage Loan from
the terms of this Agreement and the substitution of the Replacement Mortgage
Loan or Replacement Mortgage Loans and shall deliver a copy of such amended
Mortgage Loan Schedule to the NIMs Insurer and the Trustee. Upon such
substitution by the Sponsor, such Replacement Mortgage Loan or Replacement
Mortgage Loans shall constitute part of the Mortgage Pool and shall be subject
in all respects to the terms of this Agreement and the Sale Agreement, including
all applicable representations and warranties thereof included in the Sale
Agreement as of the date of substitution.
In addition, the Sponsor shall obtain at its own expense and deliver to the
Trustee an Opinion of Counsel addressed to the Trustee to the effect that such
substitution will not (a) cause any federal tax to be imposed on the Issuing
Entity or any REMIC provided for herein, including without limitation, any
federal tax imposed on "prohibited transactions" under Section 860F(a)(1) of the
Code or on "contributions after the startup day" under Section 860G(d)(1) of the
Code or (b) adversely affect the status of any REMIC provided for herein as a
REMIC. If any such Opinion of Counsel can not be delivered, then such
substitution may only be effected at such time as the required Opinion of
Counsel can be given.
(d) It is understood and agreed that the representations, warranties and
indemnification (i) set forth in this Section 2.03 and (ii) of the Sponsor and
the Depositor set forth in the Sale Agreement and assigned to the Trustee by the
Depositor hereunder shall each survive delivery of the Mortgage Files and the
Assignment of Mortgage of each Mortgage Loan to the Trustee and shall continue
throughout the term of this Agreement.
(e) The Depositor shall notify the Servicer and the Trustee when any NIM
Notes are issued and when such NIM Notes are no longer outstanding.
SECTION 2.04. Representations and Warranties of the Servicer.
The Servicer hereby represents and warrants to the Depositor and the
Trustee as follows, as of the date hereof
(i) The Servicer is a duly formed corporation and is validly existing
and in good standing under the laws of the state of its formation and is
duly authorized and qualified to transact any and all business contemplated
by this Agreement to be conducted by the Servicer in any state in which a
Mortgaged Property is located or is otherwise not required under applicable
law to effect such qualification and, in any event, is in compliance with
the doing business laws of any such state, to the extent necessary to
ensure its ability to enforce each Mortgage Loan, to
69
service the Mortgage Loans in accordance with the terms of this Agreement
and to perform any of its other obligations under this Agreement in
accordance with the terms hereof.
(ii) The Servicer has the power and authority to service each Mortgage
Loan, and to execute, deliver and perform, and to enter into and consummate
the transactions contemplated by this Agreement and has duly authorized by
all necessary corporate action on the part of the Servicer the execution,
delivery and performance of this Agreement; and this Agreement, assuming
the due authorization, execution and delivery hereof by the other parties
hereto, constitutes a legal, valid and binding obligation of the Servicer,
enforceable against the Servicer in accordance with its terms, except that
(a) the enforceability hereof may be limited by bankruptcy, insolvency,
moratorium, receivership and other similar laws relating to creditors'
rights generally and (b) the remedy of specific performance and injunctive
and other forms of equitable relief may be subject to equitable defenses
and to the discretion of the court before which any proceeding therefor may
be brought.
(iii) The execution and delivery of this Agreement by the Servicer,
the servicing of the Mortgage Loans under this Agreement, the consummation
of any other of the transactions contemplated by this Agreement, and the
fulfillment of or compliance with the terms hereof are in the ordinary
course of business of the Servicer and will not (A) result in a material
breach of any term or provision of the charter or by-laws of the Servicer
or (B) materially conflict with, result in a material breach, violation or
acceleration of, or result in a material default under, the terms of any
other material agreement or instrument to which the Servicer is a party or
by which it may be bound, or (C) constitute a material violation of any
statute, order or regulation applicable to the Servicer of any court,
regulatory body, administrative agency or governmental body having
jurisdiction over the Servicer; and the Servicer is not in breach or
violation of any material indenture or other material agreement or
instrument, or in violation of any statute, order or regulation of any
court, regulatory body, administrative agency or governmental body having
jurisdiction over it which breach or violation may materially impair the
Servicer's ability to perform or meet any of its obligations under this
Agreement.
(iv) The Servicer is an approved servicer of mortgage loans for Xxxxxx
Xxx and is an approved servicer of mortgage loans for Xxxxxxx Mac.
(v) No litigation is pending or, to the best of the Servicer's
knowledge, threatened, against the Servicer that would materially and
adversely affect the execution, delivery or enforceability of this
Agreement or the ability of the Servicer to service the Mortgage Loans or
to perform any of its other obligations under this Agreement in accordance
with the terms hereof.
(vi) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Servicer of, or compliance by the Servicer with, this
Agreement or the consummation of the transactions contemplated hereby, or
if any such consent, approval, authorization or order is required, the
Servicer has obtained the same.
(vii) The Servicer will fully furnish (for the period it services the
Mortgage Loans), in accordance with the Fair Credit Reporting Act and its
implementing regulations, accurate and complete information (e.g.,
favorable and unfavorable) on its borrower credit files to Equifax,
Experian and Trans Union Credit Information Company on a monthly basis.
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SECTION 2.05. Substitutions and Repurchases of Mortgage Loans Which Are Not
"Qualified Mortgages".
Upon discovery by the Depositor, the Servicer or the Trustee that any
Mortgage Loan does not constitute a "qualified mortgage" within the meaning of
section 860G(a)(3) of the Code, the party discovering such fact shall promptly
(and in any event within five (5) Business Days of discovery) give written
notice thereof to the other parties. In connection therewith, the Depositor
shall, at the Depositor's option, either (i) substitute, if the conditions in
Section 2.03(c) with respect to substitutions are satisfied, a Replacement
Mortgage Loan for the affected Mortgage Loan, or (ii) repurchase the affected
Mortgage Loan within ninety (90) days of such discovery in the same manner as it
would a Mortgage Loan for a breach of representation or warranty contained in
Section 2.03. The Trustee shall reconvey to the Depositor the Mortgage Loan to
be released pursuant hereto in the same manner, and on the same terms and
conditions, as it would a Mortgage Loan repurchased for breach of a
representation or warranty contained in Section 2.03.
SECTION 2.06. Authentication and Delivery of Certificates.
The Trustee acknowledges the transfer and assignment to it of the Trust
Fund and, concurrently with such transfer and assignment, the Trustee has caused
to be authenticated and delivered to or upon the order of the Depositor, in
exchange for the Mortgage Loans, Certificates duly authenticated by the
Authenticating Agent in authorized denominations evidencing ownership of the
entire Trust Fund. The Trustee agrees to hold the Trust Fund and exercise the
rights referred to above for the benefit of all present and future Holders of
the Certificates and to perform its duties set forth in this Agreement in
accordance with the provisions hereof.
SECTION 2.07. REMIC Elections.
(a) The Depositor hereby instructs and authorizes the Trustee to make an
appropriate election to treat each of the SWAP REMIC, the Lower Tier REMIC and
the Upper Tier REMIC as a REMIC. The Trustee shall sign the returns providing
for such elections and such other tax or information returns which are required
to be signed by the Trustee under applicable law. This Agreement shall be
construed so as to carry out the intention of the parties that each of the SWAP
REMIC, the Lower Tier REMIC and the Upper Tier REMIC be treated as a REMIC at
all times prior to the date on which the Trust Fund is terminated.
(b) The Preliminary Statement sets forth the designations and "latest
possible maturity date" for federal income tax purposes of all interests created
hereby. The "Startup Day," as defined in Section 860G(a)(9) of the Code, for
purposes of the REMIC Provisions shall be the Closing Date. Each REMIC's fiscal
year shall be the calendar year.
The SWAP REMIC shall consist of all of the assets of the Trust Fund, other
than (i) amounts distributable to the Class P Certificates pursuant to Section
4.04(b)(i) hereof, (ii) the interests issued by the SWAP REMIC and the interests
issued by the Lower Tier REMIC, (iii) the grantor trusts described in Section
2.07 hereof, (iv) each Corridor Contract and the Corridor Contract Account and
(v) the Swap Agreement and the Supplemental Interest Trust. The SWAP REMIC shall
issue the SWAP REMIC Regular Interests, which shall be designated as regular
interests of such REMIC, and shall issue the Class SWR Interest, which shall be
designated as the sole class of residual interest in the SWAP REMIC. Each of the
SWAP REMIC Regular Interests shall have the characteristics set forth in the
Preliminary Statement and this Section 2.07.
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The Lower Tier REMIC shall consist of the SWAP REMIC Regular Interests. The
Lower Tier REMIC shall issue the Lower Tier REMIC Regular Interests, which shall
be designated as regular interests of such REMIC and shall issue the Class LTR
Interest, which shall be designated as the sole class of residual interest in
the Lower Tier REMIC. Each of the Lower Tier REMIC Regular Interests shall have
the characteristics set forth in its definition and the Preliminary Statement.
The assets of the Upper Tier REMIC shall be the Lower Tier REMIC Regular
Interests. The REMIC Regular Interests shall be designated as the regular
interests in the Upper Tier REMIC and the Residual Interest shall be designated
as the sole class of residual interest in the Upper Tier REMIC. For federal
income tax purposes, the pass-through rate on each REMIC Regular Interest (other
than the Uncertificated Class C Interest and the Class UT-IO Interest) and on
the sole class of residual interest in the Upper Tier REMIC shall be subject to
a cap equal to the Upper Tier REMIC Net WAC Cap.
The beneficial ownership of the Class SWR Interest, the Class LTR Interest
and the Residual Interest shall be represented by the Class R Certificate. The
Class SWR Interest and the Class LTR Interest shall not have a principal balance
or bear interest.
(c) The "tax matters person" with respect to each REMIC for purposes of the
REMIC Provisions shall be the beneficial owner of the Class R Certificate;
provided, however, that the Holder of the Class R Certificate, by its acceptance
thereof, irrevocably appoints the Trustee as its agent and attorney-in-fact to
act as "tax matters person" with respect to each such REMIC for purposes of the
REMIC Provisions. If there is more than one beneficial owner of the Class R
Certificate, the "tax matters person" shall be the Person with the greatest
percentage interest in the Class R Certificate and, if there is more than one
such Person, shall be determined under Treasury regulation Section 1.860F-4(d)
and Treasury regulation Section 301.6231(a)(7)-1.
(d) (i) It is intended that the rights of the Class A Certificates, Class R
Certificate, Class M Certificates and Class B Certificates to receive payments
in respect of Excess Interest shall be treated as a right in interest rate cap
contracts written by the Class C Certificateholders in favor of the holders of
the Class A Certificates, Class R Certificate, Class M Certificates and Class B
Certificates, and such shall be accounted for as property held separate and
apart from the regular interests in the Upper Tier REMIC held by the holders of
the Class A Certificates, Class M Certificates and Class B Certificates and the
residual interest in the Upper Tier REMIC held by the holder of the Class R
Certificate. This provision is intended to satisfy the requirements of Treasury
Regulations Section 1.860G-2(i) for the treatment of property rights coupled
with REMIC interests to be separately respected and shall be interpreted
consistently with such regulation. On each Distribution Date, to the extent that
any of the Class A Certificates, Class R Certificate, Class M Certificates and
Class B Certificates receive payments in respect of Excess Interest, such
amounts, to the extent not derived from payments on the Corridor Contracts or
the Swap Agreement, will be treated as distributed by the Upper Tier REMIC to
the Class C Certificates pro rata in payment of the amounts specified in Section
4.04(f) and then paid to the relevant Class of Certificates pursuant to the
related interest rate cap agreement.
(ii) It is intended that the beneficial owners of the Certificates
(other than the Class P and Class C Certificates) shall be treated as having
entered into a notional principal contract with respect to the beneficial owners
of the Class C Certificates. Pursuant to each such notional principal contract,
all beneficial owners of each Class of Certificates (other than the Class P and
Class C Certificates) shall be treated as having agreed to pay, on each
Distribution Date, to the beneficial owners of the Class C Certificates an
aggregate amount equal to the excess, if any, of (i) the amount payable on such
Distribution Date on the Corresponding REMIC Regular Interest of such Class of
Certificates over (ii) the amount payable on such Class of Certificates on such
Distribution Date (such excess, a "Class Payment Shortfall"). A Class Payment
Shortfall shall be allocated to each Class of Certificates to the extent that
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interest accrued on such Class for the related Accrual Period at the
Pass-Through Rate for a Class, computed by substituting "Upper Tier REMIC Net
WAC Cap" for the Available Funds Cap set forth in the definition thereof,
exceeds the amount of interest accrued on such Certificate at the Pass-Through
Rate (without such substitution) for the related Accrual Period, and a Class
Payment 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.
(e) The parties intend that the portion of the Trust Fund consisting of the
Uncertificated Class C Interest, the uncertificated Class UT-IO Interest, the
rights to receive payments deemed made by the Class A, Class R, Class M and
Class B Certificates in respect of notional principal contracts described in
Section 2.07(d)(ii), the Corridor Contract Account, the Corridor Contracts, the
Supplemental Interest Trust that holds the Swap Agreement and the obligation of
the holders of the Class C Certificates to pay amounts in respect of Excess
Interest to the holders of the Class A Certificates, Class R Certificate, Class
M Certificates and Class B Certificates shall be treated as a "grantor trust"
under the Code, for the benefit of the holders of the Class C Certificates, and
the provisions hereof shall be interpreted consistently with this intention. In
furtherance of such intention, the Trustee shall (i) furnish or cause to be
furnished to the holders of the Class C Certificates information regarding their
allocable share, if any, of the income with respect to such grantor trust, (ii)
file or cause to be filed with the Internal Revenue Service Form 1041 (together
with any necessary attachments) and such other forms as may be applicable and
(iii) comply with such information reporting obligations with respect to
payments from such grantor trust to the holders of Class A Certificates, Class R
Certificate, Class M Certificates, Class B Certificates and Class C Certificates
as may be applicable under the Code.
(f) The parties intend that the portion of the Trust Fund consisting of the
right to receive the payments distributable to the Class P Certificates pursuant
to Section 4.04(b)(i) hereof shall be treated as a "grantor trust" under the
Code, for the benefit of the holders of the Class P Certificates, and the
provisions hereof shall be interpreted consistently with this intention. In
furtherance of such intention, the Trustee shall (i) furnish or cause to be
furnished to the holders of the Class P Certificates information regarding their
allocable share of the income with respect to such grantor trust and (ii) file
or cause to be filed with the Internal Revenue Service Form 1041 (together with
any necessary attachments) and such other forms as may be applicable.
(g) The parties intend that amounts paid to the Swap Counterparty under the
Swap Agreement shall be deemed for federal income tax purposes to be paid by the
Class C Certificates first, out of funds deemed received in respect of the Class
UT-IO Interest, second, out of funds deemed received in respect of the
Uncertificated Class C Interest and third, out of funds deemed received in
respect of notional principal contracts described in Section 2.07(d)(ii), and
the provisions hereof shall be interpreted consistently with this intention. On
each Distribution Date, to the extent that amounts paid to the Swap Counterparty
are deemed paid out of funds received in respect of the Uncertificated Class C
Interest, such amounts will be treated as distributed by the Upper Tier REMIC to
the Class C Certificates pro rata in payment of the amounts specified in Section
4.04(f) and then paid to the Swap Counterparty pursuant to the Swap Agreement.
The Supplemental Interest Trust shall be an "outside reserve fund" for
federal income tax purposes and not an asset of any REMIC. Furthermore, the
Holders of the Class C Certificates shall be the beneficial owners of the
Supplemental Interest Trust for all federal income tax purposes, and shall be
taxable on all income earned thereon.
(h) All payments of principal and interest at the Net Mortgage Rate on each
of the Mortgage Loans (other than amounts distributable to the Class P
Certificates pursuant to Section 4.04(b)(i) hereof)
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received by the SWAP REMIC with respect to the Mortgage Loans shall be paid to
the SWAP REMIC Regular Interests until the principal balance of all such
interests have been reduced to zero and any losses allocated to such interests
have been reimbursed. Any available funds remaining in the SWAP REMIC on a
Distribution Date after distributions to the SWAP REMIC Regular Interests shall
be distributed to the Class R Certificates on account of the Class SWR Interest.
On each Distribution Date, the Trustee shall distribute the aggregate Interest
Funds (net of expenses (other than any Net Swap Payment or Swap Termination
Payment made to the Swap Counterparty) and payments to the Class P Certificates)
with respect to each of the SWAP REMIC Regular Interests based on the interest
rates for each such SWAP REMIC Regular Interest. On each Distribution Date, the
Trustee shall distribute the aggregate Principal Funds with respect to the Group
One Mortgage Loans first to the Class 1-SW1 Interest until its principal balance
is reduced to zero and then sequentially to each of the other SWAP REMIC Regular
Interests beginning with designation "1" in ascending order of their numerical
class designation, in equal amounts to each such class in such numerical
designation, until the principal balance of each such class is reduced to zero.
All losses with respect to the Group One Mortgage Loans shall be allocated among
the SWAP REMIC Regular Interests beginning with the designation "1" in the same
manner that principal distributions are allocated. On each Distribution Date,
the Trustee shall distribute the aggregate Principal Funds with respect to the
Group Two Mortgage Loans first to the Class 2-SW2 Interest until its principal
balance is reduced to zero and then sequentially to each of the other SWAP REMIC
Regular Interests beginning with designation "2" in ascending order of their
numerical class designation, in equal amounts to each such class in such
numerical designation, until the principal balance of each such class is reduced
to zero. All losses with respect to the Group Two Mortgage Loans shall be
allocated among the SWAP REMIC Regular Interests beginning with the designation
"2" in the same manner that principal distributions are allocated. Subsequent
Recoveries with respect to the Group One and Group Two Mortgage Loans shall be
allocated in the reverse fashion from the manner in which losses are allocated.
All payments received by the Lower Tier REMIC with respect to the SWAP
REMIC Regular Interests shall be paid to the Lower Tier REMIC Regular Interests
until the principal balance of all such interests have been reduced to zero and
any losses allocated to such interests have been reimbursed. Any excess amounts
shall be distributed to the Class LTR Interest. On each Distribution Date,
payments and losses shall be allocated among the Lower Tier REMIC Regular
Interests so that (i) each of the Lower Tier REMIC I Marker Interests shall have
a principal balance equal to 25% of the principal balance of the Corresponding
Certificates, (ii) the Class LTIX Interest has a principal balance equal to the
excess of (x) 50% of the remaining principal balance of the Mortgage Loans over
(y) the aggregate principal balance of the Lower Tier REMIC I Marker Interests
(if necessary to reflect an increase in overcollateralization, accrued and
unpaid interest on the Class LTIX interest may be added to its principal amount
to achieve this result) and (iii) the aggregate principal amount of the Class
LTII1A Interest, Class LTII1B Interest, Class LTII2A Interest, Class LTII2B
Interest and Class LTIIX Interest shall equal 50% of the remaining principal
balance of the Mortgage Loans. Distributions and losses allocated to the Lower
Tier REMIC Regular Interests described in clause (iii) of the preceding sentence
will be allocated among such Lower Tier REMIC Regular Interests in the following
manner: (x) such distributions shall be deemed made to such Lower Tier REMIC
Regular Interests first, so as to keep the principal balance of the each such
Lower Tier REMIC Regular Interest with "B" at the end of its designation equal
to 0.05% of the aggregate scheduled principal balance of the Mortgage Loans in
the related Mortgage Group; second, to such Lower Tier REMIC Regular Interests
with "A" at the end of its designation so that the uncertificated principal
balance of each such Lower Tier REMIC Regular Interest is equal to 0.05% of the
excess of (I) the aggregate scheduled principal balance of the Mortgage Loans in
the related Mortgage Group over (II) the aggregate principal balance of
Certificate Group One, in the case of the Class LTII1A Interest, or Certificate
Group Two, in the case of the Class LTII2A Interest (except that if 0.05% of any
such excess is greater than the principal amount of the related Lower Tier REMIC
II Marker Interest with "A" at the end of its designation, the least amount of
principal shall be distributed to each Lower Tier REMIC II Marker Interest with
"A" at the end of its designation such that the Lower
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Tier REMIC Subordinate Balance Ratio is maintained) and finally, any remaining
distributions of principal to the Class LTIIX Interest and (y) such losses shall
be allocated among the Lower Tier REMIC Regular Interests described in clause
(iii) of the preceding sentence first, so as to keep the principal balance of
the each such Lower Tier REMIC Regular Interest with "B" at the end of its
designation equal to 0.05% of the aggregate scheduled principal balance of the
Mortgage Loans in the related Mortgage Group; second, to such Lower Tier REMIC
Regular Interests with "A" at the end of its designation so that the
uncertificated principal balance of each such Lower Tier REMIC Regular Interest
is equal to 0.05% of the excess of (I) the aggregate scheduled principal balance
of the Mortgage Loans in the related Mortgage Group over (II) the aggregate
principal balance of Certificate Group One, in the case of the Class LTII1A
Interest, or Certificate Group Two, in the case of the Class LTII2A Interest
(except that if 0.05% of any such excess is greater than the principal amount of
the related Lower Tier REMIC II Marker Interest with "A" at the end of its
designation, the least amount of losses shall be allocated to each Lower REMIC
II Marker Interest with "A" at the end of its designation such that the Lower
Tier REMIC Subordinate Balance Ratio is maintained) and finally, any remaining
losses to the Class LTIIX Interest. Notwithstanding the preceding two sentences,
however, losses not allocated to any Class of Certificates will not be allocated
to any Lower Tier REMIC Regular Interests. All computations with respect to the
Lower Tier REMIC Regular Interests shall be taken out to ten decimal places.
Any available funds remaining in the Lower Tier REMIC on a
Distribution Date after distributions to the Lower Tier REMIC Regular Interests
shall be distributed to the Class R Certificates in respect of the Class LTR
Interest.
If on any Distribution Date the Certificate Principal Balance of any
Class of Certificates is increased pursuant to the last sentence of the
definition of "Certificate Principal Balance", then there shall be an equivalent
increase in the principal amounts of the Lower Tier REMIC Regular Interests,
with such increase allocated (before the making of distributions and the
allocation of losses on the Lower Tier REMIC Regular Interests on such
Distribution Date) among the Lower Tier REMIC Regular Interests so that, to the
greatest extent possible, (i) each of the Lower Tier REMIC I Marker Interests
has a principal balance equal to 25% of the principal balance of the
Corresponding Certificates, (ii) the Class LTIX Interest has a principal balance
equal to the excess of (x) 50% of the remaining principal balance of the
Mortgage Loans over (y) the aggregate principal balance of the Lower Tier REMIC
I Marker Interests and (iii) the aggregate principal amount of the Lower Tier
REMIC II Marker Interests and the Class LTIIX Interest shall equal 50% of the
remaining principal balance of the Mortgage Loans. Allocations in connection
with clause (iii) shall be made so that, to the greatest extent possible, (a)
the principal balance of each Lower Tier REMIC II Marker Interest with "B" at
the end of its designation equals 0.05% of the aggregate scheduled principal
balance of the Mortgage Loans in related Mortgage Group, (b) the principal
balance of each Lower Tier REMIC II Marker Interest with "A" at the end of its
designation equals 0.05% of the excess of (x) the aggregate scheduled principal
balance of the Mortgage Loans in related Mortgage Group over (y) the aggregate
principal balance of Certificate Group One in the case of the Class LTII1A
Interest, or Certificate Group Two in the case of the Class LTII2A Interest and
(c) any remaining allocations are made to the Class LTIIX Interest.
For purposes of this Section 2.07, (i) the Class LTII1A Interest and
Class LTII1B Interest shall be related to Group One, and (ii) the Class LTII2A
Interest and Class LTII2B Interest shall be related to Group Two.
(i) In the event that any REMIC provided for herein fails to qualify as a
REMIC, loses its status as a REMIC, or incurs federal, state or local taxes as a
result of a prohibited transaction or prohibited contribution under the REMIC
Provisions due to the negligent performance by the Servicer of its duties and
obligations set forth herein, the Servicer shall indemnify the NIMs Insurer, the
Trustee and the Issuing Entity against any and all Losses resulting from such
negligence; provided, however, that the
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Servicer shall not be liable for any such Losses attributable to the action or
inaction of the Trustee, the Depositor or the Holder of the Class R Certificate,
as applicable, nor for any such Losses resulting from misinformation provided by
the Holder of the Class R Certificate on which the Servicer has relied. The
foregoing shall not be deemed to limit or restrict the rights and remedies of
the Holder of the Class R Certificate now or hereafter existing at law or in
equity. Notwithstanding the foregoing, however, in no event shall the Servicer
have any liability (1) for any action or omission that is taken in accordance
with and in compliance with the express terms of, or which is expressly
permitted by the terms of, this Agreement, (2) for any Losses other than those
arising out of a negligent performance by the Servicer 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).
(j) In the event that any REMIC provided for herein fails to qualify as a
REMIC, loses its status as a REMIC, or incurs federal, state or local taxes as a
result of a prohibited transaction or prohibited contribution under the REMIC
Provisions due to the negligent performance by the Trustee of its duties and
obligations set forth herein, the Trustee shall indemnify the NIMs Insurer and
the Issuing Entity against any and all Losses resulting from such negligence;
provided, however, that the Trustee shall not be liable for any such Losses
attributable to the action or inaction of the Servicer, the Depositor or the
Holder of the Class R Certificate, as applicable, nor for any such Losses
resulting from misinformation provided by the Holder of the Class R Certificate
on which the Trustee has relied. The foregoing shall not be deemed to limit or
restrict the rights and remedies of the Holder of the Class R Certificate now or
hereafter existing at law or in equity. Notwithstanding the foregoing, however,
in no event shall the Trustee have any liability (1) for any action or omission
that is taken in accordance with and in compliance with the express terms of, or
which is expressly permitted by the terms of, this Agreement, (2) for any Losses
other than those arising out of a negligent performance by the Trustee 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).
SECTION 2.08. Covenants of the Servicer.
The Servicer hereby covenants to each of the other parties to this
Agreement that the Servicer shall comply in the performance of its obligations
under this Agreement with all reasonable rules and requirements of the insurer
under each Required Insurance Policy.
SECTION 2.09. [RESERVED]
SECTION 2.10. [RESERVED]
SECTION 2.11. Permitted Activities of the Issuing Entity. The Issuing
Entity is created for the object and purpose of engaging in the Permitted
Activities. In furtherance of the foregoing, the Trustee is hereby authorized
and directed to execute and deliver, on behalf of the Issuing Entity, the
Corridor Contracts, and to execute and deliver on behalf of the Issuing Entity,
and to perform the duties and obligations of the Issuing Entity under the
Corridor Contracts, an insurance and indemnity agreement with a NIMs Insurer and
any other agreement or instrument related thereto, in each case in such form as
the Depositor shall direct or shall approve in writing, the execution and
delivery of any such agreement by the Depositor to be conclusive evidence of its
approval thereof. In addition, the Supplemental Interest Trust Trustee is hereby
authorized and directed to execute and deliver, on behalf of the Supplemental
Interest Trust, the Swap Agreement, and to execute and deliver on behalf of the
Issuing Entity, and to perform the duties and obligations of the Supplemental
Interest Trust under any agreement or instrument related to the Swap Agreement,
in each case in such form as the Depositor shall direct or shall approve in
writing, the execution and delivery of any such agreement by the Depositor to be
conclusive evidence of its approval thereof.
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SECTION 2.12. Qualification of Special Purpose Entity. For purposes of SFAS
140, the parties hereto intend that the Issuing Entity shall be treated as a
"qualifying special purpose entity" as such term is used in SFAS 140 and any
successor rule thereto and its power and authority as stated in Section 2.11 of
this Agreement shall be limited in accordance with paragraph 35 of SFAS 140.
SECTION 2.13. Depositor Notification of NIM Notes. The Depositor shall
notify the Servicer and the Trustee in writing when NIM Notes are issued and of
the identity of the NIMs Insurer, if applicable, and when all previously issued
NIM Notes are no longer outstanding.
ARTICLE III
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
SECTION 3.01. Servicer to Service Mortgage Loans.
For and on behalf of the Certificateholders, the Servicer shall service and
administer the Mortgage Loans in accordance with Accepted Servicing Practices.
In connection with such servicing and administration, the Servicer shall have
full power and authority, acting alone and/or through subservicers as provided
in Section 3.02 hereof, to do or cause to be done any and all things that it may
deem necessary or desirable in connection with such servicing and
administration, including but not limited to, the power and authority, subject
to the terms hereof (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 (but only
in the manner provided in this Agreement), (iii) to collect any Insurance
Proceeds and other Liquidation Proceeds and (iv) subject to Section 3.12(a), to
effectuate foreclosure or other conversion of the ownership of the Mortgaged
Property securing any Mortgage Loan; provided that, subject to Section 6.03, the
Servicer shall not take any action that is inconsistent with or prejudices the
interests of the Issuing Entity or the Certificateholders in any Mortgage Loan
serviced by it under this Agreement or the rights and interests of the other
parties to this Agreement except as otherwise required by this Agreement or by
law. The Servicer shall represent and protect the interest of the Issuing Entity
in the same manner as it currently protects its own interest in mortgage loans
in its own portfolio in any claim, proceeding or litigation regarding a Mortgage
Loan, but in any case not in any manner that is a lesser standard than that
provided in the first sentence of this Section 3.01. Notwithstanding anything in
this Agreement to the contrary, the Servicer shall not make or permit any
modification, waiver or amendment of any term of any Mortgage Loan which would
cause any of the REMICs provided for herein to fail to qualify as a REMIC or
result in the imposition of any tax under Section 860G(a) or 860G(d) of the
Code. Without limiting the generality of the foregoing, the Servicer, in its own
name or in the name of the Depositor and the Trustee, is hereby authorized and
empowered by the Depositor and the Trustee, when the Servicer believes it
appropriate in its reasonable judgment, to execute and deliver, on behalf of the
Trustee, the Depositor, the Certificateholders or any of them, any and all
instruments of satisfaction or cancellation, of partial or full release or
discharge, or of subordination and all other comparable instruments, with
respect to the Mortgage Loans, and with respect to the Mortgaged Properties held
for the benefit of the Certificateholders. The Servicer shall prepare and
deliver to the Depositor and/or the Trustee such documents requiring execution
and delivery by any or all of them as are necessary or appropriate to enable the
Servicer to service and administer the Mortgage Loans. If reasonably required by
the Servicer, the Trustee shall furnish the Servicer with a reasonable number of
powers of attorney in the form attached hereto as Exhibit J and execute such
other documents delivered to it by the Servicer that are necessary or
appropriate to enable the Servicer to carry out its servicing and administrative
duties under this Agreement. Upon receipt of such documents, the Depositor
and/or the Trustee shall execute such documents and deliver them to the
Servicer. The Trustee shall have no liability with respect to any misuse of such
power of attorney, to the extent such use by the Servicer is outside the
authorization provided for in the power of attorney, and shall be indemnified by
the Servicer
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for any costs, liabilities or expenses incurred by the Trustee in connection
with any misuse of such power of attorney.
In accordance with the standards of the preceding paragraph, the Servicer
shall advance or cause to be advanced funds as necessary for the purpose of
effecting the payment of taxes and assessments on any first lien Mortgaged
Properties, which advances shall be reimbursable in the first instance from
related collections from the Mortgagors pursuant to Section 3.06, and further as
provided in Section 3.08. To the extent that a Mortgage does not provide for
escrow payments, (i) the Servicer shall determine whether any such payments are
made by a first lien Mortgagor in a manner and at a time that is necessary to
avoid the loss of the Mortgaged Property due to a tax sale or the foreclosure as
a result of a tax lien and (ii) the Servicer shall ensure that all insurance
required to be maintained on a first lien Mortgaged Property pursuant to this
Agreement is maintained. If any such payment has not been made and the Servicer
receives notice of a tax lien with respect to the Mortgage Loan being imposed,
the Servicer will, to the extent required to avoid loss of the Mortgaged
Property, advance or cause to be advanced funds necessary to discharge such lien
on the Mortgaged Property subject to the Servicer's determination that such
advances will be recoverable. All costs incurred by the Servicer, if any, in
effecting the timely payment of taxes and assessments on the Mortgaged
Properties and related insurance premiums shall not, for the purpose of
calculating monthly distributions to the Certificateholders, be added to the
Stated Principal Balance under the related Mortgage Loans, notwithstanding that
the terms of such Mortgage Loans so permit.
The Servicer shall deliver a list of Servicing Officers and specimen
signatures to the Trustee by the Closing Date.
The Servicer will transmit full-file credit reporting data for each
Mortgage Loan pursuant to Xxxxxx Xxx Guide Announcement 97-02 and for each
Mortgage Loan, the Servicer agrees that it shall report one of the following
statuses each month as follows: current, delinquent (30-, 60-, 90-days, etc.),
foreclosed or charged-off.
The Servicer further is authorized and empowered by the Trustee, on behalf
of the Certificateholders and the Trustee, in its own name or in the name of the
Sub-Servicer, when the Servicer or the Sub-Servicer, as the case may be,
believes it is appropriate in its best judgment to register any Mortgage Loan on
the MERS System, or cause the removal from the registration of any Mortgage Loan
on the MERS System, to execute and deliver, on behalf of the Trustee and the
Certificateholders or any of them, any and all instruments of assignment and
other comparable instruments with respect to such assignment or re-recording of
a Mortgage in the name of MERS, solely as nominee for the Trustee and its
successors and assigns. Any reasonable expenses incurred in connection with the
actions described in the preceding sentence or as a result of MERS discontinuing
or becoming unable to continue operations in connection with the MERS System,
shall be subject to withdrawal by the Servicer from the Collection Account
(provided that such expenses constitute "unanticipated expenses" within the
meaning of Treasury Regulation Section 1.860G-1(b)(3)(ii)).
With respect to any Mortgage Loan, the Servicer may consent to the
refinancing of the prior senior lien relating to such Mortgage Loan, provided
that the following requirements are met:
(a) the resulting Combined Loan-to-Value Ratio of such Mortgage Loan is no
higher than the Combined Loan-to-Value Ratio prior to such refinancing; and
(b) the interest rate for the loan evidencing the refinanced senior lien is
no more than 2.0% higher than the interest rate on the loan evidencing the
existing senior lien immediately prior to the date of such refinancing; and
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(c) the loan evidencing the refinanced senior lien is not subject to
negative amortization.
SECTION 3.02. Servicing and Subservicing; Enforcement of the Obligations of
Servicer.
(a) The Servicer may arrange for the subservicing of any Mortgage Loan by a
subservicer, which may be an Affiliate (each, a "subservicer"), pursuant to a
subservicing agreement (each, a "Subservicing Agreement"); provided, however,
that (i) such subservicing arrangement and the terms of the related subservicing
agreement must provide for the servicing of such Mortgage Loans in a manner
consistent with the servicing arrangements contemplated hereunder, (ii) that
such agreement would not result in a withdrawal or downgrading by any Rating
Agency of the ratings of any Certificates or any of the NIM Notes evidenced by a
letter to that effect delivered by each Rating Agency to the Depositor and the
NIMs Insurer and (iii) the NIMs Insurer shall have consented to such
subservicing agreement, which consent shall not be unreasonably withheld.
Notwithstanding the provisions of any subservicing agreement, any of the
provisions of this Agreement relating to agreements or arrangements between the
Servicer and a subservicer or reference to actions taken through a subservicer
or otherwise, the Servicer shall remain obligated and liable to the Depositor,
the Trustee and the Certificateholders for the servicing and administration of
the Mortgage Loans in accordance with the provisions of this Agreement without
diminution of such obligation or liability by virtue of such subservicing
agreements or arrangements or by virtue of indemnification from the subservicer
and to the same extent and under the same terms and conditions as if the
Servicer alone were servicing and administering the Mortgage Loans. Every
subservicing agreement entered into by the Servicer shall contain a provision
giving any successor servicer the option to terminate such agreement, with the
consent of the NIMs Insurer (which consent shall not be unreasonably withheld),
in the event a successor servicer is appointed. All actions of the each
subservicer performed pursuant to the related subservicing agreement shall be
performed as an agent of the Servicer with the same force and effect as if
performed directly by the Servicer. The Servicer shall deliver to the Trustee
and the NIMs Insurer copies of all subservicing agreements.
(b) The Servicer may enter into a special servicing advisory agreement with
a holder of the Class R Certificate and/or one or more other class of
Subordinate Certificates issued by the Issuing Entity or of a net interest
margin trust holding certificates issued by the Issuing Entity and/or an advisor
designated by such holder. Pursuant to such agreement, the Servicer may provide
such holder or advisor, in its capacity as special servicing advisor, with
loan-level information with respect to the Mortgage Loans, and such holder or
the special servicing advisor designated by such holder may advise the Servicer
with regards to efforts to maximize recoveries with respect to such Mortgage
Loans, including without limitation the commencement of foreclosure proceedings
or other actions.
(c) For purposes of this Agreement, the Servicer shall be deemed to have
received any collections, recoveries or payments with respect to the Mortgage
Loans that are received by a subservicer regardless of whether such payments are
remitted by the subservicer to the Servicer.
(d) The Servicer shall not permit a Subservicer to perform any servicing
responsibilities hereunder with respect to the Mortgage Loans unless that
Subservicer first agrees in writing with the Servicer to deliver an Assessment
of Compliance and an Accountant's Attestation in such manner and at such times
that permits that Servicer to comply with Section 3.17 of this Agreement.
SECTION 3.03. Rights of the Depositor and the Trustee in Respect of the
Servicer.
Neither the Trustee nor the Depositor shall have any responsibility or
liability for any action or failure to act by the Servicer, and neither of them
is obligated to supervise the performance of the Servicer hereunder or
otherwise.
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SECTION 3.04. Trustee to Act as Servicer.
In the event that the Servicer shall for any reason no longer be the
Servicer hereunder (including by reason of an Event of Default), the Trustee or
its designee shall, within a period of time not to exceed ninety (90) days from
the date of notice of termination or resignation, thereupon assume all of the
rights and obligations of the Servicer hereunder arising thereafter except that
the Trustee shall not be (i) liable for losses of the Servicer pursuant to
Section 3.10 hereof or any acts or omissions of such predecessor Servicer
hereunder, (ii) obligated to make Advances or Servicing Advances if it is
prohibited from doing so by applicable law, (iii) obligated to effectuate
repurchases or substitutions of Mortgage Loans hereunder, including pursuant to
Section 2.02, 2.03 or 2.05 hereof, (iv) responsible for any expenses of the
Servicer pursuant to Section 2.03 or (v) deemed to have made any representations
and warranties hereunder, including pursuant to Section 2.04 or the first
paragraph of Section 6.02 hereof; provided, however that the Trustee (subject to
clause (ii) above) or its designee, in its capacity as the successor servicer,
shall immediately assume the terminated or resigning Servicer's obligation to
make Advances and Servicing Advances. No such termination shall affect any
obligation of the Servicer to pay amounts owed under this Agreement and to
perform its duties under this Agreement until its successor assumes all of its
rights and obligations hereunder. If the Servicer shall for any reason no longer
be the Servicer (including by reason of any Event of Default), the Trustee (or
any other successor servicer) may, at its option, succeed to any rights and
obligations of the Servicer under any subservicing agreement in accordance with
the terms thereof; provided, however, that the Trustee (or any other successor
servicer) shall not incur any liability or have any obligations in its capacity
as servicer under a subservicing agreement arising prior to the date of such
succession unless it expressly elects to assume such obligations of the Servicer
thereunder; and the Servicer shall not thereby be relieved of any liability or
obligations under the subservicing agreement arising prior to the date of such
succession. To the extent any costs or expenses, including without limitation
Servicing Transfer Costs incurred by the Trustee in connection with this Section
3.04 are not paid by the Servicer pursuant to this Agreement within thirty (30)
days of the date of the Trustee's invoice therefor, such amounts shall be
payable out of the Certificate Account; provided that the terminated Servicer
shall reimburse the Issuing Entity for any such expense incurred by the Issuing
Entity upon receipt of a reasonably detailed invoice evidencing such expenses.
If the Trustee is unwilling or unable to act as servicer, the Trustee shall seek
to appoint a successor servicer that is eligible in accordance with the criteria
specified in Section 7.03 of this Agreement and reasonably acceptable to the
NIMs Insurer.
The Servicer shall, upon request of the Trustee, but at the expense of the
Servicer, deliver to the assuming party all documents and records relating to
each subservicing agreement and the Mortgage Loans then being serviced and
otherwise use its best efforts to effect the orderly and efficient transfer of
the subservicing agreement to the assuming party.
In the event that the Servicer shall for any reason no longer be the
Servicer hereunder (including by reason of any Event of Default),
notwithstanding anything to the contrary above, the Trustee and the Depositor
hereby agree that within ten (10) Business Days or delivery to the Trustee by
the Servicing Rights Pledgee of a letter signed by the Servicer whereby the
Servicer shall resign as Servicer under this Agreement, the Servicing Rights
Pledgee or its designee shall be appointed as successor servicer (provided that
at the time of such appointment the Servicing Rights Pledgee or such designee
meets the requirements of a successor servicer set forth above) and the
Servicing Rights Pledgee agrees to be subject to the terms of this Agreement.
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SECTION 3.05. Collection of Mortgage Loan Payments; Collection Account;
Certificate Account.
(a) The Servicer shall make reasonable efforts in accordance with Accepted
Servicing Practices to collect all payments called for under the terms and
provisions of the Mortgage Loans to the extent such procedures shall be
consistent with this Agreement and the terms and provisions of any related
Required Insurance Policy. Consistent with the foregoing and subject to Section
3.01 hereof, the Servicer may in its discretion (i) waive any late payment
charge or, if applicable, any default interest, or (ii) extend the due dates for
payments due on a Mortgage Note for a period not greater than 180 days;
provided, however, that any extension pursuant to clause (ii) above shall not
affect the amortization schedule of any Mortgage Loan for purposes of any
computation hereunder, except as provided below; provided, further, that the
NIMs Insurer's prior written consent shall be required for any modification,
waiver or amendment after the Cut-off Date if the aggregate number of
outstanding Mortgage Loans which have been modified, waived or amended exceeds
5% of the number of Mortgage Loans as of the Cut-Off Date. In the event of any
such arrangement pursuant to clause (ii) above, subject to Section 4.01, the
Servicer shall make any Advances on the related Mortgage Loan during the
scheduled period in accordance with the amortization schedule of such Mortgage
Loan without modification thereof by reason of such arrangements.
Notwithstanding the foregoing, in the event that any Mortgage Loan is in default
or, in the judgment of the Servicer, such default is reasonably foreseeable, the
Servicer, consistent with the standards set forth in Section 3.01, may also
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 Stated Principal
Balance in final satisfaction of such Mortgage Loan, or consent to the
postponement of strict compliance with any such term or otherwise grant
indulgence to any Mortgagor (any and all such waivers, modifications, variances,
forgiveness of principal or interest, postponements, or indulgences collectively
referred to herein as "forbearance"), provided, however, that in no event shall
the Servicer grant any such forbearance (other than as permitted by the second
sentence of this Section) with respect to any one Mortgage Loan more than once
in any 12 month period or more than three times over the life of such Mortgage
Loan, and provided, further, that in determining which course of action
permitted by this sentence it shall pursue, the Servicer shall adhere to the
standards of Section 3.01. The Servicer's analysis supporting any forbearance
and the conclusion that any forbearance meets the standards of Section 3.01
shall be reflected in writing in the Mortgage File.
(b) The Servicer will not waive any prepayment charge or portion thereof
unless, (i) the enforceability thereof shall have been limited by bankruptcy,
insolvency, moratorium, receivership and other similar laws relating to
creditors' rights generally or is otherwise prohibited by law, or (ii) the
collectability thereof shall have been limited due to acceleration in connection
with a foreclosure or other involuntary payment, or (iii) the prepayment of the
Mortgage Loan is made in connection with the involuntary sale of the related
Mortgaged Property, or (iv) in the Servicer's reasonable judgment as described
in Section 3.01 hereof, (x) such waiver relates to a default or a reasonably
foreseeable default and (y) such waiver would maximize recovery of total
proceeds taking into account the value of such prepayment charge and related
Mortgage Loan, or (v) the collection of such prepayment charge or portion
thereof, or of a similar type of prepayment charge, would be considered
"predatory" or "illegal" pursuant to written guidance published by any
applicable federal, state or local regulatory authority having jurisdiction over
such matters or has been challenged by any such authority, or, only to the
extent that there are no NIM Notes outstanding or to the extent that the
Depositor has notified the Servicer in writing that all previously issued NIM
Notes are no longer outstanding, there is a certificated class action in which a
similar type of prepayment charge is being challenged, or (vi) if sufficient
information is not made available to enable it to collect the prepayment charge.
Except as provided in the preceding sentence, in no event will the Servicer
waive a prepayment charge in connection with a refinancing of a Mortgage Loan
that is not related to a default or a reasonably foreseeable default. If the
Servicer waives
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or does not collect all or a portion of a prepayment charge relating to a
Principal Prepayment in full or in part due to any action or omission of the
Servicer, other than as provided above, the Servicer shall deposit the amount of
such prepayment charge (or such portion thereof as had been waived for deposit)
into the Collection Account for distribution in accordance with the terms of
this Agreement.
(c) The Servicer shall not be required to institute or join in litigation
with respect to collection of any payment (whether under a Mortgage, Mortgage
Note or otherwise or against any public or governmental authority with respect
to a taking or condemnation) if it reasonably believes that enforcing the
provision of the Mortgage or other instrument pursuant to which such payment is
required is prohibited by applicable law.
(d) The Servicer shall establish and initially maintain, on behalf of the
Trustee for the benefit of the Certificateholders, the Collection Account. The
Servicer shall deposit into the Collection Account daily, within two (2)
Business Days of receipt thereof, in immediately available funds, the following
payments and collections received or made by it on and after the Cut-off Date
with respect to the Mortgage Loans:
(i) all payments on account of principal, including Principal
Prepayments, on the Mortgage Loans, other than principal due on the
Mortgage Loans on or prior to the Cut-off Date;
(ii) all payments on account of interest on the Mortgage Loans net of
the related Servicing Fee permitted under Section 3.15, other than interest
due on the Mortgage Loans on or prior to the Cut-off Date;
(iii) all Liquidation Proceeds, other than proceeds to be applied to
the restoration or repair of the Mortgaged Property or released to either
the Mortgagor or the holder of a senior lien on the Mortgaged Property in
accordance with the Servicer's normal servicing procedures;
(iv) all Subsequent Recoveries;
(v) all Compensating Interest;
(vi) any amount required to be deposited by the Servicer pursuant to
Section 3.05(g) in connection with any losses on Permitted Investments;
(vii) any amounts required to be deposited by the Servicer pursuant to
Section 3.10 hereof;
(viii) the Purchase Price and any Substitution Adjustment Amount;
(ix) all Advances made by the Servicer pursuant to Section 4.01;
(x) all prepayment charges; and
(xi) any other amounts required to be deposited hereunder.
The foregoing requirements for remittance by the Servicer into the
Collection Account shall be exclusive, it being understood and agreed that,
without limiting the generality of the foregoing, all servicing-related fees
including all late payment charges, insufficient funds charges and payments in
the nature of assumption fees and charges (i.e. fees related to the assumption
of a Mortgage Loan upon the purchase of the related Mortgaged Property),
modification fees, extension fees and other similar ancillary
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fees (other than prepayment charges) if collected, need not be remitted by the
Servicer. In the event that the Servicer shall remit any amount not required to
be remitted and not otherwise subject to withdrawal pursuant to Section 3.08
hereof, it may at any time withdraw or direct the Trustee, or such other
institution maintaining the Collection Account, to withdraw such amount from the
Collection Account, any provision herein to the contrary notwithstanding. The
Servicer shall maintain adequate records with respect to all withdrawals made
pursuant to this Section. All funds deposited in the Collection Account shall be
held in trust for the Certificateholders until withdrawn in accordance with
Section 3.08. In no event shall the Trustee incur liability for withdrawals from
the Collection Account at the direction of the Servicer.
(e) [Reserved]
(f) The Trustee shall establish and maintain, on behalf of the
Certificateholders, the Certificate Account. The Trustee shall, promptly upon
receipt, deposit or cause to be deposited in the Certificate Account and retain
therein the following:
(i) the aggregate amount withdrawn by the Servicer from the Collection
Account and required to be deposited in the Certificate Account;
(ii) any amount required to be deposited by the Trustee pursuant to
Section 3.05(g) in connection with any losses on Permitted Investments; and
(iii) the Auction Termination Amount or Clean Up Call Price payable
pursuant to Section 9.01.
Any amounts received by the Trustee prior to 2:30 p.m. New York City time
(or such earlier deadline for investment in the Permitted Investments designated
by the Trustee), which are required to be deposited in the Certificate Account
by the Servicer, may be invested in Permitted Investments on the Business Day on
which they were received. The foregoing requirements for remittance by the
Servicer and deposit by the Servicer into the Certificate Account shall be
exclusive. In the event that the Servicer shall remit any amount not required to
be remitted and not otherwise subject to withdrawal pursuant to Section 3.08
hereof, it may at any time withdraw such amount from the Certificate Account,
any provision herein to the contrary notwithstanding. All funds deposited in the
Certificate Account shall be held by the Trustee in trust for the
Certificateholders until disbursed in accordance with this Agreement or
withdrawn in accordance with Section 3.08. In no event shall the Trustee incur
liability for withdrawals from the Certificate Account at the direction of the
Servicer.
(g) Each institution that maintains the Collection Account or the
Certificate Account shall invest the funds in each such account, as directed by
the Servicer or the Trustee, as applicable, in writing, in Permitted
Investments, which shall mature not later than (i) in the case of the Collection
Account the Business Day preceding the related Servicer Remittance Date (except
that if such Permitted Investment is an obligation of the institution that
maintains such Collection Account or is otherwise immediately available, then
such Permitted Investment shall mature not later than the Servicer Remittance
Date) and (ii) in the case of the Certificate Account, the Business Day
immediately preceding the first Distribution Date that follows the date of such
investment (except that if such Permitted Investment is an obligation of the
institution that maintains such Certificate Account or a fund for which such
institution serves as custodian or is otherwise immediately available, then such
Permitted Investment shall mature not later than such Distribution Date) and, in
each case, shall not be sold or disposed of prior to its maturity. All such
Permitted Investments shall be made in the name of the Servicer or the Trustee,
as applicable, for the benefit of the Certificateholders. All income and gain
net of any losses realized from amounts on deposit in the Collection Account
shall be for the benefit of the Servicer as servicing compensation and shall be
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remitted to it monthly as provided herein. The amount of any losses incurred in
the Collection Account in respect of any such investments shall be deposited by
the Servicer in the Collection Account out of the Servicer's own funds
immediately as realized. All income and gain net of any losses realized from
amounts on deposit in the Certificate Account shall be for the benefit of the
Trustee and shall be remitted to or withdrawn by it monthly as provided herein.
The amount of any losses incurred in the Certificate Account in respect of any
such investments shall be deposited by the Trustee in the Certificate Account.
SECTION 3.06. Collection of Taxes, Assessments and Similar Items; Escrow
Accounts.
To the extent required by a related first lien Mortgage Note, the Servicer
shall establish and maintain one or more accounts (each, an "Escrow Account")
and deposit and retain therein all collections from the Mortgagors (or advances
by the Servicer) for the payment of taxes, assessments, hazard insurance
premiums or comparable items for the account of the Mortgagors. Nothing herein
shall require the Servicer to compel a Mortgagor to establish an Escrow Account
in violation of applicable law.
Withdrawals of amounts so collected from the Escrow Accounts may be made
only to effect timely payment of taxes, assessments, hazard insurance premiums,
condominium or PUD association dues, or comparable items, to reimburse the
Servicer out of related collections for any payments made pursuant to Sections
3.01 hereof (with respect to taxes and assessments, dues or comparable items and
insurance premiums) and 3.10 hereof (with respect to hazard insurance), to
refund to any Mortgagors any sums as may be determined to be overages, to pay
interest, if required by law or the terms of the related Mortgage or Mortgage
Note, to Mortgagors on balances in the Escrow Account to withdraw funds
deposited in error or amounts previously deposited but returned as unpaid due to
a "nonsufficient funds" or other denial by the Mortgagor's banking institution
or to clear and terminate the Escrow Account at the termination of this
Agreement in accordance with Section 9.01 hereof. The Escrow Accounts shall not
be a part of the Trust Fund.
SECTION 3.07. Access to Certain Documentation and Information Regarding the
Mortgage Loans.
Upon reasonable advance notice in writing if required by federal
regulation, the Servicer will provide to each Certificateholder that is a
savings and loan association, bank or insurance company certain reports and
reasonable access to information and documentation regarding the Mortgage Loans
sufficient to permit such Certificateholder to comply with applicable
regulations of the OTS or other regulatory authorities with respect to
investment in the Certificates; provided, that the Servicer shall be entitled to
be reimbursed by each such Certificateholder for actual expenses incurred by the
Servicer in providing such reports and access.
The Servicer may from time to time provide the Depositor, and any person
designated by the Depositor, with reports and information regarding the Mortgage
Loans, including without limitation, information requested by the Depositor or
an originator of the Mortgage Loans for required institutional risk control. In
addition, subject to limitations of applicable privacy laws, the Servicer may
make public information regarding performance of the Mortgage Loans.
SECTION 3.08. Permitted Withdrawals from the Collection Account and
Certificate Account.
(a) The Servicer may from time to time, make withdrawals from the
Collection Account for the following purposes:
(i) to pay to the Servicer (to the extent not previously paid to or
withheld by the Servicer), as servicing compensation in accordance with
Section 3.15, that portion of any
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payment of interest that equals the Servicing Fee for the period with
respect to which such interest payment was made, and, as additional
servicing compensation, those other amounts set forth in Section 3.15;
(ii) to reimburse the Servicer for Advances and Servicing Advances (to
the extent such Servicing Advances would constitute "unanticipated
expenses" within the meaning of Treasury Regulation Section
1.860G-1(b)(3)(ii) if paid by one of the REMICs provided for herein)
occurring after the Cut-off Date made by it with respect to the Mortgage
Loans, such right of reimbursement pursuant to this subclause (ii) being
limited to amounts received on particular Mortgage Loan(s) (including, for
this purpose, Condemnation Proceeds, Insurance Proceeds or Liquidation
Proceeds) that represent late recoveries of payments of principal and/or
interest on such particular Mortgage Loan(s) in respect of which any such
Advance was made;
(iii) to reimburse the Servicer for any Non-Recoverable Advance
previously made and, to the extent that such Non-Recoverable Servicing
Advances would constitute "unanticipated expenses" within the meaning of
Treasury Regulation Section 1.860G-1(b)(3)(ii) if paid by one of the REMICs
provided for herein, any Non-Recoverable Servicing Advance;
(iv) to pay to the Servicer earnings on or investment income with
respect to funds in or credited to the Collection Account;
(v) to reimburse the Servicer from Insurance Proceeds for Insured
Expenses covered by the related Insurance Policy; (vi) to pay to the
Servicer any unpaid Servicing Fees and to reimburse it for any unreimbursed
Servicing Advances, the Servicer's right to reimbursement of Servicing
Advances pursuant to this subclause (vi) with respect to any Mortgage Loan
being limited to amounts received on particular Mortgage Loan(s)
(including, for this purpose, Liquidation Proceeds and purchase and
repurchase proceeds and including any Subsequent Recoveries related to any
liquidated Mortgage Loan) that represent late recoveries of the payments
for which such advances were made pursuant to Section 3.01 or Section 3.06;
(vii) to pay to the Servicer any unpaid Servicing Fees for any
Mortgage Loan upon such Mortgage Loan being charged off and upon
termination of the obligations of the Servicer;
(viii) to pay to the Depositor or the Servicer, as applicable, with
respect to each Mortgage Loan or property acquired in respect thereof that
has been purchased pursuant to Section 2.02, 2.03 or 3.12, all amounts
received thereon and not taken into account in determining the related
Stated Principal Balance of such repurchased Mortgage Loan;
(ix) to reimburse the Servicer or the Depositor for expenses incurred
by either of them in connection with the Mortgage Loans or the Certificates
and reimbursable pursuant to Section 3.25 or Section 6.03 hereof;
(x) to reimburse the Trustee for enforcement expenses reasonably
incurred in respect of a breach or defect giving rise to the purchase
obligation in Section 2.03 that were incurred in the Purchase Price of the
Mortgage Loans including any expenses arising out of the enforcement of the
purchase obligation; provided that any such expenses will be reimbursable
under this subclause (x) only if such expenses would constitute
"unanticipated expenses" within the meaning of Treasury Regulation Section
1.860G-1(b)(3)(ii) if paid by one of the REMICs provided for herein;
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(xi) to withdraw pursuant to Section 3.05 any amount deposited in the
Collection Account and not required to be deposited therein;
(xii) to clear and terminate the Collection Account upon termination
of this Agreement pursuant to Section 9.01 hereof; and
(xiii) to reimburse itself for Advances or Servicing Advances from
amounts in the Collection Account held for future distributions that were
not included in Available Funds for the preceding Distribution Date. An
amount equal to the amount withdrawn from the Collection Account pursuant
to this subclause (xiv) shall be deposited in the Collection Account by the
Servicer on the next succeeding Distribution Date that funds are to be
distributed to Certificateholders.
In addition, no later than 2:30 p.m. Eastern Time on the Servicer
Remittance Date, the Servicer shall cause to be withdrawn from the Collection
Account the Interest Funds and the Principal Funds (for this purpose only,
neither Interest Funds nor Principal Funds shall include a deduction for any
amount reimbursable to the Trustee unless such amounts have actually been
reimbursed from such funds), to the extent on deposit, and such amount shall be
deposited in the Certificate Account.
The Servicer shall keep and maintain separate accounting, on a Mortgage
Loan by Mortgage Loan basis, for the purpose of justifying any withdrawal from
the Collection Account.
The Servicer shall provide written notification to the Trustee on or prior
to the next succeeding Servicer Remittance Date upon making any withdrawals from
the Collection Account pursuant to subclauses (iii) and (viii) above.
In the event of any failure by the Servicer to remit to the Trustee for
deposit into the Certificate Account any amounts (including any Advance)
required to be so remitted by the Servicer on the Servicer Remittance Date, the
Servicer shall pay to the Trustee, for its own account, interest on such amounts
at the "prime rate" (as specified in the New York edition of the Wall Street
Journal) until such failure is remedied.
(b) The Trustee shall withdraw funds from the Certificate Account for
distribution to the Certificateholders in the manner specified in this Agreement
(and to withhold from the amounts so withdrawn, the amount of any taxes that it
is authorized to retain pursuant to this Agreement). In addition, the Trustee
may from time to time make withdrawals from the Certificate Account for the
following purposes:
(i) to withdraw any amount deposited in the Certificate Account and
not required to be deposited therein;
(ii) to pay the Trustee any indemnification amounts owed it and to
clear and terminate the Certificate Account upon termination of the
Agreement pursuant to Section 9.01 hereof (including paying all amounts
necessary to the Trustee or the Servicer in connection with any such
termination);
(iii) to reimburse the Trustee for expenses incurred by the Trustee
and reimbursable pursuant to Section 8.06 hereof; and
(iv) to pay to the Trustee earnings on or investment income with
respect to funds in or credited to the Certificate Account.
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SECTION 3.09. [RESERVED]
SECTION 3.10. Maintenance of Hazard Insurance.
The Servicer shall cause to be maintained, for each first lien Mortgage
Loan, hazard insurance with extended coverage in an amount, to the extent
permitted by applicable law, that is at least equal to the lesser of (i) the
estimated replacement value of the improvements that are part of such Mortgaged
Property, which may be the last known coverage, or (ii) the greater of (a) the
outstanding principal balance of the Mortgage Loan and (b) an amount such that
the proceeds of such policy shall be sufficient to prevent the related Mortgagor
and/or mortgagee from becoming a co-insurer or (iii) the amount required under
applicable HUD/FHA regulations. Each such policy of standard hazard insurance
shall contain, or have an accompanying endorsement that contains, a standard
mortgagee clause. The Servicer shall also cause flood insurance to be maintained
on property acquired upon foreclosure or deed in lieu of foreclosure of any
Mortgage Loan, to the extent required under the standards described below.
Pursuant to Section 3.05 hereof, any amounts collected by the Servicer under any
such policies (other than the amounts to be applied to the restoration or repair
of the related Mortgaged Property or property thus acquired or amounts released
to the Mortgagor in accordance with the Servicer's normal servicing procedures)
shall be deposited in the Collection Account. Any cost incurred by the Servicer
in maintaining any such insurance shall not, for the purpose of calculating
monthly distributions to the Certificateholders or remittances to the Trustee
for their benefit, be added to the principal balance of the Mortgage Loan,
notwithstanding that the terms of the Mortgage Loan so permit. Such costs shall
be recoverable by the Servicer out of late payments by the related Mortgagor or
out of Liquidation Proceeds to the extent and as otherwise permitted by Section
3.08 hereof. It is understood and agreed that no earthquake or other additional
insurance is to be required of any Mortgagor or maintained on property acquired
in respect of a Mortgage other than pursuant to such applicable laws and
regulations as shall at any time be in force and as shall require such
additional insurance. If a first lien Mortgaged Property is located at the time
of origination of the Mortgage Loan in a federally designated special flood
hazard area and such area is participating in the national flood insurance
program, the Servicer shall cause flood insurance to be maintained with respect
to such Mortgage Loan. Such flood insurance shall be in an amount equal to the
lesser of (i) the outstanding principal balance of the related Mortgage Loan,
(ii) the estimated replacement value of the improvements that are part of such
Mortgaged Property, which may be the last known coverage, or (iii) the maximum
amount of such insurance available for the related Mortgaged Property under the
Flood Disaster Protection Act of 1973, as amended.
In the event that the Servicer shall obtain and maintain a blanket policy
insuring against hazard losses on all of the Mortgage Loans, it shall
conclusively be deemed to have satisfied its obligations as set forth in the
first sentence of this Section 3.10, it being understood and agreed that such
policy may contain a deductible clause on terms substantially equivalent to
those commercially available and maintained by comparable servicers. If such
policy contains a deductible clause, the Servicer shall, in the event that there
shall not have been maintained on the related Mortgaged Property a policy
complying with the first sentence of this Section 3.10, and there shall have
been a loss that would have been covered by such policy, deposit in the
Collection Account the amount not otherwise payable under the blanket policy
because of such deductible clause. In connection with its activities as servicer
of the Mortgage Loans, the Servicer agrees to present, on behalf of itself, the
Depositor and the Trustee for the benefit of the Certificateholders, claims
under any such blanket policy.
SECTION 3.11. Enforcement of Due-On-Sale Clauses; Assumption Agreements.
(a) Except as otherwise provided in this Section 3.11(a), when any property
subject to a Mortgage has been or is about to be conveyed by the Mortgagor, the
Servicer shall to the extent that it has knowledge of such conveyance or
prospective conveyance, enforce any due-on-sale clause contained in
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any Mortgage Note or Mortgage, but only to the extent that such enforcement will
not adversely affect or jeopardize coverage under any Required Insurance Policy;
provided, however, that the Servicer shall not exercise any such right if the
due-on-sale clause, in the reasonable belief of the Servicer, is not enforceable
under applicable law, and need not exercise any such right, if consistent with
applicable mortgage servicing practices, the Servicer reasonably believes that
collection and other recoveries in respect of such Mortgage Loans would be
maximized if the Mortgage Loans were not accelerated. If the Servicer reasonably
believes that the due-on-sale clause is not enforceable under applicable law, an
Opinion of Counsel, which shall be reimbursable as a Servicing Advance to the
extent provided in Section 3.08(a)(ii) hereof, delivered to the Trustee and the
Depositor to the foregoing shall conclusively establish the reasonableness of
such belief, but which shall not be required. In addition to the foregoing, the
Servicer shall not be required to enforce any "due-on-sale" clause if in the
reasonable judgment of the Servicer, entering into an assumption and
modification agreement with a Person to whom such property shall be conveyed and
releasing the original Mortgagor from liability would be in the best interest of
the Certificateholders. In the event that the Servicer is prohibited by law from
enforcing any such due-on-sale clause, or if coverage under any Required
Insurance Policy would be adversely affected, or if nonenforcement is otherwise
permitted hereunder, the Servicer is authorized, subject to Section 3.11(b), to
take or enter into an assumption and modification agreement from or with the
Person to whom such property has been or is about to be conveyed, pursuant to
which such Person becomes liable under the Mortgage Note and, unless prohibited
by applicable law, the Mortgagor remains liable thereon, provided that the
Mortgage Loan shall continue to be covered (if so covered before the Servicer
enters such agreement) by the applicable Required Insurance Policies. The
Servicer, subject to Section 3.11(b), is also authorized with the prior approval
of the insurers under any Required Insurance Policies to enter into a
substitution of liability agreement with such Person, pursuant to which the
original Mortgagor is released from liability and such Person is substituted as
Mortgagor and becomes liable under the Mortgage Note. Notwithstanding the
foregoing, the Servicer shall not be deemed to be in default under this Section
3.11(a) by reason of any transfer or assumption that the Servicer reasonably
believes it is restricted by law from preventing.
(b) Subject to the Servicer's duty to enforce any due-on-sale clause to the
extent set forth in Section 3.11(a) hereof, in any case in which a Mortgaged
Property has been conveyed to a Person by a Mortgagor, and such Person is to
enter into an assumption agreement or modification agreement or supplement to
the Mortgage Note or Mortgage that requires the signature of the Trustee, or if
an instrument of release signed by the Trustee is required releasing the
Mortgagor from liability on the Mortgage Loan, the Servicer shall prepare and
deliver or cause to be prepared and delivered to the Trustee for signature and
shall direct, in writing, the Trustee to execute the assumption agreement with
the Person to whom the Mortgaged Property is to be conveyed and such
modification agreement or supplement to the Mortgage Note or Mortgage or other
instruments as are reasonable or necessary to carry out the terms of the
Mortgage Note or Mortgage or otherwise to comply with any applicable laws
regarding assumptions or the transfer of the Mortgaged Property to such Person.
In connection with any such assumption, no material term of the Mortgage Note
(including, but not limited to, the Mortgage Rate, the amount of the Scheduled
Payment, the Maximum Rate, the Minimum Rate, the Gross Margin, the Periodic Rate
Cap, the Adjustment Date, any prepayment charge and any other term affecting the
amount or timing of payment on the Mortgage Loan) may be changed. The Servicer
shall notify the Trustee that any such substitution or assumption agreement has
been completed by forwarding to the Trustee the original of such substitution or
assumption agreement, which in the case of the original shall be added to the
related Mortgage File and shall, for all purposes, be considered a part of such
Mortgage File to the same extent as all other documents and instruments
constituting a part thereof. Any fee collected by the Servicer for entering into
an assumption or substitution of liability agreement will be retained by the
Servicer as additional servicing compensation.
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SECTION 3.12. Realization Upon Defaulted Mortgage Loans; Determination of
Excess Proceeds.
(a) The Servicer shall use reasonable efforts consistent with the servicing
standard set forth in Section 3.01 to foreclose upon or otherwise comparably
convert the ownership of properties securing such of the Mortgage Loans as come
into and continue in default and as to which no satisfactory arrangements can be
made for collection of Delinquent payments. In connection with such foreclosure
or other conversion, the Servicer shall follow such practices and procedures as
it shall deem necessary or advisable and as shall be normal and usual in its
general mortgage servicing activities and the requirements of the insurer under
any Required Insurance Policy; provided, however, that the Servicer shall not be
required to expend its own funds in connection with the restoration of any
property that shall have suffered damage due to an uninsured cause unless it
shall determine (i) that such restoration will increase the proceeds of
liquidation of the Mortgage Loan after reimbursement to itself of such expenses
and (ii) that such expenses will be recoverable to it through Liquidation
Proceeds (respecting which it shall have priority for purposes of withdrawals
from the Collection Account pursuant to Section 3.08 hereof). The Servicer shall
be responsible for all other costs and expenses incurred by it in any such
proceedings; provided, however, that it shall be entitled to reimbursement
thereof from the proceeds of liquidation of the related Mortgaged Property as a
Non-Recoverable Servicing Advance, as contemplated in Section 3.08 hereof. If
the Servicer has received written notice that a Mortgaged Property that the
Servicer is contemplating acquiring in foreclosure or by deed-in-lieu of
foreclosure is located within a one-mile radius of any site with environmental
or hazardous waste risks known to the Servicer, the Servicer will, prior to
acquiring the Mortgaged Property, consider such risks and only take action in
accordance with Accepted Servicing Practices.
With respect to any REO Property, the deed or certificate of sale shall be
taken in the name of the Trustee or its nominee (which nominee shall not be the
Servicer). Pursuant to its efforts to sell such REO Property, the Servicer shall
either itself or through an agent selected by the Servicer protect and conserve
such REO Property in the same manner and to such extent as is customary in the
locality where such REO Property is located and may, incident to its
conservation and protection of the interests of the Certificateholders, rent the
same, or any part thereof, as the Servicer deems to be in the best interest of
the Servicer and the Certificateholders for the period prior to the sale of such
REO Property. The Servicer or an Affiliate may receive usual and customary real
estate referral fees for real estate brokers in connection with the listing and
disposition of REO Property. The Servicer shall prepare a statement with respect
to each REO Property that has been rented showing the aggregate rental income
received and all expenses incurred in connection with the management and
maintenance of such REO Property at such times as is necessary to enable the
Servicer to comply with the reporting requirements of the REMIC Provisions. The
net monthly rental income, if any, from such REO Property shall be deposited in
the Collection Account no later than the close of business on each Determination
Date. The Servicer shall perform the tax reporting and withholding related to
foreclosures, abandonments and cancellation of indebtedness income as specified
by Sections 1445, 6050J and 6050P of the Code by preparing and filing such tax
and information returns, as may be required.
In the event that the Issuing Entity acquires any Mortgaged Property as
aforesaid or otherwise in connection with a default or imminent default on a
Mortgage Loan, the Servicer shall dispose of such Mortgaged Property prior to
the expiration of three years from the end of the year of its acquisition by the
Issuing Entity or, at the expense of the Issuing Entity, obtain more than sixty
(60) days prior to the day on which such three-year period would otherwise
expire, an extension of the three-year grace period, in which case such property
must be disposed of prior to the end of such extension, unless the Trustee and
the NIMs Insurer shall have been supplied with an Opinion of Counsel addressed
to the Trustee (such Opinion of Counsel not to be an expense of the Trustee or
the NIMs Insurer) to the effect that the holding
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by the Issuing Entity of such Mortgaged Property subsequent to such three-year
period will not result in the imposition of taxes on "prohibited transactions"
of the Issuing Entity or any of the REMICs provided for herein as defined in
section 860F of the Code or cause any of the REMICs provided for herein to fail
to qualify as a REMIC at any time that any Certificates are outstanding, in
which case the Issuing Entity may continue to hold such Mortgaged Property
(subject to any conditions contained in such Opinion of Counsel).
Notwithstanding any other provision of this Agreement, no Mortgaged Property
acquired by the Issuing Entity shall be held, rented (or allowed to continue to
be rented) or otherwise used for the production of income by or on behalf of the
Issuing Entity in such a manner or pursuant to any terms that would (i) cause
such Mortgaged Property to fail to qualify as "foreclosure property" within the
meaning of section 860G(a)(8) of the Code or (ii) subject the Issuing Entity or
any REMIC provided for herein to the imposition of any federal, state or local
income taxes on the income earned from such Mortgaged Property under section
860G(c) of the Code or otherwise, unless the Servicer or the Depositor has
agreed to indemnify and hold harmless the Issuing Entity with respect to the
imposition of any such taxes. The Servicer shall have no liability for any
losses resulting from a foreclosure on a second lien Mortgage Loan in connection
with the foreclosure of the related first lien mortgage loan that is not a
Mortgage Loan if the Servicer does not receive notice of such foreclosure
action.
The decision of the Servicer to foreclose on a defaulted Mortgage Loan
shall be subject to a determination by the Servicer that the proceeds of such
foreclosure would exceed the costs and expenses of bringing such a proceeding.
The income earned from the management of any Mortgaged Properties acquired
through foreclosure or other judicial proceeding, net of reimbursement to the
Servicer for expenses incurred (including any property or other taxes) in
connection with such management and net of unreimbursed Servicing Fees,
Advances, Servicing Advances and any management fee paid or to be paid with
respect to the management of such Mortgaged Property, shall be applied to the
payment of principal of, and interest on, the related defaulted Mortgage Loans
(with interest accruing as though such Mortgage Loans were still current) and
all such income shall be deemed, for all purposes in this Agreement, to be
payments on account of principal and interest on the related Mortgage Notes and
shall be deposited into the Collection Account. To the extent the income
received during a Prepayment Period is in excess of the amount attributable to
amortizing principal and accrued interest at the related Mortgage Rate on the
related Mortgage Loan, such excess shall be considered to be a partial Principal
Prepayment for all purposes hereof.
Notwithstanding the foregoing provisions of this Section 3.12 or any other
provision of this Agreement, with respect to any Mortgage Loan as to which the
assistant vice president for foreclosures or the vice president of default
management of the Servicer has actual knowledge (which shall not be presumed due
to any documents received by the Servicer) of, the presence of any toxic or
hazardous substance on the related Mortgaged Property, the Servicer shall not,
on behalf of the Trustee, either (i) obtain title to such Mortgaged Property as
a result of or in lieu of foreclosure or otherwise, or (ii) otherwise acquire
possession of, or take any other action with respect to, such Mortgaged
Property, if, as a result of any such action, the Trustee, the Issuing Entity or
the Certificateholders would be considered to hold title to, to be a
"mortgagee-in-possession" of, or to be an "owner" or "operator" of such
Mortgaged Property within the meaning of the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended from time to time,
or any comparable law, unless the Servicer believes, based on its reasonable
judgment and a report prepared by a Person who regularly conducts environmental
audits using customary industry standards, that:
(1) such Mortgaged Property is in material compliance with applicable
environmental laws or, if not, that it would be in the best economic interest of
the Issuing Entity to take such actions as are necessary to bring the Mortgaged
Property into compliance therewith; and
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(2) it is probable that there are no circumstances present at such
Mortgaged Property relating to the use, management or disposal of any hazardous
substances, hazardous materials, hazardous wastes, or petroleum-based materials
for which additional investigation, testing, monitoring, containment, clean-up
or remediation could be required under any federal, state or local law or
regulation, or that if any such materials are present for which such action
could be required, that it would be in the best economic interest of the Issuing
Entity to take such actions with respect to the affected Mortgaged Property.
The Servicer shall forward a copy of the environmental audit report to the
Depositor and the Trustee. The cost of the environmental audit report
contemplated by this Section 3.12 shall be advanced by the Servicer, subject to
the Servicer's right to be reimbursed therefor from the Collection Account, such
right of reimbursement being prior to the rights of Certificateholders to
receive any amount in the Collection Account received in respect of the affected
Mortgage Loan or other Mortgage Loans.
If the Servicer determines, as described above, that it is in the best
economic interest of the Issuing Entity to take such actions as are necessary to
bring any such Mortgaged Property into compliance with applicable environmental
laws, or to take such action with respect to the containment, clean-up or
remediation of hazardous substances, hazardous materials, hazardous wastes or
petroleum-based materials affecting any such Mortgaged Property, then the
Servicer may take such action as it deems to be in the best economic interest of
the Issuing Entity; provided that any amounts disbursed by the Servicer pursuant
to this Section 3.12 shall constitute Advances. The cost of any such compliance,
containment, clean-up or remediation shall be advanced by the Servicer, subject
to the Servicer's right to be reimbursed therefor from the Collection Account,
such right of reimbursement being prior to the rights of Certificateholders to
receive any amount in the Collection Account received in respect of the affected
Mortgage Loan or other Mortgage Loans. If the Servicer decides not to take such
action, it may not obtain title to such Mortgaged Property.
The Liquidation Proceeds from any liquidation of a Mortgage Loan, net of
any payment to the Servicer as provided above, shall be deposited in the
Collection Account on the next succeeding Determination Date following receipt
thereof for distribution on the related Distribution Date.
The proceeds of any Liquidated Loan, as well as any recovery resulting from
a partial collection of Liquidation Proceeds, will be applied as between the
parties in the following order of priority: first, to reimburse the Servicer for
any related unreimbursed Servicing Advances and unpaid Servicing Fees, pursuant
to Section 3.08(a)(vi) or this Section 3.12; second, to reimburse the Servicer
for any unreimbursed Advances, pursuant to Section 3.08(a)(ii) or this Section
3.12; third, to accrued and unpaid interest (to the extent no Advance has been
made for such amount) on the Mortgage Loan, at the Net Mortgage Rate to the Due
Date occurring in the month in which such amounts are required to be
distributed; fourth, as a recovery of principal of the Mortgage Loan; and fifth,
to any prepayment charges.
The proceeds of any net income from an REO Property will be applied as
between the parties in the following order of priority: first, to reimburse the
Servicer for any related unreimbursed Servicing Advances and unpaid Servicing
Fees, pursuant to Section 3.08(a)(vi) or this Section 3.12; second, to reimburse
the Servicer for any unreimbursed Advances, pursuant to Section 3.08(a)(ii) or
this Section 3.12; third, as a recovery of principal; and fourth, to accrued and
unpaid interest (to the extent no Advance has been made for such amount) on the
related REO Property, at the applicable Net Mortgage Rate to the Due Date
occurring in the month in which such amounts are required to be distributed.
(b) On each Determination Date, the Servicer shall determine the respective
aggregate amounts of Excess Proceeds, if any, that occurred in the related
Prepayment Period.
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(c) The Servicer, in its sole discretion, shall have the right to elect (by
written notice in the form of an Officer's Certificate sent to the Trustee,
which Officer's Certificate shall (i) set forth the affected Mortgage Loan or
REO Property and the Purchase Price, (ii) certify that the Purchase Price has
been deposited into the Collection Account and (iii) confirm that the purchase
complies in all respect with this Section 3.12(c)) to purchase for its own
account from the Issuing Entity any Mortgage Loan that is ninety-one (91) days
or more Delinquent or REO Property for which the Servicer has accepted a
deed-in-lieu of foreclosure at a price equal to the Purchase Price. The Purchase
Price for any Mortgage Loan or REO Property purchased hereunder shall thereafter
be delivered to the Trustee for deposit in the Certificate Account and the
Trustee, upon receipt of such deposit and a Request for Release from the
Depositor in the form of Exhibit I hereto, shall release or cause to be released
to the Servicer the related Mortgage File and shall execute and deliver such
instruments of transfer or assignment prepared by the Servicer, in each case
without recourse, representation or warranty, as shall be necessary to vest in
the Servicer any Mortgage Loan or REO Property released pursuant hereto and the
Servicer shall succeed to all the Trustee's right, title and interest in and to
such Mortgage Loan and all security and documents related thereto. Such
assignment shall be an assignment outright and not for security. The Servicer
shall thereupon own such Mortgage Loan or REO Property, and all security and
documents, free of any further obligation to the Trustee or the
Certificateholders with respect thereto. The Servicer shall not use any
procedure in selecting Mortgage Loans to be repurchased that is materially
adverse to the interests of the Certificateholders.
In the event that the Servicer is acting as the servicer and the Servicer
(or an Affiliate of the Servicer) is the owner of more than 50% of the Class of
Certificates which is then currently in a first loss position and such party is
deemed to be the "Primary Beneficiary" as defined in FIN 46R, the provisions of
the preceding paragraph shall not apply and the Servicer (or an Affiliate of the
Servicer), in its sole discretion, shall have the right to elect (by written
notice in the form of an Officer's Certificate sent to the Trustee, which
Officer's Certificate shall (i) set forth the affected Mortgage Loan or REO
Property and the Purchase Price, (ii) certify that the Purchase Price has been
deposited into the Collection Account and (iii) confirm that the purchase
complies in all respect with this Section 3.12(c)) to purchase for its own
account from the Issuing Entity any Mortgage Loan that is 120 days or more
Delinquent or REO Property for which the Servicer has accepted a deed-in-lieu of
foreclosure, during the period commencing on the first day of the calendar
quarter succeeding the calendar quarter in which the Initial Delinquency Date
(as defined below) occurred with respect to such Mortgage Loan and ending on the
last Business Day of such calendar quarter. If the Servicer (or an Affiliate of
the Servicer) does not exercise its purchase right with respect to a Mortgage
Loan during the period specified in the preceding sentence, such Mortgage Loan
shall thereafter again become eligible for purchase pursuant to the preceding
sentence only after the Mortgage Loan ceases to be 120 days or more Delinquent
and thereafter becomes 120 days Delinquent again. The "Initial Delinquency Date"
of a Mortgage Loan shall mean the date on which the Mortgage Loan first became
120 days Delinquent. Prior to repurchase pursuant to this Section 3.12(c), the
Servicer shall be required to continue to make monthly advances pursuant to
Section 4.01. The Servicer shall not use any procedure in selecting Mortgage
Loans to be repurchased which is materially adverse to the interests of the
Certificateholders. The Servicer shall purchase any Mortgage Loan or REO
Property pursuant to this paragraph at a price equal to the Purchase Price. The
Purchase Price for any Mortgage Loan or REO Property purchased hereunder shall
be delivered to the Trustee for deposit in the Certificate Account and the
Trustee, upon receipt of such deposit and a Request for Release from the
Depositor in the form of Exhibit I hereto, shall release or cause to be released
to the Servicer the related Mortgage File and shall execute and deliver such
instruments of transfer or assignment prepared by the Servicer, in each case
without recourse, representation or warranty, as shall be necessary to vest in
the Servicer any Mortgage Loan or REO Property released pursuant hereto and the
Servicer shall succeed to all the Trustee's right, title and interest in and to
such Mortgage Loan and all security and documents related thereto. The
provisions in this paragraph shall only apply if Wilshire Credit Corporation is
the servicer.
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SECTION 3.13. Trustee to Cooperate; Release of Mortgage Files.
Upon the payment in full of any Mortgage Loan, or the receipt by the
Servicer of a notification that payment in full will be escrowed in a manner
customary for such purposes, the Servicer will promptly notify the Trustee or
its designee by delivering a Request for Release substantially in the form of
Exhibit I. Upon receipt of such request, the Trustee or its designee shall
promptly release the related Mortgage File to the Servicer, and the Trustee or
its designee shall at the Servicer's written direction execute and deliver to
the Servicer the request for reconveyance, deed of reconveyance or release or
satisfaction of mortgage or such instrument releasing the lien of the Mortgage
in each case provided by the Servicer, together with the Mortgage Note with
written evidence of cancellation thereon. Expenses incurred in connection with
any instrument of satisfaction or deed of reconveyance shall be chargeable to
the Mortgagor to the extent permitted by law, and otherwise to the Trust Fund to
the extent such expenses constitute "unanticipated expenses" within the meaning
of Treasury Regulations Section 1.860G-(1)(b)(3)(ii). From time to time and as
shall be appropriate for the servicing or foreclosure of any Mortgage Loan,
including for such purpose, collection under any policy of flood insurance, any
fidelity bond or errors or omissions policy, or for the purposes of effecting a
partial release of any Mortgaged Property from the lien of the Mortgage or the
making of any corrections to the Mortgage Note or the Mortgage or any of the
other documents included in the Mortgage File, the Trustee or its designee
shall, upon delivery to the Trustee or its designee of a Request for Release in
the form of Exhibit I signed by a Servicing Officer, release the Mortgage File
to the Servicer. Subject to the further limitations set forth below, the
Servicer shall cause the Mortgage File or documents so released to be returned
to the Trustee or its designee when the need therefor by the Servicer no longer
exists, unless the Mortgage Loan is liquidated and the proceeds thereof are
deposited in the Collection Account.
Each Request for Release may be delivered to the Trustee or its designee
(i) via mail or courier, (ii) via facsimile or (iii) by such other means,
including, without limitation, electronic or computer readable medium, as the
Servicer and the Trustee or its designee shall mutually agree. The Trustee or
its designee shall make reasonable efforts to release the related Mortgage
File(s) within three (3) Business Days of receipt of a properly completed
Request for Release pursuant to clauses (i), (ii) or (iii) above and shall so
release within four (4) Business Days. Receipt of a properly completed Request
for Release (including any Request for Release delivered in an electronic format
pursuant to (iii) above) shall be authorization to the Trustee or its designee
to release such Mortgage Files, provided the Trustee or its designee has
determined that such Request for Release has been executed, with respect to
clauses (i) or (ii) above, or approved, with respect to clause (iii) above, by
an authorized Servicing Officer of the Servicer, and so long as the Trustee or
its designee complies with its duties and obligations under the agreement. If
the Trustee or its designee is unable to release the Mortgage Files within the
period previously specified, the Trustee or its designee shall immediately
notify the Servicer indicating the reason for such delay. If the Servicer is
required to pay penalties or damages due to the Trustee or its designee's
negligent failure to release the related Mortgage File or the Trustee or its
designee's negligent failure to execute and release documents within four (4)
Business Days after its receipt of a Request for Release, the Trustee or its
designee, shall be liable for such penalties or damages directly caused by it
and shall have no liability for penalties or damages attributable to the
Servicer's actions or inactions.
The Servicer shall not have any liability for and shall be excused from the
timely performance of this Agreement to the extent due to the Trustee's failure
to release the related Mortgage File to the Servicer or the Trustee's failure to
execute and release documents in a timely manner.
If the Servicer at any time seeks to initiate a foreclosure proceeding in
respect of any Mortgaged Property as authorized by this Agreement, the Servicer
shall deliver or cause to be delivered to the Trustee or its designee, for
signature, as appropriate, any court pleadings, requests for trustee's sale or
other documents necessary to effectuate such foreclosure or any legal action
brought to obtain judgment
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against the Mortgagor on the Mortgage Note or the Mortgage or to obtain a
deficiency judgment or to enforce any other remedies or rights provided by the
Mortgage Note or the Mortgage or otherwise available at law or in equity.
Notwithstanding the foregoing, the Servicer shall cause possession of any
Mortgage File or of the documents therein that shall have been released by the
Trustee or its designee to be returned to the Trustee promptly after possession
thereof shall have been released by the Trustee or its designee unless (i) the
Mortgage Loan has been liquidated and the Liquidation Proceeds relating to the
Mortgage Loan have been deposited in the Collection Account, and the Servicer
shall have delivered to the Trustee or its designee a Request for Release in the
form of Exhibit I or (ii) the Mortgage File or document shall have been
delivered to an attorney or to a public trustee or other public official as
required by law for purposes of initiating or pursuing legal action or other
proceedings for the foreclosure of the Mortgaged Property and the Servicer shall
have delivered to the Trustee or its designee an Officer's Certificate of a
Servicing Officer certifying as to the name and address of the Person to which
the Mortgage File or the documents therein were delivered and the purpose or
purposes of such delivery.
SECTION 3.14. Documents Records and Funds in Possession of Servicer to be
Held for the Trustee.
All Mortgage Files and funds collected or held by, or under the control of,
the Servicer in respect of any Mortgage Loans, whether from the collection of
principal and interest payments or from Liquidation Proceeds, including but not
limited to, any funds on deposit in the Collection Account, shall be held by the
Servicer for and on behalf of the Trustee and shall be and remain the sole and
exclusive property of the Trustee, subject to the applicable provisions of this
Agreement. The Servicer also agrees that it shall not create, incur or subject
any Mortgage File or any funds that are deposited in the Collection Account or
Certificate Account or in any Escrow Account, or any funds that otherwise are or
may become due or payable to the Trustee for the benefit of the
Certificateholders, to any claim, lien, security interest, judgment, levy, writ
of attachment or other encumbrance, or assert by legal action or otherwise any
claim or right of set off against any Mortgage File or any funds collected on,
or in connection with, a Mortgage Loan, except, however, that the Servicer shall
be entitled to set off against and deduct from any such funds any amounts that
are properly due and payable to the Servicer under this Agreement.
SECTION 3.15. Servicing Compensation.
As compensation for its activities hereunder, the Servicer shall be
entitled to retain or withdraw from the Collection Account out of each payment
or recovery of interest on a Mortgage Loan included in the Trust Fund an amount
equal to interest at the applicable Servicing Fee Rate on the Stated Principal
Balance of the related Mortgage Loan as of the immediately preceding
Distribution Date.
Additional servicing compensation in the form of any Excess Proceeds,
Prepayment Interest Excess, late payment fees, assumption fees (i.e. fees
related to the assumption of a Mortgage Loan upon the purchase of the related
Mortgaged Property), modification fees, extension fees and similar fees payable
by the Mortgagor, all income and gain net of any losses realized from Permitted
Investments in the Collection Account, and other benefits arising from the
Collection Account or Escrow Account shall be retained by the Servicer to the
extent not required to be deposited in the Collection Account pursuant to
Section 3.05 or 3.12(a) hereof or the Escrow Account pursuant to Section 3.06
hereof. The Servicer shall be required to pay all expenses incurred by it in
connection with its servicing activities hereunder (including payment of any
premiums for hazard insurance, as required by Section 3.10 hereof and
maintenance of the other forms of insurance coverage required by Section 3.10
hereof) and shall not be entitled to reimbursement therefor except as
specifically provided in Sections 3.08 and 3.12 hereof.
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SECTION 3.16. Access to Certain Documentation.
The Servicer shall provide to the OTS and the FDIC and to comparable
regulatory authorities supervising Holders of the Certificates and the examiners
and supervisory agents of the OTS, the FDIC and such other authorities, access
to the documentation regarding the Mortgage Loans required by applicable
regulations of the OTS and the FDIC. Such access shall be afforded without
charge, but only upon reasonable and prior written request and during normal
business hours at the offices of the Servicer designated by it provided, that
the Servicer shall be entitled to be reimbursed by each such Certificateholder
for actual expenses incurred by the Servicer in providing such reports and
access. Nothing in this Section shall limit the obligation of the Servicer to
observe any applicable law prohibiting disclosure of information regarding the
Mortgagors and the failure of the Servicer to provide access as provided in this
Section as a result of such obligation shall not constitute a breach of this
Section.
SECTION 3.17. Annual Statement as to Compliance.
Not later than (a) March 12 of each calendar year (other than the calendar
year during which the Closing Date occurs) or (b) with respect to any calendar
year during which an annual report on Form 10-K is not required to be filed
pursuant to Section 3.20 on behalf of the Issuing Entity, by April 15 of each
calendar year (or if such day is not a Business Day, the immediately succeeding
Business Day), the Servicer shall deliver to the Trustee and the Depositor an
Officer's Certificate in the form attached hereto as Exhibit T stating, as to
each signatory thereof, that (i) a review of the activities of the Servicer
during the preceding calendar year and of the performance of the Servicer under
this Agreement has been made under such officer's supervision, and (ii) to the
best of such officer's knowledge, based on such review, the Servicer has
fulfilled all its obligations under this Agreement in all material respects
throughout such year or a portion thereof, or, if there has been a failure to
fulfill any such obligation in any material respect, specifying each such
failure known to such officer and the nature and status thereof. With respect to
any Subservicer that meets the criteria of Item 1108(a)(2)(i) through (iii) of
Regulation AB, the Servicer shall deliver, on behalf of that Subservicer, the
Officer's Certificate set forth in this Section 3.17 as and when required with
respect to such Subservicer.
SECTION 3.18. Assessment of Compliance; Accountant's Attestation.
(a) Not later than (i) March 12 of each calendar year (other than the
calendar year during which the Closing Date occurs) or (ii) with respect to any
calendar year during which an annual report on Form 10-K is not required to be
filed pursuant to Section 3.20 on behalf of the Issuing Entity, by April 15 of
each calendar year (or if such day is not a Business Day, the immediately
succeeding Business Day), the Servicer, at its own expense, shall deliver to the
Trustee and the Depositor an officer's assessment of its compliance with the
Servicing Criteria during the preceding calendar year as required by Rules
13a-18 and 15d-18 of the Exchange Act and Item 1122 of Regulation AB (the
"Assessment of Compliance"), which assessment shall address the items set forth
in Exhibit Q; provided such assessment need not be identified as Exhibit Q.
(b) Not later than (i) March 12 of each calendar year (other than the
calendar year during which the Closing Date occurs) or (ii) with respect to any
calendar year during which an annual report on Form 10-K is not required to be
filed pursuant to Section 3.20 on behalf of the Issuing Entity, April 15 of each
calendar year (or if such day is not a Business Day, the immediately succeeding
Business Day), the Servicer, at its own expense, shall cause a nationally or
regionally recognized firm of independent registered public accountants (who may
also render other services to any Servicer, the Sponsor or any Affiliate
thereof) which is a member of the American Institute of Certified Public
Accountants to furnish a statement to be provided to the Trustee and the
Depositor that attests to and reports on the Assessment of Compliance provided
by such Servicer pursuant to Section 3.18(a) (the "Accountant's Attestation").
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Such Accountant's Attestation shall be in accordance with Rules 1-02(a)(3) and
2-02(g) of Regulation S-X under the Securities Act and the Exchange Act.
(c) The Servicer shall deliver on behalf of any Subservicer and each
Subcontractor (unless, in the case of any Subcontractor, the Depositor has
notified the Servicer and the Trustee in writing that such compliance statement
is not required by Regulation AB) not later than March 12 of each calendar year
(other than the calendar year during which the Closing Date occurs) with respect
to any calendar year during which the Issuing Entity's annual report on Form
10-K is required to be filed in accordance with the Exchange Act and the rules
and regulations of the Commission, to the Trustee and the Depositor an
Assessment of Compliance, which assessment shall address the items set forth in
Exhibit Q; provided such assessment need not be identified as Exhibit Q. The
Servicer shall deliver on behalf of any Subservicer (other than the calendar
year during which the Closing Date occurs) with respect to any calendar year
during which the Issuing Entity's annual report on Form 10-K is not required to
be filed in accordance with the Exchange Act and the rules and regulations of
the Commission, by April 15 of each calendar year (or, in each case, if such day
is not a Business Day, the immediately succeeding Business Day) to the Trustee
and the Depositor an Assessment of Compliance, which assessment shall address
the items set forth in Exhibit Q; provided such assessment need not be
identified as Exhibit Q.
(d) Not later than March 12 of each calendar year (other than the calendar
year during which the Closing Date occurs) with respect to any calendar year
during which the Issuing Entity's annual report on Form 10-K is required to be
filed in accordance with the Exchange Act and the rules and regulations of the
Commission, the Servicer shall cause each Subservicer and each Subcontractor
(unless, in the case of any Subcontractor, the Depositor has notified the
Trustee and Servicer in writing that such compliance statement is not required
by Regulation AB) to provide for delivery to the Trustee and the Depositor an
Accountant's Attestation by a registered public accounting firm that attests to,
and reports on, the Assessment of Compliance pursuant to Section 3.18(c) above.
Other than the calendar year during which the Closing Date occurs, with respect
to any calendar year during which the Issuing Entity's annual report on Form
10-K is not required to be filed in accordance with the Exchange Act and the
rules and regulations of the Commission, not later than April 15 of each
calendar year (or, in each case, if such day is not a Business Day, the
immediately succeeding Business Day), the Servicer shall cause each Subservicer
to provide for delivery to the Trustee and the Depositor an Accountant's
Attestation by a registered public accounting firm that attests to, and reports
on, the Assessment of Compliance pursuant to Section 3.18(c) above.
(e) Not later than, with respect to any calendar year during which the
Issuing Entity's annual report on Form 10-K is required to be filed in
accordance with the Exchange Act and the rules and regulations of the
Commission, March 15 (or, in each case, if such day is not a Business Day, the
immediately succeeding Business Day), the Trustee shall deliver to the Depositor
and the Servicer an Assessment of Compliance with regard to the Servicing
Criteria applicable to the Trustee during the preceding calendar year, which
assessment shall address the items set forth in Exhibit Q; provided such
assessment need not be identified as Exhibit Q.
(f) Not later than, with respect to any calendar year during which the
Issuing Entity's annual report on Form 10-K is required to be filed in
accordance with the Exchange Act and the rules and regulations of the
Commission, March 15 (or, in each case, if such day is not a Business Day, the
immediately succeeding Business Day), the Trustee shall deliver to the Depositor
and the Servicer an Accountant's Attestation by a registered public accounting
firm that attests to, and reports on, the Assessment of Compliance pursuant to
Section 3.18(e) above.
(g) Not later than, with respect to any calendar year during which the
Issuing Entity's annual report on Form 10-K is required to be filed in
accordance with the Exchange Act and the rules and
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regulations of the Commission, fifteen (15) calendar days before the date on
which the Issuing Entity's annual report on Form 10-K with respect to the
transactions contemplated by this Agreement is required to be filed in
accordance with the Exchange Act and the rules and regulations of the Commission
(or, in each case, if such day is not a Business Day, the immediately preceding
Business Day), the Depositor shall cause each custodian, if any, to deliver to
the Depositor, the Servicer and the Trustee an Assessment of Compliance with
regard to the Servicing Criteria applicable to such custodian during the
preceding calendar year, which assessment shall address the items set forth in
Exhibit Q; provided such assessment need not be identified as Exhibit Q.
(h) Not later than March 12 (or, in each case, if such day is not a
Business Day, the immediately succeeding Business Day), of any calendar year
(other than the calendar year during which the Closing Date occurs) during which
the Issuing Entity's annual report on Form 10-K is required to be filed in
accordance with the Exchange Act and the rules and regulations of the
Commission, the Depositor shall cause each custodian, if any, to deliver to the
Depositor, the Servicer and the Trustee an Accountant's Attestation by a
registered public accounting firm that attests to, and reports on, the
Assessment of Compliance pursuant to Section 3.18(g) above.
(i) [Reserved]
(j) [Reserved]
(k) The Depositor agrees to cause the custodian, if any, to indemnify and
hold harmless the Trustee and the Servicer and each Person, if any, who
"controls" the Trustee or the Servicer within the meaning of the Securities Act
and its officers, directors and Affiliates from and against any losses, damages,
penalties, fines, forfeitures, reasonable and necessary legal fees and related
costs, judgments and other costs and expenses that such Person may sustain
arising out of third party claims based on (i) the failure of the custodian, if
any, to deliver when required any information required of it pursuant to Section
3.18 or 3.20 or (ii) any material misstatement or omission contained in any
information provided on its behalf pursuant to Section 3.18 or 3.20.
(l) Copies of such Assessments of Compliance and Accountant's Attestations
shall be available on the Trustee's website xxxx://xxx.xxxxxx.xxx/xxx to any
Certificateholder, provided such statement is delivered to the Trustee. The
initial Assessments of Compliance and Accountant's Attestations required
pursuant to this Section 3.18 shall be delivered to the Trustee and the
Depositor, as applicable, by each party no later than March 12, 2008. The
Trustee will post such copies on the Trustee's website within five (5) Business
Days after filing with the Commission. This requirement will be satisfied to the
extent that the Issuing Entity's Form 10-K is available on such website.
(m) Each of the parties hereto acknowledges and agrees that the purpose of
this Section 3.18 is to facilitate compliance by the Sponsor 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 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 the parties shall comply with requests made by the Sponsor or the Depositor
for delivery of additional or different information as the Sponsor or the
Depositor may determine in good faith is necessary to comply with the provisions
of Regulation AB, provided that such information is available to such party
without unreasonable effort or expense and within such timeframe as may be
reasonably requested. Any such supplementation or modification shall be made in
accordance with Section 10.01 without the consent of the Certificateholders, and
may result in a change in the reports filed by the Trustee on behalf of the
Issuing Entity under the Exchange Act.
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SECTION 3.19. Subordination Liens.
In connection with any governmental program under which a Mortgagor may
obtain a benefit in the event the related Mortgaged Property is subject to a
disaster provided that the Mortgagor files a covenant or other lien against the
Mortgaged Property and is required to obtain the subordination thereto of the
Mortgage, the Servicer may cause such subordination to be executed and filed
provided that either (i) the related Mortgage Loan is in default or default with
respect to such Mortgage Loan is imminent or (ii) such subordination and
participation in such governmental program will not result in a change in
payment expectations with respect to such Mortgage Loan. For purposes of the
preceding sentence, a change in payment expectations occurs if, as a result of
such subordination and participation in such governmental program, (1) there is
a substantial enhancement of the Mortgagor's capacity to meet the payment
obligations under the Mortgage Loan and that capacity was primarily speculative
prior to such subordination and participation in such governmental program and
is adequate after such subordination and participation in such governmental
program or (2) there is a substantial impairment of the Mortgagor's capacity to
meet the payment obligations under the Mortgage Loan and that capacity was
adequate prior to such subordination and participation in such governmental
program and is primarily speculative after such subordination and participation
in such governmental program. The preceding sentence and clause (ii) of the
second preceding sentence are intended to comply with Treasury Regulations
Section 1.1001-3(e)(4) and shall be interpreted in accordance therewith.
SECTION 3.20. Periodic Filings.
As set forth on Schedule V hereto, for so long as the Issuing Entity is
subject to the Exchange Act reporting requirements, no later than the end of
business on the second Business Day after the occurrence of an event requiring
disclosure on Form 8-K (a "reportable event"), the Depositor, the Sponsor or the
Servicer, as applicable, shall have (i) timely notified the Trustee of an item
reportable on a Form 8-K (unless such item is specific to the Trustee, in which
case the Trustee will be deemed to have notice) and (ii) delivered to the
Trustee all information, data, and exhibits required to be provided or filed
with such Form 8-K in an XXXXX-compatible format agreed upon by the Trustee and
Depositor, Sponsor or Servicer. In the event that the reportable event does not
pertain to the Servicer, at the time such notice is provided to the Trustee, the
Depositor or the Trustee, to the extent the reportable item pertains to such
party, shall notify the Servicer thereof by telephone. The Trustee shall not be
responsible for determining what information is required to be filed on a Form
8-K in connection with the transactions contemplated by this Agreement (unless
such information is specific to the Trustee, in which case the Trustee will be
responsible for consulting with the Depositor or Servicer in making such a
determination) or what events shall cause a Form 8-K to be required to be filed
(unless such event is specific to the Trustee, in which case the Trustee will be
responsible for consulting with the Depositor or Servicer before causing such
Form 8-K to be filed) and shall not be liable for any late filing of a Form 8-K
in the event that it does not receive all information, data and exhibits
required to be provided or filed on or prior to the second Business Day prior to
the applicable filing deadline. After preparing the Form 8-K on behalf of the
Depositor, the Trustee shall forward electronically a draft copy of the Form 8-K
to the Depositor and the Servicer for review. No later than the end of business
on the second Business Day after receiving a final copy of the Form 8-K from the
Trustee, unless the Servicer has received from the Depositor a notice to the
contrary, a duly authorized representative of the Servicer shall sign the Form
8-K and return an electronic or fax copy of such signed Form 8-K (with an
original executed hard copy to follow by overnight mail) to the Trustee and the
Trustee shall file such Form 8-K within two (2) Business Days; provided that the
Depositor has notified the Trustee in writing that it approves of the form and
substance of such Form 8-K. If a Form 8-K cannot be filed on time or if a
previously filed Form 8-K needs to be amended, the Trustee will follow the
procedures set forth in this Agreement. After filing a Form 8-K with the
Commission, the Trustee will make available on its internet website a final
executed copy of each Form 8-K. The Trustee will have no obligation to prepare,
execute or file such Form 8-K or any liability
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with respect to any failure to properly prepare, execute or file such Form 8-K
resulting from the Trustee's inability or failure to obtain or receive any
information or signatures needed to prepare, arrange for execution or file such
Form 8-K within the time frames required by this paragraph, not resulting from
its own negligence, bad faith or willful misconduct.
Within fifteen (15) days after each Distribution Date, the Trustee shall,
on behalf of the Issuing Entity and in accordance with industry standards, file
with the Commission via the Electronic Data Gathering and Retrieval System
(XXXXX), a Form 10-D with a copy of the report to the Certificateholders for
such Distribution Date as an exhibit thereto. Any other information provided to
the Trustee by the Servicer or Depositor to be included in Form 10-D shall be
determined and prepared by and at the direction of the Depositor pursuant to the
following paragraph, and the Trustee will have no duty or liability for any
failure hereunder to determine or prepare any additional information on Form
10-D ("Additional Form 10-D Disclosure") as set forth in the next paragraph.
The Depositor shall notify the Trustee of its intent to provide Additional
Form 10-D Disclosure prior to the related Distribution Date. As set forth in
Schedule W hereto, within five (5) calendar days after the related Distribution
Date (i) the parties hereto, as applicable, will be required to provide to the
Depositor and the Servicer, to the extent known to such party, any Additional
Form 10-D Disclosure (including any breaches of pool asset representations and
warranties or transaction covenants of which the party has written notice and
which has not been included on the monthly distribution report for the period),
if applicable, and (ii) the Depositor, to the extent it deems necessary, will
forward to the Trustee in XXXXX-compatible form (with a copy to the Servicer),
or in such other form as otherwise agreed upon by the Trustee and the Depositor,
the form and substance of the Additional Form 10-D Disclosure by the fifth (5th)
calendar day after the related Distribution Date. The Depositor will be
responsible for any reasonable fees and expenses incurred by the Trustee in
connection with including any Additional Form 10-D Disclosure on Form 10-D
pursuant to this paragraph.
After preparing the Form 10-D at the direction of the Depositor, the
Trustee will forward electronically a draft copy of the Form 10-D to the
Depositor and the Servicer for review by the ninth (9th) calendar day after the
Distribution Date. No later than two (2) Business Days after receipt of a final
copy after the related Distribution Date, unless the Servicer receives a notice
from the Trustee as described below or a written notice from the Depositor that
it has discovered a material deficiency or irregularity with respect to such
Form 10-D, a duly authorized representative of the Servicer shall sign the Form
10-D and return an electronic or fax copy of such Form 10-D (with an original
executed hard copy to follow by overnight mail) to the Trustee, and the Trustee
shall file such Form 10-D within two (2) Business Days. Unless the Servicer
shall have received notice from the Trustee to the contrary, the Trustee will be
deemed to have represented to the Servicer that, assuming that the information
provided to the Trustee by the Servicer is correct, the monthly statement has
been properly prepared by the Trustee, and the Servicer may rely upon the
accuracy thereof in it execution of the Form 10-D. If a Form 10-D cannot be
filed on time (because of notice from the Trustee per the previous sentence or
otherwise) or if a previously filed Form 10-D needs to be amended, the Trustee
will follow the procedures set forth in this Section. After filing with the
Commission, the Trustee will make available on its internet website a final
executed copy of each Form 10-D. The Trustee will have no liability (1) with
respect to any failure to properly prepare, execute or file such Form 10-D
resulting from the Trustee's inability or failure to obtain or receive any
information needed to prepare, arrange for execution or file such Form 10-D on a
timely basis and (2) with respect to the date of filing so long as filing occurs
by the Commission's deadline.
Prior to Xxxxx 00, 0000 (xxx, if applicable, prior to the ninetieth (90th)
calendar day after the end of the fiscal year for the Issuing Entity), the
Trustee shall, on behalf of the Issuing Entity and in accordance with industry
standards, prepare and file with the Commission via XXXXX a Form 10-K with
respect to the Issuing Entity. Such Form 10-K shall include the following items,
in each case to the extent
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they have been delivered to the Trustee within the applicable time frames set
forth in this Agreement, (i) an annual compliance statement for the Servicer and
each Subservicer, as described in Section 3.17 of the Agreement, (ii)(A) the
annual reports on Assessment of Compliance with Servicing Criteria for each
Servicer, Subservicer and Subcontractor (unless the Depositor has notified the
Trustee that it has determined that such compliance statement is not required by
Regulation AB), as described in Section 3.18 of the Agreement, and (B) if any
Reporting Servicer's report on Assessment of Compliance with Servicing Criteria
described in Section 3.18 identifies any material instance of noncompliance,
disclosure identifying such instance of noncompliance as set forth on the
Reporting Servicer's report on Assessment of Compliance or if any report on
Assessment of Compliance with Servicing Criteria described in Section 3.18 of
the 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,
(iii)(A) the registered public accounting firm attestation report for the
Servicer and each Subservicer, as described in Section 3.18 of the Agreement,
and (B) if any registered public accounting firm attestation report described in
the Section 3.18 of the Agreement identifies any material instance of
noncompliance, disclosure identifying such instance of noncompliance, or if any
such registered public accounting firm attestation report is not included as an
exhibit to such Form 10-K, disclosure that such report is not included and an
explanation why such report is not included, and (iv) a certification (the
"Xxxxxxxx-Xxxxx Certification") in the form attached hereto as Exhibit S,
executed by the senior officer in charge of securitizations of the Servicer. In
addition to (i) through (iv) above, any Additional Form 10-K Disclosure shall be
determined and prepared by and at the direction of the Depositor pursuant to the
following paragraph, and the Trustee will have no duty or liability for any
failure hereunder to determine or prepare any Additional Form 10-K Disclosure,
except as set forth in the next paragraph.
As set forth in Schedule X hereto, no later than March 12 (other than the
Trustee, who shall not be required to deliver any information until March 15) of
each year that the Issuing Entity is subject to the Exchange Act reporting
requirements, commencing in 2007, (i) certain parties to the transaction shall
be required to provide to the Depositor and the Servicer, to the extent known,
any Additional Form 10-K Disclosure, if applicable, and (ii) the Depositor
shall, to the extent it deems necessary, forward to the Trustee in
XXXXX-compatible form, or in such other form as otherwise agreed upon by the
Trustee and the Depositor, the form and substance of the Additional Form 10-K
Disclosure by March 15. The Depositor will be responsible for any reasonable
fees and expenses incurred by the Trustee in connection with including any
Additional Form 10-K Disclosure on Form 10-K pursuant to this paragraph.
After preparing the Form 10-K, the Trustee shall forward electronically a
draft copy of the Form 10-K to the Depositor and the Servicer for review. Upon
the request of the Servicer, the Depositor shall confirm that it has reviewed
the Form 10-K, that it has been properly prepared and that the Servicer may rely
on the accuracy thereof (other than with respect to any portion of the Form 10-K
or exhibit thereto provided by the Servicer (other than any portion thereof with
respect to which the Servicer has relied on the Trustee)). No later than 5:00
p.m. EST on the third Business Day following receipt of a final copy of the Form
10-K, and if requested, the above described confirmation from the Depositor, a
senior officer of the Servicer shall sign the Form 10-K and return an electronic
or fax copy of such signed Form 10-K (with an original executed hard copy to
follow by overnight mail) to the Trustee, and the Trustee shall file such Form
10-K by March 30. If a Form 10-K cannot be filed on time or if a previously
filed Form 10-K needs to be amended, the Trustee will follow the procedures set
forth in this Section. After filing with the Commission, the Trustee will,
pursuant to the Agreement, make available on its internet website a final
executed copy of each Form 10-K. The Trustee shall have no liability (1) with
respect to any failure to properly prepare, execute or file such Form 10-K
resulting from the Trustee's inability or failure to obtain or receive any
information or signatures needed to prepare, arrange for execution or file such
Form 10-K on a timely basis and (2) with respect to the date of filing so long
as the filing occurs by the Commission's deadline.
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Each Form 10-K shall include a Xxxxxxxx-Xxxxx Certification in the form
attached hereto as Exhibit S. The Servicer will cause its senior officer in
charge of securitization to execute the Xxxxxxxx-Xxxxx Certification required
pursuant to Rule 13a -14 under the Securities Exchange Act of 1934, as amended,
and to deliver the original executed Xxxxxxxx-Xxxxx Certification to the Trustee
by March 12 of each year in which the Issuing Entity is subject to the reporting
requirements of the Exchange Act. In connection therewith, each of the Trustee
and the Servicer shall sign an Officer's Certificate (in the form attached
hereto as Exhibit K and Exhibit L, respectively) for the benefit of the Servicer
and its officers, directors and Affiliates regarding certain aspects of the
Xxxxxxxx-Xxxxx Certification. To the extent any information or exhibits required
to be included in the Form 10 -K are not timely received by the Trustee prior to
March 30, the Trustee shall, on behalf of the Issuing Entity, file a Form 12B-25
and one or more amended Form 10-Ks, to the extent such amendments are accepted
pursuant to the Exchange Act, to include such missing information or exhibits
promptly after receipt thereof by the Trustee.
Promptly following the first date legally permissible under applicable
regulations and interpretations of the Commission, the Trustee shall, on behalf
of the Issuing Entity and in accordance with industry standards, file with the
Commission via XXXXX a Form 15 Suspension Notification with respect to the
Issuing Entity, if applicable.
The Servicer agrees to furnish to the Trustee promptly, from time to time
upon request of the Depositor, such further information, reports, and financial
statements within its control related to this Agreement and the Mortgage Loans
as is reasonably necessary to prepare and file all necessary reports with the
Commission. The Trustee shall have no responsibility to file any items with the
Commission other than those specified in this Section 3.20, and the Servicer
shall execute any and all Form 8-Ks, Form 10-Ds and Form 10-Ks required
hereunder.
If the Commission issues additional interpretative guidance or promulgates
additional rules or regulations with respect to Regulation AB or otherwise, or
if other changes in applicable law occur, that would require the reporting
arrangements, or the allocation of responsibilities with respect thereto,
described in this Section 3.20, to be conducted differently than as described,
the Depositor, the Servicer, and the Trustee will reasonably cooperate to amend
the provisions of this Section 3.20 in order to comply with such amended
reporting requirements and such amendment of this Section 3.20. Any such
amendment shall be made in accordance with Section 10.01 without the consent of
the Certificateholders, and may result in a change in the reports filed by the
Trustee on behalf of the Issuing Entity under the Exchange Act. Notwithstanding
the foregoing, the Depositor, the Servicer, and the Trustee shall not be
obligated to enter into any amendment pursuant to this Section 3.20 that
adversely affects its obligations and immunities under this Agreement.
The Depositor, the Servicer and the Trustee agree to use their good faith
efforts to cooperate in complying with the requirements of this Section 3.20.
In the event that the Trustee is unable to timely file with the Commission
all or any required portion of any Form 8-K, Form 10-D or Form 10-K required to
be filed pursuant to 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, the Trustee will immediately notify the Depositor and
the Servicer. In the case of Form 10-D and 10-K, the Depositor, Servicer and
Trustee will thereupon cooperate to prepare and file a Form 12b-25 and a Form
10-DA and Form 10-KA, as applicable, pursuant to Rule 12b-25 of the Exchange
Act. In the case of Form 8-K, the Trustee will, upon receipt of all disclosure
information required to be included on Form 8-K, include such disclosure
information on the next Form 10-D. In the event that any previously filed Form
8-K, Form 10-D or Form 10-K needs to be amended, the party to this Agreement
deciding that an amendment to such Form 8-K, Form 10-D or Form 10-K is required
will notify the Depositor, the Trustee and the Servicer and such parties will
cooperate to
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prepare any necessary Form 8-KA, Form 10-DA or Form 10-KA. Any Form 15, Form
12b-25 or any amendment to Form 8-K, Form 10-D or Form 10-K shall be signed by
an officer of the Servicer. Each party acknowledges that the performance by any
party of its duties under this Section 3.20 related to the timely preparation
and filing of Form 15, a Form 12b-25 or any amendment to Form 8-K, Form 10-D or
Form 10-K is contingent upon the other parties observing all applicable
deadlines (and the related grace periods thereto) in the performance of their
duties under this Section 3.20 and Sections 3.17 and 3.18. No party shall have
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, Form 10-D or Form 10-K, where such failure
results from another party's inability or failure to obtain or receive, on a
timely basis, any information from any party hereto needed to prepare, arrange
for execution or file such Form 15, Form 12b-25 or any amendments to Forms 8-K,
Form 10-D or Form 10-K, not resulting from its own negligence, bad faith or
willful misconduct.
SECTION 3.21. Indemnification by Trustee.
The Trustee shall indemnify and hold harmless the Depositor, the Servicer
and their respective officers, directors, agents and Affiliates from and against
any losses, damages, penalties, fines, forfeitures, reasonable legal fees and
related costs, judgments and other costs and expenses arising out of or based
upon a breach by the Trustee or any of its officers, directors, agents or
Affiliates of its obligations under Sections 3.17, 3.18 (other than Section
3.18(f)) and 3.20, any material misstatement or omission in any documents
prepared thereunder (to the extent the Trustee is responsible for providing
information or calculating amounts included in such information), the failure of
the Trustee to deliver when required any Assessment of Compliance or
Accountant's Attestation required of it pursuant to Section 3.18 or Annual
Statement of Compliance required pursuant to Section 3.17, as applicable, or any
material misstatement or omission contained in any Assessment of Compliance,
Accountant's Attestation or Annual Statement of Compliance provided on its
behalf pursuant to Section 3.17 or 3.18, as applicable, or the negligence, bad
faith or willful misconduct of the Trustee in connection therewith. If the
indemnification provided for herein is unavailable or insufficient to hold
harmless the indemnified parties, then the Trustee agrees that it shall
contribute to the amount paid or payable by the indemnified parties as a result
of the losses, claims, damages or liabilities of the indemnified parties in such
proportion as is appropriate to reflect the relative fault of the Trustee on the
one hand and of the indemnified parties on the other. Failure by the Trustee to
deliver an Accountant's Attestation when required under Section 3.18(f) will be
grounds for immediate removal of the Trustee under Section 8.08; in the event of
such failure, the Trustee shall pay certain costs and expenses of the Depositor
caused by such failure as separately agreed to by the Depositor and the Trustee.
SECTION 3.22. Indemnification by Servicer.
The Servicer shall indemnify and hold harmless the Trustee and the
Depositor and their respective officers, directors, agents and Affiliates from
and against any losses, damages, penalties, fines, forfeitures, reasonable legal
fees and related costs, judgments and other costs and expenses arising out of or
based upon a breach by the Servicer or any of its officers, directors, agents or
Affiliates of its obligations under Sections 3.17, 3.18 and 3.20, any material
misstatement or omission in any documents prepared thereunder (to the extent the
Servicer is responsible for providing information or calculating amounts
included in such information), the failure of the Servicer to deliver when
required any Assessment of Compliance or Accountant's Attestation required of it
pursuant to Section 3.18 or Annual Statement of Compliance required pursuant to
Section 3.17, as applicable, or any material misstatement or omission contained
in any Assessment of Compliance, Accountant's Attestation or Annual Statement of
Compliance provided on its behalf pursuant to Section 3.17 or 3.18, as
applicable (to the extent the Servicer is responsible for providing information
or calculating amounts included in such information), or the negligence, bad
faith or willful misconduct of the Servicer in connection therewith. If the
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indemnification provided for herein is unavailable or insufficient to hold
harmless the indemnified parties, then the Servicer agrees that it shall
contribute to the amount paid or payable by the indemnified parties as a result
of the losses, claims, damages or liabilities of the indemnified parties in such
proportion as is appropriate to reflect the relative fault of the Servicer on
the one hand and the indemnified parties on the other.
Notwithstanding the foregoing, the Servicer shall be entitled to rely
conclusively on the accuracy of the information or data provided to the Servicer
by the Trustee or the Depositor in connection with the document preparation
under Sections 3.17, 3.18 and 3.20, and the Servicer shall be entitled to rely
conclusively upon and shall have no liability for any errors in such
information.
SECTION 3.23. Prepayment Charge Reporting Requirements.
(a) Promptly after each Distribution Date, the Servicer shall provide to
the Depositor the following information with regard to each Mortgage Loan that
has prepaid during the related Prepayment Period:
(i) loan number;
(ii) current Mortgage Rate;
(iii) current principal balance;
(iv) original principal balance;
(v) prepayment charge amount due;
(vi) prepayment charge amount collected; and
(vii) reason why full prepayment charge amount was not collected, if
applicable.
SECTION 3.24. Statements to Trustee. Not later than the Servicer Remittance
Date, the Servicer shall furnish to the Trustee an electronic file providing
loan level accounting data for the period ending on the last Business Day of the
preceding month in the format mutually agreed upon between the Servicer and the
Trustee, including but not limited to information described in Section 4.05(a).
SECTION 3.25. Further Indemnification by the Servicer.
The Servicer shall indemnify the Sponsor, the Issuing Entity, Trustee (in
its individual capacity and in its capacity as Trustee) and the Depositor and
hold each of them harmless against any and all claims, losses, damages,
penalties, fines, forfeitures, reasonable and necessary legal fees and related
costs, judgments, and any other costs, fees and expenses that any of such
parties may sustain in any way related to the failure of the Servicer to perform
its duties and service the Mortgage Loans in compliance with the terms of this
Agreement by reason of breach of representations of the Servicer or willful
misfeasance, bad faith or negligence, or by reason of reckless disregard of
obligations and duties hereunder. The Servicer promptly shall notify the
Sponsor, the Trustee and the Depositor or any other relevant party if a claim is
made by a third party with respect to such party and this Agreement or the
Mortgage Loans and, if subject to this indemnification obligation, assume (with
the prior written consent of the indemnified party, which consent shall not be
unreasonably withheld or delayed) 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
any of such parties in respect of such claim. The
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Servicer shall provide the Trustee and the Depositor with a written report of
all expenses and advances incurred by the Servicer pursuant to this Section
3.25, and the Servicer from the assets of the Trust Fund in the Collection
Account promptly shall reimburse itself for all amounts advanced by it pursuant
to the second sentence of this Section 3.25 except when the claim in any way
relates to the gross negligence, bad faith or willful misconduct of the
Servicer. The provisions of this paragraph shall survive the termination of this
Agreement and the payment of the outstanding Certificates.
SECTION 3.26. Solicitation.
The Servicer may solicit or refer to a mortgage originator, who may or may
not be an affiliate of the Depositor or the Servicer, any Mortgagor for
refinancing or otherwise take action to encourage refinancing.
SECTION 3.27. Existing Servicing Agreement.
The Servicer acknowledges the transfer on the Closing Date of the servicing
of the Mortgage Loans from the Existing Servicing Agreement to this Agreement
pursuant to the Existing Servicing Agreement.
SECTION 3.28. High Cost Mortgage Loans.
In the event that the Servicer reasonably determines that a Mortgage Loan
may be a "high cost mortgage loan," "high cost home," "covered," "high cost,"
"high risk home," "predatory" or similarly classified loan under any applicable
state, federal or local law, the Servicer may notify the Depositor and the
Trustee, and if the Servicer so notifies such parties, the Servicer may cease
its initiation of collection efforts thereon; and such determination shall be
deemed to materially and adversely affect the interests of the
Certificateholders in such Mortgage Loan and the Sponsor will repurchase the
Mortgage Loan within a 90-day period from the date of the notice in the manner
described in Section 2.05.
SECTION 3.29. Rights of the NIMs Insurer.
Each of the rights of the NIMs Insurer set forth in this agreement shall
exist so long as the NIM Notes issued pursuant to the Indenture remain
outstanding or the NIMs Insurer is owed amounts in respect of its guarantee of
payment on such NIM Notes.
ARTICLE IV
DISTRIBUTIONS
SECTION 4.01. Advances.
Subject to the conditions of this Article IV, the Servicer, as required
below, shall make an Advance and deposit such Advance in the Collection Account.
Each such Advance shall be remitted to the Collection Account no later than 2:30
p.m. New York City time on the Servicer Remittance Date in immediately available
funds. The Servicer shall be obligated to make any such Advance only to the
extent that such advance would not be a Non-Recoverable Advance. If the Servicer
shall have determined that it has made a Non-Recoverable Advance or that a
proposed Advance or a lesser portion of such Advance would constitute a
Non-Recoverable Advance, the Servicer shall deliver (i) to the
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Trustee for the benefit of the Certificateholders funds constituting the
remaining portion of such Advance, if applicable, and (ii) to the Depositor,
each Rating Agency, the NIMs Insurer and the Trustee an Officer's Certificate
setting forth the basis for such determination. The Servicer may, in its sole
discretion, make an Advance with respect to the principal portion of the final
Scheduled Payment on a Balloon Loan, but the Servicer is under no obligation to
do so; provided, however, that nothing in this sentence shall affect the
Servicer's obligation under this Section 4.01 to Advance the interest portion of
the final Scheduled Payment with respect to a Balloon Loan as if such Balloon
Loan were a fully amortizing Mortgage Loan. If a Mortgagor does not pay its
final Scheduled Payment on a Balloon Loan for a first lien Mortgage when due,
the Servicer shall Advance (unless it determines in its good faith judgment that
such amounts would constitute a Non Recoverable Advance) a full month of
interest (net of the Servicing Fee) on the Stated Principal Balance thereof each
month until its Stated Principal Balance is reduced to zero.
In lieu of making all or a portion of such Advance from its own funds, the
Servicer may (i) cause to be made an appropriate entry in its records relating
to the Collection Account that any amount held for future distribution has been
used by the Servicer in discharge of its obligation to make any such Advance and
(ii) transfer such funds from the Collection Account to the Certificate Account.
In addition, the Servicer shall have the right to reimburse itself for any such
Advance from amounts held from time to time in the Collection Account to the
extent such amounts are not then required to be distributed. Any funds so
applied and transferred pursuant to the previous two sentences shall be replaced
by the Servicer by deposit in the Collection Account no later than the close of
business on the Servicer Remittance Date on which such funds are required to be
distributed pursuant to this Agreement. The Servicer shall be entitled to be
reimbursed from the Collection Account for all Advances of its own funds made
pursuant to this Section as provided in Section 3.08. The obligation to make
Advances with respect to any Mortgage Loan shall continue until such Mortgage
Loan is paid in full or the related Mortgaged Property or related REO Property
has been liquidated or until the purchase or repurchase thereof (or substitution
therefor) from the Issuing Entity pursuant to any applicable provision of this
Agreement, except as otherwise provided in this Section 4.01.
SECTION 4.02. Reduction of Servicing Compensation in Connection with
Prepayment Interest Shortfalls.
In the event that any Mortgage Loan is the subject of a Prepayment Interest
Shortfall resulting from a Principal Prepayment in full, the Servicer shall,
from amounts in respect of the Servicing Fee for such Distribution Date, deposit
into the Collection Account, as a reduction of the Servicing Fee for such
Distribution Date, no later than the Servicer Remittance Date immediately
preceding such Distribution Date, an amount up to the Prepayment Interest
Shortfall; provided that the amount so deposited with respect to any
Distribution Date shall be limited to the product of (x) one-twelfth of 0.25%
per annum and (y) the aggregate Stated Principal Balance of the Mortgage Loans.
In case of such deposit, the Servicer shall not be entitled to any recovery or
reimbursement from the Depositor, the Trustee, the Issuing Entity or the
Certificateholders. With respect to any Distribution Date, to the extent that
the Prepayment Interest Shortfall exceeds Compensating Interest (such excess, a
"Non-Supported Interest Shortfall"), such Non-Supported Interest Shortfall shall
reduce the Current Interest with respect to each Class of Certificates, pro rata
based upon the amount of interest each such Class would otherwise be entitled to
receive on such Distribution Date. Notwithstanding the foregoing, there shall be
no reduction of the Servicing Fee in connection with Prepayment Interest
Shortfalls related to the Relief Act and the Servicer shall not be obligated to
pay Compensating Interest with respect to Prepayment Interest Shortfalls related
to the Relief Act or bankruptcy proceedings.
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SECTION 4.03. Distributions on the REMIC Interests.
On each Distribution Date, amounts on deposit in the Certificate Account
shall be treated for federal income tax purposes as applied to distributions on
the interests in each of the SWAP REMIC and the Lower Tier REMIC in an amount
sufficient to make the distributions on the respective Certificates on such
Distribution Date in accordance with the provisions of Section 4.04.
SECTION 4.04. Distributions.
(a) [Reserved]
(b) On each Distribution Date (or in the case of any Net Swap Payments owed
to the Swap Counterparty, two "business days" (as defined in the Swap Agreement)
prior to such Distribution Date), the Trustee shall make the following
distributions from the Certificate Account of an amount equal to the Interest
Funds in the following order of priority:
(i) to the Class P Certificates, any prepayment charges collected on
the Mortgage Loans and (A) any amounts paid by the Sponsor or the Servicer
in respect of prepayment charges pursuant to this Agreement or (B) any
amounts received in respect of any indemnification paid as a result of a
prepayment charge being unenforceable in breach of the representations and
warranties set forth in the Sale Agreement received during the related
Prepayment Period;
(ii) to the Supplemental Interest Trust, any Net Swap Payments owed to
the Swap Counterparty;
(iii) to the Supplemental Interest Trust, any Swap Termination Payment
owed by the Issuing Entity to the Swap Counterparty (other than any
Defaulted Swap Termination Payment);
(iv) to each Class of the Class R and Class A Certificates, the
Current Interest and any Interest Carry Forward Amount with respect to each
such Class; provided, however, if such amount is not sufficient to make a
full distribution of the Current Interest and the aggregate Interest Carry
Forward Amount to each of the Class R and Class A Certificates, such amount
will be distributed pro rata among each Class of the Class R and Class A
Certificates based on the ratio of (x) the Current Interest and Interest
Carry Forward Amount for such Class to (y) the total amount of Current
Interest and any Interest Carry Forward Amount for the Class R and Class A
Certificates in the aggregate;
(v) to the Class M-1 Certificates, the Current Interest and any
Interest Carry Forward Amount for such Class;
(vi) to the Class M-2 Certificates, the Current Interest and any
Interest Carry Forward Amount for such Class;
(vii) to the Class M-3 Certificates, the Current Interest and any
Interest Carry Forward Amount for such Class;
(viii) to the Class M-4 Certificates, the Current Interest and any
Interest Carry Forward Amount for such Class;
(ix) to the Class M-5 Certificates, the Current Interest and any
Interest Carry Forward Amount for such Class;
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(x) to the Class M-6 Certificates, the Current Interest and any
Interest Carry Forward Amount for such Class;
(xi) to the Class B-1 Certificates, the Current Interest and any
Interest Carry Forward Amount for such Class;
(xii) to the Class B-2 Certificates, the Current Interest and any
Interest Carry Forward Amount for such Class;
(xiii) to the Class B-3 Certificates, the Current Interest and any
Interest Carry Forward Amount for such Class; and
(xiv) any remainder pursuant to Section 4.04(e) hereof.
On each Distribution Date, subject to the proviso in (b)(iv) above, Interest
Funds received on the Group One Mortgage Loans will be deemed to be distributed
to the Class R and Class A-1 Certificates and Interest Funds received on the
Group Two Mortgage Loans will be deemed to be distributed to the Class A-2
Certificates, in each case, until the related Current Interest and Interest
Carry Forward Amount of each such Class of Certificates for such Distribution
Date has been paid in full. Thereafter, Interest Funds not required for such
distributions are available to be applied, if necessary, to the Class or Classes
of Certificates that are not related to such group of Mortgage Loans.
(c) All amounts representing prepayment charges in respect of the Mortgage
Loans, and amounts paid by the Servicer in respect of prepayment charges
pursuant to this Agreement will be distributed by the Trustee to the Holders of
the Class P Certificates pursuant to Section 4.04(b).
(d) On each Distribution Date (or in the case of any Net Swap Payments owed
to the Swap Counterparty, two business days (as defined in the Swap Agreement)
prior to such Distribution Date), the Trustee shall make the following
distributions from the Certificate Account of an amount equal to the Principal
Distribution Amount in the following order of priority, and each such
distribution shall be made only after all distributions pursuant to Section
4.04(b) above shall have been made until such amount shall have been fully
distributed for such Distribution Date:
(i) to the Supplemental Interest Trust, any Net Swap Payment owed by
the Issuing Entity to the Swap Counterparty to the extent no paid pursuant
to Section 4.04(b)(ii);
(ii) to the Supplemental Interest Trust, any Swap Termination Payment
owed by the Issuing Entity to the Swap Counterparty (other than any
Defaulted Swap Termination Payment) to the extent no paid pursuant to
Section 4.04(b)(iii);
(iii) to the Class A and Class R Certificates, the Class A Principal
Distribution Amount shall be distributed as follows:
(1) the Group One Principal Distribution Amount shall be
distributed sequentially as follows: first, to the Class R
Certificate until its Certificate Principal Balance has been
reduced to zero, and second, to the Class A-1 Certificates until
the Certificate Principal Balance of the Class A-1 Certificates
has been reduced to zero;
(2) the Group Two Principal Distribution Amount shall be
distributed sequentially as follows: to the Class A-2A
Certificates until the Certificate
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Principal Balance thereof has been reduced to zero, then to the
Class A-2B Certificates until the Certificate Principal Balance
thereof has been reduced to zero, then to the Class A-2C
Certificates until the Certificate Principal Balance thereof has
been reduced to zero, then to the Class A-2D Certificates until
the Certificate Principal Balance thereof has been reduced to
zero; provided, however, that on and after the Distribution Date
on which the aggregate Certificate Principal Balance of the
Subordinate Certificates and the Class C Certificates has been
reduced to zero, any principal distributions allocated to the
Class A-2A, Class A-2B, Class A-2C and Class A-2D Certificates
are required to be allocated pro rata, among such classes of
Certificates, based on their respective Certificate Principal
Balances, until their Certificate Principal Balances have been
reduced to zero;
(iv) to the Class M-1 Certificates, the Class M-1 Principal
Distribution Amount;
(v) to the Class M-2 Certificates, the Class M-2 Principal
Distribution Amount;
(vi) to the Class M-3 Certificates, the Class M-3 Principal
Distribution Amount;
(vii) to the Class M-4 Certificates, the Class M-4 Principal
Distribution Amount;
(viii) to the Class M-5 Certificates, the Class M-5 Principal
Distribution Amount;
(ix) to the Class M-6 Certificates, the Class M-6 Principal
Distribution Amount;
(x) to the Class B-1 Certificates, the Class B-1 Principal
Distribution Amount;
(xi) to the Class B-2 Certificates, the Class B-2 Principal
Distribution Amount;
(xii) to the Class B-3 Certificates, the Class B-3 Principal
Distribution Amount; and
(xiii) any remainder pursuant to Section 4.04(e) hereof.
(e) On each Distribution Date, the Trustee shall make the following
distributions up to the following amounts from the Certificate Account of the
remainders pursuant to Section 4.04(b)(xiv) and 4.04(d)(xiii) hereof, and each
such distribution shall be made only after all distributions pursuant to
Sections 4.04(b) and (d) above shall have been made until such remainders shall
have been fully distributed for such Distribution Date:
(i) to the Class A and Class R Certificates, any amounts due as
described in and in the same order of priority as set forth in Section
4.04(b)(iv), to the extent unpaid from Interest Funds;
(ii) to the Subordinate Certificates, any amount due and in the same
priority as set forth pursuant to Section 4.04(b)(v) through Section
4.04(b)(xiii), to the extent unpaid from Interest Funds;
(iii) for distribution as part of the Principal Distribution Amount,
the Extra Principal Distribution Amount;
(iv) to the Class M-1 Certificates, the Class M-1 Unpaid Realized Loss
Amount;
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(v) to the Class M-2 Certificates, the Class M-2 Unpaid Realized Loss
Amount;
(vi) to the Class M-3 Certificates, the Class M-3 Unpaid Realized Loss
Amount;
(vii) to the Class M-4 Certificates, the Class M-4 Unpaid Realized
Loss Amount;
(viii) to the Class M-5 Certificates, the Class M-5 Unpaid Realized
Loss Amount;
(ix) to the Class M-6 Certificates, the Class M-6 Unpaid Realized Loss
Amount;
(x) to the Class B-1 Certificates, the Class B-1 Unpaid Realized Loss
Amount;
(xi) to the Class B-2 Certificates, the Class B-2 Unpaid Realized Loss
Amount;
(xii) to the Class B-3 Certificates, the Class B-3 Unpaid Realized
Loss Amount;
(xiii) to the Class A, Class R, Class M and Class B Certificates, on a
pro rata basis, the Floating Rate Certificate Carryover for each such Class
in proportion to such amounts; and
(xiv) the remainder pursuant to Section 4.04(f) hereof.
(f) on each Distribution Date, the Trustee shall allocate the remainder
pursuant to Section 4.04(e)(xiv) as follows:
(i) to the Supplemental Interest Trust, any Defaulted Swap Termination
Payment;
(ii) to the Class C Certificates in the following order of priority,
(I) the Class C Current Interest, (II) the Class C Interest Carry Forward
Amount, (III) as principal on the Class C Certificate until the Certificate
Principal Balance of the Class C Certificates has been reduced to zero and
(IV) the Class C Unpaid Realized Loss Amount; and
(iii) the remainder pursuant to Section 4.04(g) hereof.
(g) On each Distribution Date, the Trustee shall allocate the remainder
pursuant to Section 4.04(f)(iii) hereof, (i) to the Trustee to reimburse amounts
or pay indemnification amounts owing to the Trustee from the Issuing Entity
pursuant to Section 8.06 to the extent such amounts shall have exceeded the cap
set forth in Section 8.06(c), and (ii) thereafter, to the Class R Certificate
and such distributions shall be made only after all preceding distributions
shall have been made until such remainder shall have been fully distributed.
(h) On each Distribution Date, after giving effect to distributions on such
Distribution Date, the Trustee shall allocate the Applied Realized Loss Amount
for the Certificates to reduce the Certificate Principal Balances of the Class C
Certificates and Subordinate Certificates in the following order of priority:
(i) to the Class C Certificates until the Class C Certificate
Principal Balance is reduced to zero;
(ii) to the Class B-3 Certificates until the Class B-3 Certificate
Principal Balance is reduced to zero;
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(iii) to the Class B-2 Certificates until the Class B-2 Certificate
Principal Balance is reduced to zero;
(iv) to the Class B-1 Certificates until the Class B-1 Certificate
Principal Balance is reduced to zero;
(v) to the Class M-6 Certificates until the Class M-6 Certificate
Principal Balance is reduced to zero;
(vi) to the Class M-5 Certificates until the Class M-5 Certificate
Principal Balance is reduced to zero;
(vii) to the Class M-4 Certificates until the Class M-4 Certificate
Principal Balance is reduced to zero;
(viii) to the Class M-3 Certificates until the Class M-3 Certificate
Principal Balance is reduced to zero;
(ix) to the Class M-2 Certificates until the Class M-2 Certificate
Principal Balance is reduced to zero; and
(x) to the Class M-1 Certificates until the Class M-1 Certificate
Principal Balance is reduced to zero.
(i) Subject to Section 9.02 hereof respecting the final distribution, on
each Distribution Date the Trustee shall make distributions to each
Certificateholder of record on the preceding Record Date either by wire transfer
in immediately available funds to the account of such holder at a bank or other
entity having appropriate facilities therefor, if such Holder has so notified
the Trustee at least five (5) Business Days prior to the related Record Date or,
if not, by check mailed by first class mail to such Certificateholder at the
address of such holder appearing in the Certificate Register. Notwithstanding
the foregoing, but subject to Section 9.02 hereof respecting the final
distribution, distributions with respect to Certificates registered in the name
of a Depository shall be made to such Depository in immediately available funds.
All distributions or allocations made with respect to
Certificateholders within each Class on each Distribution Date shall be
allocated among the outstanding Certificates in such Class equally in proportion
to their respective Initial Certificate Principal Balances (or Percentage
Interests).
(j) The Trustee is hereby directed by the Depositor to execute the Corridor
Contracts on behalf of the Issuing Entity in the forms presented to it by the
Depositor and shall have no responsibility for the contents of such Corridor
Contracts, including, without limitation, the representations and warranties
contained therein. Any funds payable by the Trustee under the Corridor Contracts
at closing shall be paid by the Depositor. Notwithstanding anything to the
contrary contained herein or in the Corridor Contracts, the Trustee shall not be
required to make any payments to the Cap Contract Counterparty under the
Corridor Contracts. Any payments received under the terms of the related
Corridor Contract will be available to pay the holders of the related Classes of
Certificates up to the amount of any Floating Rate Certificate Carryovers
remaining after all other distributions required under this Section 4.04 are
made on such Distribution Date, other than Floating Rate Certificate Carryovers
attributable to the fact that Applied Realized Loss Amounts are not allocated to
the Class A and Class R Certificates. Any amounts received under the terms of
any Corridor Contract on a Distribution Date that are not used to pay such
Floating Rate Certificate Carryovers will be distributed to the holders of the
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Class C Certificates. Payments in respect of such Floating Rate Certificate
Carryovers from proceeds of the Corridor Contracts shall be paid to the related
Classes of Certificates, pro rata based upon such Floating Rate Certificate
Carryovers for each such Class of Offered Certificates. Amounts received on the
Class A-1 Corridor Contract will only be available to make payments on the Class
A-1 Certificates, amounts received on the Class A-2 Corridor Contract will only
be available to make payments on the Class A-2 Certificates, amounts received on
the Subordinate Certificate Corridor Contract will only be available to make
payments on the Subordinate Certificates.
(i) The Trustee shall establish and maintain, for the benefit of the
Issuing Entity and the Certificateholders, the Corridor Contract Account.
On or prior to the related Corridor Contract Termination Date, amounts, if
any, received by the Trustee for the benefit of the Issuing Entity in
respect of any Corridor Contract shall be deposited by the Trustee into the
Corridor Contract Account and will be used to pay Floating Rate Certificate
Carryovers on the related Classes of Certificates as provided in this
Section 4.04(j). With respect to any Distribution Date on or prior to the
related Corridor Contract Termination Date, the amount, if any, payable by
the Cap Contract Counterparty under the applicable Corridor Contract will
equal the product of (i) the excess of (x) One-Month Cap LIBOR (as
determined by the Cap Contract Counterparty and subject to a cap equal to
the rate with respect to such Distribution Date as shown under the heading
"1ML Upper Collar" in the schedule to the applicable Corridor Contract),
over (y) the rate with respect to such Distribution Date as shown under the
heading "1ML Lower Collar" in the schedule to the applicable Corridor
Contract, (ii) an amount equal to the lesser of (A) the related Corridor
Contract Notional Balance for such Distribution Date as shown in the
schedule to the applicable Corridor Contract and (B) the Certificate
Principal Balance of (I) in the case of the Class A-1 Corridor Contract,
the Class A-1 and Class R Certificates, (II) in the case of the Class A-2
Corridor Contract, the Class A-2 Certificates and (III) in the case of the
Subordinate Certificate Corridor Contract, the Subordinate Certificates,
and (iii) the number of days in such Accrual Period, divided by 360. If a
payment is made to the Issuing Entity under a Corridor Contract and the
Trustee is required to distribute excess amounts to the holders of the
Class C Certificates as described above, the Trustee shall, on the monthly
statement to Certificateholders described in Section 4.05 below, report the
amounts paid with respect to Floating Rate Certificate Carryovers and the
amount due to the holders of the Class C Certificates.
(ii) Amounts on deposit in the Corridor Contract Account will remain
uninvested pending distribution to Certificateholders.
(iii) Each Corridor Contract is scheduled to remain in effect until
its respective Corridor Contract Termination Date and will be subject to
early termination only in limited circumstances. Such circumstances include
certain insolvency or bankruptcy events in relation to the Cap Contract
Counterparty (after a grace period of three Business Days, as defined in
the applicable Corridor Contract, after notice of such failure is received
by the Cap Contract Counterparty) to make a payment due under the
applicable Corridor Contract, the failure by the Cap Contract Counterparty
(after a cure period of twenty (20) days after notice of such failure is
received) to perform any other agreement made by it under the applicable
Corridor Contract, the termination of the Trust Fund and the applicable
Corridor Contract becoming illegal or subject to certain kinds of taxation.
(iv) On the Closing Date, the Cap Contract Counterparty and the
Supplemental Interest Trust Trustee (which is hereby authorized and
directed to enter into such credit support annex) will enter into a credit
support annex in relation to the Corridor Contracts, which annex is
intended to protect the Issuing Entity from certain ratings downgrades that
might hinder the ability of the Cap Contract Counterparty to continue its
obligations under the Corridor Contracts.
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Pursuant to and in accordance with the terms and provisions of
the Corridor Contracts, the Cap Contract Counterparty may be required to
post additional collateral in connection with its obligations under the
Corridor Contracts. In connection with the foregoing, the Trustee shall,
when required, establish a Corridor Posted Collateral Account on behalf of
the holders of the Offered Certificates on the Closing Date.
The Cap Contract Counterparty shall remit any Posted Collateral
to the Trustee to the extent required under the Corridor Contracts, and the
Trustee shall, upon receipt of the Posted Collateral, deposit the Posted
Collateral into the Corridor Posted Collateral Account and shall hold such
amounts in accordance with the terms and provisions of the Corridor
Contracts. Where a termination event occurs with respect to the Cap
Contract Counterparty under the Corridor Contracts, or where the Cap
Contract Counterparty fulfills certain obligations to the Issuing Entity
such as finding a replacement cap contract counterparty or a guarantor that
meets the criteria described in the Corridor Contracts, the Trustee may be
required to make payments from the Corridor Posted Collateral Account to
the Cap Contract Counterparty. Amounts held in the Corridor Posted
Collateral Account will not be part of the Trust Fund and will not be
available for distribution to any Certificateholders.
(k) In accordance with this Agreement, the Servicer shall prepare and
deliver a report (the "Remittance Report") to the Trustee in the form of a
computer readable magnetic tape (or by such other means as the Servicer and the
Trustee may agree from time to time) containing such data and information such
as to permit the Trustee to prepare the Monthly Statement to Certificateholders
and make the required distributions for the related Distribution Date.
(l) On the Closing Date, the Supplemental Interest Trust shall be
established and maintained pursuant to this Agreement, as a separate trust, the
corpus of which shall be held by Supplemental Interest Trust Trustee for the
benefit of the holders of the Certificates as a segregated subtrust of the Trust
Fund. The Supplemental Interest Trust shall contain the Swap Account, which
shall be an Eligible Account, and funds deposited therein shall be held separate
and apart from, and shall not be commingled with, any other moneys, including,
without limitation, other moneys of the Trustee or the Supplemental Interest
Trust Trustee held pursuant to this Agreement. In no event shall any funds
deposited in the Supplemental Interest Trust to be credited to or made available
to any other account of the Trust Fund. The records of the Trustee shall at all
times reflect that the Supplemental Interest Trust is a subtrust of the Trust
Fund, the assets of which are segregated from other assets of the Trust Fund.
The Supplemental Interest Trust Trustee is hereby directed by the
Depositor to execute the Swap Agreement on behalf of the Supplemental Interest
Trust in the forms presented to it by the Depositor and shall have no
responsibility for the contents of such Swap Agreement, including, without
limitation, the representations and warranties contained therein. The
Supplemental Interest Trust Trustee shall have all of the rights, indemnities
and protections of the Trustee hereunder.
The Supplemental Interest Trust Trustee shall enforce all of the
rights of the Supplemental Interest Trust and exercise any remedies under the
Swap Agreement and, in the event the Swap Agreement is terminated as a result of
the designation by either party thereto of an Early Termination Date (as defined
in the Swap Agreement), find a replacement counterparty to enter into a
replacement swap agreement utilizing the amounts of the net Swap Termination
Payments received.
For each Distribution Date, through and including the Distribution
Date in April 2012, the Supplemental Interest Trust Trustee shall, based on the
Significance Estimate (which shall be provided in writing to the Trustee by the
Depositor within five (5) Business Days prior to the Distribution Date),
calculate the Significance Percentage of the Swap Agreement. If on any such
Distribution Date,
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the Significance Percentage is equal to or greater than 9%, the Supplemental
Interest Trust Trustee shall promptly notify the Depositor and the Depositor, on
behalf of the Supplemental Interest Trust Trustee, shall obtain the financial
information required to be delivered by the Swap Counterparty pursuant to the
terms of the Swap Agreement. If, on any succeeding Distribution Date through and
including the Distribution Date in April 2012, the Significance Percentage is
equal to or greater than 10%, the Supplemental Interest Trust Trustee shall
promptly notify the Depositor and the Depositor shall, within five (5) Business
Days of such Distribution Date, deliver to the Supplemental Interest Trust
Trustee the financial information provided to it by the Swap Counterparty for
inclusion in the Form 10-D relating to such Distribution Date.
Any Swap Termination Payment received by the Supplemental Interest
Trust Trustee shall be deposited in the Swap Account and shall be used to make
any upfront payment required under a replacement swap agreement and any upfront
payment received from the counterparty to a replacement swap agreement shall be
used to pay any Swap Termination Payment owed to the Swap Counterparty.
Notwithstanding anything contained herein, in the event that a
replacement swap agreement cannot be obtained within thirty (30) days after
receipt by the Supplemental Interest Trust Trustee of the Swap Termination
Payment paid by the terminated Swap Counterparty, the Supplemental Interest
Trust Trustee shall deposit such Swap Termination Payment into a separate,
segregated non-interest bearing subtrust established by the Supplemental
Interest Trust Trustee and the Supplemental Interest Trust Trustee shall, on
each Distribution Date following receipt of such Swap Termination Payment,
withdraw from such subtrust, an amount equal to the Net Swap Payment, if any,
that would have been paid to the Supplemental Interest Trust by the original
Swap Counterparty (computed in accordance with the original Swap Agreement) and
distribute such amount in accordance with Section 4.04(l)(i)-(viii) of this
Agreement. Any such subtrust shall not be an asset of any REMIC. Any amounts
remaining in such subtrust shall be distributed to the holders of the Class C
Certificates on the Distribution Date following the earlier of (i) the
termination of the Trust Fund pursuant to Section 9.01 and (ii) April 25, 2012.
On any Distribution Date (or in the case of any Net Swap Payments owed
to the Swap Counterparty, two "business days" (as defined in the Swap Agreement)
prior to such Distribution Date), any Swap Termination Payments or Net Swap
Payments owed to the Swap Counterparty will be paid out of, or any Net Swap
Payments or Swap Termination Payments received from the Swap Counterparty will
be deposited into, the Swap Account. The Supplemental Interest Trust will not be
an asset of any REMIC. Funds in the Swap Account within the Supplemental
Interest Trust shall be distributed in the following order of priority by the
Trustee:
(i) to the Swap Counterparty, all Net Swap Payments, if any, owed to
the Swap Counterparty for such Distribution Date;
(ii) to the Swap Counterparty, any Swap Termination Payment, other
than a Defaulted Swap Termination Payment, if any, owed to the Swap
Counterparty;
(iii) to each class of the Class A and Class R Certificates, on a pro
rata basis, any Current Interest and any Interest Carry Forward Amount with
respect to such class to the extent unpaid;
(iv) sequentially, to the Class M-1 Certificates, the Class M-2
Certificates, the Class M-3 Certificates, the Class M-4 Certificates, the
Class M-5 Certificates, the Class M-6 Certificates, the Class B-1
Certificates, the Class B-2 Certificates and the Class B-3 Certificates, in
that order, any Current Interest for such class to the extent unpaid;
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(v) sequentially, to the Class M-1 Certificates, the Class M-2
Certificates, the Class M-3 Certificates, the Class M-4 Certificates, the
Class M-5 Certificates, the Class M-6 Certificates, the Class B-1
Certificates, the Class B-2 Certificates and the Class B-3 Certificates, in
that order, any Interest Carry Forward with respect to such class to the
extent unpaid;
(vi) to the Class A, Class R, Class M and Class B Certificates, to pay
principal as described and in the same manner and order of priority as set
forth in Sections 4.04(d)(iii) through 4.04(d)(xii) in order to restore
levels of the Overcollateralization Amount, and after giving effect to
distributions from Principal Distribution Amount for each such Class;
(vii) sequentially, to the Class M-1 Certificates, the Class M-2
Certificates, the Class M-3 Certificates, the Class M-4 Certificates, the
Class M-5 Certificates, the Class M-6 Certificates, the Class B-1
Certificates, the Class B-2 Certificates and the Class B-3 Certificates, in
that order, any Unpaid Realized Loss Amount for such class to the extent
unpaid;
(viii) to the Class A, Class R, Class M and Class B Certificates, any
Floating Rate Certificate Carryover to the extent not paid based on the
amount of such unpaid Floating Rate Certificate Carryover;
(ix) to the Swap Counterparty, any Defaulted Swap Termination Payment
owed to the Swap Counterparty to the extent not already paid; and
(x) to the Class C Certificates any remaining amount.
Notwithstanding the foregoing, however, after giving effect to
proposed distributions on any Distribution Date, the sum of the cumulative
amounts distributed pursuant to clause (vi) above and the cumulative amounts
distributed pursuant to clause (vii) above shall be limited to the aggregate
amount of cumulative Realized Losses incurred from the Cut-off Date through the
last day of the related Prepayment Period.
Upon termination of the Trust Fund, any amounts remaining in the Swap
Account within the Supplemental Interest Trust shall be distributed pursuant to
the priorities set forth in this Section 4.04(l).
With respect to the failure of the Swap Counterparty to perform any of
its obligations under the Swap Agreement, the breach by the Swap Counterparty of
any of its representations and warranties made pursuant to the Swap Agreement,
or the termination of the Swap Agreement, the Supplemental Interest Trust
Trustee shall send any notices and make any demands required hereunder (to the
extent that a Responsible Officer of the Trustee has actual knowledge or written
notice of any such failure, breach or termination).
On the Closing Date, the Swap Counterparty and the Supplemental
Interest Trust Trustee (which is hereby authorized and directed to enter into
such credit support annex) will enter into a credit support annex in relation to
the Swap Agreement, which annex is intended to protect the Supplemental Interest
Trust from certain ratings downgrades that might hinder the ability of the Swap
Counterparty to continue its obligations under the Swap Agreement.
Pursuant to and in accordance with the terms and provisions of the
Swap Agreement, the Swap Counterparty may be required to post additional
collateral in connection with its obligations under the Swap Agreement. In
connection with the foregoing, on the Closing Date, the Supplemental Interest
Trust Trustee shall establish, and maintain a Swap Posted Collateral Account.
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To the extent that the Swap Counterparty remits any Posted Collateral
to the Supplemental Interest Trust Trustee under the Swap Agreement, the
Supplemental Interest Trust Trustee shall, upon receipt of the Posted
Collateral, deposit the Posted Collateral into the Swap Posted Collateral
Account and shall hold, release and disburse such collateral in accordance with
the terms and provisions of the Swap Agreement. Where a termination event occurs
with respect to the Swap Counterparty under the Swap Agreement, or where the
Swap Counterparty fulfills certain obligations to the Supplemental Interest
Trust such as finding a replacement swap counterparty or a guarantor that meets
established criteria of the Rating Agencies, the Supplemental Interest Trust
Trustee shall make payments from the Swap Posted Collateral Account in
accordance with the provisions of the Swap Agreement. Amounts held in the Swap
Posted Collateral Account will not be part of the Trust Fund and will not be
available for distribution to any Certificateholders, except to the extent
distributed to the Swap Account pursuant to the Swap Agreement. Any funds held
in the Swap Posted Collateral Account shall be invested by the Trustee in
Eligible Investments in accordance with the instructions of the Swap
Counterparty. Any earnings shall be remitted to the Swap Counterparty in
accordance with the Swap Agreement. The Trustee shall not be responsible for any
losses. Absent receipt by the Trustee of written instructions from the Swap
Counterparty, such funds shall remain uninvested.
On the Closing Date, the Cap Contract Counterparty and the
Supplemental Interest Trust Trustee (which is hereby authorized and directed to
enter into such credit support annex) will enter into a credit support annex in
relation to the Corridor Contracts, which annex is intended to protect the
Supplemental Interest Trust from certain ratings downgrades that might hinder
the ability of the Cap Contract Counterparty to continue its obligations under
the Corridor Contracts.
Pursuant to and in accordance with the terms and provisions of the
Corridor Contracts, the Cap Contract Counterparty may be required to post
additional collateral in connection with its obligations under the Swap
Agreement. In connection with the foregoing, the Supplemental Interest Trust
Trustee shall establish a Corridor Posted Collateral Account on the Closing
Date.
To the extent that the Cap Contract Counterparty remits any Posted
Collateral to the Supplemental Interest Trust Trustee under the Corridor
Contracts, the Supplemental Interest Trust Trustee shall, upon receipt of the
Posted Collateral, deposit the Posted Collateral into the Corridor Posted
Collateral Account and shall hold, release and disburse such collateral in
accordance with the terms and provisions of the Corridor Contracts. Where a
termination event occurs with respect to the Cap Contract Counterparty under the
Corridor Contracts, or where the Cap Contract Counterparty fulfills certain
obligations to the Supplemental Interest Trust such as finding a replacement cap
contract counterparty or a guarantor that meets established criteria of the
Rating Agencies, the Supplemental Interest Trust Trustee shall make payments
from the Corridor Posted Collateral Account to the Cap Contract Counterparty in
accordance with the provisions of the Corridor Contracts. Amounts held in the
Corridor Posted Collateral Account will not be part of the Trust Fund and will
not be available for distribution to any Certificateholders, except to the
extent distributed to the Corridor Contract Account pursuant to the Corridor
Contracts. Any funds held in the Corridor Posted Collateral Account shall be
invested by the Trustee in Eligible Investments in accordance with the
instructions of the Cap Contract Counterparty. Any earnings shall be remitted to
the Cap Contract Counterparty in accordance with the Corridor Contracts. The
Trustee shall not be responsible for any losses. Absent receipt by the Trustee
of written instructions from the Cap Contract Counterparty, such funds shall
remain uninvested.
SECTION 4.05. Monthly Statements to Certificateholders.
(a) Not later than each Distribution Date based in part on information
provided by the Servicer, the Trustee shall prepare and make available on its
website located at xxxx://xxx.xxxxxx.xxx/xxx to each Holder of a Class of
Certificates of the Issuing Entity, the Servicer,
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the Rating Agencies and the Depositor a statement setting forth for the
Certificates the following information; provided, however, that, with respect to
any calendar year during which an annual report on Form 10-K is not required to
be filed with the Commission on behalf of the Issuing Entity, the information
set forth in items (xxvi) through (xxxiii) below are not required to be included
in such statement during such calendar year:
(i) the amount of the related distribution to Holders of each Class of
Certificates allocable to principal, separately identifying (A) the
aggregate amount of any Principal Prepayments included therein, (B) the
aggregate amount of all scheduled payments of principal included therein
and (C) any Extra Principal Distribution Amount, in the aggregate and with
respect to the Group One Mortgage Loans and Group Two Mortgage Loans;
(ii) the amount of such distribution to Holders of each Class of
Certificates allocable to interest, together with any Non-Supported
Interest Shortfalls allocated to each Class;
(iii) with respect to each Class of Certificates, any Interest Carry
Forward Amount with respect to such Distribution Date for each such Class,
any Interest Carry Forward Amount paid for each such Class and any
remaining Interest Carry Forward Amount for each such Class;
(iv) the Certificate Principal Balance of each Class of Certificates
after giving effect to all distributions allocable to principal on such
Distribution Date;
(v) the Pool Stated Principal Balance for such Distribution Date;
(vi) the amount of the Servicing Fee paid to or retained by the
Servicer and the amount of investment income earned on funds on deposit in
the Certificate Account for the related Due Period;
(vii) the Pass-Through Rate for each Class of Certificates for such
Distribution Date;
(viii) the amount of Advances included in the distribution on such
Distribution Date;
(ix) the cumulative amount of (A) Realized Losses and (B) Applied
Realized Loss Amounts to date, in the aggregate;
(x) the amount of (A) Realized Losses and (B) Applied Realized Loss
Amounts with respect to such Distribution Date, in the aggregate;
(xi) the number and aggregate principal amounts of Mortgage Loans (A)
Delinquent (exclusive of Mortgage Loans in foreclosure) (1) 31 to 60 days,
(2) 61 to 90 days and (3) 91 or more days, and (B) in foreclosure and
Delinquent (1) 31 to 60 days, (2) 61 to 90 days and (3) 91 or more days, in
each case as of the close of business on the last day of the calendar month
preceding such Distribution Date, in the aggregate and with respect to the
Group One Mortgage Loans and Group Two Mortgage Loans;
(xii) with respect to any Mortgage Loan that became an REO Property
during the preceding calendar month, the loan number and Stated Principal
Balance of such Mortgage Loan as of the close of business on the
Determination Date, in the aggregate;
(xiii) whether a Stepdown Trigger Event has occurred and is in effect;
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(xiv) the total number and principal balance of any REO Properties as
of the close of business on the related Determination Date, in the
aggregate;
(xv) the aggregate Stated Principal Balance of all Liquidated Loans as
of the preceding Distribution Date, in the aggregate
(xvi) any Floating Rate Certificate Carryover paid and all Floating
Rate Certificate Carryover remaining on each Class of the Offered
Certificates on such Distribution Date and Stated Principal Balance (as of
the preceding Distribution Date) of any Mortgage Loans which were purchased
or repurchased during the preceding Due Period and since the Cut-off Date;
(xvii) the number and amount of prepayment charges received during the
related Prepayment Period;
(xviii) as of each Distribution Date, the amount, if any, received
pursuant to each Corridor Contract and the amount thereof, if any, to be
paid to each Class of Certificates;
(xix) as of each Distribution Date, the amount, if any, to be
deposited in the Swap Account within the Supplemental Interest Trust
pursuant to the Swap Agreement as described in Section 4.04(l) and the
amount thereof to be paid to the Certificates;
(xx) the number of Mortgage Loans with respect to which (i) a
reduction in the Mortgage Rate has occurred or (ii) the related borrower's
obligation to repay interest on a monthly basis has been suspended or
reduced pursuant to the Relief Act; and (iii) the amount of interest not
required to be paid with respect to any such Mortgage Loans during the
related Due Period as a result of such reductions in the aggregate and with
respect to the Group One Mortgage Loans and Group Two Mortgage Loans;
(xxi) the number of Mortgage Loans prepaid in full for which
prepayment charges were received during the related Prepayment Period and,
for each such Mortgage Loan, the amount of prepayment charges received
during the related Prepayment Period and in the aggregate of such amounts
for all such Mortgage Loans since the Cut-off Date;
(xxii) the amount and purpose of any withdrawal from the Collection
Account pursuant to Section 3.08(a)(iv);
(xxiii) the amount of any payments to each Class of Certificates that
are treated as payments received in respect of a REMIC Regular Interest or
REMIC "residual interest" and the amount of any payments to each Class of
Certificates that are not treated as payments received in respect of a
REMIC Regular Interest or REMIC "residual interest".
(xxiv) the aggregate amount of all Advances recovered during the
related Due Period;
(xxv) the allocation to each Class of Certificate of any Realized
Losses during the related Due Period;
(xxvi) with respect to each Class of Certificates, the amount of any
Non-Supported Interest Shortfalls on such Distribution Date;
(xxvii) the number and outstanding principal balance of pool assets at
the beginning and ending of each period, and updated pool composition
information;
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(xxviii) any material changes to methodology regarding calculations of
delinquencies and charge-offs;
(xxix) the amount of Servicing Advances made during the related Due
Period and the amount of Servicing Advances recovered during the related
Due Period out of (a) principal and interest collections and (b) other
amounts collected from the related Mortgagors;
(xxx) any material modifications, extensions or waivers to pool asset
terms, fees, penalties or payments during the distribution period or that
have cumulatively become material over time, of which the Trustee has
received written notice thereof from the Servicer;
(xxxi) material breaches of pool asset representations or warranties
or transaction covenants to the extent that the Trustee has received
written notice thereof;
(xxxii) information on ratio, coverage or other tests used for
determining any early amortization, liquidation or other performance
trigger and whether the trigger was met;
(xxxiii) the Overcollateralization Amount, the Targeted
Overcollateralization Amount and the Overcollateralization Deficiency
Amount or the Overcollateralization Release Amount (as applicable) as of
such Distribution Date;
(xxxiv) the amount of Excess Interest for any class of the LIBOR
Certificates;
(xxxv) the Extra Principal Distribution Amount for such Distribution
Date; and
(xxxvi) information regarding any pool asset changes (other than in
connection with a pool asset converting into cash in accordance with its
terms), such as additions or removals in connection with pool asset
substitutions and repurchases (and purchase rates, if applicable).
Notwithstanding the foregoing, such statement shall also include, with
respect to each Distribution Date, the related Record Date, Determination Date,
Distribution Date and the Accrual Period.
(b) The Trustee will make the Monthly Statement (and, at its option, any
additional files containing the same information in an alternative format)
available each month to Certificateholders, other parties to this Agreement and
any other interested parties via the Trustee's Internet website. The Trustee's
Internet website shall initially be located at xxx.xxxxxx.xxx/xxx. The Trustee
shall have the right to change the way the monthly statements to
Certificateholders are distributed in order to make such distribution more
convenient and/or more accessible to the above parties and the Trustee shall
provide timely and adequate notification to all above parties regarding any such
changes.
The foregoing information and reports shall be prepared and determined
by the Trustee based on Mortgage Loan data and other information provided to the
Trustee by the Servicer, Swap Counterparty or any other third party required to
deliver information hereunder. In preparing or furnishing the foregoing
information, the Trustee shall be entitled to rely conclusively on the accuracy
of the information or data provided to the Trustee by the Servicer, Swap
Counterparty or any other third party required to deliver information and the
Trustee shall be entitled to rely conclusively upon and shall have no liability
for any errors in any such information.
As a condition to access the Trustee's internet website, the Trustee
may require registration and the acceptance of a disclaimer. The Trustee will
not be liable for the dissemination of information in accordance with this
Agreement.
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(c) Within a reasonable period of time after the end of each calendar year,
the Trustee shall cause to be furnished each Person who at any time during the
calendar year was a Certificateholder, a statement containing the information
set forth in clauses (a)(i) and (a)(ii) of this Section 4.05 aggregated for such
calendar year or applicable portion thereof during which such Person was a
Certificateholder. Such obligation of the Trustee shall be deemed to have been
satisfied to the extent that substantially comparable information shall be
provided by the Trustee pursuant to any requirements of the Code from time to
time in effect.
(d) Upon filing with the Internal Revenue Service, the Trustee shall
furnish to the Holder of the Class R Certificate each Form 1066 and each Form
1066Q and shall respond promptly to written requests made not more frequently
than quarterly by any Holder of a Class R Certificate with respect to the
following matters:
(i) The original projected principal and interest cash flows on the
Closing Date on each Class of regular and residual interests created
hereunder and on the Mortgage Loans, based on the Prepayment Assumption;
(ii) The projected remaining principal and interest cash flows as of
the end of any calendar quarter with respect to each Class of regular and
residual interests created hereunder and the Mortgage Loans, based on the
Prepayment Assumption;
(iii) The Prepayment Assumption and any interest rate assumptions used
in determining the projected principal and interest cash flows described
above;
(iv) The original issue discount (or, in the case of the Mortgage
Loans, market discount) or premium accrued or amortized through the end of
such calendar quarter with respect to each Class of regular or residual
interests created hereunder and to the Mortgage Loans, together with each
constant yield to maturity used in computing the same;
(v) The treatment of losses realized with respect to the Mortgage
Loans or the regular interests created hereunder, including the timing and
amount of any cancellation of indebtedness income of the REMICs with
respect to such regular interests or bad debt deductions claimed with
respect to the Mortgage Loans;
(vi) The amount and timing of any non-interest expenses of the REMICs;
and
(vii) Any taxes (including penalties and interest) imposed on the
REMICs, including, without limitation, taxes on "prohibited transactions,"
"contributions" or "net income from foreclosure property" or state or local
income or franchise taxes.
The information pursuant to clauses (i), (ii), (iii) and (iv) above shall be
provided by the Depositor pursuant to Section 8.12.
ARTICLE V
THE CERTIFICATES
SECTION 5.01. The Certificates.
The Certificates shall be substantially in the forms attached hereto as
exhibits. The Certificates shall be issuable in registered form, in the minimum
dollar denominations, integral dollar multiples in excess thereof (except that
one Certificate of each Class may be issued in a different amount which must
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be in excess of the applicable minimum dollar denomination) and aggregate dollar
denominations as set forth in the following table:
Minimum Integral Multiples in Original Certificate
Class Denomination Excess of Minimum Principal Balance
----- ------------ --------------------- --------------------
A-1 $25,000.00 $1.00 $174,640,000
A-2A $25,000.00 $1.00 $ 66,098,000
A-2B $25,000.00 $1.00 $ 18,270,000
A-2C $25,000.00 $1.00 $ 28,147,000
A-2D $25,000.00 $1.00 $ 10,415,000
M-1 $25,000.00 $1.00 $ 15,600,000
M-2 $25,000.00 $1.00 $ 13,845,000
M-3 $25,000.00 $1.00 $ 8,190,000
M-4 $25,000.00 $1.00 $ 6,825,000
M-5 $25,000.00 $1.00 $ 6,825,000
M-6 $25,000.00 $1.00 $ 6,045,000
B-1 $25,000.00 $1.00 $ 5,850,000
B-2 $25,000.00 $1.00 $ 4,095,000
B-3 $25,000.00 $1.00 $ 5,655,000
C (1) 1% (1)
R $ 100.00 N/A $ 100.00
P (2) 1% (2)
----------
(1) The Class C Certificates shall not have minimum dollar denominations as the
Certificate Principal Balance thereof shall vary over time as described
herein and shall be issued in a minimum percentage interest of 10% and an
aggregate percentage interest of 100%.
(2) The Class P Certificates shall not have minimum dollar denominations or
Certificate Principal Balance and shall be issued in a minimum percentage
interest of 10% and an aggregate percentage interest of 100%.
The Certificates shall be executed by manual or facsimile signature on
behalf of the Trustee by an authorized officer. Certificates bearing the manual
or facsimile signatures of individuals who were, at the time when such
signatures were affixed, authorized to sign on behalf of the Trustee shall bind
the Issuing Entity, notwithstanding that such individuals or any of them have
ceased to be so authorized prior to the authentication and delivery of such
Certificates or did not hold such offices at the date of such authentication and
delivery. No Certificate shall be entitled to any benefit under this Agreement,
or be valid for any purpose, unless there appears on such Certificate a
certificate of authentication substantially in the form set forth as attached
hereto executed by the Authenticating Agent by manual signature, and such
certificate of authentication upon any Certificate shall be conclusive evidence,
and the only evidence, that such Certificate has been duly authenticated and
delivered hereunder. All Certificates shall be dated the date of their
authentication. On the Closing Date, the Authenticating Agent shall authenticate
the Certificates to be issued at the written direction of the Depositor, or any
Affiliate thereof.
SECTION 5.02. Certificate Register; Registration of Transfer and Exchange
of Certificates.
(a) The Trustee shall maintain, or cause to be maintained in accordance
with the provisions of Section 5.09 hereof, a Certificate Register for the
Issuing Entity in which, subject to the provisions of subsections (b) and (c)
below and to such reasonable regulations as it may prescribe, the Trustee shall
provide for the registration of Certificates and of Transfers and exchanges of
Certificates as herein
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provided. Upon surrender for registration of Transfer of any Certificate, the
Authenticating Agent shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Certificates of the same
Class and of like aggregate Percentage Interest.
At the option of a Certificateholder, Certificates may be exchanged for
other Certificates of the same Class in authorized denominations and evidencing
the same aggregate Percentage Interest upon surrender of the Certificates to be
exchanged at the office or agency of the Trustee. Whenever any Certificates are
so surrendered for exchange, the Trustee shall execute and the Authenticating
Agent shall authenticate and deliver the Certificates that the Certificateholder
making the exchange is entitled to receive. Every Certificate presented or
surrendered for registration of Transfer or exchange shall be accompanied by a
written instrument of Transfer in form satisfactory to the Trustee duly executed
by the holder thereof or his attorney duly authorized in writing.
No service charge to the Certificateholders shall be made for any
registration of Transfer or exchange of Certificates, but payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any Transfer or exchange of Certificates may be required. All
Certificates surrendered for registration of Transfer or exchange shall be
canceled and subsequently destroyed by a Trustee in accordance with such
Trustee's customary procedures.
(b) No Transfer of a Class C or Class P Certificate shall be made unless
such Transfer is made pursuant to an effective registration statement under the
Securities Act and any applicable state securities laws or is exempt from the
registration requirements under the Securities Act and such state securities
laws. In the event that a Transfer is to be made in reliance upon an exemption
from the Securities Act and such laws, in order to assure compliance with the
Securities Act and such laws, the Certificateholder desiring to effect such
Transfer and such Certificateholder's prospective transferee shall (except with
respect to the initial transfer of a Class C or Class P Certificate by Xxxxxxx
Xxxxx & Co. or, in connection with the transfer of a Class C or Class P
Certificate to the indenture trustee under an Indenture pursuant to which NIM
Notes are issued, whether or not such notes are guaranteed by the NIMs Insurer)
each certify to the Trustee in writing the facts surrounding the Transfer in
substantially the forms set forth in Exhibit F (the "Transferor Certificate")
and (i) deliver a letter in substantially the form of either Exhibit G (the
"Investment Letter") or Exhibit H (the "Rule 144A Letter") or (ii) there shall
be delivered to the Trustee an Opinion of Counsel addressed to the Trustee that
such Transfer may be made pursuant to an exemption from the Securities Act,
which Opinion of Counsel shall not be an expense of the Depositor or the
Trustee. The Depositor shall provide to any Holder of a Class C or Class P
Certificate and any prospective transferee designated by any such Holder,
information regarding the related Certificates and the Mortgage Loans and such
other information as shall be necessary to satisfy the condition to eligibility
set forth in Rule 144A(d)(4) for Transfer of any such Certificate without
registration thereof under the Securities Act pursuant to the registration
exemption provided by Rule 144A. The Trustee shall cooperate with the Depositor
in providing the Rule 144A information referenced in the preceding sentence,
including providing to the Depositor such information in the possession of the
Trustee regarding the Certificates, the Mortgage Loans and other matters
regarding the Trust Fund as the Depositor shall reasonably request to meet its
obligation under the preceding sentence. Each Holder of a Class C or Class P
Certificate desiring to effect such Transfer shall, and does hereby agree to,
indemnify the Depositor and the Trustee against any liability that may result if
the Transfer is not so exempt or is not made in accordance with such federal and
state laws.
No transfer of a Certificate that is neither an ERISA Restricted
Certificate nor a Class R Certificate shall be registered unless the transferee
provides the Trustee with a representation that either (i) such transferee is
not, and is not acting for, on behalf of or with any assets of, an employee
benefit plan or other arrangement subject to Title I of ERISA or plan subject to
Section 4975 of the Code, or (ii) until
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the termination of the Swap Agreement, the acquisition and holding of the
Certificate will not constitute or result in a non-exempt prohibited transaction
under Title I of ERISA or Section 4975 of the Code.
No transfer of an ERISA Restricted Certificate or a Class R Certificate may
be made unless the Trustee has received (I) a representation that the transferee
is not an employee benefit plan or other arrangement subject to Title I of
ERISA, a plan subject to Section 4975 of the Code or a plan subject to any
state, local, federal, non-U.S. or other law substantively similar to the
foregoing provisions of ERISA or the Code ("Similar Law") (collectively,
"Plan"), or is directly or indirectly acquiring the ERISA Restricted Certificate
or Class R Certificate for, on behalf of, or with any assets of any such Plan,
or (II) solely with respect to ERISA Restricted Certificates, (A) if the
Certificate has been the subject of an ERISA-Qualifying Underwriting, a
representation that such transferee is an insurance company that is acquiring
the Certificate with assets of an "insurance company general account," as
defined in Section V(e) of Prohibited Transaction Class Exemption ("PTCE")
95-60, and the acquisition and holding of the Certificate are covered and exempt
under Section I and III of PTCE 95-60, or (B) solely in the case of any such
Certificate that is a Definitive Certificate, an Opinion of Counsel satisfactory
to the Trustee and the Depositor, and upon which the Trustee and the NIMs
Insurer shall be entitled to rely, to the effect that the acquisition and
holding of such Certificate will not constitute or result or result in a
nonexempt prohibited transaction under Title I of ERISA or Section 4975 of the
Code, or a violation of Similar Law, and will not subject the Trustee, the
Servicer, the NIMs Insurer or the Depositor to any obligation in addition to
those expressly undertaken in this Agreement, which Opinion of Counsel shall not
be an expense of the Trustee, the Servicer, the NIMs Insurer or the Depositor.
Except in the case of Definitive Certificates, the representations set
forth in the immediately two preceding paragraphs of this Subsection 5.02(b),
other than clause (II)(B) in the immediately preceding paragraph, shall be
deemed to have been made to the Trustee by the transferee's acceptance of a
Certificate (or the acceptance by a Certificate Owner of the beneficial interest
in any Class of Certificate). Notwithstanding any other provision herein to the
contrary, any purported transfer of a Certificate to or on behalf of a Plan
without the delivery to the Trustee of a representation or an Opinion of Counsel
satisfactory to the Trustee as described above shall be void and of no effect.
The Trustee shall not be under any liability to any Person for any registration
of transfer of any Certificate that is in fact not permitted by this Section
5.02(b) nor shall the Trustee be under any liability for making any payments due
on such Certificate to the Holder thereof or taking any other action with
respect to such Holder under the provisions of this Agreement so long as the
transfer was registered by the Trustee in accordance with the foregoing
requirements. The Trustee shall be entitled, but not obligated, to recover from
any Holder of any Certificate that was in fact a Plan and that held such
Certificate in violation of this Section 5.02(b) all payments made on such
Certificate at and after the time it commenced such holding. Any such payments
so recovered shall be paid and delivered to the last preceding Holder of such
Certificate that is not a Plan.
(c) Each Person who has or who acquires any Ownership Interest in a Class R
Certificate shall be deemed by the acceptance or acquisition of such Ownership
Interest to have agreed to be bound by the following provisions, and the rights
of each Person acquiring any Ownership Interest in a Class R Certificate are
expressly subject to the following provisions:
(i) Each Person holding or acquiring any Ownership Interest in a Class
R Certificate shall be a Permitted Transferee and shall promptly notify the
Trustee of any change or impending change in its status as a Permitted
Transferee.
(ii) No Ownership Interest in a Class R Certificate may be purchased,
transferred or sold, directly or indirectly, except in accordance with the
provisions hereof. No Ownership Interest in a Class R Certificate may be
registered on the Closing Date or thereafter transferred, and no Transfer
of any Class R Certificate shall be registered unless, in addition to the
certificates
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required to be delivered to the Trustee under subparagraph (b) above, the
Trustee shall have been furnished with an affidavit (a "Transfer
Affidavit") of the initial owner or the proposed transferee in the form
attached hereto as Exhibit E-1 and an affidavit of the proposed transferor
in the form attached hereto as Exhibit E-2. In the absence of a contrary
instruction from the transferor of a Class R Certificate, declaration (11)
in Appendix A of the Transfer Affidavit may be left blank. If the
transferor requests by written notice to the Trustee prior to the date of
the proposed transfer that one of the two other forms of declaration (11)
in Appendix A of the Transfer Affidavit be used, then the requirements of
this Section 5.02(c)(ii) shall not have been satisfied unless the Transfer
Affidavit includes such other form of declaration.
(iii) Each Person holding or acquiring any Ownership Interest in a
Class R Certificate shall agree (A) to obtain a Transfer Affidavit from any
other Person to whom such Person attempts to Transfer its Ownership
Interest in a Class R Certificate, (B) to obtain a Transfer Affidavit from
any Person for whom such Person is acting as nominee, trustee or agent in
connection with any Transfer of a Class R Certificate and (C) not to
Transfer its Ownership Interest in a Class R Certificate or to cause the
Transfer of an Ownership Interest in a Class R Certificate to any other
Person if it has actual knowledge that such Person is not a Permitted
Transferee. Further, no transfer, sale or other disposition of any
Ownership Interest in a Class R Certificate may be made to a person who is
not a U.S. Person (within the meaning of section 7701 of the Code) unless
such person furnishes the transferor and the Trustee with a duly completed
and effective Internal Revenue Service Form W-8ECI (or any successor
thereto) and the Trustee consents to such transfer, sale or other
disposition in writing.
(iv) Any attempted or purported Transfer of any Ownership Interest in
a Class R Certificate in violation of the provisions of this Section
5.02(c) shall be absolutely null and void and shall vest no rights in the
purported transferee. If any purported transferee shall become a Holder of
a Class R Certificate in violation of the provisions of this Section
5.02(c), then the last preceding Permitted Transferee shall be restored to
all rights as Holder thereof retroactive to the date of registration of
Transfer of such Class R Certificate. The Trustee shall be under no
liability to any Person for any registration of Transfer of a Class R
Certificate that is in fact not permitted by Section 5.02(b) and this
Section 5.02(c) or for making any payments due on such Certificate to the
Holder thereof or taking any other action with respect to such Holder under
the provisions of this Agreement so long as the Transfer was registered
after receipt of the related Transfer Affidavit. The Trustee shall be
entitled but not obligated to recover from any Holder of a Class R
Certificate that was in fact not a Permitted Transferee at the time it
became a Holder or, at such subsequent time as it became other than a
Permitted Transferee, all payments made on such Class R 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 Permitted
Transferee of such Certificate.
(v) At the option of the Holder of the Class R Certificate, the Class
SWR Interest, the Class LTR Interest, and the Residual Interest may be
severed and represented by separate certificates (with the separate
certificate that represents the Residual Interest also representing all
rights of the Class R Certificate to distributions attributable to an
interest rate on the Class R Certificate in excess of the REMIC
Pass-Through Rate); provided, however, that such separate certification may
not occur until the Trustee receives an Opinion of Counsel addressed to the
Trustee (at the expense of the Holder of the Class R Certificate) to the
effect that separate certification in the form and manner proposed would
not result in the imposition of federal tax upon the Issuing Entity or any
of the REMICs provided for herein or cause any of the REMICs provided for
herein to fail to qualify as a REMIC; and provided further, that the
provisions of Sections 5.02(b) and (c) will apply to each such separate
certificate as if the separate certificate
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were a Class R Certificate. If, as evidenced by an Opinion of Counsel, it
is necessary to preserve the REMIC status of any of the REMICs provided for
herein, the Class SWR Interest, the Class LTR Interest, and the Residual
Interest shall be severed and represented by separate Certificates (with
the separate certificate that represents the Residual Interest also
representing all rights of the Class R Certificate to distributions
attributable to an interest rate on the Class R Certificate in excess of
the REMIC Pass-Through Rate).
The restrictions on Transfers of a Class R Certificate set forth in this
Section 5.02(c) shall cease to apply (and the applicable portions of the legend
on a Class R Certificate may be deleted) with respect to Transfers occurring
after delivery to the Trustee of an Opinion of Counsel addressed to the Trustee,
which Opinion of Counsel shall not be an expense of the Issuing Entity, the
Trustee or the Depositor, to the effect that the elimination of such
restrictions will not cause any of the REMICs provided for herein to fail to
qualify as a REMIC at any time that the Certificates are outstanding or result
in the imposition of any tax on the Issuing Entity, any REMIC provided for
herein, a Certificateholder or another Person. Each Person holding or acquiring
any Ownership Interest in a Class R Certificate hereby consents to any amendment
of this Agreement that, based on an Opinion of Counsel addressed to and
furnished to the Trustee, is reasonably necessary (a) to ensure that the record
ownership of, or any beneficial interest in, a Class R Certificate is not
transferred, directly or indirectly, to a Person that is not a Permitted
Transferee and (b) to provide for a means to compel the Transfer of a Class R
Certificate that is held by a Person that is not a Permitted Transferee to a
Holder that is a Permitted Transferee.
(d) The transferor of the Class R Certificate shall notify the Trustee in
writing upon the transfer of the Class R Certificate.
(e) The preparation and delivery of all certificates, opinions and other
writings referred to above in this Section 5.02 shall not be an expense of the
Issuing Entity, the Depositor or the Trustee.
SECTION 5.03. Mutilated, Destroyed, Lost or Stolen Certificates.
If (a) any mutilated Certificate is surrendered to the Trustee or the
Trustee receives evidence to its satisfaction of the destruction, loss or theft
of any Certificate and of the ownership thereof and (b) there is delivered to
the Trustee such security or indemnity as may be required by the Trustee to save
the Trustee harmless, then, in the absence of notice to the Trustee that such
Certificate has been acquired by a bona fide purchaser, the Trustee shall
execute, authenticate and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Certificate, a new Certificate of like
Class, tenor and Percentage Interest. In connection with the issuance of any new
Certificate under this Section 5.03, the Trustee 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) connected therewith. Any replacement Certificate issued pursuant to
this Section 5.03 shall constitute complete and indefeasible evidence of
ownership in the Trust Fund, as if originally issued, whether or not the lost,
stolen or destroyed Certificate shall be found at any time. All Certificates
surrendered to the Trustee under the terms of this Section 5.03 shall be
canceled and destroyed by the Trustee in accordance with its standard procedures
without liability on its part.
SECTION 5.04. Persons Deemed Owners.
The NIMs Insurer, the Trustee and any agent of the NIMs Insurer or the
Trustee may treat the Person in whose name any Certificate is registered as the
owner of such Certificate for the purpose of receiving distributions as provided
in this Agreement and for all other purposes whatsoever, and neither the NIMs
Insurer nor the Trustee, nor any agent of the NIMs Insurer or the Trustee, shall
be affected by any notice to the contrary.
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SECTION 5.05. Access to List of Certificateholders' Names and Addresses.
If three or more Certificateholders (a) request such information in writing
from the Trustee, (b) state that such Certificateholders desire to communicate
with other Certificateholders with respect to their rights under this Agreement
or under the Certificates, and (c) provide a copy of the communication that such
Certificateholders propose to transmit or if the NIMs Insurer or the Depositor
shall request such information in writing from the Trustee, then the Trustee
shall, within ten Business Days after the receipt of such request, provide the
NIMs Insurer or the Depositor or such Certificateholders at such recipients'
expense the most recent list of the Certificateholders of the Issuing Entity
held by the Trustee, if any. The Depositor and every Certificateholder, by
receiving and holding a Certificate, agree that the Trustee shall not be held
accountable by reason of the disclosure of any such information as to the list
of the Certificateholders hereunder, regardless of the source from which such
information was derived.
SECTION 5.06. Book-Entry Certificates.
The Regular Certificates, upon original issuance, shall be issued in the
form of one or more typewritten Certificates representing the Book-Entry
Certificates, to be delivered to the Depository by or on behalf of the
Depositor. The Book-Entry Certificates shall initially be registered on the
Certificate Register in the name of the Depository or its nominee, and no
Certificate Owner of a Book-Entry Certificate will receive a definitive
certificate representing such Certificate Owner's interest in such Certificates,
except as provided in Section 5.08. Unless and until definitive, fully
registered Certificates ("Definitive Certificates") have been issued to the
Certificate Owners of the Book-Entry Certificates pursuant to Section 5.08:
(a) the provisions of this Section shall be in full force and effect;
(b) the Depositor, the NIMs Insurer and the Trustee may deal with the
Depository and the Depository Participants for all purposes (including the
making of distributions) as the authorized representative of the respective
Certificate Owners of the Book-Entry Certificates;
(c) registration of the Book-Entry Certificates may not be transferred by
the Trustee except to another Depository;
(d) the rights of the respective Certificate Owners of the Book-Entry
Certificates shall be exercised only through the Depository and the Depository
Participants and shall be limited to those established by law and agreements
between the Owners of the Book-Entry Certificates and the Depository and/or the
Depository Participants. Pursuant to the Depository Agreement, unless and until
Definitive Certificates are issued pursuant to Section 5.08, the Depository will
make book-entry transfers among the Depository Participants and receive and
transmit distributions of principal and interest on the related Certificates to
such Depository Participants;
(e) the Depository may collect its usual and customary fees, charges and
expenses from its Depository Participants;
(f) the Trustee may rely and shall be fully protected in relying upon
information furnished by the Depository with respect to its Depository
Participants; and
(g) to the extent that the provisions of this Section conflict with any
other provisions of this Agreement, the provisions of this Section shall
control.
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For purposes of any provision of this Agreement requiring or permitting
actions with the consent of, or at the direction of, Certificateholders
evidencing a specified percentage of the aggregate unpaid principal amount of
any Class of Certificates, such direction or consent may be given by Certificate
Owners (acting through the Depository and the Depository Participants) owning
Book-Entry Certificates evidencing the requisite percentage of principal amount
of such Class of Certificates.
SECTION 5.07. Notices to Depository.
Whenever any notice or other communication is required to be given to
Certificateholders of the Class with respect to which Book-Entry Certificates
have been issued, unless and until Definitive Certificates shall have been
issued to the related Certificate Owners and the Trustee shall give all such
notices and communications to the Depository.
SECTION 5.08. Definitive Certificates.
If, after Book-Entry Certificates have been issued with respect to any
Certificates, (a) the Depository or the Depositor advises the Trustee that the
Depository is no longer willing, qualified or able to discharge properly its
responsibilities under the Depository Agreement with respect to such
Certificates and the Depositor is unable to locate a qualified successor, (b)
the Depositor, at its sole option, advises the Trustee that it elects to
terminate the book-entry system with respect to such Certificates through the
Depository or (c) after the occurrence and continuation of an Event of Default,
Certificate Owners of such Book-Entry Certificates having not less than 51% of
the Voting Rights evidenced by any Class of Book-Entry Certificates advise the
Trustee and the Depository in writing through the Depository Participants that
the continuation of a book-entry system with respect to Certificates of such
Class through the Depository (or its successor) is no longer in the best
interests of the Certificate Owners of such Class, then the Trustee shall notify
all Certificate Owners of such Book-Entry Certificates and the NIMs Insurer,
through the Depository, of the occurrence of any such event and of the
availability of Definitive Certificates to Certificate Owners of such Class
requesting the same. The Depositor shall provide the Trustee with an adequate
inventory of certificates to facilitate the issuance and transfer of Definitive
Certificates. Upon surrender to the Trustee of any such Certificates by the
Depository, accompanied by registration instructions from the Depository for
registration, the Authenticating Agent shall authenticate and the Trustee shall
deliver such Definitive Certificates. Neither the Depositor nor the Trustee
shall be liable for any delay in delivery of such instructions and each may
conclusively rely on, and shall be protected in relying on, such instructions.
Upon the issuance of such Definitive Certificates, all references herein to
obligations imposed upon or to be performed by the Depository 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 such Definitive Certificates as Certificateholders hereunder.
SECTION 5.09. Maintenance of Office or Agency.
The Trustee will maintain or cause to be maintained at its expense an
office or offices or agency or agencies where Certificates may be surrendered
for registration of transfer or exchange. The Trustee initially designates its
office at 00 Xxxxxxxxxx Xxxxxx, Mail Code EP-MN-WS3D, Xx. Xxxx, Xxxxxxxxx
00000-0000, Attention: Structured Finance/SURF 2007-BC2, as offices for such
purposes. The Trustee will give prompt written notice to the Certificateholders
of any change in such location of any such office or agency.
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SECTION 5.10. Authenticating Agents.
(a) One or more Authenticating Agents (each, an "Authenticating Agent") may
be appointed hereunder each of which shall be authorized to act on behalf of the
Trustee in authenticating the Certificates. Wherever reference is made in this
Agreement to the authentication of Certificates by 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 an entity organized and doing business under
the laws of the United States of America or any state thereof, having a combined
capital and surplus of at least $15,000,000, authorized under such laws to
operate a trust business and subject to supervision or examination by federal or
state authorities. If the Authenticating Agent is a party other than the
Trustee, the Trustee shall have no liability in connection with the performance
or failure of performance of the Authenticating Agent. U.S. Bank National
Association is hereby appointed as the initial Authenticating Agent. The Trustee
shall be the Authenticating Agent during any such time as no other
Authenticating Agent has been appointed and has not resigned.
(b) Any Person into which any Authenticating Agent may be merged or
converted or with which it may be consolidated, or any Person resulting from any
merger, conversion or consolidation to which any Authenticating Agent shall be a
party, or any Person succeeding to the corporate agency business of any
Authenticating Agent, shall continue to be the Authenticating Agent without the
execution or filing of any paper or any further act on the part of the Trustee
or the Authenticating Agent.
(c) Any Authenticating Agent may at any time resign by giving at least 30
days' advance written notice of resignation to the Trustee and the Depositor.
Except with respect to the initial Authenticating Agent, U.S. Bank National
Association, which shall be the Authenticating Agent for so long as it is the
Trustee may at any time terminate the agency of any Authenticating Agent by
giving written notice of termination to such Authenticating Agent and the
Depositor. Upon receiving a notice of resignation or upon such a termination, or
in case at any time any Authenticating Agent shall cease to be eligible in
accordance within the provisions of this Section 5.10, the Trustee may, and is
hereby authorized to, appoint a successor Authenticating Agent, shall give
written notice of such appointment to the Depositor and shall mail notice of
such appointment to all Holders of Certificates. Any successor Authenticating
Agent upon acceptance of its appointment hereunder shall become vested with all
the rights, powers, duties and responsibilities of its predecessor hereunder,
with like effect as if originally named as Authenticating Agent. No successor
Authenticating Agent shall be appointed unless eligible under the provisions of
this Section 5.10. No Authenticating Agent shall have responsibility or
liability for any action taken by it as such at the direction of the Trustee.
The initial Authenticating Agent shall have all of the rights, indemnities and
protections of the Trustee hereunder.
ARTICLE VI
THE DEPOSITOR AND THE SERVICER
SECTION 6.01. Respective Liabilities of the Depositor and the Servicer.
The Depositor and the Servicer shall each be liable in accordance herewith
only to the extent of the obligations specifically and respectively imposed upon
and undertaken by them herein.
SECTION 6.02. Merger or Consolidation of the Depositor or the Servicer.
Except as provided in the next paragraph, the Depositor and the Servicer
will each keep in full effect its existence, rights and franchises as a
corporation or banking association under the laws of the United States or under
the laws of one of the States thereof and will each obtain and preserve its
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qualification to do business as a foreign corporation in each jurisdiction in
which such qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, or any of the Mortgage Loans and to perform
its respective duties under this Agreement.
Any Person into which the Depositor or Servicer may be merged or
consolidated, or any Person resulting from any merger or consolidation to which
the Depositor or Servicer shall be a party, or any Person succeeding to the
business of the Depositor or Servicer, shall be the successor of the Depositor
or Servicer, as the case may be, 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 (except for the execution of an
assumption agreement where such succession is not effected by operation of law);
provided, however, that the successor or surviving Person to a Servicer shall be
qualified to sell mortgage loans to, and to service mortgage loans on behalf of,
Xxxxxx Xxx or Xxxxxxx Mac.
SECTION 6.03. Limitation on Liability of the Depositor, the Servicer and
Others.
None of the Depositor, the Servicer or any of the directors, officers,
employees or agents of the Depositor or the Servicer shall be under any
liability to the Issuing Entity 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 Depositor, the Servicer or any such Person against any
breach of representations or warranties made by it herein or protect the
Depositor, the Servicer or any such Person from any liability that would
otherwise be imposed by reasons of willful misfeasance, bad faith or negligence
in the performance of duties or by reason of reckless disregard of obligations
and duties hereunder. The Depositor, the Servicer and any director, officer,
employee or agent of the Depositor or the Servicer may rely in good faith on any
document of any kind prima facie properly executed and submitted by any Person
respecting any matters arising hereunder. The Depositor, the Servicer and any
director, officer, employee or agent of the Depositor or the Servicer shall be
indemnified by the Issuing Entity and held harmless against any loss, liability
or expense, incurred in connection with the performance of their duties under
this agreement or incurred in connection with any audit, controversy or judicial
proceeding relating to a governmental taxing authority or any legal action
relating to this Agreement or the Certificates, other than any loss, liability
or expense (i) incurred by reason of willful misfeasance, bad faith or
negligence in the performance of duties hereunder or by reason of reckless
disregard of obligations and duties hereunder or (ii) which does not constitute
an "unanticipated expense" within the meaning of Treasury Regulation Section
1.860G-1(b)(3)(ii). Neither the Depositor nor the Servicer shall be under any
obligation to appear in, prosecute or defend any legal action that is not
incidental to its respective duties hereunder and that in its opinion may
involve it in any expense or liability; provided, however, that either of the
Depositor or the Servicer may, in its discretion, undertake any such action that
it may deem necessary or desirable in respect of this Agreement and the rights
and duties of the parties hereto and interests of the Servicer and the
Certificateholders hereunder. In such event, the legal expenses and costs of
such action and any liability resulting therefrom shall be, expenses, costs and
liabilities of the Issuing Entity, and the Depositor and the Servicer shall be
entitled to be reimbursed therefor out of the Collection Account as provided by
Section 3.08 hereof.
Notwithstanding anything herein to the contrary, in preparing or furnishing
any reports or certifications pursuant to this Agreement, the Servicer shall be
entitled to rely conclusively on the accuracy of the information or data
provided to it by any other party to the Agreement and shall have no liability
for any errors therein.
SECTION 6.04. Limitation on Resignation of Servicer.
The Servicer shall not resign from the obligations and duties hereby
imposed on it except upon determination that its duties hereunder are no longer
permissible under applicable law. Any such
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determination permitting the resignation of the Servicer shall be evidenced by
an Opinion of Counsel to such effect delivered to the Trustee and the NIMs
Insurer. No such resignation shall become effective until the Trustee or a
successor servicer reasonably acceptable to the NIMs Insurer and the Trustee is
appointed and has assumed the Servicer's responsibilities, duties, liabilities
and obligations hereunder. Any such resignation shall not relieve the Servicer
of any of the obligations specified in Sections 7.01, 7.02 and 7.03 as
obligations that survive the resignation or termination of the Servicer.
The Trustee, the Depositor and the NIMs Insurer hereby specifically (i)
consent to the pledge and assignment by the Servicer of all the Servicer's
right, title and interest in, to and under this Agreement to the Servicing
Rights Pledgee, for the benefit of certain lenders, and (ii) provided that no
Event of Default exists, agree that upon delivery to the Trustee by the
Servicing Rights Pledgee of a letter signed by the Servicer whereby the Servicer
shall resign as Servicer under this Agreement, the Trustee shall appoint the
Servicing Rights Pledgee or its designee as successor servicer but only if such
successor servicer meets the requirements of a successor servicer under this
Agreement and agrees to be subject to the terms of this Agreement. If, pursuant
to any provision hereof, the duties of the Servicer are transferred to a
successor servicer, the entire amount of the Servicing Fee and other
compensation payable to the Servicer pursuant hereto shall thereafter be payable
to such successor servicer.
SECTION 6.05. Errors and Omissions Insurance; Fidelity Bonds.
The Servicer shall, for so long as it acts as servicer under this
Agreement, obtain and maintain in force (a) a policy or policies of insurance
covering errors and omissions in the performance of its obligations as servicer
hereunder, and (b) a fidelity bond in respect of its officers, employees and
agents. Each such policy and bond shall, together, meet the requirements of
Xxxxxx Xxx or Xxxxxxx Mac, unless the Servicer has obtained a waiver of such
requirements from the Sponsor. The Servicer shall provide the Trustee, upon
request with reasonable notice, with copies of such policies and fidelity bond
or a certification from the insurance provider evidencing such policies and
fidelity bond. The Servicer may be deemed to have complied with this provision
if an Affiliate of the Servicer has such errors and omissions and fidelity bond
coverage and, by the terms of such insurance policy or fidelity bond, the
coverage afforded thereunder extends to the Servicer. In the event that any such
policy or bond ceases to be in effect, the Servicer shall use its reasonable
commercial efforts to obtain a comparable replacement policy or bond from an
insurer or issuer meeting the requirements set forth above as of the date of
such replacement. The Servicer shall ensure that any such policy or fidelity
bond shall by its terms not be cancelable without thirty (30) days' prior
written notice to the Trustee.
ARTICLE VII
DEFAULT; TERMINATION OF SERVICER
SECTION 7.01. Events of Default.
"Event of Default," wherever used herein, means any one of the following
events:
(i) any failure by the Servicer to make any Advance to deposit in the
Collection Account or the Certificate Account or remit to the Trustee any
payment (excluding a payment required to be made under Section 4.01 hereof)
required to be made under the terms of this Agreement, which failure shall
continue unremedied for three Business Days and, with respect to a payment
required to be made under Section 4.01 hereof, for one Business Day, after
the date on which written notice of such failure shall have been given to
the Servicer by the Trustee or the Depositor, or to the Trustee, the
Depositor and the Servicer by the NIMs Insurer or the Holders of
Certificates evidencing greater than 50% of the Voting Rights evidenced by
the Certificates; or
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(ii) any failure by the Servicer to observe or perform in any material
respect any other of the covenants or agreements on the part of the
Servicer contained in this Agreement or any representation or warranty
shall prove to be untrue, which failure or breach shall continue unremedied
for a period of sixty (60) days after the date on which written notice of
such failure shall have been given to the Servicer by the Trustee or the
Depositor; or
(iii) a decree or order of a court or agency or supervisory authority
having jurisdiction for the appointment of a receiver or liquidator in any
insolvency, readjustment of debt, marshaling of assets and liabilities or
similar proceedings, or for the winding-up or liquidation of its affairs,
shall have been entered against the Servicer and such decree or order shall
have remained in force undischarged or unstayed for a period of sixty (60)
consecutive days; or
(iv) consent by the Servicer to the appointment of a receiver or
liquidator in any insolvency, readjustment of debt, marshaling of assets
and liabilities or similar proceedings of or relating to the Servicer or
all or substantially all of the property of the Servicer; or
(v) admission by the Servicer in writing of its inability to pay its
debts generally as they become due, file a petition to take advantage of,
or commence a voluntary case under, any applicable insolvency or
reorganization statute, make an assignment for the benefit of its
creditors, or voluntarily suspend payment of its obligations; or
(vi) any failure by the Servicer to duly perform, within the required
time period, its obligations under Sections 3.17, 3.18 and 3.22 of this
Agreement, which failure continues unremedied for a period of ten (10) days
after the date on which written notice of such failure, requiring the same
to be remedied, shall have been given to the Servicer by the Trustee or any
other party to this Agreement.
If an Event of Default shall occur with respect to the Servicer, then, and
in each and every such case, so long as such Event of Default shall not have
been remedied within the applicable grace period, or solely with respect to
clause (i) above by 5:00 p.m. on the Servicer Remittance Date, the Trustee may,
or at the direction of the NIMs Insurer or the Holders of Certificates
evidencing not less than 50% of the Voting Rights evidenced by the Certificates
(with the written consent of the NIMs Insurer, except after a NIMs Insurer
Default), shall, by notice in writing to the Servicer (with a copy to each
Rating Agency), terminate all of the rights and obligations of the Servicer
under this Agreement and in and to the Mortgage Loans and the proceeds thereof,
other than its rights as a Certificateholder hereunder. On or after the receipt
by the Servicer of such written notice, all authority and power of the Servicer
hereunder, subject to and in accordance with Section 6.04 hereof, whether with
respect to the Mortgage Loans or otherwise, shall pass to and be vested in the
Trustee as successor servicer. To the extent the Event of Default resulted from
the failure of the Servicer to make a required Advance, the Trustee, in its
capacity as successor servicer, shall thereupon make any Advance described in
Section 4.01 hereof subject to Section 3.04 hereof. The Trustee is hereby
authorized and empowered to execute and deliver, on behalf of the 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. Unless expressly provided in such written notice, no such termination
shall affect any obligation of the Servicer to pay amounts owed pursuant to
Article VIII. The Servicer agrees to cooperate with the Trustee in effecting the
termination of the Servicer's responsibilities and rights hereunder, including,
without limitation, the transfer to the Trustee of all cash amounts which shall
at the time be credited to the Collection Account, or thereafter be received
with respect to the Mortgage Loans. The Servicer and the Trustee shall promptly
notify the Rating Agencies of the occurrence of an Event of Default or an event
that, with notice, passage of time, other action or any combination of the
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foregoing would be an Event of Default, such notice to be provided in any event
within two Business Days of such occurrence.
Notwithstanding any termination of the activities of the Servicer
hereunder, the Servicer shall be entitled to receive, out of any late collection
of a Scheduled Payment on a Mortgage Loan that was due prior to the notice
terminating the Servicer's rights and obligations as Servicer hereunder and
received after such notice, that portion thereof to which the Servicer would
have been entitled pursuant to Sections 3.08(a)(i) through (viii), and any other
amounts payable to the Servicer hereunder the entitlement to which arose prior
to the termination of its activities hereunder. Notwithstanding anything herein
to the contrary, upon termination of the Servicer hereunder, any liabilities of
the Servicer which accrued prior to such termination shall survive such
termination.
SECTION 7.02. [RESERVED]
SECTION 7.03. Trustee to Act; Appointment of Successor.
On and after the time the Servicer receives a notice of termination
pursuant to Section 7.01 hereof, the Trustee shall, to the extent provided in
Section 3.04, be the successor to the Servicer in its capacity as servicer under
this Agreement and the transactions set forth or provided for herein and shall
be subject to all the responsibilities, duties and liabilities relating thereto
placed on the Servicer by the terms and provisions hereof and applicable law
including the obligation to make advances pursuant to Section 4.01. As
compensation therefor, subject to the last paragraph of Section 7.01, as
applicable, the Trustee shall be entitled to all compensation and reimbursement
for costs and expenses that the Servicer would have been entitled to hereunder
if the Servicer had continued to act hereunder. Notwithstanding the foregoing,
if the Trustee has become the successor to the Servicer in accordance with
Section 7.01 hereof, the Trustee may, if it shall be unwilling to so act, or
shall, if it is prohibited by applicable law from making Advances pursuant to
Section 4.01 hereof or if it is otherwise unable to so act, appoint, or petition
a court of competent jurisdiction to appoint, any established mortgage loan
servicing institution the appointment of which successor shall be approved by
the NIMs Insurer and does not adversely affect the then current rating of the
Certificates by each Rating Agency as the successor to the Servicer hereunder in
the assumption of all or any part of the responsibilities, duties or liabilities
of the Servicer hereunder. Any successor servicer shall be an institution that
is acceptable to the NIMs Insurer and is a Xxxxxx Xxx and Xxxxxxx Mac approved
seller/servicer in good standing, that has a net worth of at least $15,000,000,
and that is willing to service the Mortgage Loans and executes and delivers to
the Depositor and the Trustee an agreement accepting such delegation and
assignment, that contains an assumption by such Person of the rights, powers,
duties, responsibilities, obligations and liabilities of the Servicer (other
than liabilities of the Servicer under Section 6.03 hereof incurred prior to
termination of the Servicer under Section 7.01), with like effect as if
originally named as a party to this Agreement; and provided further that each
Rating Agency acknowledges that its rating of the Certificates in effect
immediately prior to such assignment and delegation will not be qualified or
reduced as a result of such assignment and delegation. No appointment of a
successor to the Servicer hereunder shall be effective until the Trustee shall
have consented thereto, prior written consent of the NIMs Insurer is obtained
(provided, that such prior written consent shall not be required in the event
that the Servicing Rights Pledgee or its designee is so appointed as successor
servicer) and written notice of such proposed appointment shall have been
provided by the Trustee to each Certificateholder. The Trustee shall not resign
as servicer until a successor servicer has been appointed and has accepted such
appointment. Pending appointment of a successor to the Servicer hereunder, the
Trustee, unless the Trustee is prohibited by law from so acting, shall, subject
to Section 3.04 hereof, act in such capacity as hereinabove provided. In
connection with such appointment and assumption, the Trustee may make such
arrangements for the compensation of such successor out of payments on Mortgage
Loans as it and such successor shall agree; provided, however, that no such
compensation shall be in excess of that permitted the Servicer hereunder. The
Trustee and
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such successor shall take such action, consistent with this Agreement, as shall
be necessary to effectuate any such succession. Neither the Trustee nor any
other successor servicer shall be deemed to be in default hereunder by reason of
any failure to make, or any delay in making, any distribution hereunder or any
portion thereof or any failure to perform, or any delay in performing, any
duties or responsibilities hereunder, in either case caused by the failure of
the Servicer to deliver or provide, or any delay in delivering or providing, any
cash, information, documents or records to it.
In the event that the Servicer shall for any reason no longer be the
Servicer hereunder (including by reason of any Event of Default),
notwithstanding anything to the contrary above, the Trustee and the Depositor
hereby agree that within ten (10) Business Days or delivery to the Trustee by
the Servicing Rights Pledgee of a letter signed by the Servicer whereby the
Servicer shall resign as Servicer under this Agreement, the Servicing Rights
Pledgee or its designee shall be appointed as successor servicer (provided that
at the time of such appointment the Servicing Rights Pledgee or such designee
meets the requirements of a successor servicer set forth above) and the
Servicing Rights Pledgee agrees to be subject to the terms of this Agreement.
Any successor to the Servicer as servicer shall give notice to the
Mortgagors of such change of servicer and shall, during the term of its service
as servicer maintain in force the policy or policies that the Servicer is
required to maintain pursuant to Section 6.05.
SECTION 7.04. Notification to Certificateholders.
(a) Upon any termination of or appointment of a successor to the Servicer,
the Trustee shall give prompt written notice thereof to Certificateholders and
to each Rating Agency.
(b) Within sixty (60) days after the occurrence of any Event of Default,
the Trustee shall transmit by mail to all Certificateholders notice of each such
Event of Default hereunder known to the Trustee, unless such Event of Default
shall have been cured or waived.
ARTICLE VIII
CONCERNING THE TRUSTEE
SECTION 8.01. Duties of Trustee.
For purposes of this Article VIII, references to "Trustee" shall be deemed
to include U.S. Bank National Association, in its capacity as Supplemental
Interest Trust Trustee under this Agreement and the Swap Agreement, and in
respect thereof the Supplemental Interest Trust Trustee shall have all of the
rights, protections, immunities and benefits of the Trustee.
The Trustee, prior to the occurrence of an Event of Default and after the
curing of all Events of Default that may have occurred, shall undertake to
perform such duties and only such duties as are specifically set forth in this
Agreement. In case an Event of Default has occurred and remains uncured, the
Trustee shall exercise such of the rights and powers vested in it by this
Agreement and use the same degree of care and skill in their exercise as a
prudent person would exercise or use under the circumstances in the conduct of
such person's own affairs. In case an Event of Default or other default by the
Servicer or the Depositor hereunder shall occur and be continuing, the Trustee,
shall, at the direction of the majority of the Certificateholders or the NIMs
Insurer, or may, proceed to protect and enforce its rights and the rights of the
Certificateholders or the NIMs Insurer under this Agreement by a suit, action or
proceeding in equity or at law or otherwise, whether for the specific
performance of any covenant or agreement contained in this agreement or in aid
of the execution of any power granted in this Agreement or for the enforcement
of any other legal, equitable or other remedy, as the Trustee, being advised by
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counsel, and subject to the foregoing, shall deem most effectual to protect and
enforce any of the rights of the Trustee, the NIMs Insurer and the
Certificateholders.
The Trustee, upon receipt of all resolutions, certificates, statements,
opinions, reports, documents, orders or other instruments furnished to the
Trustee that are specifically required to be furnished pursuant to any provision
of this Agreement shall examine them to determine whether they conform on their
face, to the requirements of this Agreement. If any such instrument is found not
to conform, on its face, to the requirements of this Agreement in a material
manner, the Trustee shall notify the person providing such Agreement of such
non-conformance, and if the instrument is not corrected to conform to the
requirements of this Agreement, the Trustee will provide notice thereof to the
Certificateholders and the NIMs Insurer and take such further action as directed
by the Certificateholders and the NIMs Insurer.
No provision of this Agreement shall be construed to relieve the Trustee
from liability for its own negligent action, its own negligent failure to act or
its own misconduct, its negligent failure to perform its obligations in
compliance with this Agreement, or any liability that would be imposed by reason
of its willful misfeasance or bad faith; provided, however, that:
(i) prior to the occurrence of an Event of Default, and after the
curing of all such Events of Default that may have occurred, the duties and
obligations of the Trustee shall be determined solely by the express
provisions of this Agreement, the Trustee shall not be liable, individually
or as Trustee, 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 Trustee and the
Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Agreement that it reasonably believed in good faith to be genuine and
to have been duly executed by the proper authorities respecting any matters
arising hereunder;
(ii) the Trustee shall not be liable, individually or as Trustee, for
an error of judgment made in good faith by a Responsible Officer or
Responsible Officers of the Trustee, unless the Trustee was negligent or
acted in bad faith or with willful misfeasance;
(iii) the Trustee shall not be liable, individually or as Trustee,
with respect to any action taken, suffered or omitted to be taken by it in
good faith in accordance with the direction of the NIMs Insurer or the
Holders of each Class of Certificates evidencing not less than 50% of the
Voting Rights of such Class relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee under this
Agreement; and
(iv) except as otherwise expressly provided in this Agreement, if any
default occurs in the making of a payment due under any Permitted
Investment, or if a default occurs in any other performance required under
any Permitted Investment, the Trustee may and, subject to Section 8.01 and
Section 8.02, upon the request of the Holders of the Certificates
representing more than 50% of the Voting Rights allocated to any Class of
Certificates, shall take such action as may be appropriate to enforce such
payment or performance, including the institution and prosecution of
appropriate proceedings.
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 Servicer upon receipt any such complaint,
claim, demand, notice or
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other document (i) which is delivered to the Trustee, (ii) of which a
Responsible Officer has actual knowledge and (iii) which contains information
sufficient to permit the Trustee to make a determination that the real property
to which such document related to is a Mortgaged Property.
SECTION 8.02. Certain Matters Affecting the Trustee.
(a) Except as otherwise provided in Section 8.01:
(i) the Trustee may request and rely upon 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, appraisal,
bond or other paper or document believed by it to be genuine and to have
been signed or presented by the proper party or parties;
(ii) the Trustee may consult with counsel of its choice and any advice
or Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken or suffered or omitted by it
hereunder in good faith and in accordance with such advice or Opinion of
Counsel;
(iii) the Trustee shall not be liable, individually or as Trustee, for
any action taken, suffered or omitted by it in good faith and believed by
it to be authorized or within the discretion or rights or powers conferred
upon it by this Agreement;
(iv) prior to the occurrence of an Event of Default hereunder and
after the curing of all Events of Default that may have occurred, the
Trustee shall not be bound to make any investigation into the facts or
matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, bond or other
paper or document, unless requested in writing so to do by the NIMs Insurer
or the Holders of each Class of Certificates evidencing not less than 50%
of the Voting Rights of such Class;
(v) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents,
accountants or attorneys;
(vi) the Trustee shall not be required to expend its own funds or
otherwise incur any financial liability in the performance of any of its
duties hereunder if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such liability is not
assured to it;
(vii) the Trustee shall not be liable, individually or as Trustee, for
any loss on any investment of funds pursuant to this Agreement (other than
as issuer of the investment security or as provided for in Section
3.05(g));
(viii) the Trustee shall not be deemed to have knowledge of an Event
of Default until a Responsible Officer of the Trustee shall have received
written notice thereof;
(ix) the Trustee shall be under no obligation to exercise any of the
trusts or powers vested in it by this Agreement or to make any
investigation of matters arising hereunder or to institute, conduct or
defend any litigation hereunder or in relation hereto at the request, order
or direction of any of the NIMs Insurer or the Certificateholders, pursuant
to the provisions of this Agreement, unless the NIMs Insurer or such
Certificateholders shall have offered to the Trustee
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reasonable security or indemnity against the costs, expenses and
liabilities that may be incurred therein or thereby; and
(x) if requested by the Servicer, the Trustee may appoint the Servicer
as the trustee's attorney-in-fact in order to carry out and perform certain
activities that are necessary or appropriate for the servicing and
administration of the Mortgage Loans pursuant to this Agreement. Such
appointment shall be evidenced by a power of attorney in such form as may
be agreed to by the Trustee and the Servicer. The Trustee shall have no
liability for any action or inaction of the Servicer in connection with
such power of attorney and the Trustee shall be indemnified by the Servicer
for all liabilities, costs and expenses incurred by the Trustee in
connection with the Servicer's use or misuse of such powers of attorney.
(b) All rights of action under this Agreement or under any of the
Certificates, enforceable by the Trustee, may be enforced by the Trustee without
the possession of any of the Certificates, or the production thereof at the
trial or other proceeding relating thereto, and any such suit, action or
proceeding instituted by the Trustee shall be brought in its name for the
benefit of all the Holders of the Certificates, subject to the provisions of
this Agreement.
(c) [Reserved]
SECTION 8.03. Trustee Not Liable for Mortgage Loans.
The recitals contained herein shall be taken as the statements of the
Depositor or the Servicer, as the case may be, and the Trustee assumes no
responsibility for their correctness. The Trustee makes no representations as to
the validity or sufficiency of this Agreement, of any Mortgage Loan or related
document other than with respect to the Trustee's execution and authentication
of the Certificates. The Trustee shall not be accountable for the use or
application by the Depositor or the Servicer of any funds paid to the Depositor
or the Servicer in respect of the Mortgage Loans or deposited in or withdrawn
from the Collection Account or Certificate Account by the Depositor or the
Servicer.
SECTION 8.04. Trustee May Own Certificates.
The Trustee in its individual or any other capacity may become the owner or
pledgee of Certificates with the same rights as it would have if it were not the
Trustee.
SECTION 8.05. Trustee's Fees.
The Trustee shall be entitled to earnings on or investment income with
respect to funds in or credited to the Certificate Account.
SECTION 8.06. Indemnification of Trustee; Expenses.
(a) The Trustee and its respective directors, officers, employees and
agents shall be entitled to indemnification from the Issuing Entity 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,
including any applicable fees and expenses payable hereunder 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:
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(i) with respect to any such claim, the Trustee shall have given the
Depositor and the Holders written notice thereof promptly after the Trustee
shall have knowledge thereof; provided that failure to so notify shall not
relieve the Issuing Entity of the obligation to indemnify the Trustee;
however, any reasonable delay by the Trustee to provide written notice to
the Depositor and the Holders promptly after the Trustee shall have
obtained knowledge of a claim shall not relieve the Issuing Entity of the
obligation to indemnify the Trustee under this Section 8.06;
(ii) while maintaining control over its own defense, the Trustee shall
cooperate and consult fully with the Depositor in preparing such defense;
(iii) notwithstanding anything to the contrary in this Section 8.06,
the Issuing Entity shall not be liable for settlement of any such claim by
the Trustee entered into without the prior consent of the Depositor, which
consent shall not be unreasonably withheld; and
(iv) any such loss, liability or expense to be indemnified by the
Issuing Entity must constitute an "unanticipated expense" of the Issuing
Entity within the meaning of Treasury Regulations Section
1.860G-1(b)(3)(ii).
The provisions of this Section 8.06 shall survive any termination of this
Agreement and the resignation or removal of the Trustee and shall be construed
to include, but not be limited to any loss, liability or expense under any
environmental law.
(b) The Trustee shall be entitled to all reasonable expenses, disbursements
and advancements incurred or made by the Trustee in accordance with this
Agreement (including fees and expenses of its counsel and all persons not
regularly in its employment), except any such expenses, disbursements and
advancements that either (i) arise from its negligence, bad faith or willful
misconduct or (ii) do not constitute "unanticipated expenses" within the meaning
of Treasury Regulations Section 1.860G-1(b)(3)(ii).
(c) The Trustee's right to indemnification and reimbursement shall be
subject to a cap of $300,000, excluding any Servicing Transfer Costs and any
auction expenses incurred by the Trustee in connection with Section 9.01(a)(i),
in the aggregate in any calendar year; provided, however, that such cap shall
apply only if NIM Notes have been issued, are outstanding and there is a NIMs
Insurer and shall cease to apply after the date on which any NIM Notes are paid
in full or if there is no NIMs Insurer. Any amounts not in excess of this cap
may be withdrawn by the Trustee from the Certificate Account at any time.
(d) The Trustee shall be further indemnified by the Issuing Entity for and
held harmless against, any loss, liability or expense arising out of, or in
connection with, the provisions set forth in the last paragraph of Section 2.01
hereof, including, without limitation, all costs, liabilities and expenses
(including reasonably 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.
SECTION 8.07. Eligibility Requirements for Trustee.
The Trustee hereunder shall, at all times, be a corporation or association
organized and doing business under the laws of a state or the United States of
America, authorized under such laws to exercise corporate trust powers having a
combined capital and surplus of at least $50,000,000, subject to supervision or
examination by federal or state authority and with a credit rating that would
not cause any of the Rating Agencies to reduce their respective ratings of any
Class of Certificates below the ratings issued on the Closing Date (or having
provided such security from time to time as is sufficient to avoid
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such reduction). If such corporation or association publishes reports of
condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section 8.07 the combined capital and surplus of such corporation or association
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. In case at any time the Trustee shall
cease to be eligible in accordance with the provisions of this Section 8.07, the
Trustee shall resign immediately in the manner and with the effect specified in
Section 8.08 hereof. The corporation or national banking association serving as
Trustee may have normal banking and trust relationships with the Depositor, the
NIMs Insurer and their Affiliates; provided, however, that such corporation
cannot be an Affiliate of the Servicer other than the Trustee in its role as
successor to the Servicer.
SECTION 8.08. Resignation and Removal of Trustee.
The Trustee may at any time resign and be discharged from the trusts hereby
created by (1) giving written notice of resignation to the Depositor and by
mailing notice of resignation by first class mail, postage prepaid, to the
Certificateholders at their addresses appearing on the Certificate Register and
each Rating Agency, not less than sixty (60) days before the date specified in
such notice when, subject to Section 8.09, such resignation is to take effect,
and (2) acceptance of appointment by a successor trustee acceptable to the NIMs
Insurer in accordance with Section 8.09 and meeting the qualifications set forth
in Section 8.07. If no successor trustee shall have been so appointed and have
accepted appointment within thirty (30) days after the giving of such notice or
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee.
If at any time (i) the Trustee shall cease to be eligible in accordance
with the provisions of Section 8.07 hereof and shall fail to resign after
written request thereto by the Depositor or the NIMs Insurer, (ii) the Trustee
shall become incapable of acting, or shall be adjudged as bankrupt or insolvent,
or a receiver of the Trustee or of its property shall be appointed, or any
public officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, or
(iii)(A) a tax is imposed with respect to the Issuing Entity by any state in
which the Trustee or the Issuing Entity is located, (B) the imposition of such
tax would be avoided by the appointment of a different trustee and (C) the
Trustee fails to indemnify the Issuing Entity against such tax, then the
Depositor may remove the Trustee and shall promptly appoint a successor trustee
by written instrument, in triplicate, one copy of which instrument shall be
delivered to the Trustee, one copy of which shall be delivered to the Servicer
and one copy of which shall be delivered to the successor trustee.
The Holders evidencing at least 51% of the Voting Rights of all Classes of
Certificates, with the consent of the NIMs Insurer, or the NIMs Insurer upon
failure of the Trustee to perform its obligations hereunder, may at any time
remove the Trustee and the Depositor shall appoint a successor trustee by
written instrument or instruments, in triplicate, signed by such Holders or
their attorneys-in-fact duly authorized (or by the NIMs Insurer), one complete
set of which instruments shall be delivered by the successor trustee to the
Servicer, one complete set to the Trustee so removed and one complete set to the
successor so appointed. Notice of any removal of the Trustee shall be given to
the NIMs Insurer and each Rating Agency by the successor trustee.
Any resignation or removal of the Trustee and appointment of a successor
trustee pursuant to any of the provisions of this Section 8.08 shall become
effective upon acceptance of appointment by the successor trustee as provided in
Section 8.09 hereof.
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SECTION 8.09. Successor Trustee.
Any successor trustee appointed as provided in Section 8.08 hereof shall
execute, acknowledge and deliver to the Depositor and to its predecessor
trustee, the NIMs Insurer and the Servicer an instrument accepting such
appointment hereunder and thereupon the resignation or removal of the
predecessor trustee shall become effective and such successor trustee, without
any further act, deed or conveyance, shall become fully vested with all the
rights, powers, duties and obligations of its predecessor hereunder, with the
like effect as if originally named as trustee herein.
No successor trustee shall accept appointment as provided in this Section
8.09 unless at the time of such acceptance such successor trustee shall be
eligible under the provisions of Section 8.07 hereof and its appointment shall
not adversely affect the then current rating of the Certificates.
Upon acceptance of appointment by a successor trustee as provided in this
Section 8.09, the Depositor shall mail notice of the succession of such trustee
hereunder to all Holders of Certificates. If the Depositor fails to mail such
notice within ten (10) days after acceptance of appointment by the successor
trustee, the successor trustee shall cause such notice to be mailed at the
expense of the Depositor.
SECTION 8.10. Merger or Consolidation of Trustee.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided that such corporation shall be eligible under the provisions of Section
8.07 hereof without the execution or filing of any paper or further act on the
part of any of the parties hereto, anything herein to the contrary
notwithstanding (except for the execution of an assumption agreement where such
succession is not effected by operation of law).
SECTION 8.11. Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at any time, for
the purpose of meeting any legal requirements of any jurisdiction in which any
part of the Trust Fund or property securing any Mortgage Note may at the time be
located, the Servicer and the Trustee acting jointly shall have the power and
shall execute and deliver all instruments to appoint one or more Persons
approved by the Trustee and the NIMs Insurer to act as co-trustee or co-trustees
jointly with the Trustee, or separate trustee or separate trustees, of all or
any part of the Trust Fund, and to vest in such Person or Persons, in such
capacity and for the benefit of the Certificateholders, such title to the Trust
Fund or any part thereof, whichever is applicable, and, subject to the other
provisions of this Section 8.11, such powers, duties, obligations, rights and
trusts as the Servicer and the Trustee may consider necessary or desirable. Any
such co-trustee or separate trustee shall be subject to the written approval of
the Servicer and the NIMs Insurer. The Trustee shall not be liable for the
actions of any co-trustee appointed at the request of the Trustee; provided that
the appointment of a co-trustee has been appointed with due care. If the
Servicer and the NIMs Insurer shall not have joined in such appointment within
fifteen (15) days after the receipt by it of a request to do so, or in the case
an Event of Default shall have occurred and be continuing, the Trustee alone
shall have the power to make such appointment. No co-trustee or separate trustee
hereunder shall be required to meet the terms of eligibility as a successor
trustee under Section 8.07 and no notice to Certificateholders of the
appointment of any co-trustee or separate trustee shall be required under
Section 8.09.
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Every separate trustee and co-trustee shall, to the extent permitted by
law, be appointed and act subject to the following provisions and conditions:
(i) All rights, powers, duties and obligations conferred or imposed
upon the Trustee, except for the obligation of the Trustee under this
Agreement to advance funds on behalf of the Servicer, shall be conferred or
imposed upon and exercised or performed by the Trustee and such separate
trustee or co-trustee jointly (it being understood that such separate
trustee or co-trustee is not authorized to act separately without the
Trustee joining in such act), except to the extent that under any law of
any jurisdiction in which any particular act or acts are to be performed
(whether as Trustee hereunder or as successor to the Servicer hereunder),
the Trustee shall be incompetent or unqualified to perform such act or
acts, in which event such rights, powers, duties and obligations (including
the holding of title to the Trust Fund or any portion thereof in any such
jurisdiction) shall be exercised and performed singly by such separate
trustee or co-trustee, but solely at the direction of the Trustee;
(ii) No trustee hereunder shall be held personally liable by reason of
any act or omission of any other trustee hereunder; and
(iii) The Trustee, with the consent of the NIMs Insurer, may at any
time accept the resignation of or remove any separate trustee or
co-trustee.
Any notice, request or other writing given to the Trustee shall be deemed
to have been given to each of the then separate trustees and co-trustees, as
effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article VIII. Each separate trustee and co-trustee, upon its acceptance
of the trusts conferred, shall be vested with the estates or property specified
in its instrument of appointment, either jointly with the Trustee or separately,
as may be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the conduct
of, affecting the liability of, or affording protection to, the Trustee. Every
such instrument shall be filed with the Trustee and a copy thereof given to the
Servicer, the NIMs Insurer and the Depositor.
Any separate trustee or co-trustee may, at any time, constitute the Trustee
its agent or attorney-in-fact, with full power and authority, to the extent not
prohibited by law, to do any lawful act under or in respect of this Agreement on
its behalf and in its name. If any separate trustee or co-trustee shall die,
become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee.
SECTION 8.12. Tax Matters.
(a) It is intended that each of the REMICs provided for herein shall
constitute, and that the affairs of the Trust Fund shall be conducted so as to
allow each such REMIC to qualify as, a "real estate mortgage investment conduit"
as defined in and in accordance with the REMIC Provisions. It is also intended
that each of the grantor trusts provided for in Section 2.07 hereof shall
constitute, and that the affairs of the Trust Fund shall be conducted so as to
allow each such grantor trust to qualify as, a grantor trust under the
provisions of Subpart E, Part I of Subchapter J of the Code. In furtherance of
such intention, the Trustee covenants and agrees that it shall act as agent (and
the Trustee is hereby appointed to act as agent) on behalf of each of the REMICs
provided for herein and that in such capacity it shall: (a) prepare and file, or
cause to be prepared and filed, in a timely manner, a U.S. Real Estate Mortgage
Investment Conduit Income Tax Return (Form 1066 or any successor form adopted by
the Internal Revenue Service) and prepare and file or cause to be prepared and
filed with the Internal Revenue Service
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and applicable state or local tax authorities income tax or information returns
for each taxable year with respect to each of the REMICs and grantor trusts
provided for herein, containing such information and at the times and in the
manner as may be required by the Code or state or local tax laws, regulations,
or rules, and furnish or cause to be furnished to Certificateholders the
schedules, statements or information at such times and in such manner as may be
required thereby; (b) within thirty (30) days of the Closing Date, furnish or
cause to be furnished to the Internal Revenue Service, on Forms 8811 or as
otherwise may be required by the Code, the name, title, address, and telephone
number of the person that the holders of the Certificates may contact for tax
information relating thereto, together with such additional information as may
be required by such Form, and update such information at the time or times in
the manner required by the Code for each of the REMICs provided for herein; (c)
make or cause to be made elections, on behalf of each of the REMICs provided for
herein to be treated as a REMIC on the federal tax return of such REMICs for
their first taxable years (and, if necessary, under applicable state law); (d)
prepare and forward, or cause to be prepared and forwarded, to the
Certificateholders and to the Internal Revenue Service and, if necessary, state
tax authorities, all information returns and reports as and when required to be
provided to them in accordance with the REMIC Provisions or other applicable tax
law, including without limitation, the calculation of any original issue
discount using the Prepayment Assumption; (e) provide information necessary for
the computation of tax imposed on the transfer of a Class R Certificate to a
Person that is not a Permitted Transferee, or an agent (including a broker,
nominee or other middleman) of a Person that is not a Permitted Transferee, or a
pass-through entity in which a Person that is not a Permitted Transferee is the
record holder of an interest (the reasonable cost of computing and furnishing
such information may be charged to the Person liable for such tax); (f) to the
extent that they are under its control conduct the affairs of each of the REMICs
and grantor trusts provided for herein at all times that any Certificates are
outstanding so as to maintain the status of each of the REMICs provided for
herein as a REMIC under the REMIC Provisions and the status of each of the
grantor trusts provided for herein as a grantor trust under Subpart E, Part I of
Subchapter J of the Code; (g) not knowingly or intentionally take any action or
omit to take any action that would cause the termination of the REMIC status of
any of the REMICs provided for herein or result in the imposition of tax upon
any such REMIC; (h) not knowingly or intentionally take any action or omit to
take any action that would cause the termination of the grantor trust status
under Subpart E, Part I of Subchapter J of the Code of any of the grantor trusts
provided for herein or result in the imposition of tax upon any such grantor
trust; (i) pay, from the sources specified in the last paragraph of this Section
8.12(a), the amount of any federal, state and local taxes, including prohibited
transaction taxes as described below, imposed on each of the REMICs provided for
herein prior to the termination of the Trust Fund when and as the same shall be
due and payable (but such obligation shall not prevent the Trustee or any other
appropriate Person from contesting any such tax in appropriate proceedings and
shall not prevent the Trustee from withholding payment of such tax, if permitted
by law, pending the outcome of such proceedings); (j) sign or cause to be signed
federal, state or local income tax or information returns; (k) maintain records
relating to each of the REMICs and grantor trusts provided for herein, including
but not limited to the income, expenses, assets and liabilities of each of the
REMICs and grantor trusts provided for herein, and the fair market value and
adjusted basis of the Trust Fund property determined at such intervals as may be
required by the Code, as may be necessary to prepare the foregoing returns,
schedules, statements or information; and (l) as and when necessary and
appropriate, represent each of the REMICs and grantor trusts provided for herein
in any administrative or judicial proceedings relating to an examination or
audit by any governmental taxing authority, request an administrative adjustment
as to any taxable year of any of the REMICs provided for herein, enter into
settlement agreements with any governmental taxing agency, extend any statute of
limitations relating to any tax item of any of the REMICs provided for herein,
and otherwise act on behalf of each of the REMICs provided for herein in
relation to any tax matter involving any of such REMICs or any controversy
involving the Trust Fund.
In order to enable the Trustee to perform its duties as set forth herein,
the Depositor shall provide, or cause to be provided, to the Trustee within ten
(10) days after the Closing Date all information or data
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that the Trustee requests in writing and determines to be relevant for tax
purposes to the valuations and offering prices of the Certificates, including,
without limitation, the price, yield, prepayment assumption and projected cash
flows of the Certificates and the Mortgage Loans. Thereafter, the Depositor
shall provide to the Trustee promptly upon written request therefor, any such
additional information or data that the Trustee may, from time to time, request
in order to enable the Trustee to perform its duties as set forth herein. The
Depositor hereby agrees to indemnify the Trustee for any losses, liabilities,
damages, claims or expenses of the Trustee arising from any errors or
miscalculations of the Trustee that result from any failure of the Depositor to
provide, or to cause to be provided, accurate information or data to the Trustee
on a timely basis.
In the event that any tax is imposed on "prohibited transactions" of any of
the REMICs provided for herein as defined in Section 860F(a)(2) of the Code, on
the "net income from foreclosure property" of any of such REMICs as defined in
Section 860G(c) of the Code, on any contribution to the Trust Fund after the
Startup Day pursuant to Section 860G(d) of the Code, or any other tax is
imposed, if not paid as otherwise provided for herein, such tax shall be paid by
(i) the Trustee, if any such other tax arises out of or results from a breach by
the Trustee of any of its obligations under this Agreement or as a result of the
location of the Trustee, (ii) any party hereto (other than the Trustee) to the
extent any such other tax arises out of or results from a breach by such other
party of any of its obligations under this Agreement or as a result of the
location of such other party or (iii) in all other cases, or in the event that
any liable party here fails to honor its obligations under the preceding clauses
(i) or (ii), any such tax will be paid first with amounts (other than amounts
derived by the Issuing Entity from a payment on any Corridor Contract or amounts
received by the Supplemental Interest Trust as payments on the Swap Agreement)
otherwise to be distributed to the Class R Certificateholders (pro rata)
pursuant to Section 4.04, and second with amounts (other than amounts derived by
the Issuing Entity from a payment on any Corridor Contract or amounts received
by the Supplemental Interest Trust as payments on the Swap Agreement) otherwise
to be distributed to all other Certificateholders in the following order of
priority: first, to the Class C Certificates (pro rata), second, to the Class
B-3 Certificates (pro rata), third, to the Class B-2 Certificates (pro rata),
fourth, to the Class B-1 Certificates (pro rata), fifth, to the Class M-6
Certificates (pro rata), sixth, to the Class M-5 Certificates (pro rata),
seventh, to the Class M-4 Certificates (pro rata), eighth, to the Class M-3
Certificates (pro rata), ninth, to the Class M-2 Certificates (pro rata), tenth,
to the Class M-1 Certificates (pro rata) and eleventh, to the Class A
Certificates (pro rata). Notwithstanding anything to the contrary contained
herein, to the extent that such tax is payable by the Class R Certificate, the
Trustee is hereby authorized pursuant to such instruction to retain on any
Distribution Date, from the Holders of the Class R Certificate (and, if
necessary, from the Holders of all other Certificates in the priority specified
in the preceding sentence), funds otherwise distributable to such Holders in an
amount sufficient to pay such tax. The Trustee agrees to promptly notify in
writing the party liable for any such tax of the amount thereof and the due date
for the payment thereof.
(b) Each of the Depositor, the Servicer and the Trustee agrees not to
knowingly or intentionally take any action or omit to take any action that would
cause the termination of the REMIC status of any of the REMICs provided for
herein or result in the imposition of a tax upon any of the REMICs provided for
herein.
ARTICLE IX
TERMINATION
SECTION 9.01. Termination upon Liquidation or Repurchase of all Mortgage
Loans.
(a) Subject to Section 9.03, the obligations and responsibilities of the
Depositor, the Servicer and the Trustee created hereby with respect to the Trust
Fund shall terminate upon the earliest of (i) the successful completion of the
auction referred to in Section 9.01(b), (ii) the exercise by the Servicer of the
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Clean Up Call on any Distribution Date on or after the Clean Up Call Date and
(iii) the later of (x) the maturity or other liquidation (or any Advance with
respect thereto) of the last Mortgage Loan remaining in the Trust Fund and the
disposition of all REO Property and (y) the distribution to Certificateholders
of all amounts required to be distributed to them pursuant to this Agreement, as
applicable. In no event shall the trusts created hereby continue beyond the
earlier of (i) the expiration of 21 years from the death of the last survivor of
the descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States
to the Court of St. James's, living on the date hereof and (ii) the Latest
Possible Maturity Date.
(b) (i) Any termination pursuant to Section 9.01(a)(i) shall be effected by
the auction by the Trustee of all of the Mortgage Loans and REO Properties via a
solicitation of bids in accordance with the auction procedures set forth in
Exhibit N. The Trustee shall accept the highest such bid, provided that such bid
equals or exceeds the amount described in the definition of "Auction Termination
Price." Any sale pursuant to such auction process must occur no earlier than the
second day of the calendar month that includes the Distribution Date on which
the proceeds of such sale will be distributed to the Certificateholders.
(ii) If no sale under Section 9.01(a)(i) occurs, the NIMs Insurer may,
at its option, terminate the Trust Fund on any Distribution Date by purchasing
all of the Mortgage Loans and REO Properties at the price equal to the Clean Up
Call Price. If a sale under Section 9.01(a)(1) does not occur as a result of the
Auction's failure to achieve the Auction Termination Price and the NIMS Insurer
fails to exercise its option to purchase all of the Mortgage Loans, the Servicer
may, on any Distribution Date following such Auction, at its option, terminate
the Trust Fund by purchasing all of the Mortgage Loans and REO Properties at a
price equal to the Clean Up Call Price.
Notwithstanding anything to the contrary herein, the Auction Termination
Amount received by the Trustee upon the completion of a successful auction or
the Clean Up Call Price paid by the Servicer shall be deposited by the Trustee
directly into the Certificate Account promptly upon receipt of such amount by
the Trustee. Any Clean Up Call Price to be paid by the Servicer shall be paid by
the Servicer to the Trustee for deposit into the Certificate Account.
Notwithstanding anything herein to the contrary, only an amount equal to the
Auction Termination Price or the Clean Up Call Price, reduced in each case by
the portion thereof consisting of any Swap Termination Payment (such portion,
the "Swap Optional Termination Payment"), shall be made available for
distribution to the Certificates. The Swap Optional Termination Payment shall be
withdrawn by the Trustee from the Certificate Account and remitted to the
Supplemental Interest Trust for payment to the Swap Counterparty. The Swap
Optional Termination Payment shall not be part of any REMIC and shall not be
paid into any account which is part of any REMIC.
(c) If the Trustee receives a bid meeting the conditions specified in
Section 9.01(b)(i) or there is a Clean Up Call pursuant to Section 9.01(b)(ii),
then the Trustee's written acceptance of such bid shall constitute a plan of
complete liquidation within the meaning of Section 860F of the Code, and the
Trustee shall release to the winning bidder of the auction or the Servicer
pursuant to the Clean Up Call, upon the Trustee's receipt of the Auction
Termination Price or the Clean Up Call Price and the distribution by the Trustee
of such amounts in accordance with Section 4.04 hereof, the Mortgage Files
pertaining to the Mortgage Loans being purchased and take such other actions as
the winning bidder or such purchaser may reasonably request to effect the
transfer of the Mortgage Loans to the winning bidder or such purchaser.
In connection with any such purchase pursuant to the preceding paragraph,
the Servicer shall remit to the Trustee for deposit in the Certificate Account
all amounts then on deposit in the Collection Account (less amounts permitted to
be withdrawn by the Servicer pursuant to Section 3.08), which deposit shall be
deemed to have occurred immediately preceding such purchase.
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Any purchase shall be accomplished by deposit into the Certificate Account
of the Auction Termination Amount paid by the winning bidder if an Auction
Termination has occurred or the Clean Up Call Price in the event the Servicer
exercises a Clean Up Call and only following the delivery of an Opinion of
Counsel in form and substance acceptable to the Trustee that such termination is
a "Qualified Liquidation" under Section 860F of the Code.
(d) The right of the Depositor to direct the Trustee to effect an Auction
Termination or of the Servicer to effect a Clean Up Call pursuant to clause
(a)(i) or (a)(ii) above shall be conditioned upon the aggregate Stated Principal
Balance of the Mortgage Loans, at the time of any such repurchase, aggregating
ten percent (10%) or less of the Stated Principal Balance of the Mortgage Loans
as of the Cut-off Date.
(e) In the event that the Trustee is unable to complete a sale at the
Auction Termination, the Servicer may terminate the Trust Fund by purchasing all
the Mortgage Loans, and REO Properties at a price equal to the Clean Up Call
Price on any Distribution Date on or after the Clean Up Call Date, by exercising
a Clean Up Call.
(f) Notwithstanding anything to the contrary in this Article IX, no Auction
Termination or Clean Up Call shall be effected at any time during which NIM
Notes are outstanding if the Class C Certificateholder notifies the Trustee in
writing that the Class C Certificateholder does not consent to such proposed
Auction Termination or Clean Up Call. The parties hereto intend that the portion
of any amount received upon an Auction Termination or Clean Up Call that is
attributable to clause (D) of the definition of Auction Termination Price or
clause (d) of the definition of Clean Up Call Price and required to cover what
would otherwise be a shortfall in the amounts described in clause (D) of the
definition of Auction Termination Price or clause (d) of the definition of Clean
Up Call Price shall be treated for federal income tax purposes as having been
paid by the winning bidder of the auction or the Servicer, as applicable,
directly to the Class C Certificateholder (rather than having been paid to any
REMIC) to induce the Class C Certificateholder to consent to the Auction
Termination or Clean Up Call, as applicable.
(g) Notwithstanding any other terms of this Agreement, prior to any
termination of the Trust Fund, the Servicer may prepare a reconciliation of all
Advances and Servicing Advances made by it for which it has not been reimbursed
and a reasonable estimate of all additional Servicing Advances and other costs
for which it would be entitled to be reimbursed if the Trust Fund were not being
terminated, including without limitation, any Servicing Advances and other costs
arising under Section 6.03 (Limitation on Liability of the Depositor, the
Servicer and Others), and the Servicer may recover these Advances, Servicing
Advances and estimated Servicing Advances and other costs from the Collection
Account (to the extent that such recovery of Servicing Advances, estimated
Servicing Advances and other costs constitutes "unanticipated expenses" within
the meaning of Treasury Regulation Section 1.860G-1(b)(3)(ii)).
(h) Notwithstanding any other terms of this Agreement, unless the Servicer
previously has notified the Trustee that it has entered into a servicing
agreement for the servicing after the termination date of the Trust Fund assets,
at least twenty (20) days prior to any termination of the Trust Fund, the
Trustee or the Depositor shall notify the Servicer in writing to transfer the
assets of the Trust Fund as of the termination date to the person specified in
the notice, or if such person is not then known, to continue servicing the
assets until the date that is twenty (20) days after the termination date and on
the termination date, the Trustee or the Depositor shall notify the Servicer of
the person to whom the assets should be transferred on that date. In the latter
event the Servicer shall be entitled to recover its servicing fee and any
advances made for the interim servicing period from the collections on the
assets which have been purchased from the Trust Fund and the new owner of the
assets, and the agreements for the new owner to obtain ownership of the assets
of the Trust Fund shall so provide.
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SECTION 9.02. Final Distribution on the Certificates.
If on any Determination Date, (i) the Trustee determines that there are no
Outstanding Mortgage Loans and no other funds or assets in the Trust Fund other
than the funds in the Collection Account, the Trustee shall send a final
distribution notice promptly to each Certificateholder or (ii) the Trustee
determines that a Class of Certificates shall be retired after a final
distribution on such Class, the Trustee shall notify the Certificateholders
within seven (7) Business Days after such Determination Date that the final
distribution in retirement of such Class of Certificates is scheduled to be made
on the immediately following Distribution Date. Any final distribution made
pursuant to the immediately preceding sentence will be made only upon
presentation and surrender of the Certificates at the office of the Trustee
specified in such notice. If the Trustee is able to terminate the Trust Fund
pursuant to Section 9.01(a)(i), or if the Servicer conducts a Clean Up Call and
terminates the Trust Fund pursuant to Section 9.01(a)(ii) or 9.01(e), at least
ten (10) days prior to the date notice is to be mailed to the affected
Certificateholders, the Trustee shall notify the Depositor and the Servicer of
the date such electing party intends to terminate the Trust Fund and of the
applicable repurchase price of the Mortgage Loans and REO Properties.
Notice of any termination of the Trust Fund, specifying the Distribution
Date on which Certificateholders may surrender their Certificates for payment of
the final distribution and cancellation, shall be given promptly by the Trustee
by letter to Certificateholders mailed not earlier than the 10th day and no
later than the 15th day of the month immediately preceding the month of such
final distribution. Any such notice shall specify (a) the Distribution Date upon
which final distribution on the Certificates will be made upon presentation and
surrender of Certificates at the office therein designated, (b) the location of
the office or agency at which such presentation and surrender must be made, and
(c) that the Record Date otherwise applicable to such Distribution Date is not
applicable, distributions being made only upon presentation and surrender of the
Certificates at the office therein specified. The Trustee will give such notice
to each Rating Agency at the time such notice is given to Certificateholders.
In the event such notice is given, the Servicer shall cause all funds in
the Collection Account to be deposited in the Certificate Account on the
Business Day prior to the applicable Distribution Date in an amount equal to the
final distribution in respect of the Certificates. Upon such final deposit with
respect to the Trust Fund and the receipt by the Trustee of a Request for
Release therefor, the Trustee shall promptly release to the Trustee the Mortgage
Files for the Mortgage Loans.
Upon presentation and surrender of the Certificates, the Trustee shall
cause to be distributed to Certificateholders of each Class the amounts
allocable to such Certificates held in the Certificate Account in the order and
priority set forth in Section 4.04 hereof on the final Distribution Date and in
proportion to their respective Percentage Interests.
In the event that any affected Certificateholders shall not surrender
Certificates for cancellation within six months after the date specified in the
above mentioned written notice, the 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
six months after the second notice all the applicable Certificates shall not
have been surrendered for cancellation, the Trustee may take appropriate steps,
or may appoint an agent to take appropriate steps, to contact the remaining
Certificateholders concerning surrender of their Certificates, and the cost
thereof shall be paid out of the funds and other assets that remain a part of
the Trust Fund. If within one year after the second notice all Certificates
shall not have been surrendered for cancellation, the Class R Certificateholder
shall be entitled to all unclaimed funds and other assets of the Trust Fund that
remain subject hereto. Upon payment to the Class R Certificateholder of such
funds and assets, the Trustee shall have no further duties or obligations with
respect thereto.
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SECTION 9.03. Additional Termination Requirements.
(a) In the event the Trustee is able to effect an Auction Termination or
the Servicer conducts a Clean Up Call as provided in Section 9.01, the Trust
Fund shall be terminated in accordance with the following additional
requirements, unless the Trustee has been supplied with an Opinion of Counsel
addressed to the Trustee, at the expense of the Servicer to the effect that the
failure of the Issuing Entity to comply with the requirements of this Section
9.03 will not (i) result in the imposition of taxes on "prohibited transactions"
of any of the REMICs provided for herein as defined in section 860F of the Code,
or (ii) cause any of the REMICs provided for herein to fail to qualify as a
REMIC at any time that any Certificates are outstanding:
(i) The Depositor shall establish a 90-day liquidation period and
notify the Trustee thereof, which shall in turn specify the first day of
such period in a statement attached to the final tax returns of each of the
REMICs provided for herein pursuant to Treasury Regulation Section
1.860F-1. The Depositor shall satisfy all the requirements of a qualified
liquidation under Section 860F of the Code and any regulations thereunder,
as evidenced by an Opinion of Counsel obtained at the expense of the
Issuing Entity;
(ii) During such 90-day liquidation period, and at or prior to the
time of making the final payment on the Certificates, the Depositor as
agent of the Trustee shall sell all of the assets of the Trust Fund for
cash; and
(iii) At the time of the making of the final payment on the
Certificates, the Trustee shall distribute or credit, or cause to be
distributed or credited, to the Class R Certificateholder all cash on hand
(other than cash retained to meet outstanding claims known to the Trustee),
and the Trust Fund shall terminate at that time, whereupon the Trustee
shall have no further duties or obligations with respect to sums
distributed or credited to the Class R Certificateholder.
(b) By their acceptance of the Certificates, the Holders thereof hereby
authorize the Depositor to specify the 90-day liquidation period for the Trust
Fund, which authorization shall be binding upon all successor
Certificateholders.
(c) The Trustee as agent for each REMIC hereby agrees to adopt and sign a
plan of complete liquidation prepared and delivered to it by the Depositor upon
the written request of the Depositor, and the receipt of Opinion of Counsel
referred to in Section 9.03(a)(i) and to take such other action in connection
therewith as may be reasonably requested by the Depositor.
(d) Notwithstanding any other terms of this Agreement, prior to termination
of the Trust Fund, the Servicer may prepare a reconciliation of all Advances and
Servicing Advances made by it for which it has not been reimbursed and a
reasonable estimate of all additional Servicing Advances and other costs for
which it would be entitled to be reimbursed if the Trust Fund were not being
terminated, including without limitation, any Servicing Advances and other costs
arising under Section 6.03, and the Servicer may recover these Advances,
Servicing Advances and estimated Servicing Advances and other costs from the
Collection Account (to the extent that such recovery of Servicing Advances,
estimated Servicing Advances and other costs constitutes "unanticipated
expenses" within the meaning of Treasury Regulation Section 1.860G-1(b)(3)(ii)).
(e) Notwithstanding any other terms of this Agreement, unless the Servicer
previously has notified the Trustee that it has entered into a servicing
agreement for the servicing after the termination date of the Trust Fund assets,
at least twenty (20) days prior to any termination of the Trust Fund, the
Depositor shall notify the Servicer in writing to transfer the assets of the
Trust Fund as of the termination
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date to the person specified in the notice, or if such person is not then known,
to continue servicing the assets until the date that is twenty (20) days after
the termination date and on the termination date, the Depositor shall notify the
Servicer of the person to whom the assets should be transferred on that date. In
the latter event the Servicer shall be entitled to recover its servicing fee and
any advances made for the interim servicing period from the collections on the
assets which have been purchased from the Trust and the new owner of the assets,
and the agreements for the new owner to obtain ownership of the assets of the
Trust Fund shall so provide.
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.01. Amendment.
This Agreement may be amended from time to time by the Depositor, the
Servicer and the Trustee, with the consent of the NIMs Insurer and without the
consent of any of the Certificateholders,
(i) To cure any ambiguity or correct any mistake,
(ii) To correct, modify or supplement any provision herein which may
be inconsistent with any other provision herein,
(iii) To add any other provisions with respect to matters or questions
arising under this Agreement, or
(iv) To modify, alter, amend, add to or rescind any of the terms or
provisions contained in this Agreement, provided, however, that, in the
case of clauses (iii) and (iv), such amendment will not, as evidenced by an
Opinion of Counsel addressed to the Trustee to such effect, adversely
affect in any material respect the interests of any Holder; provided,
further, however, that such amendment will be deemed to not adversely
affect in any material respect the interest of any Holder if the Person
requesting such amendment obtains a letter from each Rating Agency stating
that such amendment will not result in a reduction or withdrawal of its
rating of any Class of the Certificates, it being understood and agreed
that any such letter in and of itself will not represent a determination as
to the materiality of any such amendment and will represent a determination
only as to the credit issues affecting any such rating. In addition, this
Agreement may be amended from time to time by the Depositor, the Servicer
and the Trustee without the consent of any of the Certificateholders and
without delivery of an Opinion of Counsel to comply with the provisions of
Regulation AB.
Notwithstanding the foregoing, without the consent of the
Certificateholders, the Depositor, the Servicer and the Trustee may at any time
and from time to time amend this Agreement to modify, eliminate or add to any of
its provisions to such extent as shall be necessary or appropriate to maintain
the qualification of any of the REMICs provided for herein as REMICs under the
Code or to avoid or minimize the risk of the imposition of any tax on the Trust
Fund or any of the REMICs provided for herein pursuant to the Code that would be
a claim against the Trust Fund at any time prior to the final redemption of the
Certificates, provided that the Trustee and the NIMs Insurer shall have been
provided an Opinion of Counsel addressed to the Trustee, which opinion shall be
an expense of the party requesting such amendment but in any case shall not be
an expense of the Trustee, the Trust Fund or the NIMs Insurer, to the effect
that such action is necessary or appropriate to maintain such qualification or
to avoid or minimize the risk of the imposition of such a tax.
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This Agreement may also be amended from time to time by the Depositor, the
Servicer, the Trustee and the Holders of the Certificates affected thereby
evidencing not less than 66 2/3% of the Voting Rights, with the consent of the
NIMs Insurer, for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Agreement or of modifying in
any manner the rights of the Holders of Certificates; provided, however, that no
such amendment shall (i) reduce in any manner the amount of, or delay the timing
of, payments required to be distributed on any Certificate without the consent
of the Holder of such Certificate, (ii) adversely affect in any material respect
the interests of the Holders of any Class of Certificates in a manner other than
as described in (i), without the consent of the Holders of Certificates of such
Class evidencing 66 2/3% or more of the Voting Rights of such Class or (iii)
reduce the aforesaid percentages of Certificates the Holders of which are
required to consent to any such amendment without the consent of the Holders of
all such Certificates then outstanding. A copy of such Opinion of Counsel shall
be provided to the NIMs Insurer.
Notwithstanding any contrary provision of this Agreement, the Trustee shall
not consent to any amendment to this Agreement unless it shall have first
received an Opinion of Counsel addressed to the Trustee, which opinion shall be
an expense of the party requesting such amendment but in any case shall not be
an expense of the Trustee or the Trust Fund, to the effect that such amendment
is permitted hereunder and will not cause the imposition of any tax on the Trust
Fund, any of the REMICs provided for herein or the Certificateholders or cause
any of the REMICs provided for herein to fail to qualify as a REMIC at any time
that any Certificates are outstanding.
Promptly after the execution of any amendment to this Agreement requiring
the consent of Certificateholders, the Trustee or upon the written request of
the Trustee to the Servicer, the Servicer shall furnish written notification of
the substance of such amendment to each Certificateholder, each Rating Agency,
the Cap Contract Counterparty and the Swap Counterparty.
It shall not be necessary for the consent of Certificateholders under this
Section to approve the particular form of any proposed amendment, but it shall
be sufficient if such consent shall approve the substance thereof. Such consent
need only be obtained from Certificateholders of classes adversely affected by
the proposed amendment. The manner of obtaining such consents and of evidencing
the authorization of the execution thereof by Certificateholders shall be
subject to such reasonable regulations as the Trustee may prescribe.
Nothing in this Agreement shall require the Trustee or the Servicer to
enter into an amendment without receiving an Opinion of Counsel, satisfactory to
the Trustee or the Servicer that (i) such amendment is permitted and is not
prohibited by this Agreement and that all conditions precedent for amending this
Agreement have been complied with.
The Trustee may, but shall not be obligated to, enter into any supplement,
modification or waiver which affects its rights, duties or obligations
hereunder.
Notwithstanding the foregoing, the Trustee shall not enter into any
amendment to this Agreement that would have a materially adverse effect on the
Swap Counterparty or the Cap Contract Counterparty without first obtaining the
consent of the Swap Counterparty or the Cap Contract Counterparty, respectively.
SECTION 10.02. Counterparts.
This Agreement may be executed simultaneously in any number of
counterparts, each of which counterparts shall be deemed to be an original, and
such counterparts shall constitute but one and the same instrument.
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SECTION 10.03. Governing Law.
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE
SUBSTANTIVE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO
BE PERFORMED IN THE STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS AND REMEDIES
OF THE PARTIES HERETO AND THE CERTIFICATEHOLDERS SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS WITHOUT REGARD TO THE CONFLICTS OF LAWS PRINCIPLES
THEREOF.
SECTION 10.04. Intention of Parties.
It is the express intent of the parties hereto that the conveyance of the
Mortgage Notes, Mortgages, assignments of Mortgages, title insurance policies
and any modifications, extensions and/or assumption agreements and private
mortgage insurance policies relating to the Mortgage Loans by the Depositor to
the Trustee be, and be construed as, an absolute sale thereof to the Trustee. It
is, further, not the intention of the parties that such conveyance be deemed a
pledge thereof by the Depositor to the Trustee. However, in the event that,
notwithstanding the intent of the parties, such assets are held to be the
property of the Depositor, or if for any other reason this Agreement is held or
deemed to create a security interest in such assets, then (i) this Agreement
shall be deemed to be a security agreement within the meaning of the Uniform
Commercial Code of the State of New York and (ii) the conveyance provided for in
this Agreement shall be deemed to be an assignment and a grant by the Depositor
to the Trustee, for the benefit of the Certificateholders, of a security
interest in all of the assets that constitute the Trust Fund, whether now owned
or hereafter acquired.
The Depositor for the benefit of the Certificateholders shall, to the
extent consistent with this Agreement, take such actions as may be necessary to
ensure that, if this Agreement were deemed to create a security interest in the
assets of the Trust Fund, such security interest would be deemed to be a
perfected security interest of first priority under applicable law and will be
maintained as such throughout the term of the Agreement. The Depositor shall
arrange for filing any Uniform Commercial Code continuation statements in
connection with any security interest granted or assigned to the Trustee for the
benefit of the Certificateholders.
SECTION 10.05. Notices.
(a) The Trustee shall use its best efforts to promptly provide notice to
the NIMs Insurer, the Swap Counterparty, the Cap Contract Counterparty and each
Rating Agency with respect to each of the following of which a Responsible
Officer of the Trustee has written notice or actual knowledge:
(i) Any material change or amendment to this Agreement;
(ii) The occurrence of any Event of Default that has not been cured;
(iii) The resignation or termination of the Trustee or the Servicer
and the appointment of any successor;
(iv) The repurchase or substitution of Mortgage Loans pursuant to
Sections 2.02 and 2.03;
(v) The final payment to Certificateholders; and
(vi) Any change in the location of the Certificate Account or the
Collection Account.
148
(b) The Trustee shall promptly furnish or make available to each Rating
Agency copies of the following upon its receipt thereof:
(vii) Each report to Certificateholders described in Section 4.05;
(viii) Each annual statement as to compliance described in Section
3.17; and
(ix) Each annual independent public accountants' servicing report
described in Section 3.18.
(b) All directions, demands and notices hereunder shall be in writing and
shall be deemed to have been duly given when delivered to (a) in the case of the
Depositor, Xxxxxxx Xxxxx Mortgage Investors, Inc., 000 Xxxxx Xxxxxx, 4 World
Financial Center, 10th Floor, New York, New York 10080, Attention: Asset-Backed
Finance; (b) in the case of the Trustee, U.S. Bank National Association, 00
Xxxxxxxxxx Xxxxxx, Mail Code EP-MN-WS3D, St. Xxxx, Minnesota 55107-2292,
Attention: Structured Finance/SURF Series 2007-BC2; (c) in the case of the
Rating Agencies, (i) Fitch, Inc. Xxx Xxxxx Xxxxxx Xxxxx, 00xx Xxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Surveillance Group, (ii) Standard and Poor's Ratings
Services, a division of the McGraw Hill Companies, Inc., 00 Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, (iii) Xxxxx'x Investors Service, Inc., 00 Xxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000; (d) in the case of the Servicer, Wilshire Credit
Corporation, 00000 X.X. Xxxxxxxx Xxx, Xxxxx 000, Xxxxxxxxx, Xxxxxx 00000,
Attention: VP Client Services, and in the case of any of the foregoing persons,
such other addresses as may hereafter be furnished by any such persons to the
other parties to this Agreement. Notices to Certificateholders shall be deemed
given when mailed, first class postage prepaid, to their respective addresses
appearing in the Certificate Register.
SECTION 10.06. Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms of
this Agreement shall be for any reason whatsoever held invalid, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and shall
in no way affect the validity or enforceability of the other provisions of this
Agreement or of the Certificates or the rights of the Holders thereof.
SECTION 10.07. Assignment.
Notwithstanding anything to the contrary contained herein, except as
provided pursuant to Section 6.02, this Agreement may not be assigned by the
Servicer without the prior written consent of the Trustee and Depositor.
SECTION 10.08. Limitation on Rights of Certificateholders.
The death or incapacity of any Certificateholder shall not operate to
terminate this Agreement or the Trust Fund, nor entitle such Certificateholder's
legal representative or heirs to claim an accounting or to take any action or
commence any proceeding in any court for a petition or winding up of the Trust
Fund, or otherwise affect the rights, obligations and liabilities of the parties
hereto or any of them.
No Certificateholder shall have any right to vote (except as provided
herein) or in any manner otherwise control the operation and management of the
Trust Fund, or the obligations of the parties hereto, nor shall anything herein
set forth or contained in the terms of the Certificates be construed so as to
constitute the Certificateholders from time to time as partners or members of an
association; nor shall
149
any Certificateholder be under any liability to any third party by reason of any
action taken by the parties to this Agreement pursuant to any provision hereof.
No Certificateholder shall have any right by virtue or by availing itself
of any provisions 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, the Holders
of Certificates evidencing not less than 25% of the Voting Rights evidenced by
the Certificates shall also have made written request to the Trustee to
institute such action, suit or proceeding in its own name as Trustee hereunder
and shall have offered to the Trustee such reasonable indemnity as it may
require against the costs, expenses, and liabilities to be incurred therein or
thereby, and the Trustee, for sixty (60) days after its receipt of such notice,
request and offer of indemnity shall have neglected or refused to institute any
such action, suit or proceeding; it being understood and intended, and being
expressly covenanted by each Certificateholder with every other
Certificateholder and the Trustee, that no one or more Holders of Certificates
shall have any right in any manner whatever by virtue or by availing itself or
themselves of any provisions of this Agreement to affect, disturb or prejudice
the rights of the Holders of any other of the Certificates and/or the NIMs
Insurer, or to obtain or seek to obtain priority over or preference to any other
such Holder and/or the NIMs Insurer or to enforce any right under this
Agreement, except in the manner herein provided and for the common benefit of
all Certificateholders. For the protection and enforcement of the provisions of
this Section 10.08, each and every Certificateholder and the Trustee shall be
entitled to such relief as can be given either at law or in equity.
SECTION 10.09. Inspection and Audit Rights.
The Servicer agrees that, on reasonable prior notice, it will permit any
representative of the Depositor, subject to a reasonable confidentiality
agreement, or the Trustee during the Servicer's normal business hours, to
examine all the books of account, records, reports and other papers of the
Servicer relating to the Mortgage Loans, to make copies and extracts therefrom,
to cause such books to be audited by independent certified public accountants
selected by the Depositor or the Trustee and to discuss its affairs, finances
and accounts relating to the Mortgage Loans with its officers, employees,
agents, counsel and independent public accountants (and by this provision the
Servicer hereby authorizes such accountants to discuss with such representative
such affairs, finances and accounts), all at such reasonable times and as often
as may be reasonably requested. Any out-of-pocket expense incident to the
exercise by the Depositor or the Trustee of any right under this Section 10.09
shall be borne by the party requesting such inspection; all other such expenses
shall be borne by the Servicer.
SECTION 10.10. Certificates Nonassessable and Fully Paid.
It is the intention of the Depositor that Certificateholders shall not be
personally liable for obligations of the Issuing Entity, that the interests in
the Issuing Entity represented by the Certificates shall be nonassessable for
any reason whatsoever, and that the Certificates, upon due authentication
thereof by the Authenticating Agent pursuant to this Agreement, are and shall be
deemed fully paid.
SECTION 10.11. [RESERVED]
SECTION 10.12. Additional Rights of the NIMs Insurer
Each party to this Agreement, any agent thereof and any successor thereto
shall furnish to the NIMs Insurer a copy of any notice, direction, demand,
opinion, schedule, list, certificate, report, statement, filing, information,
data or other communication provided by it or on its behalf to any other Person
pursuant to this Agreement at the same time, in the same form and in the same
manner as such
150
communication is so provided and shall address or cause such communication to be
addressed to the NIMs Insurer in addition to any other addressee thereof. The
Servicer shall cause the NIMs Insurer to be an addressee of any report furnished
pursuant to this Agreement. With respect to the Trustee, such obligation shall
be satisfied with the provision of access to the NIMs Insurer to the Trustee's
website.
Wherever in this Agreement there shall be a requirement that there be no
downgrade, reduction, withdrawal or qualification of or other effect on the
rating of any Class of Certificates by any Rating Agency as of any date, there
also shall be deemed to be a requirement that there be no such effect on any
Class of notes issued pursuant to the Indenture and guaranteed by the NIMs
Insurer as of such date. In addition, unless there exists a continuance of any
failure by the NIMs Insurer to make a required payment under the policy insuring
the NIM Notes (such event, a "NIMs Insurer Default"), wherever in this Agreement
there shall be a requirement that any Person or any communication, object or
other matter be acceptable or satisfactory to or otherwise receive the consent
or other approval of any other Person (whether as a condition to the eligibility
of such Person to act in any capacity, as a condition to any circumstance or
state of affairs related to such matter, or otherwise), there also shall be
deemed to be a requirement that such Person or matter be approved in writing by
the NIMs Insurer, which approval shall not be unreasonably withheld or delayed.
SECTION 10.13. Third Party Rights.
The Cap Contract Counterparty and the Swap Counterparty shall be deemed
third party beneficiaries of this Agreement regarding provisions related to
payments owed to the Cap Contract Counterparty or the Swap Counterparty,
respectively, so long as any of the Corridor Contracts or the Swap Agreement, as
applicable, remains in effect.
SECTION 10.14. Assignment; Sales; Advance Facilities.
(a) The Servicer is hereby authorized to enter into a financing or other
facility (any such arrangement, an "Advance Facility"), the documentation for
which complies with Section 10.14(e) below, under which (1) the Servicer assigns
or pledges its rights under this Agreement to be reimbursed for any or all
Advances and/or Servicing Advances to (i) a Person, which may be a
special-purpose bankruptcy-remote entity (an "SPV"), (ii) a Person, which may
simultaneously assign or pledge such rights to an SPV or (iii) a lender (a
"Lender"), which, in the case of any Person or SPV of the type described in
either of the preceding clauses (i) or (ii), may directly or through other
assignees and/or pledgees, assign or pledge such rights to a Person, which may
include a trustee acting on behalf of holders of debt instruments (any such
Person or any such Lender, an "Advance Financing Person"), and/or (2) an Advance
Financing Person agrees to fund all the Advances and/or Servicing Advances
required to be made by the Servicer pursuant to this Agreement. No consent of
the Trustee, Certificateholders or any other party shall be required before the
Servicer may enter into an Advance Facility nor shall the Trustee or the
Certificateholders be a third party beneficiary of any obligation of an Advance
Financing Person to the Servicer. Notwithstanding the existence of any Advance
Facility under which an Advance Financing Person agrees to fund Advances and/or
Servicing Advances, (A) the Servicer (i) shall remain obligated pursuant to this
Agreement to make Advances and/or Servicing Advances pursuant to and as required
by this Agreement and (ii) shall not be relieved of such obligations by virtue
of such Advance Facility and (B) neither the Advance Financing Person nor any
Servicer's Assignee (as hereinafter defined) shall have any right to proceed
against or otherwise contact any Mortgagor for the purpose of collecting any
payment that may be due with respect to any related Mortgage Loan or enforcing
any covenant of such Mortgagor under the related Mortgage Loan documents.
(b) If the Servicer enters into an Advance Facility, the Servicer and the
related Advance Financing Person shall deliver to the Trustee at the address set
forth in Section 10.05 hereof a written
151
notice (an "Advance Facility Notice"), stating (a) the identity of the Advance
Financing Person and (b) the identity of the Person (the "Servicer's Assignee")
that will, subject to Section 10.14(c) hereof, have the right to make
withdrawals from the Collection Account pursuant to Section 3.08(a) hereof to
reimburse previously unreimbursed Advances and/or Servicing Advances ("Advance
Reimbursement Amounts"). Advance Reimbursement Amounts (i) shall consist solely
of amounts in respect of Advances and/or Servicing Advances for which the
Servicer would be permitted to reimburse itself in accordance with Section 3.08
hereof, assuming the Servicer had made the related Advance(s) and/or Servicing
Advance(s) and (ii) shall not consist of amounts payable to a successor servicer
in accordance with Section 3.05 hereof to the extent permitted under Section
10.14(e) below.
(c) Notwithstanding the existence of an Advance Facility, the Servicer, on
behalf of the Advance Financing Person and the Servicer's Assignee, shall be
entitled to receive reimbursements of Advances and/or Servicing Advances in
accordance with Section 4.01 hereof, which entitlement may be terminated by the
Advance Financing Person pursuant to a written notice to the Trustee in the
manner set forth in Section 10.05 hereof. Upon receipt of such written notice,
the Servicer shall no longer be entitled to receive reimbursement for any
Advance Reimbursement Amounts and the Servicer's Assignee shall immediately have
the right to receive from the Collection Account all Advance Reimbursement
Amounts. Notwithstanding the foregoing, and for the avoidance of doubt, (i) the
Servicer and/or the Servicer's Assignee shall only be entitled to reimbursement
of Advance Reimbursement Amounts hereunder from withdrawals from the Collection
Account pursuant to Section 4.01 of this Agreement and shall not otherwise be
entitled to make withdrawals or receive amounts that shall be deposited in the
Distribution Account pursuant to Section 4.01 hereof, and (ii) none of the
Trustee or the Certificateholders shall have any right to, or otherwise be
entitled to, receive any Advance Reimbursement Amounts to which the Servicer or
Servicer's Assignee, as applicable, shall be entitled pursuant to Section 4.01
hereof. An Advance Facility may be terminated by the joint written direction of
the Servicer and the related Advance Financing Person. Written notice of such
termination shall be delivered to the Trustee in the manner set forth in Section
10.05 hereof. None of the Depositor or the Trustee shall, as a result of the
existence of any Advance Facility, have any additional duty or liability with
respect to the calculation or payment of any Advance Reimbursement Amount, nor,
as a result of the existence of any Advance Facility, shall the Depositor or the
Trustee have any additional responsibility to track or monitor the
administration of the Advance Facility or the payment of Advance Reimbursement
Amounts to the Servicer's Assignee. The Servicer shall indemnify the Depositor,
the Trustee, any successor servicer and the Issuing Entity for any claim, loss,
liability or damage resulting from any claim by the related Advance Financing
Person, except to the extent that such claim, loss, liability or damage resulted
from or arose out of negligence, recklessness or willful misconduct on the part
of the Depositor, the Trustee or any successor servicer, as the case may be, or
failure by the successor servicer or the Trustee, as the case may be, to remit
funds as required by this Agreement or the commission of an act or omission to
act by the successor servicer or the Trustee, as the case may be, and the
passage of any applicable cure or grace period, such that an Event of Default
under this Agreement occurs or such entity is subject to termination for cause
under this Agreement. The Servicer shall maintain and provide to any successor
servicer and, upon request, the Trustee a detailed accounting on a loan-by-loan
basis as to amounts advanced by, pledged or assigned to, and reimbursed to any
Advance Financing Person. The successor servicer shall be entitled to rely on
any such information provided by the predecessor Servicer, and the successor
servicer shall not be liable for any errors in such information.
(d) [Reserved]
(e) As between a predecessor Servicer and its Advance Financing Person, on
the one hand, and a successor servicer and its Advance Financing Person, if any,
on the other hand, Advance Reimbursement Amounts on a loan-by-loan basis with
respect to each Mortgage Loan as to which an Advance and/or Servicing Advance
shall have been made and be outstanding shall be allocated on a
152
"first-in, first out" basis. In the event the Servicer's Assignee shall have
received some or all of an Advance Reimbursement Amount related to Advances
and/or Servicing Advances that were made by a Person other than such predecessor
Servicer or its related Advance Financing Person in error, then such Servicer's
Assignee shall be required to remit any portion of such Advance Reimbursement
Amount to each Person entitled to such portion of such Advance Reimbursement
Amount. Without limiting the generality of the foregoing, the Servicer shall
remain entitled to be reimbursed by the Advance Financing Person for all
Advances and/or Servicing Advances funded by the Servicer to the extent the
related Advance Reimbursement Amounts have not been assigned or pledged to such
Advance Financing Person or Servicer's Assignee.
(f) For purposes of any Officer's Certificate of the Servicer made pursuant
to Section 4.01, any Non-Recoverable Advance or Non-Recoverable Servicing
Advance referred to therein may have been made by such Servicer or any
predecessor Servicer. In making its determination that any Advance or Servicing
Advance theretofore made has become a Non-Recoverable Advance or Non-Recoverable
Servicing Advance, the Servicer shall apply the same criteria in making such
determination regardless of whether such Advance or Servicing Advance shall have
been made by the Servicer or any predecessor Servicer.
(g) Any amendment to this Section 10.14 or to any other provision of this
Agreement that may be necessary or appropriate to effect the terms of an Advance
Facility as described generally in this Section 10.14, including amendments to
add provisions relating to a successor servicer, may be entered into by the
Trustee, the Depositor and the Servicer without the consent of any
Certificateholder, provided such amendment complies with Section 10.01 hereof.
All reasonable costs and expenses (including attorneys' fees) of each party
hereto of any such amendment shall be borne solely by the Servicer. The parties
hereto hereby acknowledge and agree that: (a) the Advances and/or Servicing
Advances financed by and/or pledged to an Advance Financing Person under any
Advance Facility are obligations owed to the Servicer payable only from the cash
flows and proceeds received under this Agreement for reimbursement of Advances
and/or Servicing Advances only to the extent provided herein, and the Trustee
and the Trust are not, as a result of the existence of any Advance Facility,
obligated or liable to repay any Advances and/or Servicing Advances financed by
the Advance Financing Person; (b) the Servicer will be responsible for remitting
to the Advance Financing Person the applicable amounts collected by it as
reimbursement for Advances and/or Servicing Advances funded by the Advance
Financing Person, subject to the provisions of this Agreement; and (c) the
Trustee shall not have any responsibility to track or monitor the administration
of the financing arrangement between the Servicer and any Advance Financing
Person.
153
IN WITNESS WHEREOF, the Depositor, the Servicer and the Trustee have caused
their names to be signed hereto by their respective officers thereunto duly
authorized as of the day and year first above written.
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.,
as Depositor
By:
------------------------------------
Name: Xxxx Park
Title: Authorized Signatory
WILSHIRE CREDIT CORPORATION,
as Servicer
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
U.S. BANK NATIONAL ASSOCIATION,
not in its individual capacity, but
solely as Trustee
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
154
EXHIBIT A
FORMS OF OFFERED CERTIFICATES
A-1
FORM OF CLASS A, M, AND B CERTIFICATES
SOLELY FOR FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS (I) A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT", AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED AND (II) AN INTEREST IN NOTIONAL PRINCIPAL
CONTRACTS.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN XXXXXXX
XXXXX MORTGAGE INVESTORS, INC. ("MLMI"), THE TRUSTEE, OR ANY SERVICER REFERRED
TO BELOW OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE, THE REMIC REGULAR
INTEREST REPRESENTED HEREBY NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED OR
INSURED BY MLMI, THE TRUSTEE, ANY SERVICER OR BY ANY OF THEIR AFFILIATES OR BY
ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
UNTIL THE TERMINATION OF THE SWAP AGREEMENT, EACH TRANSFEREE OF THIS CERTIFICATE
SHALL BE DEEMED TO REPRESENT (OR IN THE CASE OF A DEFINITIVE CERTIFICATE, SHALL
REPRESENT) TO THE TRUSTEE THAT (A) SUCH TRANSFEREE IS NOT, AND IS NOT ACTING
FOR, ON BEHALF OF OR WITH ANY ASSETS OF, ANY EMPLOYEE BENEFIT PLAN OR OTHER
ARRANGEMENT SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED ("ERISA"), OR ANY PLAN SUBJECT TO SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR (B) THE TRANSFEREE'S
ACQUISITION AND HOLDING OF THIS CERTIFICATE WILL NOT CONSTITUTE OR RESULT IN A
NON-EXEMPT PROHIBITED TRANSACTION UNDER TITLE I OF ERISA OR SECTION 4975 OF THE
CODE.
FOLLOWING THE INITIAL ISSUANCE OF THE CERTIFICATES, THE PRINCIPAL BALANCE OF
THIS CERTIFICATE MAY BE DIFFERENT FROM THE ORIGINAL DENOMINATION SHOWN BELOW.
ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT PRINCIPAL BALANCE BY
INQUIRY OF THE TRUSTEE.
CLASS A-[ ], M-[ ], B-[ ] CERTIFICATE
Number: 07-BC2-A-[ ], M-[ ], B-[ ] Original Denomination:
$[ ]
Cut-off Date: April 1, 2007 Last Scheduled
Distribution Date: April 27, 2037
First Distribution Date: Aggregate Initial Certificate
May 25, 2007 Balance of all Class A-[ ], M-[ ], B-[ ]
Certificates: $[ ]
Pass-Through Rate: Variable(1) CUSIP: [ ]
----------
(1) Subject to a cap as described in the Agreement.
A-2
SPECIALTY UNDERWRITING AND RESIDENTIAL FINANCE TRUST
MORTGAGE LOAN ASSET-BACKED CERTIFICATES,
SERIES 2007-BC2
evidencing an ownership interest in distributions allocable to the Class A-[ ],
M-[ ], B-[ ] Certificates with respect to a pool of conventional, sub-prime
mortgage loans formed and sold by
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
Unless this Certificate is presented by an authorized representative of the
Depository Trust Company, a New York corporation ("DTC"), to the Trustee for
registration of transfer, exchange or payment, and any certificate issued is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC (and any payment is made to Cede & Co. or to
such other entity as is requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co. has an interest
herein.
This certifies that CEDE & CO. is the registered owner of the ownership
interest (the "Ownership Interest") evidenced by this Certificate (obtained by
dividing the Original Denomination of this Certificate by the aggregate Initial
Certificate Balance of all Class A Certificates) in certain distributions with
respect to a pool of conventional, sub-prime mortgage loans (the "Mortgage
Loans") formed and sold by Xxxxxxx Xxxxx Mortgage Investors, Inc. (hereinafter
called the "Depositor"), and certain other property held in trust for the
benefit of Certificateholders (collectively, the "Trust Fund"). The Mortgage
Loans are serviced by Wilshire Credit Corporation (the "Servicer") and are
secured by first or second mortgages on Mortgaged Properties. The Trust Fund was
created pursuant to a pooling and servicing agreement (the "Agreement"), dated
as of April 1, 2007, between the Depositor, the Servicer and U.S. Bank National
Association, as trustee (the "Trustee"), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the meanings assigned in the Agreement.
This Certificate is one of a duly authorized issue of Certificates,
designated as Specialty Underwriting and Residential Finance Trust, Mortgage
Loan Asset-Backed Certificates, Series 2007-BC2, Class A-[ ], M-[ ], B-[ ] (the
"Class A-[ ], M-[ ], B-[ ] Certificates") and is issued under and is subject to
the terms, provisions and conditions of the Agreement, to which Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which Agreement such Holder is bound.
The Class A-1 Certificates, the Class A-2A Certificates, the Class A-2B
Certificates, the Class A-2C Certificates, the Class A-2D Certificates, the
Class M-1 Certificates, the Class M-2 Certificates, the Class M-3 Certificates,
the Class M-4 Certificates, the Class M-5 Certificates, the Class M-6
Certificates, the Class B-1 Certificates, the Class B-2 Certificates, the Class
B-3 Certificates, the Class P Certificates, the Class C Certificates, and the
Class R Certificate are collectively referred to herein as the "Certificates."
Pursuant to the terms of the Agreement, the Trustee will distribute from
funds in the Certificate Account the amounts described in the Agreement on the
25th day of each month or, if such 25th day is not a Business Day, the Business
Day immediately following (the "Distribution Date"), commencing in May 2007.
Such distributions will be made to the Person in whose name this Certificate is
registered at
A-3
the close of business on the last Business Day of the month preceding the month
in which such payment is made, if such last day is not a Business Day, the
Business Day immediately preceding such last day.
Distributions on this Certificate will be made either by check mailed to
the address of the person entitled to distributions as it appears on the
Certificate Register or, in the case of any Certificateholder that has so
notified the Trustee in writing in accordance with the Agreement, by wire
transfer in immediately available funds to the account of such Certificateholder
at a bank or other depository institution having appropriate wire transfer
facilities; provided, however, that the final distribution in retirement of the
certificates will be made only upon presentation and surrender of this
Certificate at the office of the Trustee or such other address designated in
writing by the Trustee. On each Distribution Date, a Holder of this Certificate
will receive such Holder's Percentage Interest of the amounts required to be
distributed with respect to the applicable Class of Certificates.
The Trustee will maintain or cause to be maintained a Certificate Register
in which, subject to such reasonable regulations as it may prescribe, the
Trustee will provide for the registration of Certificates and of transfers and
exchanges of Certificates. Upon surrender for registration of transfer of any
Certificate at any office or agency of the Trustee, or, if an Authenticating
Agent has been appointed under the Agreement, the Authenticating Agent,
maintained for such purpose, the Trustee, will, subject to the limitations set
forth in the Agreement, authenticate and deliver, in the name of the designated
transferee or transferees, a Certificate of a like class and dated the date of
authentication by the Authenticating Agent. Notwithstanding the above, the final
distribution on this Certificate will be made after due notice by the Trustee,
of the pendency of such distribution and only upon presentation and surrender of
this Certificate at the office or agency appointed by the Trustee, for that
purpose and specified in such notice of final distribution.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof which further provisions shall for all purposes have
the same effect as if set forth at this place.
Unless the certificate of authentication has been executed by the
Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: April 24, 2007 U.S. BANK NATIONAL ASSOCIATION, as
Trustee
By:
------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the
Certificates referred to
in the within-mentioned
Agreement.
U.S. BANK NATIONAL ASSOCIATION,
as Authenticating Agent
By:
----------------------------------
Authorized Signatory
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REVERSE OF CERTIFICATE
SPECIALTY UNDERWRITING AND RESIDENTIAL FINANCE TRUST
MORTGAGE LOAN ASSET-BACKED CERTIFICATES,
SERIES 2007-BC2
This Certificate is one of a duly authorized issue of Certificates,
designated as Specialty Underwriting and Residential Finance Trust Mortgage Loan
Asset-Backed Certificates, Series 2007-BC2, issued in one or more Classes of
Class X-0, Xxxxx X-0X, Xxxxx X-0X, Class A-2C, Class A-2D, Class M-1, Class M-2,
Class M-3, Class M-4, Class M-5, Class M-6, Class B-1, Class B-2, Class B-3,
Class P, Class C, and Class R Certificates, each evidencing an interest in
certain distributions with respect to a pool of conventional, sub-prime Mortgage
Loans formed and sold by the Depositor and certain other property conveyed by
the Depositor to the Trustee.
Following the initial issuance of the Certificates, the principal balance
of this Certificate will be different from the Original Denomination shown
above. Anyone acquiring this Certificate may ascertain its current principal
balance by inquiry of the Trustee.
The Holder, by its acceptance of this Certificate, agrees that it will look
solely to the Trust Fund and certain amounts resulting from credit enhancements
for payment hereunder and that the Trustee is not liable to the Holders for any
amount payable under this Certificate or the Agreement or, except as expressly
provided in the Agreement, subject to any liability under the Agreement.
This Certificate does not purport to summarize the Agreement and reference
is made to the Agreement for the interests, rights and limitations of rights,
benefits, obligations and duties evidenced hereby, and the rights, duties and
immunities of the Trustee.
No service charge will be made to the Holder for any transfer or exchange
of the Certificate, but the Trustee may require payment of a sum sufficient to
cover any tax or governmental charge that may be imposed in connection with any
transfer or exchange of the Certificate. Prior to due presentation of a
Certificate for registration of transfer, the Depositor and the Trustee may
treat the person in whose name any Certificate is registered as the owner of
such Certificate and the Percentage Interest in the Trust Fund evidenced thereby
for the purpose of receiving distributions pursuant to the Agreement and for all
other purposes whatsoever, and neither the Depositor nor the Trustee will be
affected by notice to the contrary.
The Agreement may be amended from time to time by the Depositor, the
Servicer and the Trustee, without the consent of any of the Certificateholders,
to cure any ambiguity, to correct or supplement any provisions therein which may
be inconsistent with the other provisions therein, to ensure continuing
treatment of each REMIC included in the Trust Fund as a REMIC, or to make any
other provisions with respect to matters or questions arising under the
Agreement which are not materially inconsistent with the provisions of the
Agreement, provided that such action does not, as evidenced by an Opinion of
Counsel, adversely affect in any material respect the interests of any
Certificateholder.
The Agreement may also be amended from time to time by the Depositor, the
Servicer and the Trustee with the consent of the Holders of Certificates
evidencing in the aggregate not less than 66 2/3% of the Percentage Interests 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
the Agreement or of
A-6
modifying in any manner the rights of the Holders of Certificates of such Class;
provided, however, 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, (ii) adversely affect in any material respect the interests
of the Holders of any Class of Certificates in a manner other than as described
in clause (i), without the consent of the Holders of Certificates of such Class
evidencing 66 2/3% or more of the Voting Rights of such Class or (iii) change
the percentage specified in clause (ii) of the third paragraph of Section 10.01
of the Agreement, without the consent of the Holders of all Certificates of such
Class then outstanding.
For federal income tax purposes, the Trust Fund will include multiple "real
estate mortgage investment conduits" (each, a "REMIC") in a tiered REMIC
structure. The REMIC Regular Interests will represent "regular interests" in one
of the REMICs included in the Trust Fund. The Class R Certificate will represent
the sole class of "residual interest" in each of the REMICs.
The obligations and responsibilities of the Depositor, the Servicer and the
Trustee under the Agreement shall terminate upon the earlier of (a) the exercise
by the Trustee of an Optional Termination; and (b) the later of (i) the maturity
or other liquidation (or any Advance with respect thereto) of the last Mortgage
Loan remaining in the Trust Fund and the disposition of all REO Property and
(ii) the distribution to Certificateholders of all amounts required to be
distributed to them pursuant to this Agreement, as applicable. In no event shall
the trusts created hereby continue beyond the earlier of (i) the expiration of
21 years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. James's,
living on the date hereof and (ii) the Latest Possible Maturity Date.
A-7
[FORM OF ASSIGNMENT]
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
(PLEASE INSERT SOCIAL SECURITY* OR TAXPAYER IDENTIFICATION NUMBER OF ASSIGNEE)
--------------------------------------------------------------------------------
(Please Print or Type Name and Address of Assignee)
--------------------------------------------------------------------------------
the within Certificate, and all rights thereunder, and hereby does irrevocably
constitute and appoint
------------------------------------------------------------------- Attorney to
transfer the within Certificate on the books kept for the registration thereof,
with full power of substitution in the premises.
Dated:
(Signature guaranty)
----------------------------------------
NOTICE: The signature to this
assignment must correspond with the
name as it appears upon the face of
the within Certificate in every
particular, without alteration or
enlargement or any change whatever.
(*This information, which is voluntary, is being requested to ensure that
the assignee will not be subject to backup withholding under Section 3406 of the
Code.)
A-8
FORM OF CLASS C CERTIFICATE
SOLELY FOR FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS AN INTEREST
IN A GRANTOR TRUST THAT HOLDS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G
AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED AND IS TREATED AS
HAVING ENTERED INTO CERTAIN NOTIONAL PRINCIPAL CONTRACTS.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN XXXXXXX
XXXXX MORTGAGE INVESTORS, INC. ("MLMI"), THE TRUSTEE, OR ANY SERVICER REFERRED
TO BELOW OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE, THE REMIC REGULAR
INTEREST REPRESENTED HEREBY NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED OR
INSURED BY MLMI, THE TRUSTEE, THE SERVICER OR BY ANY OF THEIR AFFILIATES OR BY
ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
THIS CLASS C CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "ACT"), THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED
(THE "1940 ACT") OR ANY STATE SECURITIES OR "BLUE SKY" LAWS, AND MAY NOT,
DIRECTLY OR INDIRECTLY, BE SOLD OR OTHERWISE TRANSFERRED, OR OFFERED FOR SALE,
UNLESS SUCH TRANSFER IS NOT SUBJECT TO REGISTRATION UNDER THE ACT, THE 1940 ACT
AND ANY APPLICABLE STATE SECURITIES LAWS AND SUCH TRANSFER ALSO COMPLIES WITH
THE OTHER PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT. NO
TRANSFER OF THIS CERTIFICATE SHALL BE MADE UNLESS THE TRUSTEE SHALL HAVE
RECEIVED, IN FORM AND SUBSTANCE SATISFACTORY TO THE TRUSTEE (A) AN INVESTMENT
LETTER FROM THE PROSPECTIVE INVESTOR; AND (B) REPRESENTATIONS FROM THE
TRANSFEROR REGARDING THE OFFERING AND SALE OF THE CERTIFICATES.
NO TRANSFER OF THIS CERTIFICATE SHALL BE MADE UNLESS THE TRUSTEE SHALL HAVE
RECEIVED (A) A REPRESENTATION FROM THE TRANSFEREE THAT SUCH TRANSFEREE IS NOT AN
EMPLOYEE BENEFIT PLAN OR OTHER ARRANGEMENT SUBJECT TO TITLE I OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), A PLAN SUBJECT TO
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A
PLAN SUBJECT TO ANY STATE, LOCAL, FEDERAL, NON-U.S. OR OTHER LAW SUBSTANTIVELY
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE ("SIMILAR LAW")
(COLLECTIVELY, A "PLAN"), AND IS NOT DIRECTLY OR INDIRECTLY ACQUIRING THIS
CERTIFICATE FOR, ON BEHALF OF OR WITH ANY ASSETS OF ANY SUCH PLAN, (B) IF THE
CERTIFICATE HAS BEEN THE SUBJECT OF AN ERISA-QUALIFYING UNDERWRITING, A
REPRESENTATION THAT SUCH TRANSFEREE IS AN INSURANCE COMPANY THAT IS ACQUIRING
THE CERTIFICATE WITH ASSETS OF AN "INSURANCE COMPANY GENERAL ACCOUNT," AS
DEFINED IN SECTION V(E) OF PROHIBITED TRANSACTION CLASS EXEMPTION ("PTCE")
95-60, AND THE ACQUISITION AND HOLDING OF THE CERTIFICATE ARE COVERED AND EXEMPT
UNDER SECTIONS I AND III OF PTCE 95-60, OR (C) SOLELY IN THE EVENT THE
CERTIFICATE IS A DEFINITIVE CERTIFICATE, AN OPINION OF COUNSEL SATISFACTORY TO
THE TRUSTEE,
A-9
AND UPON WHICH THE TRUSTEE SHALL BE ENTITLED TO RELY, TO THE EFFECT THAT THE
ACQUISITION AND HOLDING OF THE CERTIFICATE WILL NOT CONSTITUTE OR RESULT IN A
NONEXEMPT PROHIBITED TRANSACTION UNDER ERISA OR THE CODE, OR A VIOLATION OF
SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE SERVICER OR THE DEPOSITOR TO
ANY OBLIGATION IN ADDITION TO THOSE EXPRESSLY UNDERTAKEN IN THE POOLING AND
SERVICING AGREEMENT, WHICH OPINION OF COUNSEL SHALL NOT BE AN EXPENSE OF THE
TRUSTEE, THE SERVICER OR THE DEPOSITOR. IF THE CERTIFICATE IS NOT A DEFINITIVE
CERTIFICATE, THE TRANSFEREE IS DEEMED TO HAVE MADE THE REPRESENTATION IN (A) OR
(B) ABOVE.
NO TRANSFER OF THIS CERTIFICATE MAY BE MADE TO A PERSON THAT IS EITHER (I) NOT A
"UNITED STATES PERSON" (AS DEFINED FOR PURPOSES OF SECTION 7701 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED) OR (II) A DISQUALIFIED ORGANIZATION (AS
DEFINED IN THE POOLING AND SERVICING AGREEMENT) OR A PERSON ACQUIRING SUCH
CERTIFICATE ON BEHALF (AS A BROKER, AGENT, NOMINEE OR OTHERWISE) OF A
DISQUALIFIED ORGANIZATION. THE TRUSTEE SHALL NOT REGISTER ANY TRANSFER OF THIS
CERTIFICATE UNLESS THE TRUSTEE SHALL HAVE BEEN FURNISHED WITH A TRANSFEREE
LETTER OR A LETTER FROM THE INITIAL HOLDER OF THIS CERTIFICATE IN THE FORM
ATTACHED TO THE POOLING AND SERVICING AGREEMENT. ANY TRANSFER OF THIS
CERTIFICATE IN VIOLATION OF THESE RESTRICTIONS SHALL BE ABSOLUTELY NULL AND VOID
AND THE PURPORTED TRANSFEREE SHALL ACQUIRE NO RIGHTS WITH RESPECT TO THIS
CERTIFICATE.
CLASS C CERTIFICATE
Number: 07-BC2-C-[ ] Percentage Interest: 100%
Cut-off Date: April 1, 2007 Aggregate Percentage Interest
of all Class C Certificates: 100%
First Distribution Date: CUSIP: [ ]
May 25, 2007
A-10
SPECIALTY UNDERWRITING AND RESIDENTIAL FINANCE TRUST
MORTGAGE LOAN ASSET-BACKED CERTIFICATES,
SERIES 2007-BC2
evidencing an ownership interest in distributions allocable to the Class C
Certificates with respect to a pool of conventional, sub-prime mortgage loans
formed and sold by
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
This certifies that XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED is
the registered owner of the ownership interest (the "Ownership Interest")
evidenced by this Certificate in certain distributions with respect to a pool of
conventional, sub-prime mortgage loans (the "Mortgage Loans") formed and sold by
Xxxxxxx Xxxxx Mortgage Investors, Inc. (hereinafter called the "Depositor"), and
certain other property held in trust for the benefit of Certificateholders
(collectively, the "Trust Fund"). The Mortgage Loans are serviced by Wilshire
Credit Corporation (the "Servicer") and are secured by first or second mortgages
on Mortgaged Properties. The Trust Fund was created pursuant to a pooling and
servicing agreement (the "Agreement"), dated as of April 1, 2007, between the
Depositor, the Servicer and U.S. Bank National Association, as trustee (the
"Trustee"), a summary of certain of the pertinent provisions of which is set
forth hereafter. To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Agreement.
This Certificate is one of a duly authorized issue of Certificates,
designated as Specialty Underwriting and Residential Finance Trust, Mortgage
Loan Asset-Backed Certificates, Series 2007-BC2, Class C (the "Class C
Certificates") and is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which Agreement such Holder is
bound.
The Class A-1 Certificates, the Class A-2A Certificates, the Class A-2B
Certificates, the Class A-2C Certificates, the Class A-2D Certificates, the
Class M-1 Certificates, the Class M-2 Certificates, the Class M-3 Certificates,
the Class M-4 Certificates, the Class M-5 Certificates, the Class M-6
Certificates, the Class B-1 Certificates, the Class B-2 Certificates, the Class
B-3 Certificates, the Class P Certificates, the Class C Certificates, and the
Class R Certificate are collectively referred to herein as the "Certificates."
Pursuant to the terms of the Agreement, the Trustee will distribute from
funds in the Certificate Account the amounts described in the Agreement on the
25th day of each month or, if such 25th day is not a Business Day, the Business
Day immediately following (the "Distribution Date"), commencing in May 2007.
Such distributions will be made to the Person in whose name this Certificate is
registered at the close of business on the last Business Day of the month
preceding the month in which such payment is made, if such last day is not a
Business Day, the Business Day immediately preceding such last day.
Distributions on this Certificate will be made either by check mailed to
the address of the person entitled to distributions as it appears on the
Certificate Register or, in the case of any certificateholder that has so
notified the Trustee in writing in accordance with the Agreement, by wire
transfer in immediately available funds to the account of such certificateholder
at a bank or other depository institution having appropriate wire transfer
facilities; provided, however, that the final distribution in retirement of the
certificates will be made only upon presentation and surrender of this
Certificate at the office of the
A-11
Trustee or such other address designated in writing by the Trustee. On each
Distribution Date, a holder of this Certificate will receive such holder's
Percentage Interest of the amounts required to be distributed with respect to
the applicable Class of Certificates.
The Trustee will maintain or cause to be maintained a Certificate Register
in which, subject to such reasonable regulations as it may prescribe, the
Trustee will provide for the registration of Certificates and of transfers and
exchanges of Certificates. Upon surrender for registration of transfer of any
Certificate at any office or agency of the Trustee, or, if an Authenticating
Agent has been appointed under the Agreement, the Authenticating Agent,
maintained for such purpose, the Trustee, will, subject to the limitations set
forth in the Agreement, authenticate and deliver, in the name of the designated
transferee or transferees, a Certificate of a like class and dated the date of
authentication by the Authenticating Agent. Notwithstanding the above, the final
distribution on this Certificate will be made after due notice by the Trustee,
of the pendency of such distribution and only upon presentation and surrender of
this Certificate at the office or agency appointed by the Trustee, for that
purpose and specified in such notice of final distribution.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof which further provisions shall for all purposes have
the same effect as if set forth at this place.
Unless the certificate of authentication has been executed by the
Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-12
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: April 24, 2007 U.S. BANK NATIONAL ASSOCIATION, as
Trustee
By:
------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the
Certificates referred to
in the within-mentioned
Agreement.
U.S. BANK NATIONAL ASSOCIATION,
as Authenticating Agent
By:
---------------------------------
Authorized Signatory
A-13
REVERSE OF CERTIFICATE
SPECIALTY UNDERWRITING AND RESIDENTIAL FINANCE TRUST
MORTGAGE LOAN ASSET-BACKED CERTIFICATES,
SERIES 2007-BC2
This Certificate is one of a duly authorized issue of Certificates,
designated as Specialty Underwriting and Residential Finance Trust Mortgage Loan
Asset-Backed Certificates, Series 2007-BC2, issued in one or more Classes of
Class X-0, Xxxxx X-0X, Xxxxx X-0X, Class A-2C, Class A-2D, Class M-1, Class M-2,
Class M-3, Class M-4, Class M-5, Class M-6, Class B-1, Class B-2, Class B-3,
Class P, Class C, and Class R Certificates, each evidencing an interest in
certain distributions with respect to a pool of conventional, sub-prime Mortgage
Loans formed and sold by the Depositor and certain other property conveyed by
the Depositor to the Trustee.
Following the initial issuance of the Certificates, the principal balance
of this Certificate will be different from the Original Denomination shown
above. Anyone acquiring this Certificate may ascertain its current principal
balance by inquiry of the Trustee.
The Holder, by its acceptance of this Certificate, agrees that it will look
solely to the Trust Fund and certain amounts resulting from credit enhancements
for payment hereunder and that the Trustee is not liable to the Holders for any
amount payable under this Certificate or the Agreement or, except as expressly
provided in the Agreement, subject to any liability under the Agreement.
This Certificate does not purport to summarize the Agreement and reference
is made to the Agreement for the interests, rights and limitations of rights,
benefits, obligations and duties evidenced hereby, and the rights, duties and
immunities of the Trustee.
No service charge will be made to the Holder for any transfer or exchange
of the Certificate, but the Trustee may require payment of a sum sufficient to
cover any tax or governmental charge that may be imposed in connection with any
transfer or exchange of the Certificate. Prior to due presentation of a
Certificate for registration of transfer, the Depositor and the Trustee may
treat the person in whose name any Certificate is registered as the owner of
such Certificate and the Percentage Interest in the Trust Fund evidenced thereby
for the purpose of receiving distributions pursuant to the Agreement and for all
other purposes whatsoever, and neither the Depositor nor the Trustee will be
affected by notice to the contrary.
The Agreement may be amended from time to time by the Depositor, the
Servicer and the Trustee, without the consent of any of the Certificateholders,
to cure any ambiguity, to correct or supplement any provisions therein which may
be inconsistent with the other provisions therein, to ensure continuing
treatment of each REMIC included in the Trust Fund as a REMIC, or to make any
other provisions with respect to matters or questions arising under the
Agreement which are not materially inconsistent with the provisions of the
Agreement, provided that such action does not, as evidenced by an Opinion of
Counsel, adversely affect in any material respect the interests of any
Certificateholder.
The Agreement may also be amended from time to time by the Depositor, the
Servicer and the Trustee with the consent of the Holders of Certificates
evidencing in the aggregate not less than 66 2/3% of the Percentage Interests 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
the Agreement or of
A-14
modifying in any manner the rights of the Holders of Certificates of such Class;
provided, however, 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, (ii) adversely affect in any material respect the interests
of the Holders of any Class of Certificates in a manner other than as described
in clause (i), without the consent of the Holders of Certificates of such Class
evidencing 66 2/3% or more of the Voting Rights of such Class or (iii) change
the percentage specified in clause (ii) of the third paragraph of Section 10.01
of the Agreement, without the consent of the Holders of all Certificates of such
Class then outstanding.
For federal income tax purposes, the Trust Fund will include multiple "real
estate mortgage investment conduits" (each, a "REMIC") in a tiered REMIC
structure. The REMIC Regular Interests will represent "regular interests" in one
of the REMICs included in the Trust Fund. The Class R Certificate will represent
the sole class of "residual interest" in each of the REMICs.
The obligations and responsibilities of the Depositor, the Servicer and the
Trustee under the Agreement shall terminate upon the earlier of (a) the exercise
by the Trustee of an Optional Termination; and (b) the later of (i) the maturity
or other liquidation (or any Advance with respect thereto) of the last Mortgage
Loan remaining in the Trust Fund and the disposition of all REO Property and
(ii) the distribution to Certificateholders of all amounts required to be
distributed to them pursuant to this Agreement, as applicable. In no event shall
the trusts created hereby continue beyond the earlier of (i) the expiration of
21 years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. James's,
living on the date hereof and (ii) the Latest Possible Maturity Date.
A-15
[FORM OF ASSIGNMENT]
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
(PLEASE INSERT SOCIAL SECURITY* OR TAXPAYER IDENTIFICATION NUMBER OF ASSIGNEE)
--------------------------------------------------------------------------------
(Please Print or Type Name and Address of Assignee)
--------------------------------------------------------------------------------
the within Certificate, and all rights thereunder, and hereby does irrevocably
constitute and appoint
Attorney to
-------------------------------------------------------------
transfer the within Certificate on the books kept for the registration thereof,
with full power of substitution in the premises.
Dated:
(Signature guaranty) ----------------------------------------
NOTICE: The signature to this
assignment must correspond with the
name as it appears upon the face of
the within Certificate in every
particular, without alteration or
enlargement or any change whatever.
(*This information, which is voluntary, is being requested to ensure that
the assignee will not be subject to backup withholding under Section 3406 of the
Code.)
A-16
FORM OF CLASS P CERTIFICATE
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN XXXXXXX
XXXXX MORTGAGE INVESTORS, INC. ("MLMI"), THE TRUSTEE, OR ANY SERVICER REFERRED
TO BELOW OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING
MORTGAGE LOANS ARE GUARANTEED OR INSURED BY MLMI, THE TRUSTEE, ANY SERVICER, OR
BY ANY OF THEIR AFFILIATES OR BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
THIS CLASS P CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "ACT"), THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED
(THE "1940 ACT") OR ANY STATE SECURITIES OR "BLUE SKY" LAWS, AND MAY NOT,
DIRECTLY OR INDIRECTLY, BE SOLD OR OTHERWISE TRANSFERRED, OR OFFERED FOR SALE,
UNLESS SUCH TRANSFER IS NOT SUBJECT TO REGISTRATION UNDER THE ACT, THE 1940 ACT
AND ANY APPLICABLE STATE SECURITIES LAWS AND SUCH TRANSFER ALSO COMPLIES WITH
THE OTHER PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT. NO
TRANSFER OF THIS CERTIFICATE SHALL BE MADE UNLESS THE TRUSTEE SHALL HAVE
RECEIVED, IN FORM AND SUBSTANCE SATISFACTORY TO THE TRUSTEE (A) AN INVESTMENT
LETTER FROM THE PROSPECTIVE INVESTOR; AND (B) REPRESENTATIONS FROM THE
TRANSFEROR REGARDING THE OFFERING AND SALE OF THE CERTIFICATES.
NO TRANSFER OF THIS CERTIFICATE SHALL BE MADE UNLESS THE TRUSTEE SHALL HAVE
RECEIVED (A) A REPRESENTATION FROM THE TRANSFEREE THAT SUCH TRANSFEREE IS NOT AN
EMPLOYEE BENEFIT PLAN OR OTHER ARRANGEMENT SUBJECT TO TITLE I OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), A PLAN SUBJECT TO
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A
PLAN SUBJECT TO ANY STATE, LOCAL, FEDERAL, NON-U.S. OR OTHER LAW SUBSTANTIVELY
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE ("SIMILAR LAW")
(COLLECTIVELY, A "PLAN"), AND IS NOT DIRECTLY OR INDIRECTLY ACQUIRING THIS
CERTIFICATE FOR, ON BEHALF OF OR WITH ANY ASSETS OF ANY SUCH PLAN, (B) IF THE
CERTIFICATE HAS BEEN THE SUBJECT OF AN ERISA-QUALIFYING UNDERWRITING, A
REPRESENTATION THAT SUCH TRANSFEREE IS AN INSURANCE COMPANY THAT IS ACQUIRING
THE CERTIFICATE WITH ASSETS OF AN "INSURANCE COMPANY GENERAL ACCOUNT," AS
DEFINED IN SECTION V(E) OF PROHIBITED TRANSACTION CLASS EXEMPTION ("PTCE")
95-60, AND THE ACQUISITION AND HOLDING OF THE CERTIFICATE ARE COVERED AND EXEMPT
UNDER SECTIONS I AND III OF PTCE 95-60, OR (C) SOLELY IN THE EVENT THE
CERTIFICATE IS A DEFINITIVE CERTIFICATE, AN OPINION OF COUNSEL SATISFACTORY TO
THE TRUSTEE, AND UPON WHICH THE TRUSTEE SHALL BE ENTITLED TO RELY, TO THE EFFECT
THAT THE ACQUISITION AND HOLDING OF THE CERTIFICATE WILL NOT CONSTITUTE OR
RESULT IN A NONEXEMPT PROHIBITED TRANSACTION UNDER ERISA OR THE CODE, OR A
VIOLATION OF SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE SERVICER OR THE
DEPOSITOR TO ANY OBLIGATION IN ADDITION TO THOSE EXPRESSLY UNDERTAKEN IN THE
POOLING AND SERVICING AGREEMENT, WHICH OPINION OF COUNSEL SHALL NOT BE AN
EXPENSE OF THE TRUSTEE, THE SERVICER OR THE
A-17
DEPOSITOR. IF THE CERTIFICATE IS NOT A DEFINITIVE CERTIFICATE, THE TRANSFEREE IS
DEEMED TO HAVE MADE THE REPRESENTATION IN (A) OR (B) ABOVE.
A-18
CLASS P CERTIFICATE
Number: 07-BC2-P-[ ] Percentage Interest: 100%
Cut-off Date: April 1, 2007 Aggregate Percentage Interest
of all Class P Certificates: 100%
First Distribution Date: CUSIP: [ ]
May 25, 2007
A-19
SPECIALTY UNDERWRITING AND RESIDENTIAL FINANCE TRUST
MORTGAGE LOAN ASSET-BACKED CERTIFICATES,
SERIES 2007-BC2
evidencing an ownership interest in distributions allocable to the Class P
Certificates with respect to a pool of conventional, sub-prime mortgage loans
formed and sold by
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
This certifies that XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED is
the registered owner of the ownership interest (the "Ownership Interest")
evidenced by this Certificate in certain distributions with respect to a pool of
conventional, sub-prime mortgage loans (the "Mortgage Loans") formed and sold by
Xxxxxxx Xxxxx Mortgage Investors, Inc. (hereinafter called the "Depositor"), and
certain other property held in trust for the benefit of Certificateholders
(collectively, the "Trust Fund"). The Mortgage Loans are serviced by Wilshire
Credit Corporation (the "Servicer") and are secured by first or second mortgages
on Mortgaged Properties. The Trust Fund was created pursuant to a pooling and
servicing agreement (the "Agreement"), dated as of April 1, 2007, between the
Depositor, the Servicer and U.S. Bank National Association, as trustee (the
"Trustee"), a summary of certain of the pertinent provisions of which is set
forth hereafter. To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Agreement.
This Certificate is one of a duly authorized issue of Certificates,
designated as Specialty Underwriting and Residential Finance Trust, Mortgage
Loan Asset-Backed Certificates, Series 2007-BC2, Class P (the "Class P
Certificates") and is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which Agreement such Holder is
bound.
The Class A-1 Certificates, the Class A-2A Certificates, the Class A-2B
Certificates, the Class A-2C Certificates, the Class A-2D Certificates, the
Class M-1 Certificates, the Class M-2 Certificates, the Class M-3 Certificates,
the Class M-4 Certificates, the Class M-5 Certificates, the Class M-6
Certificates, the Class B-1 Certificates, the Class B-2 Certificates, the Class
B-3 Certificates, the Class P Certificates, the Class C Certificates, and the
Class R Certificate are collectively referred to herein as the "Certificates."
Pursuant to the terms of the Agreement, the Trustee will distribute from
funds in the Certificate Account the amounts described in the Agreement on the
25th day of each month or, if such 25th day is not a Business Day, the Business
Day immediately following (the "Distribution Date"), commencing in May 2007.
Such distributions will be made to the Person in whose name this Certificate is
registered at the close of business on the last Business Day of the month
preceding the month in which such payment is made, if such last day is not a
Business Day, the Business Day immediately preceding such last day.
Distributions on this Certificate will be made either by check mailed to
the address of the person entitled to distributions as it appears on the
Certificate Register or, in the case of any certificateholder that has so
notified the Trustee in writing in accordance with the Agreement, by wire
transfer in immediately available funds to the account of such certificateholder
at a bank or other depository institution having appropriate wire transfer
facilities; provided, however, that the final distribution in retirement of the
certificates will be made only upon presentation and surrender of this
Certificate at the office of the
A-21
Trustee or such other address designated in writing by the Trustee. On each
Distribution Date, a holder of this Certificate will receive such holder's
Percentage Interest of the amounts required to be distributed with respect to
the applicable Class of Certificates.
The Trustee will maintain or cause to be maintained a Certificate Register
in which, subject to such reasonable regulations as it may prescribe, the
Trustee will provide for the registration of Certificates and of transfers and
exchanges of Certificates. Upon surrender for registration of transfer of any
Certificate at any office or agency of the Trustee, or, if an Authenticating
Agent has been appointed under the Agreement, the Authenticating Agent,
maintained for such purpose, the Trustee, will, subject to the limitations set
forth in the Agreement, authenticate and deliver, in the name of the designated
transferee or transferees, a Certificate of a like class and dated the date of
authentication by the Authenticating Agent. Notwithstanding the above, the final
distribution on this Certificate will be made after due notice by the Trustee,
of the pendency of such distribution and only upon presentation and surrender of
this Certificate at the office or agency appointed by the Trustee, for that
purpose and specified in such notice of final distribution.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof which further provisions shall for all purposes have
the same effect as if set forth at this place.
Unless the certificate of authentication has been executed by the
Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-21
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: April 24, 2007 U.S. BANK NATIONAL ASSOCIATION, as
Trustee
By:
------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the
Certificates referred to
in the within-mentioned
Agreement.
U.S. BANK NATIONAL ASSOCIATION,
as Authenticating Agent
By:
---------------------------------
Authorized Signatory
A-22
REVERSE OF CERTIFICATE
SPECIALTY UNDERWRITING AND RESIDENTIAL FINANCE TRUST
MORTGAGE LOAN ASSET-BACKED CERTIFICATES,
SERIES 2007-BC2
This Certificate is one of a duly authorized issue of Certificates,
designated as Specialty Underwriting and Residential Finance Trust Mortgage Loan
Asset-Backed Certificates, Series 2007-BC2, issued in one or more Classes of
Class X-0, Xxxxx X-0X, Xxxxx X-0X, Class A-2C, Class A-2D, Class M-1, Class M-2,
Class M-3, Class M-4, Class M-5, Class M-6, Class B-1, Class B-2, Class B-3,
Class P, Class C, and Class R Certificates, each evidencing an interest in
certain distributions with respect to a pool of conventional, sub-prime Mortgage
Loans formed and sold by the Depositor and certain other property conveyed by
the Depositor to the Trustee.
Following the initial issuance of the Certificates, the principal balance
of this Certificate will be different from the Original Denomination shown
above. Anyone acquiring this Certificate may ascertain its current principal
balance by inquiry of the Trustee.
The Holder, by its acceptance of this Certificate, agrees that it will look
solely to the Trust Fund and certain amounts resulting from credit enhancements
for payment hereunder and that the Trustee is not liable to the Holders for any
amount payable under this Certificate or the Agreement or, except as expressly
provided in the Agreement, subject to any liability under the Agreement.
This Certificate does not purport to summarize the Agreement and reference
is made to the Agreement for the interests, rights and limitations of rights,
benefits, obligations and duties evidenced hereby, and the rights, duties and
immunities of the Trustee.
No service charge will be made to the Holder for any transfer or exchange
of the Certificate, but the Trustee may require payment of a sum sufficient to
cover any tax or governmental charge that may be imposed in connection with any
transfer or exchange of the Certificate. Prior to due presentation of a
Certificate for registration of transfer, the Depositor and the Trustee may
treat the person in whose name any Certificate is registered as the owner of
such Certificate and the Percentage Interest in the Trust Fund evidenced thereby
for the purpose of receiving distributions pursuant to the Agreement and for all
other purposes whatsoever, and neither the Depositor nor the Trustee will be
affected by notice to the contrary.
The Agreement may be amended from time to time by the Depositor, the
Servicer and the Trustee, without the consent of any of the Certificateholders,
to cure any ambiguity, to correct or supplement any provisions therein which may
be inconsistent with the other provisions therein, to ensure continuing
treatment of each REMIC included in the Trust Fund as a REMIC, or to make any
other provisions with respect to matters or questions arising under the
Agreement which are not materially inconsistent with the provisions of the
Agreement, provided that such action does not, as evidenced by an Opinion of
Counsel, adversely affect in any material respect the interests of any
Certificateholder.
The Agreement may also be amended from time to time by the Depositor, the
Servicer and the Trustee with the consent of the Holders of Certificates
evidencing in the aggregate not less than 66 2/3% of the Percentage Interests 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
the Agreement or of
A-23
modifying in any manner the rights of the Holders of Certificates of such Class;
provided, however, 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, (ii) adversely affect in any material respect the interests
of the Holders of any Class of Certificates in a manner other than as described
in clause (i), without the consent of the Holders of Certificates of such Class
evidencing 66 2/3% or more of the Voting Rights of such Class or (iii) change
the percentage specified in clause (ii) of the third paragraph of Section 10.01
of the Agreement, without the consent of the Holders of all Certificates of such
Class then outstanding.
For federal income tax purposes, the Trust Fund will include multiple "real
estate mortgage investment conduits" (each, a "REMIC") in a tiered REMIC
structure. The REMIC Regular Interests will represent "regular interests" in one
of the REMICs included in the Trust Fund. The Class R Certificate will represent
the sole class of "residual interest" in each of the REMICs.
The obligations and responsibilities of the Depositor, the Servicer and the
Trustee under the Agreement shall terminate upon the earlier of (a) the exercise
by the Trustee of an Optional Termination; and (b) the later of (i) the maturity
or other liquidation (or any Advance with respect thereto) of the last Mortgage
Loan remaining in the Trust Fund and the disposition of all REO Property and
(ii) the distribution to Certificateholders of all amounts required to be
distributed to them pursuant to this Agreement, as applicable. In no event shall
the trusts created hereby continue beyond the earlier of (i) the expiration of
21 years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. James's,
living on the date hereof and (ii) the Latest Possible Maturity Date.
A-24
[FORM OF ASSIGNMENT]
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto
(PLEASE INSERT SOCIAL SECURITY* OR TAXPAYER IDENTIFICATION NUMBER OF ASSIGNEE)
--------------------------------------------------------------------------------
(Please Print or Type Name and Address of Assignee)
--------------------------------------------------------------------------------
the within Certificate, and all rights thereunder, and hereby does irrevocably
constitute and appoint
Attorney to
----------------------------------------------------------------
transfer the within Certificate on the books kept for the registration thereof,
with full power of substitution in the premises.
Dated:
(Signature guaranty) ----------------------------------------
NOTICE: The signature to this assignment
must correspond with the name as it
appears upon the face of the within
Certificate in every particular, without
alteration or enlargement or any change
whatever.
(*This information, which is voluntary, is being requested to ensure that
the assignee will not be subject to backup withholding under Section 3406 of the
Code.)
A-25
FORM OF CLASS R CERTIFICATE
SOLELY FOR FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS (I) A
"RESIDUAL INTEREST" IN EACH OF ONE OR MORE "REAL ESTATE MORTGAGE INVESTMENT
CONDUITS", AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D
OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED AND (II) AN INTEREST IN
NOTIONAL PRINCIPAL CONTRACTS.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN XXXXXXX
XXXXX MORTGAGE INVESTORS, INC. ("MLMI"), THE TRUSTEE OR THE SERVICER REFERRED TO
BELOW OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE, THE REMIC RESIDUAL
INTERESTS REPRESENTED HEREBY NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED OR
INSURED BY MLMI, THE TRUSTEE, ANY SERVICER OR BY ANY OF THEIR AFFILIATES OR BY
ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
THIS CLASS R CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY
NOT BE RESOLD OR TRANSFERRED UNLESS IT IS SOLD OR TRANSFERRED IN TRANSACTIONS
WHICH ARE EXEMPT FROM REGISTRATION UNDER SUCH ACT OR UNDER APPLICABLE STATE LAW
AND IS TRANSFERRED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE SHALL BE REGISTERED UNLESS THE PROSPECTIVE
TRANSFEREE PROVIDES THE TRUSTEE WITH A REPRESENTATION IN ACCORDANCE WITH SECTION
5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN THAT SUCH
TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), A PLAN SUBJECT TO
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") OR A
PLAN SUBJECT TO ANY PROVISIONS UNDER ANY FEDERAL, STATE, LOCAL, NON-U.S. OR
OTHER LAWS OR REGULATIONS THAT ARE SUBSTANTIVELY SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE (COLLECTIVELY, A "PLAN"), AND IS NOT DIRECTLY OR
INDIRECTLY ACQUIRING THIS CERTIFICATE FOR, ON BEHALF OF, OR WITH ANY ASSETS OF
ANY SUCH PLAN.
CLASS R CERTIFICATE
Number: 07-BC2-R-[ ] Principal Balance: $100
Cut-off Date: April 1, 2007 Pass-Through Rate: Variable(1)
First Distribution Date: CUSIP: [ ]
May 25, 2007
----------
(1) Subject to a cap as described in the Agreement.
A-26
SPECIALTY UNDERWRITING AND RESIDENTIAL FINANCE TRUST
MORTGAGE LOAN ASSET-BACKED CERTIFICATES,
Series 2007-BC2
evidencing an ownership interest in distributions allocable to the Class R
Certificates with respect to a pool of conventional, sub-prime mortgage loans
formed and sold by
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
This certifies that XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED is
the registered owner of the ownership interest (the "Ownership Interest")
evidenced by this Certificate (obtained by dividing the Original Denomination of
this Certificate by the aggregate Initial Certificate Balance of all Class R
Certificates) in certain distributions with respect to a pool of conventional,
sub-prime mortgage loans (the "Mortgage Loans") formed and sold by Xxxxxxx Xxxxx
Mortgage Investors, Inc. (hereinafter called the "Depositor"), and certain other
property held in trust for the benefit of Certificateholders (collectively, the
"Trust Fund"). The Mortgage Loans are serviced by Wilshire Credit Corporation
(the "Servicer") and are secured by first or second mortgages on Mortgaged
Properties. The Trust Fund was created pursuant to a pooling and servicing
agreement (the "Agreement"), dated as of April 1, 2007, between the Depositor,
the Servicer and U.S. Bank National Association, as trustee (the "Trustee"), a
summary of certain of the pertinent provisions of which is set forth hereafter.
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Agreement.
This Certificate is one of a duly authorized issue of Certificates,
designated as Specialty Underwriting and Residential Finance Trust, Mortgage
Loan Asset-Backed Certificates, Series 2007-BC2, Class R (the "Class R
Certificates") and is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which Agreement such Holder is
bound.
The Class A-1 Certificates, the Class A-2A Certificates, the Class A-2B
Certificates, the Class A-2C Certificates, the Class A-2D Certificates, the
Class M-1 Certificates, the Class M-2 Certificates, the Class M-3 Certificates,
the Class M-4 Certificates, the Class M-5 Certificates, the Class M-6
Certificates, the Class B-1 Certificates, the Class B-2 Certificates, the Class
B-3 Certificates, the Class P Certificates, the Class C Certificates, and the
Class R Certificate are collectively referred to herein as the "Certificates."
Pursuant to the terms of the Agreement, the Trustee will distribute from
funds in the Certificate Account the amounts described in the Agreement on the
25th day of each month or, if such 25th day is not a Business Day, the Business
Day immediately following (the "Distribution Date"), commencing in May 2007.
Such distributions will be made to the Person in whose name this Certificate is
registered at the close of business on (i) the last Business Day of the month
preceding the month in which such payment is made, (ii) if such last day is not
a Business Day, the Business Day immediately preceding such last day.
Distributions on this Certificate will be made either by check mailed to
the address of the person entitled to distributions as it appears on the
Certificate Register or, in the case of any certificateholder that has so
notified the Trustee in writing in accordance with the Agreement, by wire
transfer in immediately available funds to the account of such certificateholder
at a bank or other depository institution having appropriate wire transfer
facilities; provided, however, that the final distribution in retirement of the
certificates will be made only upon presentation and surrender of this
Certificate at the office of the Trustee or such other address designated in
writing by the Trustee. On each Distribution Date, a holder of
A-27
this Certificate will receive such holder's Percentage Interest of the amounts
required to be distributed with respect to the applicable Class of Certificates.
The Trustee will maintain or cause to be maintained a Certificate Register
in which, subject to such reasonable regulations as it may prescribe, the
Trustee will provide for the registration of Certificates and of transfers and
exchanges of Certificates. Upon surrender for registration of transfer of any
Certificate at any office or agency of the Trustee, or, if an Authenticating
Agent has been appointed under the Agreement, the Authenticating Agent,
maintained for such purpose, the Trustee, will, subject to the limitations set
forth in the Agreement, authenticate and deliver, in the name of the designated
transferee or transferees, a Certificate of a like class and dated the date of
authentication by the Authenticating Agent. Notwithstanding the above, the final
distribution on this Certificate will be made after due notice by the Trustee,
of the pendency of such distribution and only upon presentation and surrender of
this Certificate at the office or agency appointed by the Trustee, for that
purpose and specified in such notice of final distribution.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof which further provisions shall for all purposes have
the same effect as if set forth at this place.
Unless the certificate of authentication has been executed by the
Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-28
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: April 24, 2007 U.S. BANK NATIONAL ASSOCIATION, as
Trustee
By:
------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the
Certificates referred to
in the within-mentioned
Agreement.
U.S. BANK NATIONAL ASSOCIATION,
as Authenticating Agent
By:
----------------------------------
Authorized Signatory
A-29
REVERSE OF CERTIFICATE
SPECIALTY UNDERWRITING AND RESIDENTIAL FINANCE TRUST
MORTGAGE LOAN ASSET-BACKED CERTIFICATES,
SERIES 2007-BC2
This Certificate is one of a duly authorized issue of Certificates,
designated as Specialty Underwriting and Residential Finance Trust Mortgage Loan
Asset-Backed Certificates, Series 2007-BC2, issued in one or more Classes of
Class X-0, Xxxxx X-0X, Xxxxx X-0X, Class A-2C, Class A-2D, Class M-1, Class M-2,
Class M-3, Class M-4, Class M-5, Class M-6, Class B-1, Class B-2, Class B-3,
Class P, Class C, and Class R Certificates, each evidencing an interest in
certain distributions with respect to a pool of conventional, sub-prime Mortgage
Loans formed and sold by the Depositor and certain other property conveyed by
the Depositor to the Trustee.
Following the initial issuance of the Certificates, the principal balance
of this Certificate will be different from the Original Denomination shown
above. Anyone acquiring this Certificate may ascertain its current principal
balance by inquiry of the Trustee.
The Holder, by its acceptance of this Certificate, agrees that it will look
solely to the Trust Fund and certain amounts resulting from credit enhancements
for payment hereunder and that the Trustee is not liable to the Holders for any
amount payable under this Certificate or the Agreement or, except as expressly
provided in the Agreement, subject to any liability under the Agreement.
This Certificate does not purport to summarize the Agreement and reference
is made to the Agreement for the interests, rights and limitations of rights,
benefits, obligations and duties evidenced hereby, and the rights, duties and
immunities of the Trustee.
No service charge will be made to the Holder for any transfer or exchange
of the Certificate, but the Trustee may require payment of a sum sufficient to
cover any tax or governmental charge that may be imposed in connection with any
transfer or exchange of the Certificate. Prior to due presentation of a
Certificate for registration of transfer, the Depositor and the Trustee may
treat the person in whose name any Certificate is registered as the owner of
such Certificate and the Percentage Interest in the Trust Fund evidenced thereby
for the purpose of receiving distributions pursuant to the Agreement and for all
other purposes whatsoever, and neither the Depositor nor the Trustee will be
affected by notice to the contrary.
The Agreement may be amended from time to time by the Depositor, the
Servicer and the Trustee, without the consent of any of the Certificateholders,
to cure any ambiguity, to correct or supplement any provisions therein which may
be inconsistent with the other provisions therein, to ensure continuing
treatment of each REMIC included in the Trust Fund as a REMIC, or to make any
other provisions with respect to matters or questions arising under the
Agreement which are not materially inconsistent with the provisions of the
Agreement, provided that such action does not, as evidenced by an Opinion of
Counsel, adversely affect in any material respect the interests of any
Certificateholder.
The Agreement may also be amended from time to time by the Depositor, the
Servicer and the Trustee with the consent of the Holders of Certificates
evidencing in the aggregate not less than 66 2/3% of the Percentage Interests 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
the Agreement or of modifying in any manner the rights of the Holders of
Certificates of such Class; provided, however, 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, (ii) adversely affect in any
material respect the interests of the Holders of
A-30
any Class of Certificates in a manner other than as described in clause (i),
without the consent of the Holders of Certificates of such Class evidencing 66
2/3% or more of the Voting Rights of such Class or (iii) change the percentage
specified in clause (ii) of the third paragraph of Section 10.01 of the
Agreement, without the consent of the Holders of all Certificates of such Class
then outstanding.
For federal income tax purposes, the Trust Fund will include multiple "real
estate mortgage investment conduits" (each, a "REMIC") in a tiered REMIC
structure. The REMIC Regular Interests will represent "regular interests" in one
of the REMICs included in the Trust Fund. The Class R Certificate will represent
the sole class of "residual interest" in each of the REMICs.
The obligations and responsibilities of the Depositor, the Servicer and the
Trustee under the Agreement shall terminate upon the earlier of (a) the exercise
by the Trustee of an Optional Termination; and (b) the later of (i) the maturity
or other liquidation (or any Advance with respect thereto) of the last Mortgage
Loan remaining in the Trust Fund and the disposition of all REO Property and
(ii) the distribution to Certificateholders of all amounts required to be
distributed to them pursuant to this Agreement, as applicable. In no event shall
the trusts created hereby continue beyond the earlier of (i) the expiration of
21 years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. James's,
living on the date hereof and (ii) the Latest Possible Maturity Date.
A-31
[FORM OF ASSIGNMENT]
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto
(PLEASE INSERT SOCIAL SECURITY* OR TAXPAYER IDENTIFICATION NUMBER OF ASSIGNEE)
--------------------------------------------------------------------------------
(Please Print or Type Name and Address of Assignee)
--------------------------------------------------------------------------------
the within Certificate, and all rights thereunder, and hereby does irrevocably
constitute and appoint
Attorney to
----------------------------------------------------------------
transfer the within Certificate on the books kept for the registration thereof,
with full power of substitution in the premises.
Dated:
(Signature guaranty) ----------------------------------------
NOTICE: The signature to this assignment
must correspond with the name as it
appears upon the face of the within
Certificate in every particular, without
alteration or enlargement or any change
whatever.
(*This information, which is voluntary, is being requested to ensure that
the assignee will not be subject to backup withholding under Section 3406 of the
Code.)
A-32
EXHIBIT B
MORTGAGE LOAN SCHEDULE - MORTGAGE POOL
[INTENTIONALLY OMITTED]
B-1
EXHIBIT C-1
[RESERVED]
C-1-1
EXHIBIT C-2
[RESERVED]
C-2-1
EXHIBIT D
FORM OF TRUSTEE CERTIFICATION
[DATE]
Xxxxxxx Xxxxx Mortgage Investors, Inc.
000 Xxxxx Xxxxxx
4 World Financial Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Wilshire Credit Corporation
00000 X.X. Xxxxxxxx Xxx
Xxxxx 000
Xxxxxxxxx, Xxxxxx 00000
[NIMS INSURER, IF ANY]
Re: Pooling and Servicing Agreement, dated as of April 1, 2007, among Xxxxxxx
Xxxxx Mortgage Investors, Inc., as depositor, Wilshire Credit Corporation,
as servicer, and U.S. Bank National Association, as trustee, relating to
Specialty Underwriting and Residential Finance Trust, Mortgage Loan
Asset-Backed Certificates, Series 2007-BC2
Ladies and Gentlemen:
In accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement, the undersigned, as Trustee, hereby certifies that [,
except as set forth in Schedule A hereto,] as to each Mortgage Loan listed in
the Mortgage Loan Schedule attached hereto (other than any Mortgage Loan paid in
full or listed on the attachment hereto) it has reviewed the Mortgage File and
the Mortgage Loan Schedule and has determined that:
(i) All documents in the Mortgage File required to be delivered to the
Trustee pursuant to Section 2.01 of the Pooling and Servicing Agreement are in
its possession;
(ii) In connection with each Mortgage Loan as to which documentary evidence
of recording was not received on the Closing Date, it has received evidence of
such recording; and
(iii) Such documents have been reviewed by it and such documents do not
contain any material omissions or defects within the meaning of Section 2.01 or
2.02.
The Trustee has made no independent examination of any documents contained
in each Mortgage File beyond confirming (i) that the Mortgage Loan number and
the name of the Mortgagor in each Mortgage File conform to the respective
Mortgage Loan number and name listed on the Mortgage Loan Schedule and (ii) the
existence in each Mortgage File of each of the documents listed in subparagraphs
(i)(a) through (k), inclusive, of Section 2.01 in the Agreement. The Trustee
makes no representations or warranties as to the validity, legality,
recordability, sufficiency, recordability, enforceability or
D-1
genuineness of any of the documents contained in each Mortgage Loan or the
collectability, insurability, effectiveness or suitability of any such Mortgage
Loan.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the above-captioned Pooling and Servicing
Agreement.
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
D-2
EXHIBIT E-1
FORM OF TRANSFEREE'S LETTER AND AFFIDAVIT
[DATE]
U.S. Bank National Association
00 Xxxxxxxxxx Xxxxxx
Mail Code EP-MN-WS3D
Xx. Xxxx, Xxxxxxxxx 00000-0000
Attention: Structured Finance/SURF 2007-BC2
Ladies and Gentlemen:
We propose to purchase the Specialty Underwriting and Residential Finance
Trust, Mortgage Loan Asset-Backed Certificates, Series 2007-BC2, Class R
Certificate, described in the Prospectus Supplement, dated April 23, 2007, and
Prospectus, dated March 22, 2007.
1. We certify that (a) we are not a disqualified organization and (b) we
are not purchasing such Class R Certificate on behalf of a disqualified
organization; for this purpose the term "disqualified organization" means the
United States, any state or political subdivision thereof, any foreign
government, any international organization, any agency or instrumentality of any
of the foregoing (except any entity treated as other than an instrumentality of
the foregoing for purposes of Section 168(h)(2)(D) of the Internal Revenue Code
of 1986, as amended (the "Code")), any organization (other than a cooperative
described in Section 521 of the Code) that is exempt from taxation under the
Code (unless such organization is subject to tax on excess inclusions) and any
organization that is described in Section 1381(a)(2)(C) of the Code. We
understand that any breach by us of this certification may cause us to be liable
for an excise tax imposed upon transfers to disqualified organizations.
2. We certify that (a) we have historically paid our debts as they became
due, (b) we intend, and believe that we will be able, to continue to pay our
debts as they become due in the future, (c) we understand that, as beneficial
owner of the Class R Certificate, we may incur tax liabilities in excess of any
cash flows generated by the Class R Certificate, and (d) we intend to pay any
taxes associated with holding the Class R Certificate as they become due and (e)
we will not cause income from the Class R Certificate to be attributable to a
foreign permanent establishment or fixed base (within the meaning of an
applicable income tax treaty) of ours or another U.S. taxpayer.
3. We acknowledge that we will be the beneficial owner of the Class R
Certificate and:(1)
___ The Class R Certificate will be registered in our name.
___ The Class R Certificate will be held in the name of our nominee
____________, which is not a disqualified organization.
----------
(1) Check appropriate box and if necessary fill in the name of the Transferee's
nominee.
E-1-1
4. We certify that we are not an employee benefit plan or other arrangement
subject to Title I of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), a plan subject to Section 4975 of the Code or a plan subject
to state, local, federal, non-U.S. or other law substantively similar to the
foregoing provisions of ERISA or the Code (each, a "Plan"), and are not directly
or indirectly acquiring the Class R Certificate for, on behalf of or with any
assets of a Plan.
5. We certify that (i) we are a U.S. person or (ii) we will hold the Class
R Certificate in connection with the conduct of a trade or business within the
United States and have furnished the transferor and the Trustee with a duly
completed and effective Internal Revenue Service Form W-8ECI or successor form
at the time and in the manner required by the Code; for this purpose the term
"U.S. person" means a citizen or resident of the United States, a corporation,
or partnership (unless, in the case of a partnership, Treasury regulations are
adopted that provide otherwise) created or organized in or under the laws of the
United States, any State thereof or the District of Columbia, including an
entity treated as a corporation or partnership for federal income tax purposes,
an estate whose income is subject to United States federal income tax regardless
of the source of its income, or a trust if a court within the United States is
able to exercise primary supervision over the administration of the trust and
one or more such U.S. persons have the authority to control all substantial
decisions of the trust (or, to the extent provided in applicable Treasury
regulations, certain trusts in existence on August 20, 1996 which are eligible
to elect to be treated as U.S. Persons). We agree that any breach by us of this
certification shall render the transfer of any interest in the Class R
Certificate to us absolutely null and void and shall cause no rights in the
Class R Certificate to vest in us.
6. We agree that in the event that at some future time we wish to transfer
any interest in the Class R Certificate, we will transfer such interest in the
Class R Certificate only (a) to a transferee that (i) is not a disqualified
organization and is not purchasing such interest in the Class R Certificate on
behalf of a disqualified organization, (ii) is a U.S. person or will hold the
Class R Certificate in connection with the conduct of a trade or business within
the United States and will furnish us and the Trustee with a duly completed and
effective Internal Revenue Service Form W-8ECI or successor form at the time and
in the manner required by the Code and (iii) has delivered to the Trustee a
letter in the form of this letter (including the affidavit appended hereto) and,
we will provide the Trustee a written statement substantially in the form of
Exhibit E-2 to the Agreement.
E-1-2
7. We hereby designate ___________________ as our fiduciary to act as the
tax matters person for each of the REMICs provided for in the Agreement.
Very truly yours,
[PURCHASER]
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Accepted as of _________ __, 200_.
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
E-1-3
APPENDIX A
Affidavit pursuant to (i) Section
860E(e)(4) of the Internal Revenue Code
of 1986, as amended, and (ii) certain
provisions of the Pooling and Servicing
Agreement
Under penalties of perjury, the undersigned declares that the following is true:
(1) He or she is an officer of _______________________ (the "Transferee"),
(2) the Transferee's Employer Identification number is _____________________,
(3) the Transferee is not a "disqualified organization" (as defined below), has
no plan or intention of becoming a disqualified organization, and is not
acquiring any of its interest in the Specialty Underwriting and Residential
Finance Trust, Mortgage Loan Asset-Backed Certificates, Series 2007-BC2,
Class R Certificate on behalf of a disqualified organization or any other
entity,
(4) unless Xxxxxxx Xxxxx Mortgage Investors, Inc.("MLMI") has consented to the
transfer to the Transferee by executing the form of Consent affixed as
Appendix B to the Transferee's Letter to which this Certificate is affixed
as Appendix A, the Transferee is a "U.S. person" (as defined below),
(5) that no purpose of the transfer is to avoid or impede the assessment or
collection of tax,
(6) the Transferee has historically paid its debts as they became due,
(7) the Transferee intends, and believes that it will be able, to continue to
pay its debts as they become due in the future,
(8) the Transferee understands that, as beneficial owner of the Class R
Certificate, it may incur tax liabilities in excess of any cash flows
generated by the Class R Certificate,
(9) the Transferee intends to pay any taxes associated with holding the Class R
Certificate as they become due,
(10) the Transferee consents to any amendment of the Pooling and Servicing
Agreement that shall be deemed necessary by Xxxxxxx Xxxxx Mortgage
Investors, Inc. (upon advice of counsel) to constitute a reasonable
arrangement to ensure that the Class R Certificate will not be owned
directly or indirectly by a disqualified organization, and
(11) IF BRACKETED, THE FOLLOWING CERTIFICATIONS ARE INAPPLICABLE [the transfer
is not a direct or indirect transfer of the Class R Certificate to a
foreign permanent establishment or fixed base (within the meaning of an
applicable income tax treaty) of the Transferee, and as to each of the
residual interests represented by the Class R Certificate, the present
value of the anticipated tax liabilities associated with holding such
residual interest does not exceed the sum of:
(A) the present value of any consideration given to the Transferee to
acquire such residual interest;
(B) the present value of the expected future distributions on such
residual interest; and
E-1-4
(C) the present value of the anticipated tax savings associated with
holding such residual interest as the related REMIC generates losses.
For purposes of this declaration, (i) the Transferee is assumed to pay tax
at a rate equal to the highest rate of tax specified in Section 11(b)(1) of
the Code, but the tax rate specified in Section 55(b)(1)(B) of the Code may
be used in lieu of the highest rate specified in Section 11(b)(1) of the
Code if the Transferee has been subject to the alternative minimum tax
under Section 55 of the Code in the preceding two years and will compute
its taxable income in the current taxable year using the alternative
minimum tax rate, and (ii) present values are computed using a discount
rate equal to the Federal short-term rate prescribed by Section 1274(d) of
the Code for the month of the transfer and the compounding period used by
the Transferee;]
[(11) (A) at the time of the transfer, and at the close of each of the
Transferee's two fiscal years preceding the Transferee's fiscal year
of transfer, the Transferee's gross assets for financial reporting
purposes exceed $100 million and its net assets for financial
reporting purposes exceed $10 million; and
(B) the Transferee is an eligible corporation as defined in Treasury
regulations Section 1.860E-1(c)(6)(i) and has agreed in writing that
any subsequent transfer of the Class R Certificate will be to another
eligible corporation in a transaction that satisfies Treasury
regulation Sections 1.860E-1(c)(4)(i), 1.860E-1(c)(4)(ii),
1.860E-1(c)(4)(iii) and 1.860E1(c)(5) and such transfer will not be a
direct or indirect transfer to a foreign permanent establishment
(within the meaning of an applicable income tax treaty) of a domestic
corporation.
For purposes of this declaration, the gross and net assets of the Transferee do
not include any obligation of any related person as defined in Treasury
regulation Section 1.860E-1(c)(6)(ii) or any other asset if a principal purpose
for holding or acquiring the other asset is to permit the Transferee to make
this declaration or to satisfy the requirements of Treasury regulation Section
1.860E-1(c)(5)(i).]
(12) The Transferee will not cause income from the Class R Certificate to be
attributable to a foreign permanent establishment or fixed base (within the
meaning of an applicable income tax treaty) of the Transferee or another
U.S. taxpayer.
E-1-5
For purpose of this affidavit, the term "disqualified organization" means the
United States, any state or political subdivision thereof, any foreign
government, any international organization, any agency or instrumentality of any
of the foregoing (except any entity treated as other than an instrumentality of
the foregoing for purposes of Section 168(h)(2)(D) of the Internal Revenue Code
of 1986, as amended (the "Code")), any organization (other than a cooperative
described in Section 521 of the Code) that is exempt from taxation under the
Code (unless such organization is subject to tax on excess inclusions) and any
organization that is described in Section 1381(a)(2)(C) of the Code and the term
"U.S. Person" means a citizen or resident of the United States, a corporation or
partnership (unless, in the case of a partnership, Treasury regulations are
adopted that provide otherwise) created or organized in or under the laws of the
United States, any state thereof or the District of Columbia, including an
entity treated as a corporation or partnership for federal income tax purposes,
an estate whose income is subject to Unites States federal income tax regardless
of its source, or a trust if a court within the United States is able to
exercise primary supervision over the administration of such trust, and one or
more such U.S. Persons have the authority to control all substantial decisions
of such trust, (or, to the extent provided in applicable Treasury regulations,
certain trusts in existence on August 20, 1996 which are eligible to elect to be
treated as U.S. Persons).
-------------------------------------
By:
----------------------------------
----------------------------------
Address of Investor for receipt of distribution:
Address of Investor for receipt of tax information:
(Corporate Seal)
Attest:
---------------------------------
, Secretary
---------------------------------
E-1-6
Personally appeared before me the above-named ____________, known or proved to
me to be the same person who executed the foregoing instrument and to be the
____________ of the Investor, and acknowledged to me that he executed the same
as his free act and deed and the free act and deed of the Investor.
Subscribed and sworn before me this ____ day of _______, 200_.
--------------------------------------
Notary Public
County of ____________________________
State of _____________________________
My commission expires the ______________________ day of ________
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Dated: _______________________
E-1-7
EXHIBIT E-2
FORM OF TRANSFEROR'S AFFIDAVIT
[DATE]
U.S. Bank National Association
00 Xxxxxxxxxx Xxxxxx
Mail Code EP-MN-WS3D
Xx. Xxxx, Xxxxxxxxx 00000-0000
Attention: Structured Finance/SURF 2007-BC2
Re: Specialty Underwriting and Residential Finance Trust,
Mortgage Loan Asset-Backed Certificates, Series 2007-BC2
_____________________ (the "Transferor") has reviewed the attached
affidavit of ____________________________ (the "Transferee"), and has no actual
knowledge that such affidavit is not true, and has no reason to believe that the
Transferee has the intention to impede the assessment or collection of any
federal, state or local taxes legally required to be paid with respect to the
Class R Certificate referred to in the attached affidavit. In addition, the
Transferor has conducted a reasonable investigation at the time of the transfer
and found that the Transferee had historically paid its debts as they came due
and found no significant evidence to indicate that the Transferee will not
continue to pay its debts as they become due.
Very truly yours,
----------------------------------------
Name:
----------------------------------
Title:
---------------------------------
E-2-1
EXHIBIT F
FORM OF TRANSFEROR CERTIFICATE FOR
CLASS P AND CLASS C CERTIFICATES
U.S. Bank National Association
00 Xxxxxxxxxx Xxxxxx
Mail Code EP-MN-WS3D
Xx. Xxxx, Xxxxxxxxx 00000-0000
Attention: Structured Finance/SURF 2007-BC2
Re: Specialty Underwriting and Residential Finance Trust,
Mortgage Loan Asset-Backed Certificates, Series 2007-BC2
Ladies and Gentlemen:
In connection with our disposition of the Class [ ] Certificate, we
certify that (a) we understand that the Certificates have not been registered
under the Securities Act of 1933, as amended (the "Act"), and are being disposed
by us in a transaction that is exempt from the registration requirements of the
Act and (b) we have not offered or sold any Certificates to, or solicited offers
to buy any Certificates from, any person, or otherwise approached or negotiated
with any person with respect thereto, in a manner that would be deemed, or taken
any other action that would result in, a violation of Section 5 of the Act. All
capitalized terms used herein but not defined herein shall have the meanings
assigned to them in the Pooling and Servicing Agreement, dated as of April 1,
2007, among Xxxxxxx Xxxxx Mortgage, Inc., as depositor, Wilshire Credit
Corporation, as servicer, and U.S. Bank National Association, as trustee.
Very truly yours,
----------------------------------------
Name of Transferor
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
F-1
EXHIBIT G
FORM OF INVESTMENT LETTER
(ACCREDITED INVESTOR)
[DATE]
U.S. Bank National Association
00 Xxxxxxxxxx Xxxxxx
Mail Code EP-MN-WS3D
Xx. Xxxx, Xxxxxxxxx 00000-0000
Attention: Structured Finance/SURF 2007-BC2
Re: Specialty Underwriting and Residential Finance Trust,
Mortgage Loan Asset-Backed Certificates, Series 2007-BC2
Ladies and Gentlemen:
________________ (the "Purchaser") intends to purchase from __________ (the
"Transferor") $________ by original principal balance (the "Transferred
Certificates") of Mortgage Loan Asset-Backed Certificates, Series 2007-BC2 (the
"Certificates"), issued pursuant to a Pooling and Servicing Agreement, dated as
of April 1, 2007 (the "Pooling and Servicing Agreement"), among Xxxxxxx Xxxxx
Mortgage Investors, Inc., as depositor (the "Depositor"), Wilshire Credit
Corporation, as servicer (the "Servicer"), and U.S. Bank National Association,
as trustee (the "Trustee"). [THE PURCHASER INTENDS TO REGISTER THE TRANSFERRED
CERTIFICATE IN THE NAME OF ____________, AS NOMINEE FOR ________.] All terms
used and not otherwise defined herein shall have the meanings set forth in the
Pooling and Servicing Agreement.
For good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the Purchaser certifies, represents and warrants to, and
covenants with, the Depositor and the Trustee that:
1. The Purchaser understands that (a) the Certificates have not been
registered or qualified under the Securities Act of 1933, as amended (the
"Securities Act"), or the securities laws of any state, (b) neither the
Depositor nor the Trustee is required, and neither of them intends, to so
register or qualify the Certificates, (c) the Certificates cannot be resold
unless (1) they are registered and qualified under the Securities Act and the
applicable state securities laws or (ii) an exemption from registration and
qualification is available and (d) the Pooling and Servicing Agreement contains
restrictions regarding the transfer of the Certificates.
2. The Certificates will bear a legend to the following effect:
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "ACT"), THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED (THE
"1940 ACT") OR ANY STATE SECURITIES OR "BLUE SKY" LAWS, AND MAY NOT, DIRECTLY OR
INDIRECTLY, BE SOLD OR OTHERWISE TRANSFERRED, OR OFFERED FOR SALE, UNLESS SUCH
TRANSFER IS NOT SUBJECT TO REGISTRATION UNDER THE ACT, THE 1940 ACT AND ANY
APPLICABLE STATE SECURITIES LAWS AND SUCH TRANSFER ALSO COMPLIES WITH THE OTHER
PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT. NO TRANSFER
OF THIS CERTIFICATE SHALL BE MADE UNLESS
G-1
THE TRUSTEE SHALL HAVE RECEIVED, IN FORM AND SUBSTANCE SATISFACTORY TO THE
TRUSTEE (A) AN INVESTMENT LETTER FROM THE PROSPECTIVE INVESTOR; AND (B)
REPRESENTATIONS FROM THE TRANSFEROR REGARDING THE OFFERING AND SALE OF THE
CERTIFICATES.
3. All Certificates other than ERISA Restricted Certificates and Class R
Certificates will bear a legend to the following effect:
UNTIL THE TERMINATION OF THE SWAP AGREEMENT, EACH TRANSFEREE OF THIS
CERTIFICATE SHALL BE DEEMED TO REPRESENT (OR IN THE CASE OF A DEFINITIVE
CERTIFICATE, SHALL REPRESENT) TO THE TRUSTEE THAT (A) SUCH TRANSFEREE IS NOT,
AND IS NOT ACTING FOR, ON BEHALF OF OR WITH ANY ASSETS OF, ANY EMPLOYEE BENEFIT
PLAN OR OTHER ARRANGEMENT SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR ANY PLAN SUBJECT TO SECTION 4975
OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR (B) THE
TRANSFEREE'S ACQUISITION AND HOLDING OF THIS CERTIFICATE WILL NOT CONSTITUTE OR
RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER TITLE I OF ERISA OR SECTION
4975 OF THE CODE.
4. All ERISA Restricted Certificates will bear a legend to the following
effect:
NO TRANSFER OF THIS CERTIFICATE SHALL BE MADE UNLESS THE TRUSTEE SHALL HAVE
RECEIVED (A) A REPRESENTATION FROM THE TRANSFEREE THAT SUCH TRANSFEREE IS NOT AN
EMPLOYEE BENEFIT PLAN OR OTHER ARRANGEMENT SUBJECT TO TITLE I OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), A PLAN SUBJECT TO
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A
PLAN SUBJECT TO ANY STATE, LOCAL, FEDERAL, NON-U.S. OR OTHER LAW SUBSTANTIVELY
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE ("SIMILAR LAW")
(COLLECTIVELY, A "PLAN"), AND IS NOT DIRECTLY OR INDIRECTLY ACQUIRING THIS
CERTIFICATE FOR, ON BEHALF OF OR WITH ANY ASSETS OF ANY SUCH PLAN, (B) IF THE
CERTIFICATE HAS BEEN THE SUBJECT OF AN ERISA-QUALIFYING UNDERWRITING, A
REPRESENTATION THAT SUCH TRANSFEREE IS AN INSURANCE COMPANY THAT IS ACQUIRING
THE CERTIFICATE WITH ASSETS OF AN "INSURANCE COMPANY GENERAL ACCOUNT," AS
DEFINED IN SECTION V(E) OF PROHIBITED TRANSACTION CLASS EXEMPTION ("PTCE")
95-60, AND THE ACQUISITION AND HOLDING OF THE CERTIFICATE ARE COVERED AND EXEMPT
UNDER SECTIONS I AND III OF PTCE 95-60, OR (C) SOLELY IN THE EVENT THE
CERTIFICATE IS A DEFINITIVE CERTIFICATE, AN OPINION OF COUNSEL SATISFACTORY TO
THE TRUSTEE, AND UPON WHICH THE TRUSTEE SHALL BE ENTITLED TO RELY, TO THE EFFECT
THAT THE ACQUISITION AND HOLDING OF THE CERTIFICATE WILL NOT CONSTITUTE OR
RESULT IN A NONEXEMPT PROHIBITED TRANSACTION UNDER TITLE I OF ERISA OR SECTION
4975 OF THE CODE, OR A VIOLATION OF SIMILAR LAW, AND WILL NOT SUBJECT THE
TRUSTEE, THE SERVICER OR THE DEPOSITOR TO ANY OBLIGATION IN ADDITION TO THOSE
EXPRESSLY UNDERTAKEN IN THE POOLING AND SERVICING AGREEMENT, WHICH OPINION OF
COUNSEL SHALL NOT BE AN EXPENSE OF THE TRUSTEE, THE SERVICER OR THE DEPOSITOR.
IF THE CERTIFICATE IS NOT A DEFINITIVE CERTIFICATE, THE TRANSFEREE IS DEEMED TO
HAVE MADE THE REPRESENTATION IN (A) OR (B) ABOVE.
G-2
5. The Purchaser is acquiring the Transferred Certificates for its own
account [FOR INVESTMENT ONLY]**/ and not with a view to or for sale or other
transfer in connection with any distribution of the Transferred Certificates in
any manner that would violate the Securities Act or any applicable state
securities laws, subject, nevertheless, to the understanding that disposition of
the Purchaser's property shall at all times be and remain within its control.
6. The Purchaser (a) is a substantial, sophisticated institutional investor
having such knowledge and experience in financial and business matters, and in
particular in such matters related to securities similar to the Certificates,
such that it is capable of evaluating the merits and risks of investment in the
Certificates, (b) is able to bear the economic risks of such an investment and
(c) is an "accredited investor" within the meaning of Rule 501 (a) promulgated
pursuant to the Securities Act.
7. The Purchaser will not nor has it authorized nor will it authorize any
person to (a) offer, pledge, sell, dispose of or otherwise transfer any
Certificate, any interest in any Certificate or any other similar security to
any person in any manner, (b) solicit any offer to buy or to accept a pledge,
disposition or other transfer of any Certificate, any interest in any
Certificate or any other similar security from any person in any manner, (c)
otherwise approach or negotiate with respect to any Certificate, any interest in
any Certificate or any other similar security with any person in any manner, (d)
make any general solicitation by means of general advertising or in any other
manner, or (e) take any other action, that would constitute a distribution of
any Certificate under the Securities Act or the Investment Company Act of 1940,
as amended (the "1940 Act"), that would render the disposition of any
Certificate a violation of Section 5 of the Securities Act or any state
securities law, or that would require registration or qualification pursuant
thereto. Neither the Purchaser nor anyone acting on its behalf has offered the
Certificates for sale or made any general solicitation by means of general
advertising or in any other manner with respect to the Certificates. The
Purchaser will not sell or otherwise transfer any of the Certificates, except in
compliance with the provisions of the Pooling and Servicing Agreement.
8. Either (i) the Purchaser of a Certificate that is neither an ERISA
Restricted Certificate nor a Class R Certificate is not, and is not acting for,
on behalf of or with any assets of, an employee benefit plan or other
arrangement subject to Title I of ERISA or plan subject to Section 4975 of the
Code, or (ii) until the termination of the Swap Agreement, such Purchaser's
acquisition and holding of such Certificates will not constitute or result in a
non-exempt prohibited transaction under Title I of ERISA or Section 4975 of the
Code.
9. The Purchaser (A) is not an employee benefit plan or other arrangement
subject to Title I of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), a plan subject to Section 4975 of the Internal Revenue Code
of 1986, as amended (the "Code"), or a plan subject to any state, local,
federal, non-U.S. or other law substantively similar to the foregoing provisions
of ERISA or the Code ("Similar Law") (collectively, "Plan"), and is not directly
or indirectly acquiring the Certificate for, on behalf of, or with any assets of
any such Plan, (B) if the Certificate has been the subject of an
ERISA-Qualifying Underwriting, is an insurance company that is acquiring the
Certificate with assets of an "insurance company general account," as defined in
Section V(e) of Prohibited Transaction Class Exemption ("PTCE") 95-60, and the
acquisition and holding of the Certificate are covered and exempt under Sections
I and III of PTCE 95-60, or (C) solely in the case of any such Certificate that
is a Definitive Certificate, will deliver herewith an Opinion of Counsel
satisfactory to the Trustee, and upon which the Trustee shall be entitled to
rely, to the effect that the acquisition and holding of the Certificate will not
constitute or result in a nonexempt prohibited transaction under Title I of
ERISA or Section 4975 of the Code, or a violation of Similar Law, and will not
subject the Trustee, the Servicer or the Depositor
----------
**/ Not required of a broker/dealer purchaser.
G-3
to any obligation in addition to those expressly undertaken in the Pooling and
Servicing Agreement, which Opinion of Counsel shall not be an expense of the
Trustee, the Servicer or the Depositor.
10. Prior to the sale or transfer by the Purchaser of any of the
Certificates, the Purchaser will obtain from any subsequent purchaser
substantially the same certifications, representations, warranties and covenants
contained in the foregoing paragraphs and in this letter or a letter
substantially in the form of Exhibit G to the Pooling and Servicing Agreement.
11. The Purchaser agrees to indemnify the Trustee, the Servicer and the
Depositor against any liability that may result from any misrepresentation made
herein.
Very truly yours,
[PURCHASER]
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
G-4
EXHIBIT H
FORM OF RULE 144A INVESTMENT LETTER
(QUALIFIED INSTITUTIONAL BUYER)
[DATE]
U.S. Bank National Association
00 Xxxxxxxxxx Xxxxxx
Mail Code EP-MN-WS3D
Xx. Xxxx, Xxxxxxxxx 00000-0000
Attention: Structured Finance/SURF 2007-BC2
Re: Specialty Underwriting and Residential Finance Trust,
Mortgage Loan Asset-Backed Certificates, Series 2007-BC2
Ladies and Gentlemen:
__________________ (the "Purchaser") intends to purchase from
______________ (the "Transferor") $_______ by original principal balance (the
"Transferred Certificates") of Mortgage Loan Asset-Backed Certificates, Series
2007-BC2 (the "Certificates"), issued pursuant to a Pooling and Servicing
Agreement, dated as of April 1, 2007 (the "Pooling and Servicing Agreement'),
among Xxxxxxx Xxxxx Mortgage Investors, Inc., as depositor (the "Depositor"),
Wilshire Credit Corporation, as servicer (the "Servicer"), and U.S. Bank
National Association, as trustee (the "Trustee"). [THE PURCHASER INTENDS TO
REGISTER THE TRANSFERRED CERTIFICATE IN THE NAME ______________ OF AS NOMINEE
FOR ______________.] All terms used and not otherwise defined herein shall have
the meanings set forth in the Pooling and Servicing Agreement.
For good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the Purchaser certifies, represents and warrants to, and
covenants with, the Depositor and the Trustee that:
In connection with our acquisition of the above Transferred Certificates we
certify that (a) we understand that the Certificates are not being registered
under the Securities Act of 1933, as amended (the "Act'), or any state
securities laws and are being transferred to us in a transaction that is exempt
from the registration requirements of the Act and any such laws, (b) we have
such knowledge and experience in financial and business matters that we are
capable of evaluating the merits and risks of investments in the Certificates,
(c) we have had the opportunity to ask questions of and receive answers from the
Depositor concerning the purchase of the Transferred Certificates and all
matters relating thereto or any additional information deemed necessary to our
decision to purchase the Transferred Certificates, (d) solely in the case of a
Certificate other than an ERISA Restricted Certificate or Class R Certificate,
either (i) we are not, and are not acquiring the Certificate for, on behalf of
or with any assets of, any employee benefit plan or other arrangement subject to
Title I of ERISA or any plan subject to Section 4975 of the Code, or (ii) until
the termination of the Swap Agreement, our acquisition and holding of the
Certificate will not constitute or result in a non-exempt prohibited transaction
under Title I of ERISA or Section 4975 of the Code, (e) we (A) are not an
employee benefit plan or other arrangement subject to Title I of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), a plan subject to
Section 4975 of the Internal Revenue Code of 1986, as amended (the "Code"), or a
plan subject to any state, local, federal, non-U.S. or other law substantively
similar to the foregoing provisions of ERISA or the Code ("Similar
H-1
Law") (collectively, "Plan"), and are not directly or indirectly acquiring the
Certificate for, on behalf of, or with any assets of any such Plan, (B) if the
Certificate has been the subject of an ERISA-Qualifying Underwriting, are an
insurance company that is acquiring the Certificate with assets of an "insurance
company general account," as defined in Section V(e) of Prohibited Transaction
Class Exemption ("PTCE") 95-60, and the acquisition and holding of the
Certificate are covered and exempt under Sections I and III of PTCE 95-60, or
(C) solely in the event the Certificate is a Definitive Certificate, shall
herewith deliver an Opinion of Counsel satisfactory to the Trustee, and upon
which the Trustee shall be entitled to rely, to the effect that the acquisition
and holding of the Certificate will not constitute or result in a nonexempt
prohibited transaction under Title I of ERISA or Section 4975 of the Code, or a
violation of Similar Law, and will not subject the Trustee, the Servicer or the
Depositor to any obligation in addition to those expressly undertaken in the
Pooling and Servicing Agreement, which Opinion of Counsel shall not be an
expense of the Trustee, the Servicer or the Depositor, (f) we have not, nor has
anyone acting on our behalf offered, transferred, pledged, sold or otherwise
disposed of the Certificates, any interest in the Certificates or any other
similar security to, or solicited any offer to buy or accept a transfer, pledge
or other disposition of the Certificates, any interest in the Certificates or
any other similar security from, or otherwise approached or negotiated with
respect to the Certificates, any interest in the Certificates or any other
similar security with, any person in any manner, or made any general
solicitation by means of general advertising or in any other manner, or taken
any other action, that would constitute a distribution of the Certificates under
the Securities Act or that would render the disposition of the Certificates a
violation of Section 5 of the Securities Act or require registration pursuant
thereto, nor will act, nor has authorized or will authorize any person to act,
in such manner with respect to the Certificates, and (g) we are a "qualified
institutional buyer" as that term is defined in Rule 144A under the Securities
Act and have completed one of the forms of certification to that effect attached
hereto as Annex 1 or Annex 2. We are aware that the sale of the Transferred
Certificates to us is being made in reliance on Rule 144A. We are acquiring the
Transferred Certificates for our own account or for resale pursuant to Rule 144A
and further understand that such Certificates may be resold, pledged or
transferred only (i) to a person reasonably believed by us, based upon
certifications of such purchaser or information we have in our possession, to be
a qualified institutional buyer that purchases for its own account or for the
account of a qualified institutional buyer to whom notice is given that the
resale, pledge or transfer is being made in reliance on Rule 144A, or (ii)
pursuant to another exemption from registration under the Securities Act.
We agree to indemnify the Trustee, the Servicer and the Depositor against
any liability that may result from any misrepresentation made herein.
Very truly yours,
[PURCHASER]
By:
------------------------------------
Name:
Title:
X-0
XXXXX 0
XXXXXXXXX XXXXXXXXXXXXX BUYER STATUS UNDER SEC RULE 144A
[FOR TRANSFEREES OTHER THAN REGISTERED INVESTMENT COMPANIES]
The undersigned (the "Buyer") hereby certifies as follows to the parties
listed in the Rule 144A Transferee Certificate to which this certification
relates with respect to the Certificates described therein:
1. As indicated below, the undersigned is the President, Chief Financial
Officer, Senior Vice President or other executive officer of the Buyer.
2. In connection with the purchases by the Buyer, the Buyer is a "qualified
institutional buyer" as that term is defined in Rule 144A under the Securities
Act of 1933, as amended ("Rule 144A") because (i) the Buyer owned and/or
invested on a discretionary basis $____________* in securities (except for the
excluded securities referred to below) as of the end of the Buyer's most recent
fiscal year (such amount being calculated in accordance with Rule 144A) and (ii)
the Buyer satisfies the criteria in the category marked below.
___ Corporation, etc. The Buyer is a corporation (other than a
bank, savings and loan association or similar institution),
Massachusetts or similar business trust, partnership, or
charitable organization described in Section 501(c)(3) of
the Internal Revenue Code of 1986, as amended.
___ Bank. The Buyer (a) is a national bank or banking
institution organized under the laws of any State, territory
or the District of Columbia, the business of which is
substantially confined to banking and is supervised by
Federal, State or territorial banking commission or similar
official or is a foreign bank or equivalent institution, and
(b) has an audited net worth of at least $25,000,000 as
demonstrated in its latest annual financial statements, a
copy of which is attached hereto.
___ Savings and Loan. The Buyer (a) is a savings and loan
association, building and loan association, cooperative
bank, homestead association or similar institution, which is
supervised and examined by a State or Federal authority
having supervision over such institution or is a foreign
savings and loan association or equivalent institution and
(b) has an audited net worth of at least $25,000,000 as
demonstrated in its latest annual financial statements, a
copy of which is attached hereto.
___ Broker-dealer. The Buyer is a dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934, as
amended.
___ Insurance Company. The Buyer is an insurance company whose
primary and predominant business activity is the writing of
insurance or the reinsuring of risks underwritten by
insurance companies and which is
----------
* Buyer must own and/or invest on a discretionary basis at least $100,000,000
in securities unless Buyer is a dealer, and, in that case, Buyer must own
and/or invest on a discretionary basis at least $10,000,000 in securities.
H-3
subject to supervision by the insurance commissioner or a
similar official or agency of the State, territory or the
District of Columbia.
___ State or Local Plan. The Buyer is a plan established and
maintained by a State, its political subdivisions, or any
agency or instrumentality of the State or its political
subdivisions, for the benefit of its employees.
___ ERISA Plan. The Buyer is an employee benefit plan subject to
Title I of the Employee Retirement Income Security Act of
1974, as amended.
___ Investment Advisor. The Buyer is an investment advisor
registered under the Investment Advisors Act of 1940, as
amended.
___ Small Business Investment Company. Buyer is a small business
investment company licensed by the U.S. Small Business
Administration under Section 301 (c) or (d) of the Small
Business Investment Act of 1958, as amended.
___ Business Development Company. Buyer is a business
development company as defined in Section 202(a)(22) of the
Investment Advisors Act of 1940, as amended.
3. The term "securities" as used for purposes of the calculation of the
dollar amount in paragraph 2 excludes: (i) securities of issuers that are
affiliated with the Buyer, (ii) securities that are part of an unsold allotment
to or subscription by the Buyer, if the Buyer is a dealer, (iii) securities
issued or guaranteed by the U.S. or any instrumentality thereof, (iv) bank
deposit notes and certificates of deposit, (v) loan participations, (vi)
repurchase agreements, (vii) securities owned but subject to a repurchase
agreement and (viii) currency, interest rate and commodity swaps.
4. For purposes of determining the aggregate amount of securities owned
and/or invested on a discretionary basis by the Buyer, the Buyer used the cost
of such securities to the Buyer and did not include any of the securities
referred to in the preceding paragraph, except (i) where the Buyer reports its
securities holdings in its financial statements on the basis of their market
value, and (ii) no current information with respect to the cost of those
securities has been published. If clause (ii) in the preceding sentence applies,
the securities may be valued at market. Further, in determining such aggregate
amount, the Buyer may have included securities owned by subsidiaries of the
Buyer, but only if such subsidiaries are consolidated with the Buyer in its
financial statements prepared in accordance with generally accepted accounting
principles and if the investments of such subsidiaries are managed under the
Buyer's direction. However, such securities were not included if the Buyer is a
majority-owned, consolidated subsidiary of another enterprise and the Buyer is
not itself a reporting company under the Securities Exchange Act of 1934, as
amended.
5. The Buyer acknowledges that it is familiar with Rule 144A and
understands that the seller to it and other parties related to the Certificates
are relying and will continue to rely on the statements made herein because one
or more sales to the Buyer may be in reliance on Rule 144A.
H-4
6. Until the date of purchase of the Rule 144A Securities, the Buyer will
notify each of the parties to which this certification is made of any changes in
the information and conclusions herein. Until such notice is given, the Buyer's
purchase of the Certificates will constitute a reaffirmation of this
certification as of the date of such purchase. In addition, if the Buyer is a
bank or savings and loan as provided above, the Buyer agrees that it will
furnish to such parties updated annual financial statements promptly after they
become available.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
X-0
XXXXX 0
XXXXXXXXX XXXXXXXXXXXXX BUYER STATUS UNDER SEC RULE 144A
[FOR TRANSFEREES THAT ARE REGISTERED INVESTMENT COMPANIES]
The undersigned (the "Buyer") hereby certifies as follows to the parties
listed in the Rule 144A Transferee Certificate to which this certification
relates with respect to the Certificates described therein:
1. As indicated below, the undersigned is the President, Chief Financial
Officer or Senior Vice President of the Buyer or, if the Buyer is a "qualified
institutional buyer" as that term is defined in Rule 144A under the Securities
Act of 1933, as amended ("Rule 144A"), because Buyer is part of a Family of
Investment Companies (as defined below), is such an officer of the Adviser.
2. In connection with purchases by Buyer, the Buyer is a "qualified
institutional buyer" as defined in Rule 144A because (i) the Buyer is an
investment company registered under the Investment Company Act of 1940, as
amended and (ii) as marked below, the Buyer alone, or the Buyer's Family of
Investment Companies, owned at least $100,000,000 in securities (other than the
excluded securities referred to below) as of the end of the Buyer's most recent
fiscal year. For purposes of determining the amount of securities owned by the
Buyer or the Buyer's Family of Investment Companies, the cost of such securities
was used, except (1) where the Buyer or the Buyer's Family of Investment
Companies reports its securities holdings in its financial statements on the
basis of their market value, and (ii) no current information with respect to the
cost of those securities has been published. If clause (ii) in the preceding
sentence applies, the securities may be valued at market.
___ The Buyer owned $__________ securities (other than the excluded
securities referred to below) as of the end of the Buyer's most
recent fiscal year (such amount being calculated in accordance
with Rule 144A).
___ The Buyer is part of a Family of Investment Companies which owned
in the aggregate $_______ in securities (other than the excluded
securities referred to below) as of the end of the Buyer's most
recent fiscal year (such amount being calculated in accordance
with Rule 144A).
3. The term "Family of Investment Companies" as used herein means two or
more registered investment companies (or series thereof) that have the same
investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i) securities of
issuers that are affiliated with the Buyer or are part of the Buyer's Family of
Investment Companies, (ii) securities issued or guaranteed by the U.S. or any
instrumentality thereof, (iii) bank deposit notes and certificates of deposit,
(iv) loan participations, (v) repurchase agreements, (vi) securities owned but
subject to a repurchase agreement and (vii) currency, interest rate and
commodity swaps.
5. The Buyer is familiar with Rule 144A and understands that the parties
listed in the Rule 144A Transferee Certificate to which this certification
relates are relying and will continue to rely on the statements made herein
because one or more sales to the Buyer will be in reliance on Rule 144A. In
addition, the Buyer will only purchase for the Buyer's own account.
H-6
6. Until the date of purchase of the Certificates, the undersigned will
notify the parties listed in the Rule 144A Transferee Certificate to which this
certification relates of any changes in the information and conclusions herein.
Until such notice is given, the Buyer's purchase of the Certificates will
constitute a reaffirmation of this certification by the undersigned as of the
date of such purchase.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
IF AN ADVISER:
----------------------------------------
Print Name of Buyer
Date:
----------------------------------
H-7
EXHIBIT I
REQUEST FOR RELEASE OF DOCUMENTS
To: U.S. Bank National Association
0000 Xxxxxx Xxxxxx, Xxxxx 000
Xx. Xxxx, Xxxxxxxxx 00000
Attention: Document Custody Services/SURF 2007-BC2
With a Copy to:
U.S. Bank National Association
00 Xxxxxxxxxx Xxxxxx
Mail Code EP-MN-WS3D
Xx. Xxxx, Xxxxxxxxx 00000-0000
Attention: Structured Finance/SURF 2007-BC2
Re: Pooling and Servicing Agreement, dated as of April 1, 2007, among Xxxxxxx
Xxxxx Mortgage Investors, Inc., as depositor, Wilshire Credit Corporation,
as servicer, and U.S. Bank National Association, as trustee, relating to
Specialty Underwriting and Residential Finance Trust, Mortgage Loan
Asset-Backed Certificates, Series 2007-BC2
In connection with the administration of the Mortgage Loans held by you, as
Trustee, pursuant to the above-captioned Pooling and Servicing Agreement, we
request the release, and hereby acknowledge receipt, of the Mortgage File for
the Mortgage Loan described below, for the reason indicated.
Mortgage Loan Number:
Mortgagor Name, Address & Zip Code:
Reason for Requesting Documents (check one):
[ ] 1. Mortgage Paid in Full
[ ] 2. Foreclosure
[ ] 3. Substitution
[ ] 4. Other Liquidation (Repurchases, etc.)
[ ] 5. Nonliquidation
[ ] 6. Other Reason:
Address to which the Trustee should deliver the Mortgage File:
By:
-----------------------------------
I-1
----------------------------------------
(authorized signer)
Address:
-------------------------------
Date:
-------------------------------
If box 1 or 2 above is checked, and if all or part of the Mortgage File was
previously released to us, please release to us our previous receipt on file
with you, as well as any additional documents in your possession relating to the
above specified Mortgage Loan.
If box 3, 4, 5 or 6 above is checked, upon our return of all of the above
documents to you as Trustee, please acknowledge your receipt by signing in the
space indicated below, and returning this form.
Trustee
U.S. Bank National Association Please acknowledge the execution of the above
request by your signature and date below:
------------------------------------- ----------------------------------------
Signature Date
Documents returned to Trustee:
------------------------------------- ----------------------------------------
Trustee Date
I-2
EXHIBIT J
FORM OF POWER OF ATTORNEY
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO
WILSHIRE CREDIT CORPORATION
00000 X.X. Xxxxxxxx Xxx
Xxxxx 000
Xxxxxxxxx, Xxxxxx 00000
Attn: _____________________
LIMITED POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that U.S. Bank National Association, having
its principal place of business at 00 Xxxxxxxxxx Xxxxxx, Mail Code EP-MN-WS3D,
Xx. Xxxx, Xxxxxxxxx 00000-0000, as Trustee (the "Trustee") pursuant to that
Pooling and Servicing Agreement among Xxxxxxx Xxxxx Mortgage Investors, Inc.
(the "Depositor"), Wilshire Credit Corporation (the "Servicer"), and the
Trustee, dated as of April 1, 2007 (the "Pooling and Servicing Agreement"),
hereby constitutes and appoints the Servicer, by and through the Servicer's
officers, the Trustee's true and lawful Attorney-in-Fact, in the Trustee's name,
place and stead and for the Trustee's benefit, in connection with all mortgage
loans serviced by the Servicer pursuant to the Pooling and Servicing Agreement
for the purpose of performing all acts and executing all documents in the name
of the Trustee as may be customarily and reasonably necessary and appropriate to
effectuate the following enumerated transactions in respect of any of the
mortgages or deeds of trust (the "Mortgages" and the "Deeds of Trust",
respectively) and promissory notes secured thereby (the "Mortgage Notes") for
which the undersigned is acting as Trustee for various certificateholders
(whether the undersigned is named therein as mortgagee or beneficiary or has
become mortgagee by virtue of endorsement of the Mortgage Note secured by any
such Mortgage or Deed of Trust) and for which the Servicer is acting as
servicer, all subject to the terms of the Pooling and Servicing Agreement.
This appointment shall apply to the following enumerated transactions only:
1. The modification or re-recording of a Mortgage or Deed of Trust, where said
modification or re-recordings is for the purpose of correcting the Mortgage
or Deed of Trust to conform same to the original intent of the parties
thereto or to correct title errors discovered after such title insurance
was issued and said modification or re-recording, in either instance, does
not adversely affect the lien of the Mortgage or Deed of Trust as insured.
2. The subordination of the lien of a Mortgage or Deed of Trust to a lien that
is replacing a lien existing as of the date of the Mortgage or Deed of
Trust or an easement in favor of a public utility company of a government
agency or unit with powers of eminent domain; this section shall include,
without limitation, the execution of partial satisfactions/releases,
partial reconveyances or the execution or requests to trustees to
accomplish same.
3. The conveyance of the properties to the mortgage insurer, or the closing of
the title to the property to be acquired as real estate owned, or
conveyance of title to real estate owned.
4. The completion of loan assumption agreements.
J-1
5. The full satisfaction/release of a Mortgage or Deed of Trust or full
conveyance upon payment and discharge of all sums secured thereby,
including, without limitation, cancellation of the related Mortgage Note.
6. The assignment of any Mortgage or Deed of Trust and the related Mortgage
Note, in connection with the repurchase of the mortgage loan secured and
evidenced thereby.
7. The full assignment of a Mortgage or Deed of Trust upon payment and
discharge of all sums secured thereby in conjunction with the refinancing
thereof, including, without limitation, the assignment of the related
Mortgage Note.
8. With respect to a Mortgage or Deed of Trust, the foreclosure, the taking of
a deed in lieu of foreclosure, or the completion of judicial or
non-judicial foreclosure or termination, cancellation or rescission of any
such foreclosure, including, without limitation, any and all of the
following acts:
(a) the substitution of trustee(s) serving under a Deed of Trust, in
accordance with state law and the Deed of Trust;
(b) the preparation and issuance of statements of breach or
non-performance;
(c) the preparation and filing of notices of default and/or notices of
sale;
(d) the cancellation/rescission of notices of default and/or notices
of sale;
(e) the taking of a deed in lieu of foreclosure; and
(f) the preparation and execution of such other documents and
performance of such other actions as may be necessary under the terms
of the Mortgage, Deed of Trust or state law to expeditiously complete
said transactions in paragraphs 8(a) through 8(e), above.
The undersigned gives said Attorney-in-Fact full power and authority to execute
such instruments and to do and perform all and every act and thing necessary and
proper to carry into effect the power or powers granted by or under this Limited
Power of Attorney as fully as the undersigned might or could do, and hereby does
ratify and confirm to all that said Attorney-in-Fact shall lawfully do or cause
to be done by authority hereof.
Third parties without actual notice may rely upon the exercise of the power
granted under this Limited Power of attorney; and may be satisfied that this
Limited Power of Attorney shall continue in full force and effect and has not
been revoked unless an instrument of revocation has been made in writing by the
undersigned.
J-2
IN WITNESS WHEREOF, U.S. Bank National Association, as Trustee pursuant to
that Pooling and Servicing Agreement among the Depositor, the Servicer, and the
Trustee, dated as of April 1, 2007 (Specialty Underwriting and Residential
Finance Trust, Mortgage Loan Asset-Backed Certificates, Series 2007-BC2), has
caused its corporate seal to be hereto affixed and these presents to be signed
and acknowledged in its name and behalf by _____________ its duly elected and
authorized ____________ this day of ___________, 200__.
U.S. BANK NATIONAL ASSOCIATION as
Trustee for Specialty Underwriting and
Residential Finance Trust, Mortgage Loan
Asset-Backed Certificates, Series
2007-BC2
By
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
STATE OF ________________
COUNTY OF _______________
On __________ _____, 200__, before me, the undersigned, a Notary Public in
and for said state, personally appeared ____________________, _______________ of
U.S. Bank National Association as Trustee for Specialty Underwriting and
Residential Finance Trust, Mortgage Loan Asset-Backed Certificates, Series
2007-BC2, personally known to me to be the person whose name is subscribed to
the within instrument and acknowledged to me that he/she executed that same in
his/her authorized capacity, and that by his/her signature on the instrument the
entity upon behalf of which the person acted and executed the instrument.
WITNESS my hand and official seal.
(SEAL)
------------------------------------
Notary Public
My Commission Expires ________________________
J-3
EXHIBIT K
FORM OF OFFICER'S CERTIFICATE OF TRUSTEE
Xxxxxxx Xxxxx Mortgage Investors, Inc.
000 Xxxxx Xxxxxx
4 World Financial Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Wilshire Credit Corporation
00000 XX Xxxxxxxx Xxx
Xxxxx 000
Xxxxxxxxx, Xxxxxx 00000
Re: Pooling and Servicing Agreement (the "Agreement") dated as of April 1, 2007
among Xxxxxxx Xxxxx Mortgage Investors, Inc., as depositor, Wilshire Credit
Corporation, as servicer and U.S. Bank National Association, as trustee,
relating to Specialty Underwriting and Residential Finance Trust, Mortgage
Loan Asset-Backed Certificates, Series 2007-BC2
The Trustee hereby certifies to the Depositor, the Servicer and their
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
[2007] (the "Annual Report"), and all reports on Form 8-K (if any) and on Form
10-D required to be filed in respect of the period covered by the Annual Report
(collectively with the Annual Report, the "Reports"), of the Issuing Entity;
(2) To the best of my knowledge, and assuming the accuracy of the
statements required to be made or data required to be delivered by the Servicer
and Depositor (to the extent that such statements or data were received by the
Trustee and are relevant to the statements made by the Trustee in this Back-Up
Certification), the information in the Reports, 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 light of the circumstances under which
such statements were made, not misleading with respect to the period covered by
the Annual Report;
(3) To the best of my knowledge, and assuming the accuracy of the
statements required to be made or data required to be delivered by the Servicer
and Depositor (to the extent that such statements or data were received by the
Trustee and are relevant to the statements made by the Trustee in this Back-Up
Certification), the distribution and any other information required to be
provided by the Trustee to the Depositor and each Servicer under the Pooling and
Servicing Agreement for inclusion in the Reports is included in the Reports;
(4) The report on assessment of compliance (the "Assessment of
Compliance') with servicing criteria for asset-backed securities of the Trustee
and its related attestation report (the "Attestation Report") on assessment of
compliance with servicing criteria 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 of the Trustee are described in such report and have
been disclosed in the Annual Report;
K-1
(5) A review of the Trustee's activities during the preceding calendar
year or portion thereof and of such Trustee's performance of its distribution
and calculation activities under the Agreement has been made under my
supervision. Based on my knowledge, based on such review, the Trustee has
fulfilled all its obligations with respect to such distribution and calculation
activities under the Agreement, in all material respects throughout the year or
applicable portion thereof, or, if there has been a failure to fulfill any such
obligation in any material respect, the Trustee has specified each such failure
known to such officer and the nature and status thereof; and
(6) Based on my knowledge, and assuming the accuracy of the statements
required to be made or data required to be delivered by the Servicer and
Depositor (to the extent that such statements or data were received by the
Trustee and are relevant to the statements made by the Trustee in this Back-Up
Certification), the Assessment of Compliance and the related Attestation Report,
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 the light of
the circumstances under which such statements were made, not misleading with
respect to the period of time covered by the Assessment of Compliance and the
related Attestation Report.
Date:
U.S. Bank National Association,
as Trustee
By:
---------------------------------
Name:
---------------------------------
Title:
---------------------------------
K-2
EXHIBIT L
FORM OF OFFICER'S CERTIFICATE OF SERVICER
Xxxxxxx Xxxxx Mortgage Investors, Inc.
000 Xxxxx Xxxxxx
4 World Financial Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Specialty Underwriting and Residential Finance Trust, Mortgage Loan
Asset-Backed Certificates, Series 2007-BC2
Wilshire Credit Corporation (the "Servicer") certifies to the
Depositor and the Trustee, and their officers, directors and Affiliates, and
with the knowledge and intent that they will rely upon this certification, that:
(1) I am responsible for reviewing the activities performed by the
Servicer under the Pooling and Servicing Agreement and I have reviewed, or
persons under my supervision have reviewed, the servicer compliance statement of
the Servicer and the compliance statements of each Subservicer, if any, engaged
by the Servicer provided to the Depositor and the Trustee for the Issuing
Entity's fiscal year [___] in accordance with Item 1123 of Regulation AB (each a
"Compliance Statement"), the report on assessment of the Servicer's compliance
with the servicing criteria set forth in Item 1122(d) of Regulation AB (the
"Servicing Criteria") and reports on Assessment of Compliance with servicing
criteria for asset-backed securities of the Servicer and of each Subservicer [or
Subcontractor], if any, engaged or utilized by the Servicer provided to the
Depositor and the Trustee for the Issuing Entity's fiscal year [___] in
accordance with Rules 13a-18 and 15d-18 under Securities Exchange Act of 1934,
as amended (the "Exchange Act") and Item 1122 of Regulation AB (each a
"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 related to each Servicing Assessment
(each a "Attestation Report"), and all servicing reports, officer's certificates
and other information relating to the servicing of the Mortgage Loans by the
Servicer during 200[ ] that were delivered or caused to be delivered by the
Servicer pursuant to the Agreement (collectively, the "Servicing Information");
(2) Based on my knowledge, and assuming the accuracy of the
information provided to the Servicer by third parties in connection with the
performance of the Servicer's duties under the Pooling and Servicing Agreement
and the accuracy of the information provided to the Servicer in connection with
the transfer of servicing of the Mortgage Loans to the Servicer, the 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 Servicing
Information;
(3) Based on my knowledge, the servicing information required to be
provided to the Trustee by the Servicer pursuant to the Pooling and Servicing
Agreement has been provided to the Trustee;
(4) Based on my knowledge and the compliance review conducted in
preparing Compliance Statement of the Servicer and, if applicable, reviewing
each Compliance Statement of each Subservicer, if any, engaged by the Servicer,
and except as disclosed in such Compliance Statement[(s)],
L-1
the Servicer [(directly and through its Subservicers, if any)] has fulfilled its
obligations under the Pooling and Servicing Agreement in all material respects;
(5) Each Servicing Assessment of the Servicer and of each Subservicer
[or Subcontractor], if any, engaged or utilized by the Servicer and its related
Attestation Report 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 provided to the Depositor and the Trustee. Any material instances of
non-compliance are described in any such Servicing Assessment or Attestation
Report.
Date:
Wilshire Credit Corporation,
as Servicer
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
L-2
EXHIBIT M
[RESERVED]
M-1
EXHIBIT N
FORM OF AUCTION PROCEDURES
The following sets forth the auction procedures to be followed in
connection with Pooling and Servicing Agreement (the "Agreement") among Xxxxxxx
Xxxxx Mortgage Investors, Inc., U.S. Bank National Association as trustee and
Wilshire Credit Corporation, dated April 1, 2007. Capitalized terms used herein
that are not otherwise defined shall have the meanings described thereto in the
Agreement.
1. Upon notice that the aggregate Stated Principal Balance of the Mortgage
Loans is equal to ten percent (10%) or less of the Stated Principal Balance
of the Mortgage Loans as of the Cut-off Date (which notice will also be
sent to the Servicer), the Trustee will initiate the general auction
procedures consisting of the following: (i) prepare a general solicitation
package along with a confidentiality agreement; (ii) derive a list of
bidders which shall include (x) the Holders of the Class C and Class P
Certificates (other than the Sponsor or any Affiliate of the Sponsor) and
(y) a minimum of three (3) bidders including the Holders of the Class C
Certificates but not including the holders of the Class P Certificates,
each of whom shall be a nationally recognized participant in mortgage
finance; (iii) initiate contact with all bidders, (iv) send a
confidentiality agreement to all bidders; and (v) upon receipt of a signed
confidentiality agreement, send the general bid solicitation package to all
bidders.
2. The general solicitation package will include (i) the Agreement; (ii) a
copy of all monthly trustee reports or electronic access thereto; (iii) a
form of a Mortgage Loan Purchase Agreement acceptable to the Trustee, the
Servicer and Depositor (the Mortgage Loans and other property included in
the Trust Fund will be offered and sold on an "as is, where is" basis,
without any representation or warranty, expressed or implied, of any kind
and without recourse to, or guaranty by, the Trustee); (iv) a description
of the minimum price as set forth in the Agreement; (v) a formal bid sheet
as determined by the Depositor and accepted by the Trustee; (vi) a detailed
timetable (which shall include, but not be limited to, the provisions and
dates preliminary bids, due diligence and final bids); and (vii) a data
tape of the Mortgage Loans as of the related Remittance Period reflecting
substantially the same data attributes used in the Prospectus Supplement
dated January 22, 2007.
3. A detailed timetable will be determined approximately ten (10) days prior
to each auction sale and shall be determined by the Depositor with the
consent of the Trustee, which consent shall not be unreasonably withheld,
within reasonable market conditions at the time of the auction sale.
4. All bids will be submitted directly to the Trustee. Upon acceptance of a
bid which meets or exceeds the conditions set forth in Section 9.01, the
Trustee will complete the auction by selling the Mortgage Loans and the
other property included in the Trust Fund and distribute the proceeds from
the auction to the holders of the Certificates on the next succeeding
Distribution Date as set forth in the Agreement. In the event the Trustee
receives two (2) or more bids from bidders above the Auction Termination
Price and at equal bids (a "Tie Event"), the Trustee shall notify such
bidders to resubmit a bid to break the Tie Event.
5. Upon determination that the minimum price was not met, the Trustee shall
cancel such auction sale and notify the Servicer and Depositor immediately.
6. The Trustee, the Servicer and the Depositor may mutually agree to revise or
supplement these provisions as necessary, provided that the purchase price
is at all times required to be at least the Auction Termination Price.
N-1
EXHIBIT O-1
FORM OF CLASS A-1 CORRIDOR CONTRACT
(BEAR XXXXXXX LOGO)
BEAR XXXXXXX FINANCIAL PRODUCTS INC.
000 XXXXXXX XXXXXX
XXX XXXX, XXX XXXX 00000
000-000-0000
DATE: April 24, 2007
TO: U.S. Bank National Association, not in its individual
capacity, but solely as Trustee on behalf of Specialty
Underwriting and Residential Finance Trust, Series
2007-BC2
ATTENTION: Structured Finance - SURF 2007-BC2
TELEPHONE: (000) 000-0000
FACSIMILE: (000)000-0000
FROM: Derivatives Documentation
TELEPHONE: 000-000-0000
FACSIMILE: 000-000-0000
SUBJECT: Fixed Income Derivatives Confirmation
REFERENCE NUMBER(S): FXNEC9430
The purpose of this letter agreement is to confirm the terms and conditions of
the Transaction entered into on the Trade Date specified below (the
"Transaction") between Bear Xxxxxxx Financial Products Inc. ("Party A") and U.S.
Bank National Association, not in its individual capacity, but solely as Trustee
on behalf of Specialty Underwriting and Residential Finance Trust, Series
2007-BC2 ("Counterparty"). This letter agreement constitutes the sole and
complete "Confirmation," as referred to in the Master Agreement specified below,
with respect to this Transaction.
1. This Confirmation is subject to and incorporates the 2000 ISDA Definitions
(the "Definitions"), as published by the International Swaps and
Derivatives Association, Inc. ("ISDA"). This Confirmation supplements,
forms a part of and is subject to the ISDA Master Agreement dated as of
April 24, 2007 between Party A and Counterparty (the agreement, as amended
and supplemented from time to time, being referred to herein as the "Master
Agreement"). All provisions contained in, or incorporated by reference to,
the Master Agreement shall govern the Transaction referenced in this
Confirmation except as expressly modified herein. In the event of any
inconsistency between this Confirmation and the Definitions or Master
Agreement, this Confirmation shall prevail.
O-1-1
2. The terms of the particular Transaction to which this Confirmation relates
are as follows:
Type of Transaction: Rate Cap
Notional Amount: With respect to any Calculation Period, the lesser
of (i) the amount set forth for such period on
Schedule I attached hereto and (ii) the aggregate
Certificate Principal Balance of the Class A-1
Certificate immediately prior to the related
Floating Rate Payer Payment Date.
Trade Date: April 16, 2007
Effective Date: April 24, 2007
Termination Date: October 25, 2007, subject to adjustment in
accordance with the Business Day Convention.
FIXED AMOUNT (PREMIUM): Inapplicable. The Fixed Amounts for this
Transaction and for the Transactions with the
Party A Reference Numbers FXNEC9428 and FXNEC9429
is embedded in the determination of the Additional
Amount specified in the Confirmation identified by
Party A Reference Number FXNSC9427.
FLOATING AMOUNTS:
Floating Rate Payer: Party A
Cap Rate: With respect to any Calculation Period, the rate
set forth for such period on Schedule I attached
hereto.
Floating Rate Payer
Period End Dates: The 25th calendar day of each month during the
Term of this Transaction, commencing May 25, 2007
and ending on the Termination Date, subject to
adjustment in accordance with the Business Day
Convention.
Floating Rate Payer
Payment Date: Early Payment shall be applicable. The Floating
Rate Payer Payment Date shall be two Business Days
prior to each Floating Rate Payer Period End Date.
Floating Rate Option: USD-LIBOR-BBA; provided, however, that if the
Floating Rate determined from such Floating Rate
Option for any Calculation Period is greater than
10.77000% then the Floating Rate for such
Calculation Period shall be deemed to be
10.77000%.
O-1-2
Designated Maturity: One month
Floating Rate Day
Count Fraction: Actual/360
Reset Dates: The first day of each Calculation Period
Compounding: Inapplicable
Business Days: New York, Oregon and Minnesota
Business Day Convention: Following
Calculation Agent: Party A
3. Xxxxxxx Xxxxx Mortgage Lending, Inc. ("MLML") agrees and acknowledges that
amounts paid hereunder are not intended to benefit the holder of any class
of certificates rated by any rating agency if such holder is MLML or any of
its affiliates. If MLML or any of its affiliates receives any such amounts,
it will promptly remit (or, if such amounts are received by an affiliate of
MLML, MLML hereby agrees that it will cause such affiliate to promptly
remit) such amounts to the Trustee, whereupon such Trustee will promptly
remit such amounts to Party A. MLML further agrees to provide notice to
Party A upon any remittance to the Trustee; such delivery will be made to:
Address: 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
Attention: DPC Manager
Facsimile: 000-000-0000
with a copy to:
Address: Xxx Xxxxxxxxx Xxxxxx Xxxxx, Xxxxxxxx, Xxx Xxxx
00000
Attention: Derivative Operations - 7th Floor
Facsimile: 000-000-0000
NEITHER THE BEAR XXXXXXX COMPANIES INC. NOR ANY SUBSIDIARY OR AFFILIATE OF
THE BEAR XXXXXXX COMPANIES INC. OTHER THAN PARTY A IS AN OBLIGOR OR A
CREDIT SUPPORT PROVIDER ON THIS TRANSACTION.
4. Account Details and
Settlement Information: PAYMENTS TO PARTY A:
Citibank, N.A., New York
ABA Number: 000-0000-00, for the account of
Bear, Xxxxxxx Securities Corp.
Account Number: 0925-3186, for further credit to
Bear Xxxxxxx Financial Products Inc.
Sub-account Number: 102-04654-1-3
Attention: Derivatives Department
PAYMENTS TO COUNTERPARTY:
O-1-3
U.S. Bank National Association
ABA Number: 000000000
Account Number: 1731-0332-2058
Account Name: SURF 2007-BC2
Reference Account Number: 112142000/SURF 2007-BC2
ADDITIONAL PROVISIONS:
Non-Reliance. Each party represents to the other party that (a) it has not
received and is not relying upon any legal, tax, regulatory, accounting or other
advice (whether written or oral) of the other party regarding this Transaction,
other than representations expressly made by that other party in this
Confirmation and in the Master Agreement and (b) in respect of this Transaction,
(i) it has the capacity to evaluate (internally or through independent
professional advice) this Transaction and has made its own decision to enter
into this Transaction and (ii) it understands the terms, conditions and risks of
this Transaction and is willing to assume (financially and otherwise) those
risks. Counterparty acknowledges that Party A has advised Counterparty to
consult its own tax, accounting and legal advisors in connection with this
Transaction evidenced by this Confirmation and that the Counterparty has done
so.
This Confirmation may be executed in several counterparts, each of which shall
be deemed an original but all of which together shall constitute one and the
same instrument.
Counterparty hereby agrees to check this Confirmation and to confirm that the
foregoing correctly sets forth the terms of the Transaction by signing in the
space provided below and returning to Party A a facsimile of the fully-executed
Confirmation to 000-000-0000. For inquiries regarding U.S. Transactions, please
contact DERIVATIVES DOCUMENTATION by telephone at 000-000-0000. For all other
inquiries please contact DERIVATIVES DOCUMENTATION by telephone at
000-0-000-0000. Originals will be provided for your execution upon your request.
O-1-4
We are very pleased to have executed this Transaction with you and we look
forward to completing other transactions with you in the near future.
Very truly yours,
BEAR XXXXXXX FINANCIAL PRODUCTS INC.
By:
--------------------------------
Name:
Title:
Counterparty, acting through its duly authorized signatory, hereby agrees to,
accepts and confirms the terms of the foregoing as of the Trade Date.
U.S. BANK NATIONAL ASSOCIATION, NOT IN ITS INDIVIDUAL CAPACITY, BUT SOLELY AS
TRUSTEE ON BEHALF OF SPECIALTY UNDERWRITING AND RESIDENTIAL FINANCE TRUST,
SERIES 2007-BC2
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
Section 3 Acknowledged By:
XXXXXXX XXXXX MORTGAGE LENDING, INC.
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
am
O-1-5
SCHEDULE I
(All such dates adjustment in accordance with the Business Day Convention)
FROM AND INCLUDING TO BUT EXCLUDING NOTIONAL AMOUNT (USD) CAP RATE (%)
------------------ ---------------- --------------------- ------------
Effective Date 5/25/2007 174,640,000 7.192
5/25/2007 6/25/2007 172,653,772 7.192
6/25/2007 7/25/2007 170,178,695 7.439
7/25/2007 8/25/2007 167,216,642 7.192
8/25/2007 9/25/2007 163,774,280 7.193
9/25/2007 Termination Date 159,860,043 7.441
O-1-6
EXHIBIT O-2
FORM OF CLASS A-2 CORRIDOR CONTRACT
(BEAR XXXXXXX LOGO)
BEAR XXXXXXX FINANCIAL PRODUCTS INC.
000 XXXXXXX XXXXXX
XXX XXXX, XXX XXXX 00000
000-000-0000
DATE: April 24, 2007
TO: U.S. Bank National Association, not in its individual
capacity, but solely as Trustee on behalf of Specialty
Underwriting and Residential Finance Trust, Series
2007-BC2
ATTENTION: Structured Finance - SURF 2007-BC2
TELEPHONE: (000) 000-0000
FACSIMILE: (000)000-0000
FROM: Derivatives Documentation
TELEPHONE: 000-000-0000
FACSIMILE: 000-000-0000
SUBJECT: Fixed Income Derivatives Confirmation
REFERENCE NUMBER(S): FXNEC9429
The purpose of this letter agreement is to confirm the terms and conditions of
the Transaction entered into on the Trade Date specified below (the
"Transaction") between Bear Xxxxxxx Financial Products Inc. ("Party A") and U.S.
Bank National Association, not in its individual capacity, but solely as Trustee
on behalf of Specialty Underwriting and Residential Finance Trust, Series
2007-BC2 ("Counterparty"). This letter agreement constitutes the sole and
complete "Confirmation," as referred to in the Master Agreement specified below,
with respect to this Transaction.
3. This Confirmation is subject to and incorporates the 2000 ISDA Definitions
(the "Definitions"), as published by the International Swaps and
Derivatives Association, Inc. ("ISDA"). This Confirmation supplements,
forms a part of and is subject to the ISDA Master Agreement dated as of
April 24, 2007 between Party A and Counterparty (the agreement, as amended
and supplemented from time to time, being referred to herein as the "Master
Agreement"). All provisions contained in, or incorporated by reference to,
the Master Agreement shall govern the Transaction referenced in this
Confirmation except as expressly modified herein. In the event of any
inconsistency between this Confirmation and the Definitions or Master
Agreement, this Confirmation shall prevail.
4. The terms of the particular Transaction to which this Confirmation relates
are as follows:
O-2-1
Type of Transaction: Rate Cap
Notional Amount: With respect to any Calculation Period, the lesser
of (i) the amount set forth for such period on
Schedule I attached hereto and (ii) the aggregate
Certificate Principal Balance of the Class A-2A,
Class A-2B, Class A-2C and Class A-2D Certificates
immediately prior to the related Floating Rate
Payer Payment Date.
Trade Date: April 16, 2007
Effective Date: April 24, 2007
Termination Date: October 25, 2007, subject to adjustment in
accordance with the Business Day Convention.
FIXED AMOUNT (PREMIUM): Inapplicable. The Fixed Amounts for this
Transaction and for the Transactions with the
Party A Reference Numbers FXNEC9428 and FXNEC9430
is embedded in the determination of the Additional
Amount specified in the Confirmation identified by
Party A Reference Number FXNSC9427.
FLOATING AMOUNTS:
Floating Rate Payer: Party A
Cap Rate: With respect to any Calculation Period, the rate
set forth for such period on Schedule I attached
hereto.
Floating Rate Payer
Period End Dates: The 25th calendar day of each month during the
Term of this Transaction, commencing May 25, 2007
and ending on the Termination Date, subject to
adjustment in accordance with the Business Day
Convention.
Floating Rate Payer
Payment Date: Early Payment shall be applicable. The Floating
Rate Payer Payment Date shall be two Business Days
prior to each Floating Rate Payer Period End Date.
Floating Rate Option: USD-LIBOR-BBA; provided, however, that if the
Floating Rate determined from such Floating Rate
Option for any Calculation Period is greater than
10.26000% then the Floating Rate for such
Calculation Period shall be deemed to be
10.26000%.
O-2-2
Designated Maturity: One month
Floating Rate Day
Count Fraction: Actual/360
Reset Dates: The first day of each Calculation Period
Compounding: Inapplicable
Business Days: New York, Oregon and Minnesota
Business Day Convention: Following
Calculation Agent: Party A
3. Xxxxxxx Xxxxx Mortgage Lending, Inc. ("MLML") agrees and acknowledges that
amounts paid hereunder are not intended to benefit the holder of any class of
certificates rated by any rating agency if such holder is MLML or any of its
affiliates. If MLML or any of its affiliates receives any such amounts, it will
promptly remit (or, if such amounts are received by an affiliate of MLML, MLML
hereby agrees that it will cause such affiliate to promptly remit) such amounts
to the Trustee, whereupon such Trustee will promptly remit such amounts to Party
A. MLML further agrees to provide notice to Party A upon any remittance to the
Trustee; such delivery will be made to:
Address: 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
Attention: DPC Manager
Facsimile: 000-000-0000
with a copy to:
Address: Xxx Xxxxxxxxx Xxxxxx Xxxxx, Xxxxxxxx, Xxx Xxxx
00000
Attention: Derivative Operations - 7th Floor
Facsimile: 000-000-0000
NEITHER THE BEAR XXXXXXX COMPANIES INC. NOR ANY SUBSIDIARY OR AFFILIATE OF
THE BEAR XXXXXXX COMPANIES INC. OTHER THAN PARTY A IS AN OBLIGOR OR A
CREDIT SUPPORT PROVIDER ON THIS TRANSACTION.
4. Account Details and
Settlement Information: PAYMENTS TO PARTY A:
Citibank, N.A., New York
ABA Number: 000-0000-00, for the account of
Bear, Xxxxxxx Securities Corp.
Account Number: 0925-3186, for further credit to
Bear Xxxxxxx Financial Products Inc.
Sub-account Number: 102-04654-1-3
Attention: Derivatives Department
PAYMENTS TO COUNTERPARTY:
U.S. Bank National Association
ABA Number: 000000000
O-2-3
Account Number: 1731-0332-2058
Account Name: SURF 2007-BC2
Reference Account Number: 112142000/SURF 2007-BC2
ADDITIONAL PROVISIONS:
Non-Reliance. Each party represents to the other party that (a) it has not
received and is not relying upon any legal, tax, regulatory, accounting or other
advice (whether written or oral) of the other party regarding this Transaction,
other than representations expressly made by that other party in this
Confirmation and in the Master Agreement and (b) in respect of this Transaction,
(i) it has the capacity to evaluate (internally or through independent
professional advice) this Transaction and has made its own decision to enter
into this Transaction and (ii) it understands the terms, conditions and risks of
this Transaction and is willing to assume (financially and otherwise) those
risks. Counterparty acknowledges that Party A has advised Counterparty to
consult its own tax, accounting and legal advisors in connection with this
Transaction evidenced by this Confirmation and that the Counterparty has done
so.
This Confirmation may be executed in several counterparts, each of which shall
be deemed an original but all of which together shall constitute one and the
same instrument.
Counterparty hereby agrees to check this Confirmation and to confirm that the
foregoing correctly sets forth the terms of the Transaction by signing in the
space provided below and returning to Party A a facsimile of the fully-executed
Confirmation to 000-000-0000. For inquiries regarding U.S. Transactions, please
contact DERIVATIVES DOCUMENTATION by telephone at 000-000-0000. For all other
inquiries please contact DERIVATIVES DOCUMENTATION by telephone at
000-0-000-0000. Originals will be provided for your execution upon your request.
O-2-4
We are very pleased to have executed this Transaction with you and we look
forward to completing other transactions with you in the near future.
Very truly yours,
BEAR XXXXXXX FINANCIAL PRODUCTS INC.
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
Counterparty, acting through its duly authorized signatory, hereby agrees to,
accepts and confirms the terms of the foregoing as of the Trade Date.
U.S. BANK NATIONAL ASSOCIATION, NOT IN ITS INDIVIDUAL CAPACITY, BUT SOLELY AS
TRUSTEE ON BEHALF OF SPECIALTY UNDERWRITING AND RESIDENTIAL FINANCE TRUST,
SERIES 2007-BC2
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
Section 3 Acknowledged By:
XXXXXXX XXXXX MORTGAGE LENDING, INC.
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
am
O-2-5
SCHEDULE I
(All such dates adjustment in accordance with the Business Day Convention)
NOTIONAL AMOUNT
FROM AND INCLUDING TO BUT EXCLUDING (USD) CAP RATE (%)
------------------ ---------------- --------------- ------------
Effective Date 5/25/2007 122,930,000 7.122
5/25/2007 6/25/2007 121,463,482 7.122
6/25/2007 7/25/2007 119,655,258 7.368
7/25/2007 8/25/2007 117,507,711 7.123
8/25/2007 9/25/2007 115,026,132 7.123
9/25/2007 Termination Date 112,217,549 7.369
O-2-6
EXHIBIT O-3
FORM OF SUBORDINATE CERTIFICATE CORRIDOR CONTRACT
(BEAR XXXXXXX LOGO)
BEAR XXXXXXX FINANCIAL PRODUCTS INC.
000 XXXXXXX XXXXXX
XXX XXXX, XXX XXXX 00000
000-000-0000
DATE: April 24, 2007
TO: U.S. Bank National Association, not in its individual
capacity, but solely as Trustee on behalf of Specialty
Underwriting and Residential Finance Trust, Series
2007-BC2
ATTENTION: Structured Finance - SURF 2007-BC2
TELEPHONE: (000) 000-0000
FACSIMILE: (000)000-0000
FROM: Derivatives Documentation
TELEPHONE: 000-000-0000
FACSIMILE: 000-000-0000
SUBJECT: Fixed Income Derivatives Confirmation
REFERENCE NUMBER(S): FXNEC9428
The purpose of this letter agreement is to confirm the terms and conditions of
the Transaction entered into on the Trade Date specified below (the
"Transaction") between Bear Xxxxxxx Financial Products Inc. ("Party A") and U.S.
Bank National Association, not in its individual capacity, but solely as Trustee
on behalf of Specialty Underwriting and Residential Finance Trust, Series
2007-BC2 ("Counterparty"). This letter agreement constitutes the sole and
complete "Confirmation," as referred to in the Master Agreement specified below,
with respect to this Transaction.
5. This Confirmation is subject to and incorporates the 2000 ISDA Definitions
(the "Definitions"), as published by the International Swaps and
Derivatives Association, Inc. ("ISDA"). This Confirmation supplements,
forms a part of and is subject to the ISDA Master Agreement dated as of
April 24, 2007 between Party A and Counterparty (the agreement, as amended
and supplemented from time to time, being referred to herein as the "Master
Agreement"). All provisions contained in, or incorporated by reference to,
the Master Agreement shall govern the Transaction referenced in this
Confirmation except as expressly modified herein. In the event of any
inconsistency between this Confirmation and the Definitions or Master
Agreement, this Confirmation shall prevail.
6. The terms of the particular Transaction to which this Confirmation relates
are as follows:
Type of Transaction: Rate Cap
Notional Amount: With respect to any Calculation Period, the lesser of
(i) the amount set forth for such period on Schedule I
attached hereto and (ii) the
O-3-1
aggregate Certificate Principal Balance of the Class
M-1, Class M-2, Class M-3, Class M-4, Class M-5, Class
M-6, Class B-1, Class B-2 and Class B-3 Certificates
immediately prior to the related Floating Rate Payer
Payment Date.
Trade Date: April 16, 2007
Effective Date: April 24, 2007
Termination Date: October 25, 2007, subject to adjustment in accordance
with the Business Day Convention.
FIXED AMOUNT (PREMIUM): Inapplicable. The Fixed Amounts for this Transaction
and for the Transactions with the Party A Reference
Numbers FXNEC9429 and FXNEC9430 is embedded in the
determination of the Additional Amount specified in
the Confirmation identified by Party A Reference
Number FXNSC9427.
FLOATING AMOUNTS:
Floating Rate Payer: Party A
Cap Rate: With respect to any Calculation Period, the rate set
forth for such period on Schedule I attached hereto.
Floating Rate Payer
Period End Dates: The 25th calendar day of each month during the Term of
this Transaction, commencing May 25, 2007 and ending
on the Termination Date, subject to adjustment in
accordance with the Business Day Convention.
Floating Rate Payer
Payment Date: Early Payment shall be applicable. The Floating Rate
Payer Payment Dates shall be two Business Days prior
to each Floating Rate Payer Period End Date.
Floating Rate Option: USD-LIBOR-BBA; provided, however, that if the Floating
Rate determined from such Floating Rate Option for any
Calculation Period is greater than 8.44000% then the
Floating Rate for such Calculation Period shall be
deemed to be 8.44000%.
Designated Maturity: One month
Floating Rate Day
Count Fraction: Actual/360
Reset Dates: The first day of each Calculation Period
O-3-2
Compounding: Inapplicable
Business Days: New York, Oregon and Minnesota
Business Day Convention: Following
Calculation Agent: Party A
3. Xxxxxxx Xxxxx Mortgage Lending, Inc. ("MLML") agrees and acknowledges that
amounts paid hereunder are not intended to benefit the holder of any class of
certificates rated by any rating agency if such holder is MLML or any of its
affiliates. If MLML or any of its affiliates receives any such amounts, it will
promptly remit (or, if such amounts are received by an affiliate of MLML, MLML
hereby agrees that it will cause such affiliate to promptly remit) such amounts
to the Trustee, whereupon such Trustee will promptly remit such amounts to Party
A. MLML further agrees to provide notice to Party A upon any remittance to the
Trustee; such delivery will be made to:
Address: 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
Attention: DPC Manager
Facsimile: 000-000-0000
with a copy to:
Address: Xxx Xxxxxxxxx Xxxxxx Xxxxx, Xxxxxxxx, Xxx Xxxx 00000
Attention: Derivative Operations - 7th Floor
Facsimile: 000-000-0000
NEITHER THE BEAR XXXXXXX COMPANIES INC. NOR ANY SUBSIDIARY OR AFFILIATE OF
THE BEAR XXXXXXX COMPANIES INC. OTHER THAN PARTY A IS AN OBLIGOR OR A
CREDIT SUPPORT PROVIDER ON THIS TRANSACTION.
4. Account Details and
Settlement Information: PAYMENTS TO PARTY A:
Citibank, N.A., New York
ABA Number: 000-0000-00, for the account of
Bear, Xxxxxxx Securities Corp.
Account Number: 0925-3186, for further credit to
Bear Xxxxxxx Financial Products Inc.
Sub-account Number: 102-04654-1-3
Attention: Derivatives Department
PAYMENTS TO COUNTERPARTY:
U.S. Bank National Association
ABA Number: 000000000
Account Number: 1731-0332-2058
Account Name: SURF 2007-BC2
Reference Account Number: 112142000/SURF 2007-BC2
ADDITIONAL PROVISIONS:
Non-Reliance. Each party represents to the other party that (a) it has not
received and is not relying upon any legal, tax, regulatory, accounting or other
advice (whether written or oral) of the other party regarding this Transaction,
other than representations expressly made by that other party in this
Confirmation and in the
O-3-3
Master Agreement and (b) in respect of this Transaction, (i) it has the capacity
to evaluate (internally or through independent professional advice) this
Transaction and has made its own decision to enter into this Transaction and
(ii) it understands the terms, conditions and risks of this Transaction and is
willing to assume (financially and otherwise) those risks. Counterparty
acknowledges that Party A has advised Counterparty to consult its own tax,
accounting and legal advisors in connection with this Transaction evidenced by
this Confirmation and that the Counterparty has done so.
This Confirmation may be executed in several counterparts, each of which shall
be deemed an original but all of which together shall constitute one and the
same instrument.
Counterparty hereby agrees to check this Confirmation and to confirm that the
foregoing correctly sets forth the terms of the Transaction by signing in the
space provided below and returning to Party A a facsimile of the fully-executed
Confirmation to 000-000-0000. For inquiries regarding U.S. Transactions, please
contact DERIVATIVES DOCUMENTATION by telephone at 000-000-0000. For all other
inquiries please contact DERIVATIVES DOCUMENTATION by telephone at
000-0-000-0000. Originals will be provided for your execution upon your request.
O-3-4
We are very pleased to have executed this Transaction with you and we look
forward to completing other transactions with you in the near future.
Very truly yours,
BEAR XXXXXXX FINANCIAL PRODUCTS INC.
By:
---------------------------------
Name:
Title:
Counterparty, acting through its duly authorized signatory, hereby agrees to,
accepts and confirms the terms of the foregoing as of the Trade Date.
U.S. BANK NATIONAL ASSOCIATION, NOT IN ITS INDIVIDUAL CAPACITY, BUT SOLELY AS
TRUSTEE ON BEHALF OF SPECIALTY UNDERWRITING AND RESIDENTIAL FINANCE TRUST,
SERIES 2007-BC2
By:
---------------------------------
Name:
Title:
Section 3 Acknowledged By:
XXXXXXX XXXXX MORTGAGE LENDING, INC.
By:
---------------------------------
Name:
Title:
am
O-3-5
SCHEDULE I
(All such dates adjustment in accordance with the Business Day Convention)
FROM AND INCLUDING TO BUT EXCLUDING NOTIONAL AMOUNT (USD) CAP RATE (%)
------------------ ---------------- --------------------- ------------
Effective Date 5/25/2007 72,930,000 6.337
5/25/2007 6/25/2007 72,930,000 6.337
6/25/2007 7/25/2007 72,930,000 6.584
7/25/2007 8/25/2007 72,930,000 6.338
8/25/2007 9/25/2007 72,930,000 6.338
9/25/2007 Termination Date 72,930,000 6.585
O-3-6
EXHIBIT O-4
FORM OF CREDIT SUPPORT ANNEX FOR CORRIDOR CONTRACTS
SCHEDULE
TO THE
ISDA(R)
INTERNATIONAL SWAPS AND DERIVATIVES ASSOCIATION, INC.
a. MASTER AGREEMENT
dated as of April 24, 2007
between BEAR XXXXXXX FINANCIAL PRODUCTS INC., a corporation organized under the
laws of Delaware ("Bear Xxxxxxx"), and U.S. BANK NATIONAL ASSOCIATION, NOT IN
ITS INDIVIDUAL CAPACITY, BUT SOLELY AS TRUSTEE ON BEHALF OF THE SPECIALTY
UNDERWRITING AND RESIDENTIAL FINANCE TRUST, SERIES 2007-BC2 a New York common
law trust organized under the laws of the State of New York. ("Counterparty").
Reference is hereby made to the Pooling and Servicing Agreement, dated as of
April 1, 2007, among Xxxxxxx Xxxxx Mortgage Investors, Inc., as depositor
("Depostior"), Wilshire Credit Corporation, as servicer and U.S. Bank National
Association, as Trustee ("Trustee"). (the "Pooling and Servicing Agreement").
Part 1. Termination Provisions.
For purposes of this Agreement:
(a) "SPECIFIED ENTITY" will not apply to Bear Xxxxxxx or Counterparty for any
purpose.
(b) "SPECIFIED TRANSACTIONS" will not apply to Bear Xxxxxxx or Counterparty for
any purpose.
(c) The "FAILURE TO PAY OR DELIVER" provisions of Section 5(a)(i) will apply to
Bear Xxxxxxx and will apply to Counterparty; provided that notwithstanding
anything to the contrary in Section 5(a)(i) or Paragraph 7 of the Credit
Support Annex, any failure by Bear Xxxxxxx to comply with or perform any
obligation to be complied with or performed by Bear Xxxxxxx under the
Credit Support Annex shall not constitute an Event of Default under Section
5(a)(i) unless (A) a Xxxxx'x Second Level Downgrade has occurred and been
continuing for 30 or more Local Business Days and (B) such failure is not
remedied on or before the third Local Business Day after notice of such
failure is given to Bear Xxxxxxx.
O-3-7
(d) The "BREACH OF AGREEMENT" provisions of Section 5(a)(ii) will apply to Bear
Xxxxxxx and will not apply to Counterparty.
(e) The "CREDIT SUPPORT DEFAULT" provisions of Section 5(a)(iii) will apply to
(x) Bear Xxxxxxx; provided that notwithstanding anything to the contrary in
Section 5(a)(iii)(1), any failure by Bear Xxxxxxx to comply with or perform
any obligation to be complied with or performed by Bear Xxxxxxx under the
Credit Support Annex shall not constitute an Event of Default under Section
5(a)(iii) unless (A) a Xxxxx'x Second Level Downgrade has occurred and been
continuing for 30 or more Local Business Days and (B) such failure is not
remedied on or before the third Local Business Day after notice of such
failure is given to Bear Xxxxxxx and (y) Counterparty solely in respect of
Counterparty's obligations under Paragraph 3(b) of the Credit Support
Annex.
(f) The "MISREPRESENTATION" provisions of Section 5(a)(iv) will apply to Bear
Xxxxxxx and will not apply to Counterparty.
(g) The "DEFAULT UNDER SPECIFIED TRANSACTION" provisions of Section 5(a)(v)
will not apply to Bear Xxxxxxx or Counterparty.
(h) The "CROSS DEFAULT" provisions of Section 5(a)(vi) will apply to Bear
Xxxxxxx and will not apply to Counterparty.
"SPECIFIED INDEBTEDNESS" will have the meaning specified in Section
14.
"THRESHOLD AMOUNT" means USD 100,000,000.
(i) The "BANKRUPTCY" provisions of Section 5(a)(vii) will apply to Bear Xxxxxxx
and will apply to Counterparty except that the provisions of Section
5(a)(vii)(2), (6) (to the extent that such provisions refer to any
appointment contemplated or effected by the Pooling and Servicing Agreement
or any appointment to which Counterparty has not become subject to), (7)
and (9) will not apply to Counterparty; provided that, with respect to
Counterparty only, Section 5(a)(vii)(4) is hereby amended by adding after
the words "against it" the words "(excluding any proceeding or petition
instituted or presented by Bear Xxxxxxx)", and Section 5(a)(vii)(8) is
hereby amended by deleting the words "to (7) inclusive" and inserting lieu
thereof ", (3), (4) as amended, (5) or (6) as amended".
(j) The "TAX EVENT UPON MERGER" provisions of Section 5(b)(iii) will apply to
Bear Xxxxxxx and will apply to Counterparty; provided that Bear Xxxxxxx
shall not be entitled to designate an Early Termination Date by reason of a
Tax Event upon Merger in respect of which it is the Affected Party.
(k) The "CREDIT EVENT UPON MERGER" provisions of Section 5(b)(iv) will not
apply to Bear Xxxxxxx or Counterparty.
(l) The "AUTOMATIC EARLY TERMINATION" provision of Section 6(a) will not apply
to Bear Xxxxxxx or to Counterparty.
(m) Payments on Early Termination. For the purpose of Section 6(e) of this
Agreement:
(1) Market Quotation will apply; and
(2) the Second Method will apply;
provided that if Bear Xxxxxxx is the Defaulting Party or the sole
Affected Party, the following provisions will apply:
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(A) Section 6(e) of this Agreement will be amended by inserting
on the first line "or is effectively designated" after "If an
Early Termination Date occurs";
(B) The definition of Market Quotation in Section 14 shall be
deleted in its entirety and replaced with the following:
"MARKET QUOTATION" means, with respect to one or more
Terminated Transactions, and a party making the
determination, an amount determined on the basis of Firm
Offers from Reference Market-makers that are Eligible
Replacements. Each Firm Offer will be (1) for an amount that
would be paid to Counterparty (expressed as a negative
number) or by Counterparty (expressed as a positive number)
in consideration of an agreement between Counterparty and
such Reference Market-maker to enter into a Replacement
Transaction and (2) made on the basis that Unpaid Amounts in
respect of the Terminated Transaction or group of
Transactions are to be excluded but, without limitation, any
payment or delivery that would, but for the relevant Early
Termination Date, have been required (assuming satisfaction
of each applicable condition precedent) after that Early
Termination Date is to be included. The party making the
determination (or its agent) will request each Reference
Market-maker to provide its Firm Offer to the extent
reasonably practicable as of the same day and time (without
regard to different time zones) on or as soon as reasonably
practicable after the designation or occurrence of the
relevant Early Termination Date. The day and time as of
which those Firm Offers are to be obtained will be selected
in good faith by the party obliged to make a determination
under Section 6(e), and, if each party is so obliged, after
consultation with the other. The Market Quotation shall be
the Firm Offer actually accepted by Counterparty no later
than the Business Day preceding the Early Termination Date.
If no Firm Offers are provided by the Business Day preceding
the Early Termination Date, it will be deemed that the
Market Quotation in respect of such Terminated Transaction
or group of Transactions cannot be determined.
(C) Counterparty shall use best efforts to accept a Firm Offer
that would determine the Market Quotation. If more than one Firm
Offer (which, if accepted, would determine the Market Quotation)
is provided, Counterparty shall accept the Firm Offer (among such
Firm Offers) which would require either (x) the lowest payment by
the Counterparty to the Reference Market-maker, to the extent
Counterparty would be required to make a payment to the Reference
Market-maker or (y) the highest payment from the Reference
Market-maker to Counterparty, to the extent the Reference
Market-maker would be required to make a payment to the
Counterparty. If only one Firm Offer (which, if accepted, would
determine the Market Quotation) is provided, Counterparty shall
accept such Firm Offer.
(D) Upon the written request by Counterparty to Bear Xxxxxxx,
Bear Xxxxxxx shall obtain the Market Quotations on behalf of
Counterparty.
(E) If the Settlement Amount is a negative number, Section
6(e)(i)(3) of this Agreement shall be deleted in its entirety and
replaced with the following:
"(3) Second Method and Market Quotation. If the Second
Method and Market Quotation apply, (I) Counterparty shall
pay to Bear Xxxxxxx an amount equal to the absolute value of
the Settlement Amount in respect of the Terminated
Transactions, (II) Counterparty shall pay to Bear Xxxxxxx
the
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Termination Currency Equivalent of the Unpaid Amounts owing to
Counterparty; provided, however, that (x) the amounts payable
under the immediately preceding clauses (II) and (III) shall be
subject to netting in accordance with Section 2(c) of this
Agreement and (y) notwithstanding any other provision of this
Agreement, any amount payable by Bear Xxxxxxx under the
immediately preceding clause (III) shall not be netted-off
against any amount payable by Counterparty under the immediately
preceding clause (I)."
(n) "TERMINATION CURRENCY" means United States Dollars.
(o) ADDITIONAL TERMINATION EVENTS. Additional Termination Events will apply:
(i) If, upon the occurrence of a Swap Disclosure Event (as defined in Part
5(l)(ii) below) Bear Xxxxxxx has not, within ten (10) calendar days
after such Swap Disclosure Event complied with any of the provisions
set forth in Part 5 (l) below, then an Additional Termination Event
shall have occurred with respect to Bear Xxxxxxx, Bear Xxxxxxx shall
be the sole Affected Party and all Transactions hereunder shall be
Affected Transaction.
(ii) If, without the prior written consent of Bear Xxxxxxx where such
consent is required under the Pooling and Servicing Agreement, an
amendment or supplemental agreement is made to the Pooling and
Servicing Agreement which amendment or supplemental agreement could
reasonably be expected to have a material adverse effect on the
interests of Bear Xxxxxxx under this Agreement, an Additional
Termination Event shall have occurred with respect to Counterparty,
Counterparty shall be the sole Affected Party and all Transactions
hereunder shall be Affected Transaction.
(iii) (A) If a S&P First Level Downgrade has occurred and is
continuing and Bear Xxxxxxx fails to take any action described
under Part (5)(f)(i)(1), within the time period specified
therein, then an Additional Termination Event shall have occurred
with respect to Bear Xxxxxxx, Bear Xxxxxxx shall be the sole
Affected Party with respect to such Additional Termination Event
and all Transactions hereunder shall be Affected Transaction.
(B) If a S&P Second Level Downgrade has occurred and is continuing
and Bear Xxxxxxx fails to take any action described under Part
(5)(f)(i)(2) within the time period specified therein, then an
Additional Termination Event shall have occurred with respect to
Bear Xxxxxxx, Bear Xxxxxxx shall be the sole Affected Party with
respect to such Additional Termination Event and all Transactions
hereunder shall be Affected Transaction.
(C) If (A) a Xxxxx'x Second Level Downgrade has not occurred and been
continuing for 30 or more Local Business Days and (B) Bear
Xxxxxxx has failed to comply with or perform any obligation to be
complied with or performed by Bear Xxxxxxx in accordance with the
Credit Support Annex, then an Additional Termination Event shall
have occurred with respect to Bear Xxxxxxx and Bear Xxxxxxx shall
be the sole Affected Party with respect to such Additional
Termination Event.
(D) If (A) a Xxxxx'x Second Level Downgrade has occurred and been
continuing for 30 or more Local Business Days and (B) either (i)
at least one Eligible Replacement has made a Firm Offer to be the
transferee or (ii) at
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least one entity that satisfies the Xxxxx'x Approved Ratings
Threshold has made a Firm Offer to provide an Eligible Guaranty
in respect of all of Bear Xxxxxxx' present and future obligations
under this Agreement, then an Additional Termination Event shall
have occurred with respect to Bear Xxxxxxx, Bear Xxxxxxx shall be
the sole Affected Party with respect to such Additional
Termination Event and all Transactions hereunder shall be
Affected Transaction.
(p) LIMITATION ON EVENTS OF DEFAULT. Notwithstanding the terms of Sections 5 and
6 of this Agreement, if at any time and so long as the Counterparty has
satisfied in full all its payment obligations under Section 2(a)(i) of this
Agreement and has at the time no future payment obligations, whether absolute or
contingent, under such Section, then unless Bear Xxxxxxx is required pursuant to
appropriate proceedings to return to the Counterparty or otherwise returns to
the Counterparty upon demand of the Counterparty any portion of any such
payment, (a) the occurrence of an event described in Section 5(a) of this
Agreement with respect to the Counterparty shall not constitute an Event of
Default or Potential Event of Default with respect to the Counterparty as
Defaulting Party and (b) Bear Xxxxxxx shall be entitled to designate an Early
Termination Date pursuant to Section 6 of this Agreement only as a result of the
occurrence of a Termination Event set forth in either Section 5(b)(i) or
5(b)(ii) of the ISDA Form Master Agreement with respect to Bear Xxxxxxx as the
Affected Party, or Section 5(b)(iii) with respect to Bear Xxxxxxx as the
Burdened Party.
Part 2. Tax Matters.
(a) Tax Representations.
(i) Payer Representations. For the purpose of Section 3(e) of this
Agreement, each of Bear Xxxxxxx and the Counterparty will make the
following representations:
It is not required by any applicable law, as modified by the practice of
any relevant governmental revenue authority, of any Relevant Jurisdiction
to make any deduction or withholding for or on account of any Tax from any
payment (other than interest under Section 2(e), 6(d)(ii) or 6(e) of this
Agreement) to be made by it to the other party under this Agreement. In
making this representation, it may rely on:
(1) the accuracy of any representations made by the other party
pursuant to Section 3(f) of this Agreement;
(2) the satisfaction of the agreement contained in Sections 4(a)(i)
and 4(a)(iii) of this Agreement and the accuracy and effectiveness of
any document provided by the other party pursuant to Sections 4(a)(i)
and 4(a)(iii) of this Agreement; and
(3) the satisfaction of the agreement of the other party contained in
Section 4(d) of this Agreement, provided that it shall not be a breach
of this representation where reliance is placed on clause (ii) and the
other party does not deliver a form or document under Section
4(a)(iii) of this Agreement by reason of material prejudice to its
legal or commercial position.
(ii) Payee Representations. For the purpose of Section 3(f) of this Agreement,
each of Bear Xxxxxxx and the
Counterparty make the following representations.
The following representation will apply to Bear Xxxxxxx:
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Bear Xxxxxxx is a corporation organized under the laws of the State of
Delaware and its U.S. taxpayer identification number is 00-0000000.
The following representation will apply to the Counterparty:
U.S. Bank National Association represents that it is the Trustee
pursuant to the Pooling and Servicing Agreement
(b) Tax Provisions.
Notwithstanding the definition of "Indemnifiable Tax" in Section 14 of this
Agreement, all Taxes in relation to payments by Bear Xxxxxxx shall be
Indemnifiable Taxes (including any Tax imposed in respect of a Credit
Support Document) unless (i) such Taxes are assessed directly against
Counterparty and not by deduction or withholding by Bear Xxxxxxx or (ii)
arise as a result of a Change in Tax Law (in which case such Tax shall be
an Indemnifiable Tax only if such Tax satisfies the definition of
Indemnifiable Tax provided in Section 14). In relation to payments by
Counterparty, no Tax shall be an Indemnifiable Tax.
Part 3. AGREEMENT TO DELIVER DOCUMENTS. For the purpose of Section 4(a) of this
Agreement:
(i) Tax forms, documents, or certificates to be delivered are:
PARTY REQUIRED TO FORM/DOCUMENT/ DATE BY WHICH TO
DELIVER DOCUMENT CERTIFICATE BE DELIVERED
----------------- --------------------------------------- ----------------------------------------
Bear Xxxxxxx An original properly completed and (i) upon execution of this Agreement,
executed United States Internal Revenue (ii) on or before the first payment date
Service Form W-9 (or any successor under this Agreement, including any
thereto) with respect to any payments Credit Support Document, (iii) promptly
received or to be received by Bear upon the reasonable demand by
Xxxxxxx, that eliminates U.S. federal Counterparty, (iv) prior to the
withholding and backup withholding Tax expiration or obsolescence of any
on payments to Bear Xxxxxxx under this previously delivered form, and (v)
Agreement. promptly upon the information on any
such previously delivered form becoming
inaccurate or incorrect.
Counterparty An original properly completed and (i) on or before the first payment date
executed United States Internal Revenue under this Agreement, including any
Service Form W-9 (or any successor Credit Support Document, (ii) promptly
thereto) with respect to any payments upon the reasonable demand by Bear
received or to be received by Xxxxxxx, (iii) prior to the expiration
Counterparty. or obsolescence of any previously
delivered form, and (iv) promptly upon
the information on any such previously
delivered form becoming inaccurate or
incorrect.
(ii) Other documents to be delivered are:
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PARTY REQUIRED
TO DELIVER FORM/DOCUMENT/ DATE BY WHICH TO COVERED BY SECTION 3(D)
DOCUMENT CERTIFICATE BE DELIVERED REPRESENTATION
---------------- ---------------------------------------- ------------------------------ -----------------------
Bear Xxxxxxx and Any documents required by the receiving Upon the execution and Yes
the Counterparty party to evidence the authority of the delivery of this Agreement and
delivering party or its Credit Support such Confirmation
Provider, if any, for it to execute and
deliver this Agreement, any
Confirmation, and any Credit Support
Documents to which it is a party, and to
evidence the authority of the delivering
party or its Credit Support Provider to
perform its obligations under this
Agreement, such Confirmation and/or
Credit Support Document, as the case may
be
Bear Xxxxxxx and A certificate of an authorized officer Upon the execution and Yes
the Counterparty of the party, as to the incumbency and delivery of this Agreement and
authority of the respective officers of such Confirmation
the party signing this Agreement, any
relevant Credit Support Document, or any
Confirmation, as the case may be
Bear Xxxxxxx and An opinion of counsel of such party Upon the execution and No
the Counterparty regarding the enforceability of this delivery of this Agreement
Agreement in a form reasonably
satisfactory to the other party.
Counterparty An executed copy of the Pooling and Concurrently with filing of No
Servicing Agreement each draft of the Pooling and
Servicing Agreement with the
U.S. Securities and Exchange
Commission
Part 4 Miscellaneous.
(a) ADDRESS FOR NOTICES: For the purposes of Section 12(a) of this Agreement:
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Address for notices or communications to Bear Xxxxxxx:
Address: 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
Attention: DPC Manager
Facsimile: (000) 000-0000
with a copy to:
Address: Xxx Xxxxxxxxx Xxxxxx Xxxxx, Xxxxxxxx, Xxx Xxxx 00000
Attention: Derivative Operations - 7th Floor
Facsimile: (000) 000-0000
(For all purposes)
Address for notices or communications to the Counterparty:
Address: U.S. Bank National Association, Trustee
Mail Code: EP-MN-WS3D
00 Xxxxxxxxxx Xxxxxx
Xx. Xxxx, XX 00000
Attention: Structured Finance - SURF 2007-BC2
Facsimile: (000) 000-0000
Phone: (000) 000-0000
with a copy to:
Address: Xxxxxxx Xxxxx Mortgage Lending Inc.
000 Xxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxxxxx
Facsimile: (000) 000-0000
Phone: (000) 000-0000
(For all purposes)
(b) PROCESS AGENT. For the purpose of Section 13(c) of this Agreement:
Bear Xxxxxxx appoints as its
Process Agent: Not Applicable
The Counterparty appoints as its
Process Agent: Not Applicable
(c) OFFICES. The provisions of Section 10(a) of this Agreement will not apply
to this Agreement; neither Bear Xxxxxxx nor the Counterparty have any
Offices other than as set forth in the Notices Section.
(d) MULTIBRANCH PARTY. For the purpose of Section 10(c) of this Agreement:
Bear Xxxxxxx is not a Multibranch Party.
The Counterparty is not a Multibranch Party.
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(e) CREDIT SUPPORT DOCUMENT.
Bear Xxxxxxx: The Credit Support Annex and any guaranty in
support of Bear Xxxxxxx' obligations under this Agreement.
Counterparty: The Credit Support Annex.
(f) CREDIT SUPPORT PROVIDER.
Bear Xxxxxxx: The guarantor under any guaranty in support of Bear
Xxxxxxx' obligations under this Agreement.
Counterparty: Not Applicable
(g) GOVERNING LAW. The parties to this Agreement hereby agree that the law of
the State of New York shall govern their rights and duties in whole,
without regard to the conflict of law provisions thereof other than New
York General Obligations Law Sections 5-1401 and 5-1402.
(h) JURISDICTION. Section 13(b) is hereby amended by: (i) deleting in the
second line of subparagraph (i) thereof the word "non-", (ii) deleting ";
and" from the end of subparagraph 1 and inserting "." in lieu thereof, and
(iii) deleting the final paragraph thereof.
(i) "AFFILIATE": Bear Xxxxxxx and Counterparty shall be deemed not to have any
Affiliates for purposes of this Agreement, including for purposes of
Section 6(b)(ii) of this Agreement.
(j) NETTING OF PAYMENTS. The parties agree that subparagraph (ii) of Section
2(c) of this Agreement will apply to each Transaction.
Part 5. OTHER PROVISIONS.
(a) Section 3 of this Agreement is hereby amended by adding at the end thereof
the following subsection (g):
"(g) Relationship Between Parties.
Each party represents to the other party on each date when it enters
into a Transaction that:
(1) Nonreliance. (i) It is acting for its own account, (ii) it is not
relying on any statement or representation of the other party
regarding the Transaction (whether written or oral), other than the
representations expressly made in this Agreement or the Confirmation
in respect of that Transaction and (iii) it has consulted with its own
legal, regulatory, tax, business, investment, financial and accounting
advisors to the extent it has deemed necessary, (iv) it has made its
own investment, hedging and trading decisions based upon its own
judgment and upon any advice from such advisors as it has deemed
necessary and not upon any view expressed by the other party, (v) it
has made its own independent decisions to enter into the Transaction
and as to whether the Transaction is appropriate or proper for it
based upon its own judgment and upon advice from such advisors as it
has deemed necessary, (vi) it is not
O-3-15
relying on any communication (written or oral) of the other party as
investment advice or as a recommendation to enter into this
Transaction; it being understood that information and explanations
related to the terms and conditions of this Transaction shall not be
considered investment advice or a recommendation to enter into this
Transaction and (vii) it has not received from the other party any
assurance or guaranty as to the expected results of this Transaction.
(2) Evaluation and Understanding.
(i) It has the capacity to evaluate (internally or through
independent professional advice) the Transaction and has
made its own decision to enter into the Transaction; and
(ii) It understands the terms, conditions and risks of the
Transaction and is willing and able to accept those terms
and conditions and to assume those risks, financially and
otherwise.
(3) Purpose. It is entering into the Transaction for the purposes of
managing its borrowings or investments, hedging its underlying assets
or liabilities or in connection with a line of business.
(4) Status of Parties. The other party is not acting as an agent,
fiduciary or advisor for it in respect of the Transaction.
(5) Eligible Contract Participant. It constitutes an "eligible contract
participant" as such term is defined in Section 1(a)12 of the
Commodity Exchange Act, as amended.
(6) Line of Business. It has entered into this Agreement (including each
Transaction governed hereby) in conjunction with its line of business
or the financing of its business."
(b) NON-RECOURSE. Notwithstanding any provision herein or in this Agreement to
the contrary, the obligations of Counterparty hereunder are limited recourse
obligations of Counterparty, payable solely from the Corridor Account and the
proceeds thereof, in accordance with the terms of the Pooling and Servicing
Agreement. In the event that the Corridor Account and proceeds thereof should be
insufficient to satisfy all claims outstanding and following the realization of
the Corridor Account and the proceeds thereof, any claims against or obligations
of Counterparty under this Agreement or any other confirmation thereunder still
outstanding shall be extinguished and thereafter not revive. The Trustee shall
not have liability for any failure or delay in making a payment hereunder to
Bear Xxxxxxx due to any failure or delay in receiving amounts in the Corridor
Account from the Trust created pursuant to the Pooling and Servicing Agreement.
(c) SEVERABILITY. If any term, provision, covenant, or condition of this
Agreement, or the application thereof to any party or circumstance, shall be
held to be invalid or unenforceable (in whole or in part) for any reason, the
remaining terms, provisions, covenants, and conditions hereof shall continue in
full force and effect as if this Agreement had been executed with the invalid or
unenforceable portion eliminated, so long as this Agreement as so modified
continues to express, without material change, the original intentions of the
parties as to the subject matter of this Agreement and the deletion of such
portion of this Agreement will not substantially impair the respective benefits
or expectations of the parties.
The parties shall endeavor to engage in good faith negotiations to replace any
invalid or unenforceable term, provision, covenant or condition with a valid or
enforceable term, provision, covenant or condition, the economic effect of which
comes as close as possible to that of the invalid or unenforceable term,
provision, covenant or condition.
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(d) CONSENT TO RECORDING. Each party hereto consents to the monitoring or
recording, at any time and from time to time, by the other party of any and all
communications between officers or employees of the parties, waives any further
notice of such monitoring or recording, and agrees to notify its officers and
employees of such monitoring or recording.
(e) WAIVER OF JURY TRIAL. Each party waives any right it may have to a trial by
jury in respect of any Proceedings relating to this Agreement or any Credit
Support Document.
(f) RATING AGENCY DOWNGRADE.
(i) S&P Downgrade:
(1) In the event that a S&P First Level Downgrade occurs and is
continuing, then within 30 days after such rating downgrade, Bear
Xxxxxxx shall, subject to the Rating Agency Condition with
respect to S&P, at its own expense, either (i) procure a
Permitted Transfer, (ii) obtain an Eligible Guaranty or (iii)
post collateral in accordance with the Credit Support Annex.
(2) In the event that a S&P Second Level Downgrade occurs and is
continuing, then within 10 Local Business Days after such rating
withdrawal or downgrade, Bear Xxxxxxx shall, subject to the
Rating Agency Condition with respect to S&P, at its own expense,
either (i) procure a Permitted Transfer or (ii) obtain an
Eligible Guaranty.
(ii) Xxxxx'x Downgrade.
(1) In the event that a Xxxxx'x Second Level Downgrade occurs and is
continuing, Bear Xxxxxxx shall as soon as reasonably practicable
thereafter, at its own expense and using commercially reasonable
efforts, either (i) procure a Permitted Transfer or (ii) obtain
an Eligible Guaranty.
(g) PAYMENT INSTRUCTIONS. Bear Xxxxxxx hereby agrees that, unless notified in
writing by the Swap Administrator of other payment instructions, any and all
amounts payable by Bear Xxxxxxx to the Counterparty under this Agreement shall
be paid to the Trustee at the account specified herein.
(h) AMENDMENT.. No amendment, waiver, supplement or other modification of this
Transaction shall be permitted by either party unless (i) each of S&P and
Xxxxx'x have been provided notice of the same and (ii) such amendment, waiver,
supplement, assignment or other modification satisfies the Rating Agency
Condition.
(i) TRANSFER.
(i) The first paragraph of Section 7 is hereby amended in its entirety
as follows:
"Subject to Section 6(b)(ii), Part 5(f) and Part 5(j), neither
this Agreement nor any interest or obligation in or under this
Agreement may be transferred (whether by way of security or
otherwise) without (a) the prior written consent of the other
party (which consent shall be deemed given by Counterparty if the
transfer, novation or assignment is to an Eligible Replacement)
and (b) satisfaction of the Rating Agency Condition with respect
to S&P, except that:"
(ii) If an entity has made a Firm Offer (which remains an offer that
will become legally binding upon acceptance by Counterparty) to be the
transferee of a transfer, Counterparty shall, at Bear Xxxxxxx' written
request and at Bear Xxxxxxx' expense, take any reasonable steps
required to be taken by Counterparty to effect such transfer.
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(j) TRANSFER TO AVOID TERMINATION EVENT. Section 6(b)(ii) is hereby amended by
(i) deleting the words "or if a Tax Event Upon Merger occurs and the Burdened
Party is the Affected Party," and (ii) deleting the last paragraph thereof and
inserting the following:
"Notwithstanding anything to the contrary in Section 7 (as amended herein)
and Part 5(i), any transfer by Bear Xxxxxxx under this Section 6(b)(ii)
shall not require the consent of Counterparty; provided that:
(i) the transferee (the "Transferee") is an Eligible Replacement;
(ii) if the Transferee is domiciled in a different country or political
subdivision thereof from both Bear Xxxxxxx and Counterparty, such
transfer satisfies the Rating Agency Condition;
(iii) the Transferee will not, as a result of such transfer, be required on
the next succeeding Scheduled Payment Date to withhold or deduct on
account of any Tax (except in respect of default interest) amounts in
excess of that which Bear Xxxxxxx would, on the next succeeding
Scheduled Payment Date have been required to so withhold or deduct
unless the Transferee would be required to make additional payments
pursuant to Section 2(d) (i)(4) corresponding to such excess;
(iv) a Termination Event or Event of Default does not occur as a result of
such transfer; and
(v) the Transferee confirms in writing that it will accept all of the
interests and obligations in and under this Agreement which are to be
transferred to it in accordance with the terms of this provision.
On and from the effective date of any such transfer to the Transferee, Bear
Xxxxxxx will be fully released from any and all obligations hereunder."
(k) PROCEEDINGS. Bear Xxxxxxx shall not institute against or cause any other
person to institute against, or join any other person in instituting against,
the Trustee or the trust created pursuant to the Pooling and Servicing
Agreement, any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings, or other proceedings under any federal or state
bankruptcy, dissolution or similar law, for a period of one year and one day
(or, if longer, the applicable preference period) following indefeasible payment
in full of the Specialty Underwriting and Residential Finance Trust, Series
2007-BC2 Mortgage Loan Asset-Backed Certificates (the "Certificates").
(l) COMPLIANCE WITH REGULATION AB.
(i) Bear Xxxxxxx agrees and acknowledges that Xxxxxxx Xxxxx Mortgage
Investors, Inc. (the "DEPOSITOR") is required under Regulation AB as
defined under the Pooling and Servicing Agreement, to disclose certain
financial information regarding Bear Xxxxxxx or its group of
affiliated entities, if applicable, depending on the aggregate
"significance percentage" of this Agreement and any other derivative
contracts between Bear Xxxxxxx or its group of affiliated entities, if
applicable, and Counterparty, as calculated from time to time in
accordance with Item 1115 of Regulation AB.
(ii) It shall be a swap disclosure event ("SWAP DISCLOSURE EVENT") if, on
any Business Day after the date hereof, the Depositor requests from
Bear Xxxxxxx the applicable financial information described in Item
1115 of Regulation AB (such request to be based on a reasonable
determination by Depositor, in good faith, that such information is
required under Regulation AB) (the "SWAP FINANCIAL DISCLOSURE").
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(iii) Upon the occurrence of a Swap Disclosure Event, Bear Xxxxxxx, within
10 calendar days, at its own expense, shall (1)(a) either (i) provide
to Depositor the current Swap Financial Disclosure in an
XXXXX-compatible format (for example, such information may be provided
in Microsoft Word(R) or Microsoft Excel(R) format but not in .pdf
format) or (ii) provide written consent to Depositor to incorporation
by reference of such current Swap Financial Disclosure that are filed
with the Securities and Exchange Commission in the reports of the
Trust filed pursuant to the Exchange Act, (b) if applicable, cause its
outside accounting firm to provide its consent to filing or
incorporation by reference of such accounting firm's report relating
to their audits of such current Swap Financial Disclosure in the
Exchange Act Reports of the Depositor, and (c) provide to the
Depositor any updated Swap Financial Disclosure with respect to Bear
Xxxxxxx or any entity that consolidates Bear Xxxxxxx within five days
of the release of any such updated Swap Financial Disclosure; (2)
secure another entity to replace Bear Xxxxxxx as party, by way of
Permitted Transfer, to this Agreement on terms substantially similar
to this Agreement, which entity (or a guarantor therefor) meets or
exceeds the Xxxxx'x Approved Ratings Thresholds and S&P Approved
Ratings Threshold and which satisfies the Rating Agency Condition and
which entity is able to comply with the requirements of Item 1115 of
Regulation AB, or (3) obtain a guaranty of Bear Xxxxxxx' obligations
under this Agreement from an affiliate of Bear Xxxxxxx that is able to
comply with the financial information disclosure requirements of Item
1115 of Regulation AB, and cause such affiliate to provide Swap
Financial Disclosure and any future Swap Financial Disclosure, such
that disclosure provided in respect of such affiliate will satisfy any
disclosure requirements applicable to the Swap Provider.
(iv) Bear Xxxxxxx agrees that, in the event that Bear Xxxxxxx provides Swap
Financial Disclosure to Depositor in accordance with Part 5(l)(iii)(1)
or causes its affiliate to provide Swap Financial Disclosure to
Depositor in accordance with clause Part 5(l)(iii)(3), it will
indemnify and hold harmless Depositor, its respective directors or
officers and any person controlling Depositor, from and against any
and all losses, claims, damages and liabilities caused by any untrue
statement or alleged untrue statement of a material fact contained in
such Swap Financial Disclosure or caused by any omission or alleged
omission to state in such Swap Financial Disclosure a material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
(v) If the Depositor and the Trustee reasonably requests, Bear Xxxxxxx
shall provide such other information as may be necessary for the
Depositor to comply with Item 1115 of Regulation AB.
(vi) Each of the Depositor and Trustee shall be an express third party
beneficiary of this Agreement as if a party hereto to the extent of
the Depositor's and the Trustee's rights explicitly specified in this
Part 5(l).
(m) TRUSTEE LIABILITY LIMITATIONS. It is expressly understood and agreed by the
parties hereto that:
(i) this Agreement is executed and delivered by U.S. Bank National
Association ("U.S. Bank"), not individually or personally but solely
as Trustee on behalf of Speciality Underwriting and Residential
Finance Trust, Series 2007-BC2;
(ii) each of the representations, undertakings and agreements herein made
on the part of the Counterparty is made and intended not as a personal
representation, undertaking or agreement of U.S. Bank but is made and
intended for the purpose of binding only the Counterparty;
(iii) nothing herein contained shall be construed as imposing any liability
upon U.S. Bank, individually or personally, to perform any covenant
either expressed or implied contained herein, all such liability, if
any, being expressly waived by the parties hereto and by any Person
claiming by, through or under the parties hereto; provided that
nothing in this paragraph shall relieve the Trustee from performing
O-3-19
its duties and obligations under the Pooling and Servicing Agreement
in accordance with the standard of care set forth therein;
(iv) under no circumstances shall the Trustee be personally liable for the
payment of any indebtedness or expenses of the Counterparty or be
liable for the breach or failure of any obligation, representation,
warranty or covenant made or undertaken by the Counterparty under this
Agreement or any other related documents, other than due to its
negligence or willful misconduct in performing the obligations of the
Trustee under the Pooling and Servicing Agreement;
(v) any resignation or removal of U.S. Bank as trustee on behalf of the
Trust shall require the assignment of this agreement to an eligible
replacement;
(vi) The Trustee has been directed, pursuant to the Pooling and Servicing
Agreement, to enter into this Agreement and to perform its obligations
hereunder.
(n) SUBSTANTIAL FINANCIAL TRANSACTION. Each party hereto is hereby advised and
acknowledges that the other party has engaged in (or refrained from engaging in)
substantial financial transactions and has taken (or refrained from taking)
other material actions in reliance upon the entry by the parties into the
Transaction being entered into on the terms and conditions set forth herein and
in the Confirmation relating to such Transaction, as applicable. This paragraph
shall be deemed repeated on the trade date of each Transaction.
(o) SET-OFF. Except as expressly provided for in Section 2(c), Section 6 or Part
1(m)(E) hereof, and notwithstanding any other provision of this Agreement or any
other existing or future agreement, each party irrevocably waives any and all
rights it may have to set off, net, recoup or otherwise withhold or suspend or
condition payment or performance of any obligation between it and the other
party hereunder against any obligation between it and the other party under any
other agreements. Section 6(e) shall be amended by deleting the following
sentence: "The amount, if any, payable in respect of an Early Termination Date
and determined pursuant to this Section will be subject to any Set-off."
(p) COUNTERPARTS. This Agreement may be executed in several counterparts, each
of which shall be deemed an original but all of which together shall constitute
one and the same instrument.
(q) ADDITIONAL DEFINED TERMS.
(i) Capitalized terms used but nor defined herein shall have the meanings
ascribed to such terms in the Pooling and Servicing Agreement.
(ii) Additional Definitions:
"ELIGIBLE GUARANTY" means an unconditional and irrevocable guaranty of
all present and future payment obligations and obligations to post collateral of
Bear Xxxxxxx or an Eligible Replacement to Counterparty under this Agreement
that is provided by an Eligible Guarantor as principal debtor rather than surety
and that is directly enforceable by Counterparty, the form and substance of
which guaranty are subject to the Rating Agency Condition with respect to S&P.
O-3-20
"ELIGIBLE GUARANTOR" means an entity that has credit ratings at least
equal to the Moody's Required Ratings Threshold and S&P Approved Ratings
Threshold.
"ELIGIBLE REPLACEMENT" means an entity that either (i) satisfies the
S&P Approved Ratings Threshold and the Moody's Required Ratings Threshold or
(ii) provides an Eligible Guaranty from an Eligible Guarantor.
"FIRM OFFER" means an offer which, when made, is capable of becoming
legally binding upon acceptance.
"MOODY'S" means Xxxxx'x Investors Service, Inc., or any successor.
"MOODY'S APPROVED RATINGS THRESHOLD" means, with respect to (i) Bear
Xxxxxxx, a Moody's counterparty rating of "A1" or above and (ii) with respect to
any other entity (or its guarantor), (x) if such entity has both a long-term
unsecured and unsubordinated debt rating or counterparty rating from Moody's and
a short-term unsecured and unsubordinated debt rating from Moody's, a long-term
unsecured and unsubordinated debt rating or counterparty rating from Moody's of
"A2" or above and a short-term unsecured and unsubordinated debt rating from
Moody's of "Prime-1" or above, or (y) if such entity has only a long-term
unsecured and unsubordinated debt rating or counterparty rating from Moody's, a
long-term unsecured and unsubordinated debt rating or counterparty rating from
Moody's of "A1" or above.
"MOODY'S FIRST LEVEL DOWNGRADE" means that no Relevant Entity satisfies the
Moody's Approved Rating Threshold.
"MOODY'S REQUIRED RATINGS THRESHOLD" means, with respect to (i) Bear
Xxxxxxx, a counterparty rating of "A3" or above and (ii) with respect to any
other entity (or its guarantor), (x) if such entity has both a long-term
unsecured and unsubordinated debt rating or counterparty rating from Moody's and
a short-term unsecured and unsubordinated debt rating from Moody's, a long-term
unsecured and unsubordinated debt rating or counterparty rating from Moody's of
"A3" or above or a short-term unsecured
O-3-21
and unsubordinated debt rating from Moody's of "Prime-2" or above, or (y) if
such entity has only a long-term unsecured and unsubordinated debt rating or
counterparty rating from Moody's, a long-term unsecured and unsubordinated debt
rating or counterparty rating from Moody's of "A3" or above.
"MOODY'S SECOND LEVEL DOWNGRADE" means that no Relevant Entity satisfies
the Moody's Required Ratings Threshold.
"PERMITTED TRANSFER" means a transfer by novation by Bear Xxxxxxx to an
entity (the "TRANSFEREE") of all, but not less than all, of Bear Xxxxxxx'
rights, liabilities, duties and obligations under this Agreement, with
respect to which transfer each of the following conditions is satisfied:
(a) the Transferee is an Eligible Replacement that is a recognized dealer
in interest rate swaps organized under the laws of the United States of
America or a jurisdiction located in the United States of America (or
another jurisdiction reasonably acceptable to Counterparty), (b) an Event
of Default or Termination Event would not occur as a result of such
transfer, (c) pursuant to a written instrument (the "TRANSFER AGREEMENT"),
the Transferee acquires and assumes all rights and obligations of Bear
Xxxxxxx under the Agreement and the relevant Transaction, (d) Bear Xxxxxxx
will be responsible for any costs or expenses incurred in connection with
such transfer (including any replacement cost of entering into a
replacement transaction); (e) either (A) Moody's has been given prior
written notice of such transfer and the Rating Agency Condition is
satisfied with respect to S&P or (B) each Rating Agency has been given
prior written notice of such transfer and such transfer is in connection
with the assignment and assumption of this Agreement without modification
of its terms, other than party names, dates relevant to the effective date
of such transfer, tax representations and any other representations
regarding the status of the substitute counterparty, notice information and
account details and other similar provisions; and (f) such transfer
otherwise complies with the terms of the Pooling and Servicing Agreement.
"RATING AGENCY" means each of Moody's and S&P.
"RATING AGENCY CONDITION" means, with respect to any particular proposed
act or omission to act hereunder that the party acting or failing to act
must consult with each Rating Agency then providing a rating of the
Certificates and receive from each such Rating Agency a prior written
confirmation that the proposed action or inaction would not cause a
downgrade or withdrawal of its then-current rating of the Certificates.
"RELEVANT ENTITY" means Bear Xxxxxxx and any Eligible Guarantor under an
Eligible Guaranty with respect to Bear Xxxxxxx.
"REPLACEMENT TRANSACTION" means, with respect to any Terminated
Transaction or group of Terminated Transactions, a transaction or group of
transactions that (i) would have the effect of preserving for Counterparty the
economic equivalent of any payment or delivery (whether the underlying
obligation was absolute or contingent and assuming the satisfaction of each
applicable condition precedent) by the parties under Section 2(a)(i) in respect
of such Terminated Transaction or group of Terminated Transactions that would,
but for the occurrence of the relevant Early Termination Date, have been
required after that Date, and
O-3-22
(ii) has terms which are substantially the same as this Agreement, including,
without limitation, rating triggers, Regulation AB compliance, and credit
support documentation, as determined by Counterparty in its sole discretion,
acting in a commercially reasonable manner.
"S&P" means Standard & Poor's, a division of The XxXxxx-Xxxx
Companies, Inc.
"S&P APPROVED RATINGS THRESHOLD" means with respect to (i) Bear
Xxxxxxx, a counterparty rating of "A+" or above and (ii) with respect
to any other entity (or its guarantor), a short-term unsecured and
unsubordinated debt rating from S&P of "A-1" or above, or, if such
entity does not have a short-term unsecured and unsubordinated debt
rating from S&P, a long-term unsecured and unsubordinated debt rating
from S&P of "A+ or above.
"S&P FIRST LEVEL DOWNGRADE" means that no Relevant Entity satisfies
the S&P Approved Rating Threshold.
"S&P REQUIRED RATINGS THRESHOLD" means with respect to (i) Bear
Xxxxxxx, a counterparty rating of "BBB" or above and (ii) with respect
to any other entity (or its guarantor), a long-term unsecured and
unsubordinated debt rating from S&P of "BBB-" or above.
"S&P SECOND LEVEL DOWNGRADE" means that no Relevant Entity satisfies
the S&P Required Rating Thresholds.
(r) AGENT FOR COUNTERPARTY. Bear Xxxxxxx acknowledges that Counterparty has
appointed the Trustee as its agent under Pooling and Servicing
Agreement/Indenture to carry out certain functions on behalf of Counterparty,
and that the Trustee shall be entitled to give notices and to perform and
satisfy the obligations of Counterparty hereunder on behalf of Counterparty.
(s) RATING AGENCY NOTIFICATIONS. Except as otherwise provided herein, no Early
Termination Date shall be effectively designated hereunder shall be made by
either party unless each Rating Agency has been given prior written notice of
such designation.
O-3-23
IN WITNESS WHEREOF, the parties have executed this Schedule by their duly
authorized officers as of the date hereof.
BEAR XXXXXXX FINANCIAL PRODUCTS INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
U.S. BANK NATIONAL ASSOCIATION, NOT IN
ITS INDIVIDUAL CAPACITY, BUT SOLELY AS
TRUSTEE ON BEHALF OF THE SPECIALTY
UNDERWRITING AND RESIDENTIAL FINANCE
TRUST, SERIES 2007-BC2
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
O-3-24
II. UNILATERAL CSA SCHEDULE(1)
Pledgor: BEAR XXXXXXX FINANCIAL PRODUCTS INC. (the "Pledgor") Secured Party:
U.S. BANK NATIONAL ASSOCIATION, NOT IN ITS INDIVIDUAL CAPACITY, BUT SOLELY AS
TRUSTEE ON BEHALF OF THE SPECIALTY UNDERWRITING AND RESIDENTIAL FINANCE TRUST,
SERIES 2007-BC2 (the "Secured Party")
PARAGRAPH 13. ELECTIONS AND VARIABLES
(a) SECURITY INTEREST FOR "OBLIGATIONS". The term "Obligations" as used in this
Annex includes no "additional obligations" within the meaning of Paragraph
12.
(b) CREDIT SUPPORT OBLIGATIONS.
(i) DELIVERY AMOUNT, RETURN AMOUNT AND CREDIT SUPPORT AMOUNT.
(1) DELIVERY AMOUNT. Paragraph 3(a) shall be amended by replacing the
words "upon a demand made by the Secured Party on or promptly
following a Valuation Date" with the words "on each Valuation Date".
The "DELIVERY AMOUNT" with respect to Pledgor for any Valuation Date
shall equal the greatest of:
(A) the amount by which the S&P Collateral Amount exceeds the S&P
Value on such Valuation Date of all Posted Credit Support held by
the Secured Party.
(B) the amount by which the Moody's First Level Collateral Amount
exceeds the Moody's First Level Value on such Valuation Date of
all Posted Credit Support held by the Secured Party.
(C) the amount by which the Moody's Second Level Collateral
Amount exceeds the Moody's Second Level Value on such Valuation
Date of all Posted Credit Support held by the Secured Party.
(2) "RETURN AMOUNT" applicable to Secured Party for any Valuation Date
shall equal the least of:
(A) the amount by which the S&P Value on such Valuation Date of
all Posted Credit Support held by the Secured Party exceeds the
S&P Collateral Amount.
(B) the amount by which the Moody's First Level Value on such
Valuation Date of all Posted Credit Support held by the Secured
Party exceeds the Moody's First Level Collateral Amount.
----------
(1) If currency hedge, update Moody's Collateral Amounts and Valuation
Percentages
O-3-25
(C) the amount by which the Moody's Second Level Value on such
Valuation Date of all Posted Credit Support held by the Secured
Party exceeds the Moody's Second Level Collateral Amount.
(3) "CREDIT SUPPORT AMOUNT" shall be deleted in its entirety.
(ii) ELIGIBLE COLLATERAL. The items set forth on the Collateral Schedule
attached as Schedule A hereto will qualify as "ELIGIBLE COLLATERAL"
for the party specified.
(iii) OTHER ELIGIBLE SUPPORT. None
(iv) THRESHOLDS.
(A) "INDEPENDENT AMOUNT" means:
Pledgor: Not applicable.
Secured Party: Not applicable.
(B) "THRESHOLD" means:
Pledgor: Not applicable.
Secured Party: Not applicable.
(C) "MINIMUM TRANSFER AMOUNT" means USD100,000; provided, that if the
aggregate Certificate Principal Balanceof the Certificates rated
by S&P is less than USD 50,000,000, the "Minimum Transfer Amount"
shall mean USD 50,000.
(D) ROUNDING. The Delivery Amount will be rounded up and the Return
Amount will be rounded down to the nearest integral multiple of
USD 10,000.
(c) VALUATION AND TIMING.
(i) "VALUATION AGENT" means Pledgor.
(ii) "VALUATION DATE" means each Local Business Day(2).
(iii) "VALUATION TIME" means the close of business on the Local Business Day in
the city where the Valuation Agent is located immediately preceding the
Valuation Date or date of calculation, as applicable; provided that the
calculations of Value and Exposure will be made as of approximately the
same time on the same date.
(iv) "NOTIFICATION TIME" means 11:00 A.M. (New York time).
(v) TRANSFER TIMING AND CALCULATIONS. Paragraphs 4(b) and 4(c) are hereby
amended and restated in entirety as set forth below.
"(b) TRANSFER TIMING. Subject to Paragraphs 4(a) and 5 and unless
otherwise specified, if a demand for the Transfer of Eligible Credit
Support or Posted Credit Support is made by the Notification Time,
then the relevant Transfer will be made not later than the close of
business on the Valuation Date; if a demand is
----------
(2) If not daily valuations, changes are required in the collateral amounts and
valuation percentages
O-3-26
made after the Notification Time, then the relevant Transfer will be
made not later than the close of business on the next Local Business
Day thereafter.
(c) CALCULATIONS. All calculations of Value and Exposure for purposes
of Paragraphs 3 and 6(d) will be made by the Valuation Agent as of the
Valuation Time. The Valuation Agent will notify each party (or the
other party, if the Valuation Agent is a party) of its calculations
not later than the Notification Time on the applicable Valuation Date
(or in the case of Paragraph 6(d), the Local Business Day following
the day on which such relevant calculations are performed)."
(d) CONDITIONS PRECEDENT. There shall be no "Specified Condition" with respect
to either party for purposes of this Annex.
(e) SUBSTITUTION
(i) "SUBSTITUTION DATE" means (A) the Local Business Day on which the
Secured Party receives the Substitute Credit Support, if notice of
substitution is received by the Notification Time on such date, and
(B) the Local Business Day following the date on which the Secured
Party receives the Substitute Credit Support, if notice of
substitution is received after the Notification Time.
(ii) CONSENT OF SECURED PARTY FOR SUBSTITUTION. Inapplicable.
(iii) AMENDMENT OF PARAGRAPH 4(D)(II). Paragraph 4(d)(ii) is amended and
restated in its entirety as set forth below:
"(ii) subject to Paragraph 4(a) of this Annex, the Secured Party
will Transfer the items of Posted Credit Support specified by the
Pledgor in its notice not later than the close of business on the
Substitution Date, provided, however, that if the Secured Party
shall not have received the Substitute Credit Support prior to
1:00 P.M. (New York time) on the Substitution Date, then the
Secured Party shall Transfer the applicable items of Posted
Credit Support not later than the close of business on the Local
Business Day immediately following the day on which the Secured
Party receives the Substitute Credit Support. Notwithstanding the
foregoing, the Secured Party will only be obligated to Transfer
Posted Credit Support with a Value as of the Substitution Date
equal to the Value of the Substitute Credit Support delivered by
the Pledgor in exchange therefor."
(f) DISPUTE RESOLUTION.
(i) "RESOLUTION TIME" means 12:00 noon, New York time, on the Local Business
Day for both parties following the date the Disputing Party gives notice of
a dispute pursuant to Paragraph 5.
(ii) VALUE. For the purpose of Paragraphs 5(i)(C) and 5(ii), disputes over the
Value of Posted Credit Support will be resolved by the Valuation Agent
seeking bid-side quotations as of the relevant Recalculation Date or date
of Transfer, as applicable, from three parties that regularly act as
dealers in the securities in question. The Value will be the arithmetic
mean of the quotations obtained by the Valuation Agent, multiplied by the
applicable Valuation Percentage, if any. If no quotations are available for
a particular security, then the Valuation
O-3-27
Agent's original calculation of Value thereof will be used for that
security.
(iii) ALTERNATIVE. Subject to item (iv) below, the provisions of Paragraph 5
will apply.
(iv) MODIFICATION OF PARAGRAPH 5. The introductory paragraph of Paragraph 5
shall be amended and restated to read in its entirety as follows:
"If a party (a 'Disputing Party') disputes (I) the Valuation Agent's
calculation of a Delivery Amount or a Return Amount or (II) the Value
of any Transfer of Eligible Credit Support or Posted Credit Support,
then:
(A) the Disputing Party will (x) notify the other party and, if
applicable, the Valuation Agent of the amount it is disputing, (y)
indicate what it believes the correct amount to be and (z) provide a
statement showing, in reasonable detail, how it arrived at such amount
and the appropriate party will deliver the undisputed amount to the
other party not later than (i) (a) the close of business on the
Valuation Date, if the demand made under Paragraph 3 in the case of
(I) above is made by the Notification Time, or (b) the close of
business of the Local Business Day following the date on which the
demand is made under Paragraph 3 in the case of (I) above, if such
demand is made after the Notification Time, or (ii) the close of
business of the date of Transfer, in the case of (II) above;
(B) the parties will consult with each other and provide such
information as the other party shall reasonably request in an attempt
to resolve the dispute; and
(C) if they fail to resolve the dispute by the Resolution Time, then:"
(g) HOLDING AND USING POSTED COLLATERAL.
(i) ELIGIBILITY TO HOLD POSTED COLLATERAL; CUSTODIANS.
(1) The Secured Party and its Custodian (if any) will be entitled to
hold Posted Collateral pursuant to Paragraph 6(b), provided that the
following conditions applicable to it are satisfied:
(A) it is not a Defaulting Party;
(B) Posted Collateral consisting of Cash or certificated
securities that cannot be paid or delivered by book-entry may be
held only in any state of the United States which has adopted the
Uniform Commercial Code;
(C) the short-term rating of any Custodian shall be at least
"A-1" by S&P
(2) There shall be no Custodian for Pledgor.
(ii) USE OF POSTED COLLATERAL. The provisions of Paragraph 6(c) will not apply
to Secured Party and Secured Party will not have any right to use the
Posted Collateral or take any action specified in Paragraph 6(c).
O-3-28
(h) DISTRIBUTIONS AND INTEREST AMOUNT.
(i) INTEREST RATE. The "INTEREST RATE" will be the "Federal Funds
(Effective)" rate as such rate is displayed on Telerate page 118 for
such day under the caption "Effective".
(ii) AMENDMENT OF PARAGRAPH 6(D)(I) - DISTRIBUTIONS. Clause (d)(i) of
Paragraph 6 shall be amended and restated to read in its entirety as
follows:
1. "(I) DISTRIBUTIONS. SUBJECT TO PARAGRAPH 4(A), IF SECURED PARTY
RECEIVES DISTRIBUTIONS ON A LOCAL BUSINESS DAY, IT WILL TRANSFER TO
PLEDGOR NOT LATER THAN THE FOLLOWING LOCAL BUSINESS DAY ANY
DISTRIBUTIONS IT RECEIVES TO THE EXTENT THAT A DELIVERY AMOUNT WOULD
NOT BE CREATED OR INCREASED BY THAT TRANSFER, AS CALCULATED BY THE
VALUATION AGENT (AND THE DATE OF CALCULATION WILL BE DEEMED TO BE A
VALUATION DATE FOR THIS PURPOSE). "
(iii) AMENDMENT OF PARAGRAPH 6(D)(II) - INTEREST AMOUNT. Clause (d)(ii) of
Paragraph 6 shall be amended and restated to read in its entirety as
follows:
"(ii) INTEREST AMOUNT. In lieu of any interest, dividends or other
amounts paid with respect to Posted Collateral in the form of Cash
(all of which may be retained by the Secured Party), the Secured Party
will Transfer to the Pledgor on the 20th day of each calendar month
(or if such day is not a Local Business Day, the next Local Business
Day) the Interest Amount. Any Interest Amount or portion thereof that
has been received by the Secured Party and not Transferred pursuant to
this Paragraph will constitute Posted Collateral in the form of Cash
and will be subject to the security interest granted under Paragraph
2. For purposes of calculating the Interest Amount the amount of
interest calculated for each day of the interest period shall be
compounded monthly." Secured Party shall not be obligated to transfer
any Interest Amount unless and until it has received such amount.
(i) DEMANDS AND NOTICES.
All demands, specifications and notices under this Annex will be made
pursuant to the Notices Section of this Agreement.
(j) ADDRESSES FOR TRANSFERS.
Pledgor: To be provided in writing by Pledgor to Secured Party.
Secured Party: U.S. Bank National Association, Trustee
Mail Code: EP-MN-WS3D
00 Xxxxxxxxxx Xxxxxx
Xx. Xxxx, XX 00000
Attention: Structured Finance - SURF 2007-BC2
Facsimile: (000) 000-0000
Phone: (000) 000-0000
(k) OTHER PROVISION(S).
O-3-29
(i) AMENDMENT OF PARAGRAPH 7 - EVENTS OF DEFAULT. Clause (iii) of
Paragraph 7 shall not apply to Secured Party.
(ii) NON-RELIANCE. Notwithstanding the obligations of the Secured Party
under Paragraph 6(a), and without limiting the generality of the final
sentence of Paragraph 6(a), each party, as Pledgor, acknowledges that
it has the means to monitor all matters relating to all valuations,
payments, defaults and rights with respect to Posted Collateral
without the need to rely on the other party, in its capacity as
Secured Party, and that, given the provisions of this Annex on
substitution, responsibility for the preservation of the rights of the
Pledgor with respect to all such matters is reasonably allocated
hereby to the Pledgor.
(iii) AGREEMENT AS TO SINGLE SECURED PARTY AND PLEDGOR. Each of
Pledgor and Secured Party agree that, notwithstanding anything to the
contrary in the recital to this Annex, Paragraph 1(b) or Paragraph 2
or the definitions in Paragraph 12, (a) the term "Secured Party" as
used in this Annex means only Secured Party, (b) the term "Pledgor" as
used in this Annex means only Pledgor, (c) only Pledgor makes the
pledge and grant in Paragraph 2, the acknowledgement in the final
sentence of Paragraph 8(a) and the representations in Paragraph 9 and
(d) only Pledgor will be required to make Transfers of Eligible Credit
Support hereunder.
(iv) TRUSTEE. The Trustee is hereby authorized to (i) make demands
on behalf of the Secured Party pursuant to Paragraph 3
hereunder and (ii) provide notice on behalf of the Secured
Party pursuant to Paragraph 7 hereunder.
(v) COLLATERAL ACCOUNT. Secured Party shall at all times maintain
all Posted Collateral in a segregated trust account.
(vi) EXTERNAL CALCULATIONS. At any time at which Pledgor (or, to the
extent applicable, its Credit Support Provider) does not have a
long-term unsubordinated and unsecured debt rating of at least
"BBB+" from S&P, the Valuation Agent shall (at its own expense)
obtain external calculations of the Secured Party's Exposure
from at least two Reference Market-makers on the last Local
Business Day of each calendar month. Any determination of the
S&P Collateral Amount shall be based on the greatest of the
Secured Party's Exposure determined by the Valuation Agent and
such Reference Market-makers. Such external calculation may not
be obtained from the same Reference Market-maker more than four
times in any 12-month period.
(vii) NOTICE TO S&P. At any time at which Pledgor (or, to the extent
applicable, its Credit Support Provider) does not have a
long-term unsubordinated and unsecured debt rating of at least
"BBB+" from S&P, the Valuation Agent shall provide to S&P not
later than the Notification Time on the Local Business Day
following each Valuation Date its calculations of the Secured
Party's Exposure and the Value of any Eligible Credit Support
or Posted Credit Support for that Valuation Date. The Valuation
Agent shall also provide to S&P any external marks of the
Secured Party's Exposure.
(viii) EXPENSES. Pledgor shall be responsible for all reasonable costs
and expenses incurred by Secured Party in connection with the
Transfer of any Eligible Collateral under this Annex.
(ix) ADDITIONAL DEFINED TERMS.
X-0-00
"XX00" means, with respect to a Transaction and any date of
determination, the sum of the estimated change in the Secured Party's
Exposure with respect to such Transaction that would result from a one
basis point change in the relevant swap curve on such date, as
determined by the Valuation Agent in good faith and in a commercially
reasonable manner. The Valuation Agent shall, upon request of Secured
Party, provide to Secured Party a statement showing in reasonable
detail such calculation.
"MOODY'S FIRST LEVEL ADDITIONAL COLLATERALIZED AMOUNT" means, with
respect to any Transaction, the lesser of (x) the product of 15 and
DV01 for such Transaction and such Valuation Date and (y) the product
of (i) 2%, (ii) if a Scale Factor is specified in such Transaction,
the Scale Factor (as defined in such Transaction) for such
Transaction, or, if no Scale Factor is specified in such Transaction,
1 and (iii) Notional Amount for such Transaction for the Calculation
Period which includes such Valuation Date.
"MOODY'S FIRST LEVEL COLLATERAL AMOUNT" means, (A) for any Valuation
Date on which (I) a Moody's First Level Downgrade has occurred and has
been continuing (x) for at least 30 Local Business Days or (y) since
this Annex was executed and (II) it is not the case that a Moody's
Second Level Downgrade has occurred and been continuing for at least
30 Local Business Days, an amount equal to the greater of (a) zero and
(b) the sum of the Secured Party's aggregate Exposure for all
Transactions and the aggregate of Moody's First Level Additional
Collateralized Amounts for each Transaction and (B)for any other
Valuation Date, zero.
"MOODY'S FIRST LEVEL VALUE" means, for any date that the Moody's First
Level Collateral Amount is determined and the Value of any Eligible
Collateral or Posted Collateral that is a security, the bid price for
such security obtained by the Valuation Agent multiplied by the
Moody's First Level Valuation Percentage for such security set forth
on Schedule A hereto.
"MOODY'S SECOND LEVEL ADDITIONAL COLLATERALIZED AMOUNT" means, with
respect to any Transaction,
(1) if such Transaction is not a Transaction-Specific Hedge, the
lesser of (i) the product of the 50 and DV01 for such Transaction
and such Valuation Date and (ii) the product of (x) 8%, (y) if a
Scale Factor is specified in such Transaction, the Scale Factor
(as defined in such Transaction) for such Transaction, or, if no
Scale Factor is specified in such Transaction, 1 and (z) the
Notional Amount for such Transaction for the Calculation Period
(as defined in the related Transaction) which includes such
Valuation Date; or
(2) if such Transaction is a Transaction-Specific Hedge, the
lesser of (i) the product of the 65 and DV01 for such Transaction
and such Valuation Date and (ii) the product of (x) 10%, (y) if a
Scale Factor is specified in such Transaction, the Scale Factor
(as defined in such Transaction) for such Transaction, or, if no
Scale Factor is specified in such Transaction, 1 and (z) the
Notional Amount for such Transaction for the Calculation Period
(as defined in the related Transaction) which includes such
Valuation Date.
"MOODY'S SECOND LEVEL COLLATERAL AMOUNT" means, (A) for any Valuation
Date on which it is the case that a Moody's Second Level Downgrade has
occurred and been continuing for at least 30 Local Business Days, an
amount equal to the greatest of (a) zero, (b) the aggregate amount of
the Next Payments for all Next Payment Dates and (c) the sum of the
Secured Party's aggregate Exposure and the aggregate of Moody's Second
Level Additional
O-3-31
Collateralized Amounts for each Transaction and (B) for any other
Valuation Date, zero.
"MOODY'S SECOND LEVEL VALUE" means, for any date that the Moody's
Second Level Collateral Amount is determined and the Value of any
Eligible Collateral or Posted Collateral that is a security, the bid
price for such security obtained by the Valuation Agent multiplied by
the Xxxxx'x Second Level Valuation Percentage for such security set
forth on Schedule A hereto.
"NEXT PAYMENT" means, in respect of each Next Payment Date, the
greater of (i) the amount of any payments due to be made by the
Pledgor pursuant to Section 2(a) on such Next Payment Date less any
payments due to be made by the Secured Party under Section 2(a) on
such Next Payment Date (in each case, after giving effect to any
applicable netting under Section 2(c)) and (ii) zero.
"NEXT PAYMENT DATE" means the next scheduled payment date under any
Transaction.
"REMAINING WEIGHTED AVERAGE MATURITY" means, with respect to a
Transaction, the expected weighted average maturity for such
Transaction as determined by the Valuation Agent.
"S&P COLLATERAL AMOUNT" means, (A) for any Valuation Date on which a
S&P First Level Downgrade has occurred and been continuing for at
least 30 days or on which a S&P Second Level Downgrade has occurred
and is continuing, an amount equal to the sum of (1) 100.0% of the
Secured Party's Exposure for such Valuation Date and (2) the product
of (x) the Volatility Buffer for each Transaction (y) if a Scale
Factor is specified in such Transaction, the Scale Factor (as defined
in such Transaction) for such Transaction, or, if no Scale Factor is
specified in such Transaction, 1 and (z) the Notional Amount of such
Transaction for the Calculation Period (as defined in the related
Transaction) of such Transaction which includes such Valuation Date,
or (B) for any other Valuation Date, zero.
"S&P VALUE" means, for any date that the S&P Collateral Amount is
determined and the Value of any Eligible Collateral or Posted
Collateral that is a security, the bid price for such security
obtained by the Valuation Agent multiplied by the S&P Valuation
Percentage for such security set forth on Schedule A hereto.
"TRANSACTION-SPECIFIC HEDGE" means any Transaction that is a cap,
floor or swaption or a Transaction in respect of which (x) the
notional amount of the interest rate swap is "balance guaranteed" or
(y) the notional amount of the interest rate swap for any Calculation
Period otherwise is not a specific dollar amount that is fixed at the
inception of the Transaction.
"VOLATILITY BUFFER" means, for any Transaction, the related percentage
set forth in the following table:
Remaining Remaining Remaining Remaining
The higher of the S&P short-term Weighted Weighted Weighted Weighted
credit rating of (i) Pledgor and Average Average Average Average
(ii) the Credit Support Provider Maturity up Maturity up Maturity up Maturity up
of Pledgor, if applicable to 3 years to 5 years to 10 years to 30 years
-------------------------------- ----------- ----------- ----------- -----------
"A-2" or higher 2.75% 3.25% 4.00% 4.75%
"A-3" 3.25% 4.00% 5.00% 6.25%
"BB+" or lower 3.50% 4.50% 6.75% 7.50%
O-3-32
IN WITNESS WHEREOF, the parties have executed this Annex on the respective dates
specified below with effect from the date specified on the first page of this
document.
BEAR XXXXXXX FINANCIAL PRODUCTS INC. U.S. BANK NATIONAL ASSOCIATION, NOT IN
ITS INDIVIDUAL CAPACITY, BUT SOLELY AS
TRUSTEE ON BEHALF OF THE SPECIALTY
UNDERWRITING AND RESIDENTIAL FINANCE
TRUST, SERIES 2007-BC2
By: By:
---------------------------------- -----------------------------------
Name: Name:
Title: Title:
Date: Date:
O-3-33
SCHEDULE A
COLLATERAL SCHEDULE
THE XXXXX'X FIRST LEVEL VALUATION PERCENTAGES SHALL BE USED IN DETERMINING THE
XXXXX'X FIRST LEVEL COLLATERAL AMOUNT.
THE XXXXX'X SECOND LEVEL VALUATION PERCENTAGES SHALL BE USED IN DETERMINING THE
XXXXX'X SECOND LEVEL COLLATERAL AMOUNT.
THE S&P VALUATION PERCENTAGES SHALL BE USED IN DETERMINING THE S&P COLLATERAL
AMOUNT.
ISDA COLLATERAL ASSET XXXXX'X FIRST LEVEL XXXXX'X SECOND LEVEL S&P
DEFINITION (ICAD) CODE REMAINING MATURITY VALUATION PERCENTAGE VALUATION PERCENTAGE VALUATION PERCENTAGE
---------------------- ------------------ -------------------- -------------------- --------------------
US-CASH N/A 100% 100% 100%
EU-CASH N/A 98% 94% 92.5%
GB-CASH N/A 98% 95% 94.1%
< 1 Year 100% 100% 98.9%
1 to 2 years 100% 99% 98.0%
US-TBILL 2 to 3 years 100% 98% 97.4%
US-TNOTE 3 to 5 years 100% 97% 95.5%
US-TBOND 5 to 7 years 100% 96% 93.7%
(fixed rate) 7 to 10 years 100% 94% 92.5%
10 to 20 years 100% 90% 91.1%
> 20 years 100% 88% 88.6%
US-TBILL
US-TNOTE
US-TBOND
(floating rate) All Maturities 100% 99% Not Eligible Collateral
< 1 Year 100% 99% 98.5%
1 to 2 years 100% 99% 97.7%
2 to 3 years 100% 98% 97.3%
GA-US-AGENCY 3 to 5 years 100% 96% 94.5%
(fixed rate) 5 to 7 years 100% 93% 93.1%
7 to 10 years 100% 93% 90.7%
10 to 20 years 100% 89% 87.7%
> 20 years 100% 87% 84.4%
GA-US-AGENCY
(floating rate) All Maturities 100% 98% Not Eligible Collateral
Rated Aa3 or better Rated Aa3 or better Rated AAA or better
by Xxxxx'x by Xxxxx'x by S&P
< 1 Year 98% 94% 98.8%
1 to 2 years 98% 93% 97.9%
GA-EUROZONE-GOV 2 to 3 years 98% 92% 97.1%
(other than EU-CASH) 3 to 5 years 98% 90% 91.2%
(fixed rate) 5 to 7 years 98% 89% 87.5%
7 to 10 years 98% 88% 83.8%
10 to 20 years 98% 84% 75.5%
> 20 years 98% 82% Not Eligible Collateral
O-3-34
GA-EUROZONE-GOV Rated Aa3 or better Rated Aa3 or better Rated AAA or better
(other than EU-CASH) by Xxxxx'x by Xxxxx'x by S&P
(floating rate) All Maturities 98% 93% Not Eligible Collateral
< 1 Year 98% 94% Not Eligible Collateral
1 to 2 years 98% 93% Not Eligible Collateral
2 to 3 years 98% 92% Not Eligible Collateral
GA-GB-GOV 3 to 5 years 98% 91% Not Eligible Collateral
(other than GB-CASH) 5 to 7 years 98% 90% Not Eligible Collateral
(fixed rate) 7 to 10 years 98% 89% Not Eligible Collateral
10 to 20 years 98% 86% Not Eligible Collateral
> 20 years 98% 84% Not Eligible Collateral
GA-GB-GOV
(other than GB-CASH)
(floating rate) All Maturities 98% 94% Not Eligible Collateral
The ISDA Collateral Asset Definition (ICAD) Codes used in this Collateral
Schedule shall have the meanings set forth in the Collateral Asset Definitions
(First Edition - June 2003) as published and copyrighted in 2003 by the
International Swaps and Derivatives Association, Inc.
O-3-35
EXHIBIT P
[RESERVED]
P-1
EXHIBIT Q
FORM OF ASSESSMENT OF COMPLIANCE
[DATE]
Xxxxxxx Xxxxx Mortgage Investors, Inc.
000 Xxxxx Xxxxxx
4 World Financial Center, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
X.X. Bank National Association
00 Xxxxxxxxxx Xxxxxx
Mail Code XX-XX-XX0X
Xx. Xxxx, Xxxxxxxxx 00000-0000
Attention: Structured Finance/SURF 2007-BC2
Wilshire Credit Corporation
00000 XX Xxxxxxxx Xxx
Xxxxx 000
Xxxxxxxxx, Xxxxxx 00000
Re: Pooling and Servicing Agreement (the "Agreement"), dated as of April
1, 2007, among Xxxxxxx Xxxxx Mortgage Investors, Inc., as depositor,
Wilshire Credit Corporation, as servicer, and U.S. Bank National
Association, as trustee, relating to Specialty Underwriting and
Residential Finance Trust, Mortgage Loan Asset-Backed Certificates,
Series 2007-BC2 (the "Trust")
For the calendar year ending December 31, [2007] or portion thereof,
[U.S. Bank National Association, as Trustee] [Wilshire Credit Corporation, as
Servicer], for the Trust has complied in all material respects with the relevant
Servicing Criteria in Exhibit R of the Agreement.
All capitalized terms used herein but not defined herein shall have
the meanings assigned to them in the Agreement.
Date: _______________________________
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Q-1
EXHIBIT R
SERVICING CRITERIA TO BE ADDRESSED
IN ASSESSMENT OF COMPLIANCE
(RMBS unless otherwise noted)
DEFINITIONS KEY:
PRIMARY SERVICER - transaction party having borrower contact X - obligation
CUSTODIAN - safe keeper of certain pool assets
TRUSTEE - fiduciary of the transaction and safe keeper of certain pool assets
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.
WILSHIRE CREDIT
REGULATION AB CORPORATION U.S. BANK
REFERENCE SERVICING CRITERIA (SERVICER) (TRUSTEE) ADDITIONAL INFORMATION
------------- ----------------------------------------- --------------- ------------- -----------------------
GENERAL SERVICING CONSIDERATIONS
1122(d)(1)(i) Policies and procedures are instituted to X X Servicer and Trustee
monitor any performance or other triggers each responsible only
and events of default in accordance with to the extent that
the transaction agreements. each party, as
applicable, has
actual knowledge or
written notice with
respect to parties
other than itself.
1122(d)(1)(ii) If any material servicing activities are IF APPLICABLE IF APPLICABLE
outsourced to third parties, policies and FOR A FOR A
procedures are instituted to monitor the TRANSACTION TRANSACTION
third party's performance and compliance PARTICIPANT PARTICIPANT
with such servicing activities.
1122(d)(1)(iii) Any requirements in the transaction N/A N/A
agreements to maintain a back-up servicer
for the Pool Assets are maintained.
1122(d)(1)(iv) A fidelity bond and errors and omissions X
policy is in effect on the party
participating in the servicing function
throughout the reporting period in the
amount of coverage required by and
otherwise in accordance with the terms of
the transaction agreements.
CASH COLLECTION AND ADMINISTRATION
1122(d)(2)(i) Payments on pool assets are deposited X X Servicer and Trustee
into the appropriate custodial bank each responsible only
R-1
WILSHIRE CREDIT
REGULATION AB CORPORATION U.S. BANK
REFERENCE SERVICING CRITERIA (SERVICER) (TRUSTEE) ADDITIONAL INFORMATION
------------- ----------------------------------------- --------------- ------------- -----------------------
accounts and related bank clearing for deposits into the
accounts no more than two (2) business accounts held by it.
days following receipt, or such other
number of days specified in the
transaction agreements.
1122(d)(2)(ii) Disbursements made via wire transfer on X X Servicer disburses
behalf of an obligor or to an investor funds to trustee.
are made only by authorized personnel. Trustee disburses
funds to
Certificateholders.
1122(d)(2)(iii) Advances of funds or guarantees regarding X
collections, cash flows or distributions,
and any interest or other fees charged
for such advances, are made, reviewed and
approved as specified in the transaction
agreements.
1122(d)(2)(iv) The related accounts for the transaction, X
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.
1122(d)(2)(v) Each custodial account is maintained at a X
federally insured depository institution
as set forth in the transaction
agreements. For purposes of this
criterion, "federally insured depository
institution" with respect to a foreign
financial institution means a foreign
financial institution that meets the
requirements of Rule 13k-1(b)(1) of the
Securities Exchange Act.
1122(d)(2)(vi) Unissued checks are safeguarded so as to X
prevent unauthorized access.
1122(d)(2)(vii) Reconciliations are prepared on a monthly X X
basis for all asset-backed securities
related bank accounts, including
custodial accounts and related bank
clearing accounts. These reconciliations
are (A) mathematically accurate; (B)
prepared within thirty (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 ninety (90)
calendar days of their original
identification, or such other number of
days specified in the
R-2
WILSHIRE CREDIT
REGULATION AB CORPORATION U.S. BANK
REFERENCE SERVICING CRITERIA (SERVICER) (TRUSTEE) ADDITIONAL INFORMATION
------------- ----------------------------------------- --------------- ------------- -----------------------
transaction agreements.
INVESTOR REMITTANCES AND REPORTING
1122(d)(3)(i) Reports to investors, including those to X X
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.
1122(d)(3)(ii) Amounts due to investors are allocated X X Wilshire remits cash
and remitted in accordance with and loan level data to
timeframes, distribution priority and trustee based on
other terms set forth in the transaction timelines established
agreements. in the Pooling and
Servicing Agreement.
The trustee is
responsible for the
allocation of funds to
Certificateholders
using the appropriate
distribution priority
as established by the
Pooling and Servicing
Agreement.
1122(d)(3)(iii) Disbursements made to an investor are X Trustee disburses
posted within two (2) business days to funds to
the Servicer's investor records, or such Certificateholders.
other number of days specified in the
transaction agreements.
1122(d)(3)(iv) Amounts remitted to investors per the X X Servicer remits funds
investor reports agree with cancelled and provides certain
checks, or other form of payment, or investor reports to
custodial bank statements. trustees within
guidelines and
timeframes established
in Pooling and
Servicing Agreement.
Trustee disburses
funds to
Certificateholders.
POOL ASSET ADMINISTRATION
1122(d)(4)(i) Collateral or security on pool assets is X
R-3
WILSHIRE CREDIT
REGULATION AB CORPORATION U.S. BANK
REFERENCE SERVICING CRITERIA (SERVICER) (TRUSTEE) ADDITIONAL INFORMATION
------------- ----------------------------------------- --------------- ------------- -----------------------
maintained as required by the transaction
agreements or related pool asset
documents.
1122(d)(4)(ii) Pool assets and related documents are X X
safeguarded as required by the
transaction agreements
1122(d)(4)(iii) Any additions, removals or substitutions X X Trustee shall only
to the asset pool are made, reviewed and review, not approve,
approved in accordance with any such additions,
conditions or requirements in the removals or
transaction agreements. substitutions in
accordance with the
transaction agreements.
1122(d)(4)(iv) Payments on pool assets, including any X
payoffs, made in accordance with the
related pool asset documents are posted
to the Servicer's obligor records
maintained no more than two (2) 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 X
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 X
status of an obligor's pool assets (e.g.,
loan modifications or re-agings) are
made, reviewed and approved by authorized
personnel in accordance with the
transaction agreements and related pool
asset documents.
1122(d)(4)(vii) Loss mitigation or recovery actions X
(e.g., forbearance plans, modifications
and deeds in lieu of foreclosure,
foreclosures and repossessions, as
applicable) are initiated, conducted and
concluded in accordance with the
timeframes or other requirements
established by the transaction
agreements.
1122(d)(4)(viii) Records documenting collection efforts X
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
R-4
WILSHIRE CREDIT
REGULATION AB CORPORATION U.S. BANK
REFERENCE SERVICING CRITERIA (SERVICER) (TRUSTEE) ADDITIONAL INFORMATION
------------- ----------------------------------------- --------------- ------------- -----------------------
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 X
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 X
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
thirty (30) calendar days of full
repayment of the related pool assets, or
such other number of days specified in
the transaction agreements.
1122(d)(4)(xi) Payments made on behalf of an obligor X
(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
thirty (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 X
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 X
obligor are posted within two (2)
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 X
uncollectible accounts are recognized and
recorded in accordance with the
transaction agreements.
1122(d)(4)(xv) Any external enhancement or other X
R-5
WILSHIRE CREDIT
REGULATION AB CORPORATION U.S. BANK
REFERENCE SERVICING CRITERIA (SERVICER) (TRUSTEE) ADDITIONAL INFORMATION
------------- ----------------------------------------- --------------- ------------- -----------------------
support, identified in Item 1114(a)(1)
through (3) or Item 1115 of Regulation
AB, is maintained as set forth in the
transaction agreements.
R-6
EXHIBIT S
FORM OF XXXXXXXX-XXXXX CERTIFICATION
[DATE]
Xxxxxxx Xxxxx Mortgage Investors, Inc.
000 Xxxxx Xxxxxx
4 World Financial Center, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
X.X. Bank National Association
00 Xxxxxxxxxx Xxxxxx
Mail Code EP-MN-WS3D
Xx. Xxxx, Xxxxxxxxx 00000-0000
Attention: Structured Finance/SURF 2007-BC2
Re: Specialty Underwriting and Residential Finance Trust, Mortgage Loan
Asset-Backed Certificates, Series 2007-BC2
I, [identify the certifying individual], certify that:
1. I, or persons under my supervision, have reviewed the report on Form
10-K and all reports on Form 10-D required to be filed in respect of the period
covered by this report on Form 10-K of [identify the issuing entity] (the
"Exchange Act periodic reports");
2. Based on my knowledge, the Exchange Act periodic reports 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 with respect to the period covered by
this report;
3. Based on my knowledge, all of the distribution, servicing and other
information required to be provided under Form 10-D for the period covered by
this report is included in the Exchange Act periodic reports;
4. [I am responsible for reviewing the activities performed by the
servicer(s) and based on my knowledge and the compliance review(s) conducted in
preparing the servicer compliance statement(s) required in this report under
Item 1123 of Regulation AB, and except as disclosed in the Exchange Act periodic
reports, the servicer(s) [has/have] fulfilled [its/their] obligations under the
servicing agreement(s); and]
5. All of the reports on assessment of compliance with servicing criteria
for ABS and their related attestation reports on assessment of compliance with
servicing criteria for asset-backed securities required to be included in this
report in accordance with Item 1122 of Regulation AB and Exchange Act Rules
13a-18 and 15d-18 have been included as an exhibit to this report, except as
otherwise disclosed in this report. Any material instances of noncompliance
described in such reports have been disclosed in this report on Form 10-K.
S-1
[In giving the certifications above, I have reasonably relied on
information provided to me by the following unaffiliated parties [name of
servicer, subservicer, co-servicer, depositor or trustee].]
Date: ______________
----------------------------------------
[Signature]
[Title]
S-2
EXHIBIT T
FORM OF ITEM 1123 CERTIFICATION OF SERVICER
[DATE]
Xxxxxxx Xxxxx Mortgage Investors, Inc.
000 Xxxxx Xxxxxx
4 World Financial Center, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
X.X. Bank National Association
00 Xxxxxxxxxx Xxxxxx
Mail Code EP-MN-WS3D
Xx. Xxxx, Xxxxxxxxx 00000-0000
Attention: Structured Finance/SURF 2007-BC2
Re: Pooling and Servicing Agreement (the "Agreement"), dated as of April 1,
2007, among Xxxxxxx Xxxxx Mortgage Investors, Inc., as depositor, Wilshire
Credit Corporation, as servicer, and U.S. Bank National Association, as
trustee, relating to Specialty Underwriting and Residential Finance Trust,
Mortgage Loan Asset-Backed Certificates, Series 2007-BC2
I, [identify name of certifying individual], [title of certifying individual] of
Wilshire Credit Corporation (the "Servicer"), hereby certify that:
(1) A review of the activities of the Servicer during the preceding
calendar year and of the performance of the Servicer under the Agreement has
been made under my supervision; and
(2) To the best of my knowledge, based on such review, the Servicer
has fulfilled all its obligations under the Agreement in all material respects
throughout such year or a portion thereof[, or, if there has been a failure to
fulfill any such obligation in any material respect, I have specified below each
such failure known to me and the nature and status thereof].
Date:
Wilshire Credit Corporation,
as Servicer
By:
-----------------------------------
Name:
----------------------------------
Title:
---------------------------------
T-1
EXHIBIT U-1
FORM OF SWAP AGREEMENT
(BEAR XXXXXXX LOGO)
BEAR XXXXXXX FINANCIAL PRODUCTS INC.
000 XXXXXXX XXXXXX
XXX XXXX, XXX XXXX 00000
000-000-0000
DATE: April 24, 2007
TO: U.S. Bank National Association, not in its individual
capacity, but solely as Supplemental Interest Trust Trustee
on behalf of the Supplemental Interest Trust relating to the
Specialty Underwriting and Residential Finance Trust, Series
2007-BC2
ATTENTION: Structured Finance - SURF 2007-BC2
TELEPHONE: (000) 000-0000
FACSIMILE: (000) 000-0000
FROM: Derivatives Documentation
TELEPHONE: 000-000-0000
FACSIMILE: 000-000-0000
SUBJECT: Fixed Income Derivatives Confirmation and Agreement
REFERENCE NUMBER: FXNSC9427
The purpose of this letter agreement ("Agreement") is to confirm the terms and
conditions of the Transaction entered into on the Trade Date specified below
(the " Transaction") between Bear Xxxxxxx Financial Products Inc. ("Bear
Xxxxxxx") and U.S. Bank National Association, not in its individual capacity,
but solely as Supplemental Interest Trust Trustee on behalf of the Supplemental
Interest Trust relating to the Specialty Underwriting and Residential Finance
Trust, Series 2007-BC2 ("Counterparty") Reference is hereby made to the Pooling
and Servicing Agreement, dated as of April 1, 2007, among Wilshire Credit
Corporation, as servicer ("Servicer"), Xxxxxxx Xxxxx Mortgage Investors, Inc.,
as depositor ("Depositor") and U.S. Bank National Association, as trustee
("Trustee"). (the "Pooling and Servicing Agreement"), This letter agreement
constitutes the sole and complete "Confirmation," as referred to in the "ISDA
Master Agreement" (as defined below), as well as a "Schedule" as referred to in
the ISDA Master Agreement.
(1) This Confirmation is subject to the 2000 ISDA Definitions (the
"DEFINITIONS"), as published by the International Swaps and Derivatives
Association, Inc. ("ISDA"). Any reference to a "Swap Transaction" in the
Definitions is deemed to be a reference to a "Transaction" for purposes of
this Agreement, and any reference to a "Transaction" in this Agreement is
deemed to be a reference to a "Swap Transaction" for purposes of the
Definitions. This Confirmation shall supplement, form a part of, and be
subject to an agreement in the form of the ISDA Master Agreement
(Multicurrency - Cross Border) as published and copyrighted in 1992 by the
International Swaps and Derivatives Association, Inc. (the "ISDA MASTER
AGREEMENT"), as if Bear Xxxxxxx and Counterparty had executed an agreement
in such form on the date hereof, with a Schedule as set forth in Item 3 of
this Confirmation (the "SCHEDULE"), and an ISDA Credit Support Annex
(Bilateral Form - ISDA
U-1-1
Agreements Subject to New York Law Only version) as published and
copyrighted in 1994 by the International Swaps and Derivatives Association,
Inc., with Paragraph 13 thereof as set forth in Annex A hereto (the "CREDIT
SUPPORT ANNEX"). For the avoidance of doubt, the Transaction described
herein shall be the sole Transaction governed by such ISDA Master
Agreement. In the event of any inconsistency among any of the following
documents, the relevant document first listed shall govern: (i) this
Confirmation, exclusive of the provisions set forth in Item 3 hereof and
Annex A hereto; (ii) the Schedule; (iii) the Credit Support Annex; (iv) the
Definitions; and (v) the ISDA Master Agreement. Terms capitalized but not
defined herein shall have the meanings attributed to them in the Pooling
and Servicing Agreement.
Each reference herein to a "Section" (unless specifically referencing the
Pooling and Servicing Agreement or to a "Section" of this Agreement will be
construed as a reference to a Section of the ISDA Master Agreement; each
herein reference to a "Part" will be construed as a reference to Schedule;
each reference herein to a "Paragraph" will be construed as a reference to
a Paragraph of the Credit Support Annex.
(2) The terms of the particular Transaction to which this Confirmation relates
are as follows:
Notional Amount: With respect to any Calculation Period,
the amount set forth for such period on
Schedule I attached hereto.
Trade Date: April 16, 2007
Effective Date: October 25, 2007
Termination Date: April 25, 2012, subject to adjustment in
accordance with the Business Day
Convention; provided, however, that for
the purpose of determining the final Fixed
Rate Payer Period End Date, Termination
Date shall be subject to No Adjustment.
FIXED AMOUNT:
Fixed Rate Payer: Counterparty
Fixed Rate Payer
Period End Dates: The 25th calendar day of each month during
the Term of this Transaction, commencing
November 25, 2007 and ending on the
Termination Date, with No Adjustment.
Fixed Rate Payer
Payment Date: Early Payment shall be applicable. Two
Business Days prior to each Fixed Rate
Payer Period End Date.
Fixed Rate: 4.90000%
Fixed Rate Day
Count Fraction: 30/360
FLOATING AMOUNTS:
Floating Rate Payer: Bear Xxxxxxx
Floating Rate Payer
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Period End Dates: The 25th calendar day of each month during
the Term of this Transaction, commencing
November 25, 2007 and ending on the
Termination Date, subject to adjustment in
accordance with the Business Day
Convention.
Floating Rate Payer
Payment Dates: Early Payment shall be applicable. Two
Business Days prior to each Floating Rate
Payer Period End Date.
Floating Rate for initial
Calculation Period: To be determined.
Floating Rate Option: USD-LIBOR-BBA
Designated Maturity: One month
Floating Rate Day
Count Fraction: Actual/360
Reset Dates: The first day of each Calculation Period.
Compounding: Inapplicable
Business Days: New York, Oregon and Minnesota
Business Day
Convention: Following
Additional Amount: In connection with entering into this
Transaction, USD _______ is payable by
Xxxxxxx Xxxxx Mortgage Lending, Inc. to
Bear Xxxxxxx on April 24, 2007. The Fixed
Amounts for the Transactions identified by
the Bear Xxxxxxx Reference Numbers
FXNEC9428, FXNEC9429 and FXNEC9430 are
embedded in the determination of the
Additional Amount.
Calculation Agent: Bear Xxxxxxx
(3) Provisions Deemed Incorporated in a Schedule to the ISDA Master Agreement:
Part 1. Termination Provisions.
For purposes of the ISDA Master Agreement:
(p) "SPECIFIED ENTITY" will not apply to Bear Xxxxxxx or Counterparty for any
purpose.
(q) "SPECIFIED TRANSACTIONS" will not apply to Bear Xxxxxxx or Counterparty for
any purpose.
(r) The "FAILURE TO PAY OR DELIVER" provisions of Section 5(a)(i) will apply to
Bear Xxxxxxx and will apply to Counterparty; provided that notwithstanding
anything to the contrary in Section 5(a)(i) or Paragraph 7 of the Credit
Support Annex, any failure by Bear Xxxxxxx to comply with or perform any
obligation to be complied with or performed by Bear Xxxxxxx under the
Credit Support Annex shall
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not constitute an Event of Default under Section 5(a)(i) unless (A) a
Xxxxx'x Second Level Downgrade has occurred and been continuing for 30 or
more Local Business Days and (B) such failure is not remedied on or before
the third Local Business Day after notice of such failure is given to Bear
Xxxxxxx.
(s) The "BREACH OF AGREEMENT" provisions of Section 5(a)(ii) will apply to Bear
Xxxxxxx and will not apply to Counterparty.
(t) The "CREDIT SUPPORT DEFAULT" provisions of Section 5(a)(iii) will apply to
(x) Bear Xxxxxxx; provided that notwithstanding anything to the contrary in
Section 5(a)(iii)(1), any failure by Bear Xxxxxxx to comply with or perform
any obligation to be complied with or performed by Bear Xxxxxxx under the
Credit Support Annex shall not constitute an Event of Default under Section
5(a)(iii) unless (A) a Xxxxx'x Second Level Downgrade has occurred and been
continuing for 30 or more Local Business Days and (B) such failure is not
remedied on or before the third Local Business Day after notice of such
failure is given to Bear Xxxxxxx and (y) Counterparty solely in respect of
Counterparty's obligations under Paragraph 3(b) of the Credit Support
Annex.
(u) The "MISREPRESENTATION" provisions of Section 5(a)(iv) will apply to Bear
Xxxxxxx and will not apply to Counterparty.
(v) The "DEFAULT UNDER SPECIFIED TRANSACTION" provisions of Section 5(a)(v)
will not apply to Bear Xxxxxxx or Counterparty.
(w) The "CROSS DEFAULT" provisions of Section 5(a)(vi) will apply to Bear
Xxxxxxx and will not apply to Counterparty.
"SPECIFIED INDEBTEDNESS" will have the meaning specified in Section
14.
"THRESHOLD AMOUNT" means USD 100,000,000.
(x) The "BANKRUPTCY" provisions of Section 5(a)(vii) will apply to Bear Xxxxxxx
and will apply to Counterparty except that the provisions of Section
5(a)(vii)(2), (6) (to the extent that such provisions refer to any
appointment contemplated or effected by the Pooling and Servicing Agreement
or any appointment to which Counterparty has not become subject to), (7)
and (9) will not apply to Counterparty; provided that, with respect to
Counterparty only, Section 5(a)(vii)(4) is hereby amended by adding after
the words "against it" the words "(excluding any proceeding or petition
instituted or presented by Bear Xxxxxxx)", and Section 5(a)(vii)(8) is
hereby amended by deleting the words "to (7) inclusive" and inserting lieu
thereof ", (3), (4) as amended, (5) or (6) as amended".
(y) The "TAX EVENT UPON MERGER" provisions of Section 5(b)(iii) will apply to
Bear Xxxxxxx and will apply to Counterparty; provided that Bear Xxxxxxx
shall not be entitled to designate an Early Termination Date by reason of a
Tax Event upon Merger in respect of which it is the Affected Party.
(z) The "CREDIT EVENT UPON MERGER" provisions of Section 5(b)(iv) will not
apply to Bear Xxxxxxx or Counterparty.
(aa) The "AUTOMATIC EARLY TERMINATION" provision of Section 6(a) will not apply
to Bear Xxxxxxx or to Counterparty.
(bb) Payments on Early Termination. For the purpose of Section 6(e) of the ISDA
Master Agreement:
(1) Market Quotation will apply; and
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(2) the Second Method will apply;
provided that if Bear Xxxxxxx is the Defaulting Party or the sole
Affected Party, the following provisions will apply:
(A) Section 6(e) of the ISDA Master Agreement will be amended by
inserting on the first line "or is effectively designated" after
"If an Early Termination Date occurs";
(B) The definition of Market Quotation in Section 14 shall be
deleted in its entirety and replaced with the following:
"MARKET QUOTATION" means, with respect to one or more
Terminated Transactions, and a party making the
determination, an amount determined on the basis of Firm
Offers from Reference Market-makers that are Eligible
Replacements. Each Firm Offer will be (1) for an amount that
would be paid to Counterparty (expressed as a negative
number) or by Counterparty (expressed as a positive number)
in consideration of an agreement between Counterparty and
such Reference Market-maker to enter into a Replacement
Transaction and (2) made on the basis that Unpaid Amounts in
respect of the Terminated Transaction or group of
Transactions are to be excluded but, without limitation, any
payment or delivery that would, but for the relevant Early
Termination Date, have been required (assuming satisfaction
of each applicable condition precedent) after that Early
Termination Date is to be included. The party making the
determination (or its agent) will request each Reference
Market-maker to provide its Firm Offer to the extent
reasonably practicable as of the same day and time (without
regard to different time zones) on or as soon as reasonably
practicable after the designation or occurrence of the
relevant Early Termination Date. The day and time as of
which those Firm Offers are to be obtained will be selected
in good faith by the party obliged to make a determination
under Section 6(e), and, if each party is so obliged, after
consultation with the other. The Market Quotation shall be
the Firm Offer actually accepted by Counterparty no later
than the Business Day preceding the Early Termination Date.
If no Firm Offers are provided by the Business Day preceding
the Early Termination Date, it will be deemed that the
Market Quotation in respect of such Terminated Transaction
or group of Transactions cannot be determined.
(C) Counterparty shall use best efforts to accept a Firm Offer
that would determine the Market Quotation. If more than one Firm
Offer (which, if accepted, would determine the Market Quotation)
is provided, Counterparty shall accept the Firm Offer (among such
Firm Offers) which would require either (x) the lowest payment by
the Counterparty to the Reference Market-maker, to the extent
Counterparty would be required to make a payment to the Reference
Market-maker or (y) the highest payment from the Reference
Market-maker to Counterparty, to the extent the Reference
Market-maker would be required to make a payment to the
Counterparty. If only one Firm Offer (which, if accepted, would
determine the Market Quotation) is provided, Counterparty shall
accept such Firm Offer.
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(D) Upon the written request by Counterparty to Bear Xxxxxxx,
Bear Xxxxxxx shall obtain the Market Quotations on behalf of
Counterparty.
(E) If the Settlement Amount is a negative number, Section
6(e)(i)(3) of the ISDA Master Agreement shall be deleted in its
entirety and replaced with the following:
"(3) Second Method and Market Quotation. If the Second
Method and Market Quotation apply, (I) Counterparty shall
pay to Bear Xxxxxxx an amount equal to the absolute value of
the Settlement Amount in respect of the Terminated
Transactions, (II) Counterparty shall pay to Bear Xxxxxxx
the Termination Currency Equivalent of the Unpaid Amounts
owing to Bear Xxxxxxx and (III) Bear Xxxxxxx shall pay to
Counterparty the Termination Currency Equivalent of the
Unpaid Amounts owing to Counterparty; provided, however,
that (x) the amounts payable under the immediately preceding
clauses (II) and (III) shall be subject to netting in
accordance with Section 2(c) of this Agreement and (y)
notwithstanding any other provision of this Agreement, any
amount payable by Bear Xxxxxxx under the immediately
preceding clause (III) shall not be netted-off against any
amount payable by Counterparty under the immediately
preceding clause (I)."
(cc) "TERMINATION CURRENCY" means United States Dollars.
(dd) ADDITIONAL TERMINATION EVENTS. Additional Termination Events will apply:
(i) If, upon the occurrence of a Swap Disclosure Event (as defined in
Part 5(l)(ii) below) Bear Xxxxxxx has not, within ten (10)
calendar days after such Swap Disclosure Event complied with any
of the provisions set forth in Part 5 (l) below, then an
Additional Termination Event shall have occurred with respect to
Bear Xxxxxxx, Bear Xxxxxxx shall be the sole Affected Party and
all Transactions hereunder shall be Affected Transaction.
(ii) If, without the prior written consent of Bear Xxxxxxx where
such consent is required under the Pooling and Servicing
Agreement, an amendment or supplemental agreement is made to
the Pooling and Servicing Agreement which amendment or
supplemental agreement could reasonably be expected to have
a material adverse effect on the interests of Bear Xxxxxxx
under this Agreement, an Additional Termination Event shall
have occurred with respect to Counterparty, Counterparty
shall be the sole Affected Party and all Transactions
hereunder shall be Affected Transaction.
(iii) If the Supplemental Interest Trust Trustee is unable to
pay, or fails or admits in writing its inability to pay, on
any Distribution Date, any distributions with respect to the
Class A Certificates or of the ultimate payment of principal
with respect to the Class A Certificates, in either case to
the extent required pursuant to the terms of the Pooling and
Servicing Agreement to be paid to the Class A Certificates
on such Distribution Date, then an Additional Termination
Event shall have occurred with respect to Counterparty,
Counterparty shall be the sole Affected Party and all
Transactions hereunder shall be Affected Transaction.
(iv) (A) If a S&P First Level Downgrade has occurred and is
continuing and Bear Xxxxxxx fails to take any action
described under Part (5)(f)(i)(1), within the time
period specified therein, then an Additional
Termination Event shall have occurred with respect to
Bear Xxxxxxx, Bear Xxxxxxx shall be the sole
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Affected Party with respect to such Additional
Termination Event and all Transactions hereunder shall
be Affected Transaction.
(C) If a S&P Second Level Downgrade has occurred and is
continuing and Bear Xxxxxxx fails to take any action
described under Part (5)(f)(i)(2) within the time
period specified therein, then an Additional
Termination Event shall have occurred with respect to
Bear Xxxxxxx, Bear Xxxxxxx shall be the sole Affected
Party with respect to such Additional Termination Event
and all Transactions hereunder shall be Affected
Transaction.
(C) If (A) a Xxxxx'x Second Level Downgrade has not
occurred and been continuing for 30 or more Local
Business Days and (B) Bear Xxxxxxx has failed to comply
with or perform any obligation to be complied with or
performed by Bear Xxxxxxx in accordance with the Credit
Support Annex, then an Additional Termination Event
shall have occurred with respect to Bear Xxxxxxx and
Bear Xxxxxxx shall be the sole Affected Party with
respect to such Additional Termination Event.
(D) If (A) a Xxxxx'x Second Level Downgrade has occurred
and been continuing for 30 or more Local Business Days
and (B) either (i) at least one Eligible Replacement
has made a Firm Offer to be the transferee or (ii) at
least one entity that satisfies the Xxxxx'x Approved
Ratings Threshold has made a Firm Offer to provide an
Eligible Guaranty in respect of all of Bear Xxxxxxx'
present and future obligations under this Agreement,
then an Additional Termination Event shall have
occurred with respect to Bear Xxxxxxx, Bear Xxxxxxx
shall be the sole Affected Party with respect to such
Additional Termination Event and all Transactions
hereunder shall be Affected Transaction.
(v) Either of (1) the acceptance of a bid in connection with an
Auction Termination pursuant to Section 9.01 of the Pooling
and Servicing Agreement or (2) the deposit by either the
NIMS Insurer or the Servicer of the Clean Up Call Price
shall constitute an Additional Termination Event with
respect to Counterparty with Counterparty as the sole
Affected Party with respect to such Additional Termination
Event; provided that notwithstanding anything in the first
sentence of Section 6(d)(ii) of the ISDA Master Agreement to
the contrary, the amount calculated as being due in respect
of such Additional Termination Event shall be payable on the
Distribution Date upon which the final distribution is made
to the Certificateholders.
Part 2. Tax Matters.
(c) Tax Representations.
(i) Payer Representations. For the purpose of Section 3(e) of the ISDA
Master Agreement, each of Bear Xxxxxxx and the Counterparty will make the
following representations:
It is not required by any applicable law, as modified by the practice of
any relevant governmental revenue authority, of any Relevant Jurisdiction
to make any deduction or withholding for or on account of any Tax from any
payment (other than interest under Section 2(e), 6(d)(ii) or 6(e) of the
ISDA Master Agreement) to be made by it to the other party under this
Agreement. In making this representation, it may rely on:
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(1) the accuracy of any representations made by the other party
pursuant to Section 3(f) of the ISDA Master Agreement;
(2) the satisfaction of the agreement contained in Sections 4(a)(i)
and 4(a)(iii) of the ISDA Master Agreement and the accuracy and
effectiveness of any document provided by the other party pursuant to
Sections 4(a)(i) and 4(a)(iii) of the ISDA Master Agreement; and
(3) the satisfaction of the agreement of the other party contained in
Section 4(d) of the ISDA Master Agreement, provided that it shall not
be a breach of this representation where reliance is placed on clause
(ii) and the other party does not deliver a form or document under
Section 4(a)(iii) of the ISDA Master Agreement by reason of material
prejudice to its legal or commercial position.
(ii) Payee Representations. For the purpose of Section 3(f) of the ISDA
Master Agreement, each of Bear Xxxxxxx and the Counterparty make the
following representations.
The following representation will apply to Bear Xxxxxxx:
Bear Xxxxxxx is a corporation organized under the laws of the State of
Delaware and its U.S. taxpayer identification number is 00-0000000.
The following representation will apply to the Counterparty:
U.S. Bank National Association represents that it is the Supplemental
Interest Trust Trustee pursuant to the Pooling and Servicing Agreement.
(d) Tax Provisions.
Notwithstanding the definition of "Indemnifiable Tax" in Section 14 of this
Agreement, all Taxes in relation to payments by Bear Xxxxxxx shall be
Indemnifiable Taxes (including any Tax imposed in respect of a Credit
Support Document) unless (i) such Taxes are assessed directly against
Counterparty and not by deduction or withholding by Bear Xxxxxxx or (ii)
arise as a result of a Change in Tax Law (in which case such Tax shall be
an Indemnifiable Tax only if such Tax satisfies the definition of
Indemnifiable Tax provided in Section 14). In relation to payments by
Counterparty, no Tax shall be an Indemnifiable Tax.
Part 3. AGREEMENT TO DELIVER DOCUMENTS. For the purpose of Section 4(a) of the
ISDA Master Agreement:
(i) Tax forms, documents, or certificates to be delivered are:
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PARTY REQUIRED TO FORM/DOCUMENT/ DATE BY WHICH TO
DELIVER DOCUMEN CERTIFICATE BE DELIVERED
----------------- ----------------------------------- ----------------------------------------------------
Bear Xxxxxxx An original properly completed and (i) upon execution of this Agreement, (ii) on or
executed United States Internal before the first payment date under this Agreement,
Revenue Service Form W-9 (or any including any Credit Support Document, (iii)
successor thereto) with respect to promptly upon the reasonable demand by Counterparty,
any payments received or to be (iv) prior to the expiration or obsolescence of any
received by Bear Xxxxxxx, that previously delivered form, and (v) promptly upon the
eliminates U.S. federal withholding information on any such previously delivered form
and backup withholding Tax on becoming inaccurate or incorrect.
payments to Bear Xxxxxxx under this
Agreement.
Counterparty An original properly completed and (i) on or before the first payment date under this
executed United States Internal Agreement, including any Credit Support Document,
Revenue Service Form W-9 (or any (ii) promptly upon the reasonable demand by Bear
successor thereto) with respect to Xxxxxxx, (iii) prior to the expiration or
any payments received or to be obsolescence of any previously delivered form, and
received by Counterparty. (iv) promptly upon the information on any such
previously delivered form becoming inaccurate or
incorrect.
(ii) Other documents to be delivered are:
PARTY REQUIRED TO FORM/DOCUMENT/ DATE BY WHICH TO COVERED BY SECTION 3(d)
DELIVER DOCUMENT CERTIFICATE BE DELIVERED REPRESENTATION
----------------- ------------------------------------ ----------------------------- -----------------------
Bear Xxxxxxx and Any documents required by the Upon the execution and Yes
the Counterparty receiving party to evidence the delivery of this Agreement
authority of the delivering party or and such Confirmation
its Credit Support Provider, if any,
for it to execute and deliver this
Agreement, any Confirmation, and any
Credit Support Documents to which it
is a party, and to evidence the
authority of the delivering party or
its Credit Support Provider to
perform its obligations under this
Agreement, such Confirmation and/or
Credit Support Document, as the case
may be
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PARTY REQUIRED TO FORM/DOCUMENT/ DATE BY WHICH TO COVERED BY SECTION 3(d)
DELIVER DOCUMENT CERTIFICATE BE DELIVERED REPRESENTATION
----------------- ------------------------------------ ----------------------------- -----------------------
Bear Xxxxxxx and A certificate of an authorized Upon the execution and Yes
the Counterparty officer of the party, as to the delivery of this Agreement
incumbency and authority of the and such Confirmation
respective officers of the party
signing this Agreement, any relevant
Credit Support Document, or any
Confirmation, as the case may be
Bear Xxxxxxx and An opinion of counsel of such party Upon the execution and No
the Counterparty regarding the enforceability of this delivery of this Agreement
Agreement in a form reasonably
satisfactory to the other party.
Counterparty An executed copy of the Pooling and Concurrently with filing of No
Servicing Agreement each draft of the Pooling and
Servicing Agreement with the
U.S. Securities and Exchange
Commission
Part 4 Miscellaneous.
(a) ADDRESS FOR NOTICES: For the purposes of Section 12(a) of the ISDA Master
Agreement:
Address for notices or communications to Bear Xxxxxxx:
Address: 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
Attention: DPC Manager
Facsimile: (000) 000-0000
with a copy to:
Address: Xxx Xxxxxxxxx Xxxxxx Xxxxx, Xxxxxxxx, Xxx Xxxx 00000
Attention: Derivative Operations - 7th Floor
Facsimile: (000) 000-0000
(For all purposes)
Address for notices or communications to the Counterparty:
Address: U.S. Bank National Association, Trustee
Mail Code: EP-MN-WS3D
Xx. Xxxx, XX 00000
Attention: Structured Finance - SURF 2007-BC2
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Facsimile: 000-000-0000
Phone: 000-000-0000
with a copy to:
Address: Xxxxxxx Xxxxx Mortgage Lending, Inc.
000 Xxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxxxxx
Facsimile: 000-000-0000
Phone: 000-000-0000
(For all purposes)
(b) Account Details and Settlement Information:
PAYMENTS TO BEAR XXXXXXX:
Citibank, N.A., New York
ABA Number: 000-0000-00, for the account of
Bear, Xxxxxxx Securities Corp.
Account Number: 0925-3186, for further credit to
Bear Xxxxxxx Financial Products Inc.
Sub-account Number: 102-04654-1-3
Attention: Derivatives Department
PAYMENTS TO COUNTERPARTY:
U.S. Bank National Association
ABA Number: 000000000
Account Number: 1731-0332-2058
Account Name: SURF 2007-BC2
Reference Account Number: 112142000/SURF 2007-BC2
(c) PROCESS AGENT. For the purpose of Section 13(c) of the ISDA Master
Agreement:
Bear Xxxxxxx appoints as its
Process Agent: Not Applicable
The Counterparty appoints as its
Process Agent: Not Applicable
(d) OFFICES. The provisions of Section 10(a) of the ISDA Master Agreement will
not apply to this Agreement; neither Bear Xxxxxxx nor the Counterparty have
any Offices other than as set forth in the Notices Section.
(e) MULTIBRANCH PARTY. For the purpose of Section 10(c) of the ISDA Master
Agreement:
Bear Xxxxxxx is not a Multibranch Party.
The Counterparty is not a Multibranch Party.
(f) CREDIT SUPPORT DOCUMENT.
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Bear Xxxxxxx: The Credit Support Annex and any guaranty in support of
Bear Xxxxxxx' obligations under this Agreement.
Counterparty: The Credit Support Annex.
(g) CREDIT SUPPORT PROVIDER.
Bear Xxxxxxx: The guarantor under any guaranty in support of Bear
Xxxxxxx' obligations under this Agreement.
Counterparty: Not Applicable
(h) GOVERNING LAW. The parties to this Agreement hereby agree that the law of
the State of New York shall govern their rights and duties in whole,
without regard to the conflict of law provisions thereof other than New
York General Obligations Law Sections 5-1401 and 5-1402.
(i) JURISDICTION. Section 13(b) is hereby amended by: (i) deleting in the
second line of subparagraph (i) thereof the word "non-", (ii) deleting ";
and" from the end of subparagraph 1 and inserting "." in lieu thereof, and
(iii) deleting the final paragraph thereof.
(j) "AFFILIATE": Bear Xxxxxxx and Counterparty shall be deemed not to have any
Affiliates for purposes of this Agreement, including for purposes of
Section 6(b)(ii) of the ISDA Master Agreement.
(k) NETTING OF PAYMENTS. The parties agree that subparagraph (ii) of Section
2(c) of the ISDA Master Agreement will apply to each Transaction.
Part 5. OTHER PROVISIONS.
(a) Section 3 of the ISDA Master Agreement is hereby amended by adding at the
end thereof the following subsection (g):
"(g) Relationship Between Parties.
Each party represents to the other party on each date when it enters
into a Transaction that:
(1) Nonreliance. (i) It is acting for its own account, (ii) it is not
relying on any statement or representation of the other party
regarding the Transaction (whether written or oral), other than the
representations expressly made in this Agreement or the Confirmation
in respect of that Transaction and (iii) it has consulted with its own
legal, regulatory, tax, business, investment, financial and accounting
advisors to the extent it has deemed necessary, (iv) it has made its
own investment, hedging and trading decisions based upon its own
judgment and upon any advice from such advisors as it has deemed
necessary and not upon any view expressed by the other party, (v) it
has made its own independent decisions to enter into the Transaction
and as to whether the Transaction is appropriate or proper for it
based upon its own judgment and upon advice from such advisors as it
has deemed necessary, (vi) it is not relying on any communication
(written or oral) of the other party as investment advice or as a
recommendation to enter into this Transaction; it being understood
that information and
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explanations related to the terms and conditions of this Transaction
shall not be considered investment advice or a recommendation to enter
into this Transaction and (vii) it has not received from the other
party any assurance or guaranty as to the expected results of this
Transaction.
(2) Evaluation and Understanding.
(i) It has the capacity to evaluate (internally or through
independent professional advice) the Transaction and has
made its own decision to enter into the Transaction; and
(ii) It understands the terms, conditions and risks of the
Transaction and is willing and able to accept those terms
and conditions and to assume those risks, financially and
otherwise.
(3) Purpose. It is entering into the Transaction for the purposes of
managing its borrowings or investments, hedging its underlying assets
or liabilities or in connection with a line of business.
(4) Status of Parties. The other party is not acting as an agent,
fiduciary or advisor for it in respect of the Transaction.
(5) Eligible Contract Participant. It constitutes an "eligible contract
participant" as such term is defined in Section 1(a)12 of the
Commodity Exchange Act, as amended.
(6) Line of Business. It has entered into this Agreement (including each
Transaction governed hereby) in conjunction with its line of business
or the financing of its business."
(b) NON-RECOURSE. Notwithstanding any provision herein or in the ISDA Master
Agreement to the contrary, the obligations of Counterparty hereunder are limited
recourse obligations of Counterparty, payable solely from the Swap Account and
the proceeds thereof, in accordance with the terms of the Pooling and Servicing
Agreement. In the event that the Swap Account and proceeds thereof should be
insufficient to satisfy all claims outstanding and following the realization of
the Swap Account and the proceeds thereof, any claims against or obligations of
Counterparty under the ISDA Master Agreement or any other confirmation
thereunder still outstanding shall be extinguished and thereafter not revive.
The Supplemental Interest Trust Trustee shall not have liability for any failure
or delay in making a payment hereunder to Bear Xxxxxxx due to any failure or
delay in receiving amounts in the Swap Account from the Trust created pursuant
to the Pooling and Servicing Agreement.
(c) SEVERABILITY. If any term, provision, covenant, or condition of this
Agreement, or the application thereof to any party or circumstance, shall be
held to be invalid or unenforceable (in whole or in part) for any reason, the
remaining terms, provisions, covenants, and conditions hereof shall continue in
full force and effect as if this Agreement had been executed with the invalid or
unenforceable portion eliminated, so long as this Agreement as so modified
continues to express, without material change, the original intentions of the
parties as to the subject matter of this Agreement and the deletion of such
portion of this Agreement will not substantially impair the respective benefits
or expectations of the parties.
The parties shall endeavor to engage in good faith negotiations to replace any
invalid or unenforceable term, provision, covenant or condition with a valid or
enforceable term, provision, covenant or condition, the economic effect of which
comes as close as possible to that of the invalid or unenforceable term,
provision, covenant or condition.
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(d) CONSENT TO RECORDING. Each party hereto consents to the monitoring or
recording, at any time and from time to time, by the other party of any and all
communications between officers or employees of the parties, waives any further
notice of such monitoring or recording, and agrees to notify its officers and
employees of such monitoring or recording.
(e) WAIVER OF JURY TRIAL. Each party waives any right it may have to a trial by
jury in respect of any Proceedings relating to this Agreement or any Credit
Support Document.
(f) RATING AGENCY DOWNGRADE.
(i) S&P Downgrade:
(1) In the event that a S&P First Level Downgrade occurs and is
continuing, then within 30 days after such rating downgrade, Bear
Xxxxxxx shall, subject to the Rating Agency Condition with
respect to S&P, at its own expense, either (i) procure a
Permitted Transfer, (ii) obtain an Eligible Guaranty or (iii)
post collateral in accordance with the Credit Support Annex.
(2) In the event that a S&P Second Level Downgrade occurs and is
continuing, then within 10 Local Business Days after such rating
withdrawal or downgrade, Bear Xxxxxxx shall, subject to the
Rating Agency Condition with respect to S&P, at its own expense,
either (i) procure a Permitted Transfer or (ii) obtain an
Eligible Guaranty.
(ii) Xxxxx'x Downgrade.
(1) In the event that a Xxxxx'x Second Level Downgrade occurs and is
continuing, Bear Xxxxxxx shall as soon as reasonably practicable
thereafter, at its own expense and using commercially reasonable
efforts, either (i) procure a Permitted Transfer or (ii) obtain
an Eligible Guaranty.
(g) PAYMENT INSTRUCTIONS. Bear Xxxxxxx hereby agrees that, unless notified in
writing by the Supplemental Interest Trust Trustee of other payment
instructions, any and all amounts payable by Bear Xxxxxxx to the Counterparty
under this Agreement shall be paid to the Supplemental Interest Trust Trustee at
the account specified herein.
(h) AMENDMENT. No amendment, waiver, supplement or other modification of this
Transaction shall be permitted by either party unless (i) each of S&P and
Xxxxx'x have been provided notice of the same and (ii) such amendment, waiver,
supplement, assignment or other modification satisfies the Rating Agency
Condition.
(i) TRANSFER.
(i) The first paragraph of Section 7 is hereby amended in its entirety
as follows:
"Subject to Section 6(b)(ii), Part 5(f) and Part 5(j), neither
this Agreement nor any interest or obligation in or under this
Agreement may be transferred (whether by way of security or
otherwise) without (a) the prior written consent of the other
party (which consent shall be deemed given by Counterparty if the
transfer, novation or assignment is to an Eligible Replacement)
and (b) satisfaction of the Rating Agency Condition with respect
to S&P, except that:"
(ii) If an entity has made a Firm Offer (which remains an offer that
will become legally binding upon acceptance by Counterparty) to be the
transferee of a transfer, Counterparty shall, at Bear Xxxxxxx' written
request and at Bear Xxxxxxx' expense, take any reasonable steps
required to be taken by Counterparty to effect such transfer.
U-1-14
(j) TRANSFER TO AVOID TERMINATION EVENT. Section 6(b)(ii) is hereby amended by
(i) deleting the words "or if a Tax Event Upon Merger occurs and the Burdened
Party is the Affected Party," and (ii) deleting the last paragraph thereof and
inserting the following:
"Notwithstanding anything to the contrary in Section 7 (as amended
herein) and Part 5(i), any transfer by Bear Xxxxxxx under this Section
6(b)(ii) shall not require the consent of Counterparty; provided that:
(i) the transferee (the "Transferee") is an Eligible Replacement;
(ii) if the Transferee is domiciled in a different country or
political subdivision thereof from both Bear Xxxxxxx and
Counterparty, such transfer satisfies the Rating Agency
Condition;
(iii) the Transferee will not, as a result of such transfer, be
required on the next succeeding Scheduled Payment Date to
withhold or deduct on account of any Tax (except in respect of
default interest) amounts in excess of that which Bear Xxxxxxx
would, on the next succeeding Scheduled Payment Date have been
required to so withhold or deduct unless the Transferee would be
required to make additional payments pursuant to Section 2(d)
(i)(4) corresponding to such excess;
(iv) a Termination Event or Event of Default does not occur as a
result of such transfer; and
(v) the Transferee confirms in writing that it will accept all of
the interests and obligations in and under this Agreement which
are to be transferred to it in accordance with the terms of this
provision.
On and from the effective date of any such transfer to the Transferee,
Bear Xxxxxxx will be fully released from any and all obligations
hereunder."
(k) PROCEEDINGS. Bear Xxxxxxx shall not institute against or cause any other
person to institute against, or join any other person in instituting against,
the Supplemental Interest Trust Trustee or Supplemental Interest Trust or the
trust created pursuant to the Pooling and Servicing Agreement, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or other
proceedings under any federal or state bankruptcy, dissolution or similar law,
for a period of one year and one day (or, if longer, the applicable preference
period) following indefeasible payment in full of the Specialty Underwriting and
Residential Finance Trust, Series 2007-BC2 Mortgage Loan Asset-Backed
Certificates (the "Certificates").
(l) COMPLIANCE WITH REGULATION AB.
(i) Bear Xxxxxxx agrees and acknowledges that Xxxxxxx Xxxxx Mortgage
Investors, Inc. (the "DEPOSITOR") is required under Regulation AB as
defined under the Pooling and Servicing Agreement, to disclose
certain financial information regarding Bear Xxxxxxx or its group of
affiliated entities, if applicable, depending on the aggregate
"significance percentage" of this Agreement and any other derivative
contracts between Bear Xxxxxxx or its group of affiliated entities,
if applicable, and Counterparty, as calculated from time to time in
accordance with Item 1115 of Regulation AB.
(ii) It shall be a swap disclosure event ("SWAP DISCLOSURE EVENT") if, on
any Business Day after the date hereof, the Depositor requests from
Bear Xxxxxxx the applicable financial information described in Item
1115 of Regulation AB (such request to be based on a reasonable
determination by Depositor, in good faith, that such information is
required under Regulation AB) (the "SWAP FINANCIAL DISCLOSURE").
U-1-15
(iii) Upon the occurrence of a Swap Disclosure Event, Bear Xxxxxxx, within
10 calendar days, at its own expense, shall (1)(a) either (i) provide
to Depositor the current Swap Financial Disclosure in an
XXXXX-compatible format (for example, such information may be
provided in Microsoft Word(R) or Microsoft Excel(R) format but not in
.pdf format) or (ii) provide written consent to Depositor to
incorporation by reference of such current Swap Financial Disclosure
that are filed with the Securities and Exchange Commission in the
reports of the Trust filed pursuant to the Exchange Act, (b) if
applicable, cause its outside accounting firm to provide its consent
to filing or incorporation by reference of such accounting firm's
report relating to their audits of such current Swap Financial
Disclosure in the Exchange Act Reports of the Depositor, and (c)
provide to the Depositor any updated Swap Financial Disclosure with
respect to Bear Xxxxxxx or any entity that consolidates Bear Xxxxxxx
within five days of the release of any such updated Swap Financial
Disclosure; (2) secure another entity to replace Bear Xxxxxxx as
party by way of Permitted Transfer, to this Agreement on terms
substantially similar to this Agreement, which entity (or a guarantor
therefor) meets or exceeds the Xxxxx'x Approved Ratings Thresholds
and S&P Approved Ratings Threshold and which satisfies the Rating
Agency Condition and which entity is able to comply with the
requirements of Item 1115 of Regulation AB, or (3) obtain a guaranty
of Bear Xxxxxxx' obligations under this Agreement from an affiliate
of Bear Xxxxxxx that is able to comply with the financial information
disclosure requirements of Item 1115 of Regulation AB, and cause such
affiliate to provide Swap Financial Disclosure and any future Swap
Financial Disclosure, such that disclosure provided in respect of
such affiliate will satisfy any disclosure requirements applicable to
the Swap Provider.
(iv) Bear Xxxxxxx agrees that, in the event that Bear Xxxxxxx provides
Swap Financial Disclosure to Depositor in accordance with Part
5(l)(iii)(1) or causes its affiliate to provide Swap Financial
Disclosure to Depositor in accordance with clause Part 5(l)(iii)(3),
it will indemnify and hold harmless Depositor, its respective
directors or officers and any person controlling Depositor, from and
against any and all losses, claims, damages and liabilities caused by
any untrue statement or alleged untrue statement of a material fact
contained in such Swap Financial Disclosure or caused by any omission
or alleged omission to state in such Swap Financial Disclosure a
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they
were made, not misleading.
(v) If Supplemental Interest Trust Trustee and Depositor reasonably
requests, Bear Xxxxxxx shall provide such other information as may be
necessary for Depositor to comply with Item 1115 of Regulation AB.
(vi) Each of the Supplemental Interest Trust Trustee and Depositor shall
be an express third party beneficiary of this Agreement as if a party
hereto to the extent of the Supplemental Interest Trust Trustee's and
the Depositor's rights explicitly specified in this Part 5(l).
(m) SUPPLEMENTAL INTEREST TRUST TRUSTEE LIABILITY LIMITATIONS. It is expressly
understood and agreed by the parties hereto that:
(i) this Agreement is executed and delivered by U.S. Bank National
Association ("U.S. Bank"), not individually or personally but solely
as Supplemental Interest Trust Trustee on behalf of the Supplemental
Interest Trust with respect to Specialty Underwriting and Residential
Finance Trust, Series 2007-BC2;
(ii) each of the representations, undertakings and agreements herein made
on the part of the Counterparty is made and intended not as a
personal representation, undertaking or agreement of U.S. Bank but is
made and intended for the purpose of binding only the Counterparty;
(iii) nothing herein contained shall be construed as imposing any liability
upon U.S. Bank, individually or personally, to perform any covenant
either expressed or implied contained herein, all such liability, if
U-1-16
any, being expressly waived by the parties hereto and by any Person
claiming by, through or under the parties hereto; provided that
nothing in this paragraph shall relieve Supplemental Interest Trust
Trustee from performing its duties and obligations under the Pooling
and Servicing Agreement in accordance with the standard of care set
forth therein;
(iv) under no circumstances shall Supplemental Interest Trust Trustee be
personally liable for the payment of any indebtedness or expenses of
the Counterparty or be liable for the breach or failure of any
obligation, representation, warranty or covenant made or undertaken
by the Counterparty under this Agreement or any other related
documents, other than due to its negligence or willful misconduct in
performing the obligations of the Supplemental Interest Trust Trustee
under the Pooling and Servicing Agreement;
(v) any resignation or removal of the Supplemental Interest Trust Trustee
as trustee on behalf of the Supplemental Interest Trust with respect
to Specialty Underwriting and Residential Finance Trust, Series
2007-BC2 shall require the assignment of this agreement to an
eligible replacement;
(vi) The Supplemental Interest Trust Trustee has entered into this
Agreement solely because it has been directed to enter into this
agreement pursuant to the Pooling and Servicing Agreement.
(vii) The Supplemental Interest Trust Trustee has been directed, pursuant
to the Pooling and Servicing Agreement, to enter into this Agreement
and to perform its obligations hereunder
(n) SUBSTANTIAL FINANCIAL TRANSACTION. Each party hereto is hereby advised and
acknowledges that the other party has engaged in (or refrained from engaging in)
substantial financial transactions and has taken (or refrained from taking)
other material actions in reliance upon the entry by the parties into the
Transaction being entered into on the terms and conditions set forth herein and
in the Confirmation relating to such Transaction, as applicable. This paragraph
shall be deemed repeated on the trade date of each Transaction.
(o) SET-OFF. Except as expressly provided for in Section 2(c), Section 6 or Part
1(m)(E) hereof, and notwithstanding any other provision of this Agreement or any
other existing or future agreement, each party irrevocably waives any and all
rights it may have to set off, net, recoup or otherwise withhold or suspend or
condition payment or performance of any obligation between it and the other
party hereunder against any obligation between it and the other party under any
other agreements. Section 6(e) shall be amended by deleting the following
sentence: "The amount, if any, payable in respect of an Early Termination Date
and determined pursuant to this Section will be subject to any Set-off."
(p) COUNTERPARTS. This Agreement may be executed in several counterparts, each
of which shall be deemed an original but all of which together shall constitute
one and the same instrument.
(q) ADDITIONAL DEFINED TERMS.
(i) Capitalized terms used but nor defined herein shall have the meanings
ascribed to such terms in the Pooling and Servicing Agreement.
(ii) Additional Definitions:
"ELIGIBLE GUARANTY" means an unconditional and irrevocable
guaranty of all present and future payment obligations and obligations
to post collateral of Bear Xxxxxxx or an
U-1-17
Eligible Replacement to Counterparty under this Agreement that is
provided by an Eligible Guarantor as principal debtor rather than
surety and that is directly enforceable by Counterparty, the form and
substance of which guaranty are subject to the Rating Agency Condition
with respect to S&P.
"ELIGIBLE GUARANTOR" means an entity that has credit ratings
at least equal to the Moody's Required Ratings Threshold and S&P
Approved Ratings Threshold.
"ELIGIBLE REPLACEMENT" means an entity that either (i)
satisfies the S&P Approved Ratings Threshold and the Moody's Required
Ratings Threshold or (ii) provides an Eligible Guaranty from an
Eligible Guarantor.
"FIRM OFFER" means an offer which, when made, is capable of becoming
legally binding upon acceptance.
"MOODY'S" means Xxxxx'x Investors Service, Inc., or any
successor.
"MOODY'S APPROVED RATINGS THRESHOLD" means, with respect to
(i) Bear Xxxxxxx, a Moody's counterparty rating of "A1" or above and
(ii) with respect to any other entity (or its guarantor), (x) if such
entity has both a long-term unsecured and unsubordinated debt rating
or counterparty rating from Moody's and a short-term unsecured and
unsubordinated debt rating from Moody's, a long-term unsecured and
unsubordinated debt rating or counterparty rating from Moody's of "A2"
or above and a short-term unsecured and unsubordinated debt rating
from Moody's of "Prime-1" or above, or (y) if such entity has only a
long-term unsecured and unsubordinated debt rating or counterparty
rating from Moody's, a long-term unsecured and unsubordinated debt
rating or counterparty rating from Moody's of "A1" or above.
"MOODY'S FIRST LEVEL DOWNGRADE" means that no Relevant Entity
satisfies the Moody's Approved Rating Threshold.
U-1-18
"MOODY'S REQUIRED RATINGS THRESHOLD" means, with respect to
(i) Bear Xxxxxxx, a counterparty rating of "A3" or above and (ii) with
respect to any other entity (or its guarantor), (x) if such entity has
both a long-term unsecured and unsubordinated debt rating or
counterparty rating from Moody's and a short-term unsecured and
unsubordinated debt rating from Moody's, a long-term unsecured and
unsubordinated debt rating or counterparty rating from Moody's of "A3"
or above or a short-term unsecured and unsubordinated debt rating from
Moody's of "Prime-2" or above, or (y) if such entity has only a
long-term unsecured and unsubordinated debt rating or counterparty
rating from Moody's, a long-term unsecured and unsubordinated debt
rating or counterparty rating from Moody's of "A3" or above.
"MOODY'S SECOND LEVEL DOWNGRADE" means that no Relevant Entity
satisfies the Moody's Required Ratings Threshold.
"PERMITTED TRANSFER" means a transfer by novation by Bear Xxxxxxx to
an entity (the "TRANSFEREE") of all, but not less than all, of Bear
Xxxxxxx' rights, liabilities, duties and obligations under this
Agreement, with respect to which transfer each of the following
conditions is satisfied: (a) the Transferee is an Eligible Replacement
that is a recognized dealer in interest rate swaps organized under the
laws of the United States of America or a jurisdiction located in the
United States of America (or another jurisdiction reasonably
acceptable to Counterparty), (b) an Event of Default or Termination
Event would not occur as a result of such transfer, (c) pursuant to a
written instrument (the "TRANSFER AGREEMENT"), the Transferee acquires
and assumes all rights and obligations of Bear Xxxxxxx under the
Agreement and the relevant Transaction, (d) Bear Xxxxxxx will be
responsible for any costs or expenses incurred in connection with such
transfer (including any replacement cost of entering into a
replacement transaction); (e) either (A) Moody's has been given prior
written notice of such transfer and the Rating Agency Condition is
satisfied with respect to S&P or (B) each Rating Agency has been given
prior written notice of such transfer and such transfer is in
connection with the assignment and assumption of this Agreement
without modification of its terms, other than party names, dates
relevant to the effective date of such transfer, tax representations
and any other representations regarding the status of the substitute
counterparty, notice information and account details and other similar
provisions; and (f) such transfer otherwise complies with the terms of
the Pooling and Servicing Agreement.
"RATING AGENCY" means each of Moody's and S&P.
"RATING AGENCY CONDITION" means, with respect to any particular
proposed act or omission to act hereunder that the party acting or
failing to act must consult with each Rating Agency then providing a
rating of the Certificates receive from each such Rating Agency a
prior written confirmation that the proposed action or inaction would
not cause a downgrade or withdrawal of its then-current rating of the
Certificates.
"RELEVANT ENTITY" means Bear Xxxxxxx and any Eligible Guarantor under
an Eligible Guaranty with respect to Bear Xxxxxxx.
U-1-19
"REPLACEMENT TRANSACTION" means, with respect to any
Terminated Transaction or group of Terminated Transactions, a
transaction or group of transactions that (i) would have the effect of
preserving for Counterparty the economic equivalent of any payment or
delivery (whether the underlying obligation was absolute or contingent
and assuming the satisfaction of each applicable condition precedent)
by the parties under Section 2(a)(i) in respect of such Terminated
Transaction or group of Terminated Transactions that would, but for
the occurrence of the relevant Early Termination Date, have been
required after that Date, and (ii) has terms which are substantially
the same as this Agreement, including, without limitation, rating
triggers, Regulation AB compliance, and credit support documentation,
as determined by Counterparty in its sole discretion, acting in a
commercially reasonable manner.
"S&P" means Standard & Poor's, a division of The XxXxxx-Xxxx
Companies, Inc.
"S&P APPROVED RATINGS THRESHOLD" means with respect to (i) Bear
Xxxxxxx, a counterparty rating of "A+" or above and (ii) with respect
to any other entity (or its guarantor), a short-term unsecured and
unsubordinated debt rating from S&P of "A-1" or above, or, if such
entity does not have a short-term unsecured and unsubordinated debt
rating from S&P, a long-term unsecured and unsubordinated debt rating
from S&P of "A+ or above.
"S&P FIRST LEVEL DOWNGRADE" means that no Relevant Entity satisfies
the S&P Approved Rating Threshold.
"S&P REQUIRED RATINGS THRESHOLD" means with respect to (i) Bear
Xxxxxxx, a counterparty rating of "BBB" or above and (ii) with respect
to any other entity (or its guarantor), a long-term unsecured and
unsubordinated debt rating from S&P of "BBB-" or above.
"S&P SECOND LEVEL DOWNGRADE" means that no Relevant Entity satisfies
the S&P Required Rating Thresholds.
(r) AGENT FOR COUNTERPARTY. Bear Xxxxxxx acknowledges that Counterparty has
appointed Supplemental Interest Trust Trustee as its agent under Pooling and
Servicing Agreement to carry out certain functions on behalf of Counterparty,
and that the Supplemental Interest Trust Trustee shall be entitled to give
notices and to perform and satisfy the obligations of Counterparty hereunder on
behalf of Counterparty.
(s) RATING AGENCY NOTIFICATIONS. Except as otherwise provided herein, no Early
Termination Date shall be effectively designated hereunder shall be made by
either party unless each Rating Agency has been given prior written notice of
such designation.
(t) Xxxxxxx Xxxxx Mortgage Lending, Inc. ("MLML") agrees and acknowledges that
amounts paid hereunder are not intended to benefit the holder of any class of
certificates rated by any rating agency if such holder is MLML or any of its
affiliates. If MLML or any of its affiliates receives any such amounts, it will
promptly remit (or, if such amounts are received by an affiliate of MLML, MLML
hereby agrees that it will cause such affiliate to promptly remit) such amounts
to the Supplemental Interest Trust Trustee, whereupon
U-1-20
such Supplemental Interest Trust Trustee will promptly remit such amounts to
Bear Xxxxxxx. MLML further agrees to provide notice to Bear Xxxxxxx upon any
remittance to the Supplemental Interest Trust Trustee; such delivery will be
made to:
Address: 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
Attention: DPC Manager
Facsimile: 000-000-0000
with a copy to:
Address: Xxx Xxxxxxxxx Xxxxxx Xxxxx, Xxxxxxxx, Xxx Xxxx 00000
Attention: Derivative Operations - 7th Floor
Facsimile: 000-000-0000
NEITHER THE BEAR XXXXXXX COMPANIES INC. NOR ANY SUBSIDIARY OR
AFFILIATE OF THE BEAR XXXXXXX COMPANIES INC. OTHER THAN BEAR XXXXXXX
IS AN OBLIGOR OR A CREDIT SUPPORT PROVIDER ON THIS AGREEMENT.
This Agreement may be executed in several counterparts, each of which shall be
deemed an original but all of which together shall constitute one and the same
instrument.
Counterparty hereby agrees to check this Confirmation and to confirm that the
foregoing correctly sets forth the terms of the Transaction by signing in the
space provided below and returning to Bear Xxxxxxx a facsimile of the
fully-executed Confirmation to 000-000-0000. For inquiries regarding U.S.
Transactions, please contact DERIVATIVES DOCUMENTATION by telephone at
000-000-0000. For all other inquiries please contact DERIVATIVES DOCUMENTATION
by telephone at 000-0-000-0000. Originals will be provided for your execution
upon your request.
U-1-21
We are very pleased to have executed this Transaction with you and we look
forward to completing other transactions with you in the near future.
Very truly yours,
BEAR XXXXXXX FINANCIAL PRODUCTS INC.
X.Xx:
-------------------------------
Name:
-------------------------------
Title:
------------------------------
Counterparty, acting through its duly authorized signatory, hereby agrees to,
accepts and confirms the terms of the foregoing as of the Trade Date.
U.S. BANK NATIONAL ASSOCIATION, NOT IN ITS INDIVIDUAL CAPACITY, BUT SOLELY AS
SUPPLEMENTAL INTEREST TRUST TRUSTEE ON BEHALF OF THE SUPPLEMENTAL INTEREST TRUST
RELATING TO THE SPECIALTY UNDERWRITING AND RESIDENTIAL FINANCE TRUST, SERIES
2007-BC2
X.Xx:
-------------------------------
Name:
-------------------------------
Title:
------------------------------
Section 5(t) Acknowledged By:
XXXXXXX XXXXX MORTGAGE LENDING, INC.
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
am
U-1-22
SCHEDULE I
(where for the purposes of (i) determining Floating Amounts, all such dates
subject to adjustment in accordance with the Following Business Day Convention
and (ii) determining Fixed Amounts, all such dates subject to No Adjustment.)
NOTIONAL AMOUNT
FROM AND INCLUDING TO BUT EXCLUDING (USD)
------------------ ---------------- ---------------
Effective Date 11/25/2007 334,136,573
11/25/2007 12/25/2007 325,160,215
12/25/2007 1/25/2008 314,245,882
1/25/2008 2/25/2008 302,133,121
2/25/2008 3/25/2008 290,511,090
3/25/2008 4/25/2008 279,915,840
4/25/2008 5/25/2008 270,256,730
5/25/2008 6/25/2008 261,237,335
6/25/2008 7/25/2008 252,764,251
7/25/2008 8/25/2008 244,752,778
8/25/2008 9/25/2008 237,137,185
9/25/2008 10/25/2008 229,828,904
10/25/2008 11/25/2008 222,641,208
11/25/2008 12/25/2008 214,723,049
12/25/2008 1/25/2009 203,161,820
1/25/2009 2/25/2009 187,829,657
2/25/2009 3/25/2009 174,924,609
3/25/2009 4/25/2009 164,841,155
4/25/2009 5/25/2009 156,603,405
5/25/2009 6/25/2009 149,575,396
6/25/2009 7/25/2009 143,495,430
7/25/2009 8/25/2009 137,775,508
8/25/2009 9/25/2009 132,398,071
9/25/2009 10/25/2009 127,415,933
10/25/2009 11/25/2009 122,664,001
11/25/2009 12/25/2009 117,746,245
12/25/2009 1/25/2010 109,906,952
1/25/2010 2/25/2010 98,948,822
2/25/2010 3/25/2010 89,705,589
3/25/2010 4/25/2010 82,714,996
4/25/2010 5/25/2010 77,008,806
5/25/2010 6/25/2010 77,008,806
6/25/2010 7/25/2010 76,364,746
7/25/2010 8/25/2010 72,625,191
8/25/2010 9/25/2010 69,208,758
9/25/2010 10/25/2010 66,113,959
10/25/2010 11/25/2010 63,282,323
11/25/2010 12/25/2010 60,630,451
12/25/2010 1/25/2011 58,063,329
1/25/2011 2/25/2011 55,591,191
2/25/2011 3/25/2011 53,245,317
3/25/2011 4/25/2011 51,051,030
4/25/2011 5/25/2011 49,037,892
5/25/2011 6/25/2011 47,182,264
6/25/2011 7/25/2011 45,364,267
U-1-23
NOTIONAL AMOUNT
FROM AND INCLUDING TO BUT EXCLUDING (USD)
------------------ ---------------- ---------------
7/25/2011 8/25/2011 43,680,831
8/25/2011 9/25/2011 42,091,855
9/25/2011 10/25/2011 40,589,076
10/25/2011 11/25/2011 39,143,543
11/25/2011 12/25/2011 37,764,432
12/25/2011 1/25/2012 36,467,157
1/25/2012 2/25/2012 35,252,240
2/25/2012 3/25/2012 34,068,415
3/25/2012 Termination Date 32,958,992
U-1-24
III.
IV. UNILATERAL CSA SCHEDULE(5)
Pledgor: BEAR XXXXXXX FINANCIAL PRODUCTS INC. (the "Pledgor")
Secured Party: U.S. BANK NATIONAL ASSOCIATION, NOT IN ITS INDIVIDUAL CAPACITY,
BUT SOLELY AS SUPPLEMENTAL INTEREST TRUST TRUSTEE ON BEHALF OF THE SUPPLEMENTAL
INTEREST TRUST RELATING TO THE SPECIALTY UNDERWRITING AND RESIDENTIAL FINANCE
TRUST, SERIES 2007-BC2 (the "Secured Party")
PARAGRAPH 13. ELECTIONS AND VARIABLES
(a) SECURITY INTEREST FOR "OBLIGATIONS". The term "Obligations" as used in this
Annex includes no "additional obligations" within the meaning of Paragraph
12.
(b) CREDIT SUPPORT OBLIGATIONS.
(i) DELIVERY AMOUNT, RETURN AMOUNT AND CREDIT SUPPORT AMOUNT.
(1) DELIVERY AMOUNT. Paragraph 3(a) shall be amended by replacing the
words "upon a demand made by the Secured Party on or promptly
following a Valuation Date" with the words "on each Valuation Date".
The "DELIVERY AMOUNT" with respect to Pledgor for any Valuation Date
shall equal the greatest of:
(A) the amount by which the S&P Collateral Amount exceeds the S&P
Value on such Valuation Date of all Posted Credit Support held by
the Secured Party.
(B) the amount by which the Moody's First Level Collateral Amount
exceeds the Moody's First Level Value on such Valuation Date of
all Posted Credit Support held by the Secured Party.
(C) the amount by which the Moody's Second Level Collateral
Amount exceeds the Moody's Second Level Value on such Valuation
Date of all Posted Credit Support held by the Secured Party.
(2) "RETURN AMOUNT" applicable to Secured Party for any Valuation Date
shall equal the least of:
(A) the amount by which the S&P Value on such Valuation Date of
all Posted Credit Support held by the Secured Party exceeds the
S&P Collateral Amount.
----------
(5) If currency hedge, update Moody's Collateral Amounts and Valuation
Percentages
U-1-25
(B) the amount by which the Moody's First Level Value on such
Valuation Date of all Posted Credit Support held by the Secured
Party exceeds the Moody's First Level Collateral Amount.
(C) the amount by which the Moody's Second Level Value on such
Valuation Date of all Posted Credit Support held by the Secured
Party exceeds the Moody's Second Level Collateral Amount.
(3) "CREDIT SUPPORT AMOUNT" shall be deleted in its entirety.
(ii) ELIGIBLE COLLATERAL. The items set forth on the Collateral Schedule
attached as Schedule A hereto will qualify as "ELIGIBLE COLLATERAL"
for the party specified.
(iii) OTHER ELIGIBLE SUPPORT. None
(iv) THRESHOLDS.
(E) "INDEPENDENT AMOUNT" means:
Pledgor: Not applicable.
Secured Party: Not applicable.
(F) "THRESHOLD" means:
Pledgor: Not applicable.
Secured Party: Not applicable.
(G) "MINIMUM TRANSFER AMOUNT" means USD100,000; provided, that if the
aggregate Certificate Principal Balance of the Certificates and
rated by S&P is less than USD 50,000,000, the "Minimum Transfer
Amount" shall mean USD 50,000.
(H) ROUNDING. The Delivery Amount will be rounded up and the Return
Amount will be rounded down to the nearest integral multiple of
USD 10,000.
(c) VALUATION AND TIMING.
(i) "VALUATION AGENT" means Pledgor.
(ii) "VALUATION DATE" means each Local Business Day(6).
(iii) "VALUATION TIME" means the close of business on the Local Business Day in
the city where the Valuation Agent is located immediately preceding the
Valuation Date or date of calculation, as applicable; provided that the
calculations of Value and Exposure will be made as of approximately the
same time on the same date.
(iv) "NOTIFICATION TIME" means 11:00 A.M. (New York time).
----------
(6) If not daily valuations, changes are required in the collateral amounts and
valuation percentages
U-1-26
(v) TRANSFER TIMING AND CALCULATIONS. Paragraphs 4(b) and 4(c) are hereby
amended and restated in entirety as set forth below.
"(b) TRANSFER TIMING. Subject to Paragraphs 4(a) and 5 and unless
otherwise specified, if a demand for the Transfer of Eligible
Credit Support or Posted Credit Support is made by the
Notification Time, then the relevant Transfer will be made not
later than the close of business on the Valuation Date; if a
demand is made after the Notification Time, then the relevant
Transfer will be made not later than the close of business on the
next Local Business Day thereafter.
(c) CALCULATIONS. All calculations of Value and Exposure for
purposes of Paragraphs 3 and 6(d) will be made by the Valuation
Agent as of the Valuation Time. The Valuation Agent will notify
each party (or the other party, if the Valuation Agent is a
party) of its calculations not later than the Notification Time
on the applicable Valuation Date (or in the case of Paragraph
6(d), the Local Business Day following the day on which such
relevant calculations are performed)."
(E) CONDITIONS PRECEDENT. There shall be no "Specified Condition" with respect
to either party for purposes of this Annex.
(e) SUBSTITUTION
(i) "SUBSTITUTION DATE" means (A) the Local Business Day on which the
Secured Party receives the Substitute Credit Support, if notice of
substitution is received by the Notification Time on such date, and
(B) the Local Business Day following the date on which the Secured
Party receives the Substitute Credit Support, if notice of
substitution is received after the Notification Time.
(ii) CONSENT OF SECURED PARTY FOR SUBSTITUTION. Inapplicable.
(iii) AMENDMENT OF PARAGRAPH 4(d)(ii). Paragraph 4(d)(ii) is amended and
restated in its entirety as set forth below:
"(ii) subject to Paragraph 4(a) of this Annex, the Secured Party
will Transfer the items of Posted Credit Support specified by the
Pledgor in its notice not later than the close of business on the
Substitution Date, provided, however, that if the Secured Party
shall not have received the Substitute Credit Support prior to
1:00 P.M. (New York time) on the Substitution Date, then the
Secured Party shall Transfer the applicable items of Posted
Credit Support not later than the close of business on the Local
Business Day immediately following the day on which the Secured
Party receives the Substitute Credit Support. Notwithstanding the
foregoing, the Secured Party will only be obligated to Transfer
Posted Credit Support with a Value as of the Substitution Date
equal to the Value of the Substitute Credit Support delivered by
the Pledgor in exchange therefor."
(f) DISPUTE RESOLUTION.
U-1-27
(i) "RESOLUTION TIME" means 12:00 noon, New York time, on the Local
Business Day for both parties following the date the Disputing Party
gives notice of a dispute pursuant to Paragraph 5.
(ii) VALUE. For the purpose of Paragraphs 5(i)(C) and 5(ii), disputes over
the Value of Posted Credit Support will be resolved by the Valuation
Agent seeking bid-side quotations as of the relevant Recalculation
Date or date of Transfer, as applicable, from three parties that
regularly act as dealers in the securities in question. The Value will
be the arithmetic mean of the quotations obtained by the Valuation
Agent, multiplied by the applicable Valuation Percentage, if any. If
no quotations are available for a particular security, then the
Valuation Agent's original calculation of Value thereof will be used
for that security.
(iii) ALTERNATIVE. Subject to item (iv) below, the provisions of Paragraph
5 will apply.
(iv) MODIFICATION OF PARAGRAPH 5. The introductory paragraph of Paragraph 5
shall be amended and restated to read in its entirety as follows:
"If a party (a 'Disputing Party') disputes (I) the Valuation
Agent's calculation of a Delivery Amount or a Return Amount or
(II) the Value of any Transfer of Eligible Credit Support or
Posted Credit Support, then:
(A) the Disputing Party will (x) notify the other party and,
if applicable, the Valuation Agent of the amount it is disputing,
(y) indicate what it believes the correct amount to be and (z)
provide a statement showing, in reasonable detail, how it arrived
at such amount and the appropriate party will deliver the
undisputed amount to the other party not later than (i) (a) the
close of business on the Valuation Date, if the demand made under
Paragraph 3 in the case of (I) above is made by the Notification
Time, or (b) the close of business of the Local Business Day
following the date on which the demand is made under Paragraph 3
in the case of (I) above, if such demand is made after the
Notification Time, or (ii) the close of business of the date of
Transfer, in the case of (II) above;
(B) the parties will consult with each other and provide such
information as the other party shall reasonably request in an
attempt to resolve the dispute; and
(C) if they fail to resolve the dispute by the Resolution Time,
then:"
(g) HOLDING AND USING POSTED COLLATERAL.
(i) ELIGIBILITY TO HOLD POSTED COLLATERAL; CUSTODIANS.
(1) The Secured Party and its Custodian (if any) will be entitled to
hold Posted Collateral pursuant to Paragraph 6(b), provided that the
following conditions applicable to it are satisfied:
(A) it is not a Defaulting Party;
U-1-28
(B) Posted Collateral consisting of Cash or certificated
securities that cannot be paid or delivered by book-entry may be
held only in any state of the United States which has adopted the
Uniform Commercial Code;
(C) the short-term rating of any Custodian shall be at least
"A-1" by S&P
(2) There shall be no Custodian for Pledgor.
(ii) USE OF POSTED COLLATERAL. The provisions of Paragraph 6(c) will not
apply to Secured Party and Secured Party will not have any right to
use the Posted Collateral or take any action specified in Paragraph
6(c).
(h) DISTRIBUTIONS AND INTEREST AMOUNT.
(i) INTEREST RATE. The "INTEREST RATE" will be the "Federal Funds
(Effective)" rate as such rate is displayed on Telerate page 118
for such day under the caption "Effective".
(ii) AMENDMENT OF PARAGRAPH 6(d)(i) - DISTRIBUTIONS. Clause (d)(i) of
Paragraph 6 shall be amended and restated to read in its entirety
as follows:
1. "(i) DISTRIBUTIONS. SUBJECT TO PARAGRAPH 4(a), IF SECURED PARTY
RECEIVES DISTRIBUTIONS ON A LOCAL BUSINESS DAY, IT WILL TRANSFER
TO PLEDGOR NOT LATER THAN THE FOLLOWING LOCAL BUSINESS DAY ANY
DISTRIBUTIONS IT RECEIVES TO THE EXTENT THAT A DELIVERY AMOUNT
WOULD NOT BE CREATED OR INCREASED BY THAT TRANSFER, AS CALCULATED
BY THE VALUATION AGENT (AND THE DATE OF CALCULATION WILL BE
DEEMED TO BE A VALUATION DATE FOR THIS PURPOSE)."
(iii) AMENDMENT OF PARAGRAPH 6(d)(ii) - INTEREST AMOUNT. Clause
(d)(ii) of Paragraph 6 shall be amended and restated to read in
its entirety as follows:
"(ii) INTEREST AMOUNT. In lieu of any interest, dividends or
other amounts paid with respect to Posted Collateral in the form
of Cash (all of which may be retained by the Secured Party), the
Secured Party will Transfer to the Pledgor on the 20th day of
each calendar month (or if such day is not a Local Business Day,
the next Local Business Day) the Interest Amount. Any Interest
Amount or portion thereof that has been received by the Secured
Party and not Transferred pursuant to this Paragraph will
constitute Posted Collateral in the form of Cash and will be
subject to the security interest granted under Paragraph 2. For
purposes of calculating the Interest Amount the amount of
interest calculated for each day of the interest period shall be
compounded monthly." Secured Party shall not be obligated to
transfer any Interest Amount unless and until it has received
such amount.
(i) DEMANDS AND NOTICES.
All demands, specifications and notices under this Annex will be made
pursuant to the Notices
U-1-29
Section of this Agreement.
(j) ADDRESSES FOR TRANSFERS.
Pledgor: To be provided in writing by Pledgor to Secured Party.
Secured Party: U.S. Bank National Association, Trustee
Mail Code: EP-MN-WS3D
Xx. Xxxx, XX 00000
Attention: Structured Finance - SURF 2007-BC2
Fax No. 000-000-0000
Phone No. 000-000-0000
(k) OTHER PROVISION(S).
(i) AMENDMENT OF PARAGRAPH 7 - EVENTS OF DEFAULT. Clause (iii) of
Paragraph 7 shall not apply to Secured Party.
(ii) NON-RELIANCE. Notwithstanding the obligations of the Secured
Party under Paragraph 6(a), and without limiting the generality
of the final sentence of Paragraph 6(a), each party, as Pledgor,
acknowledges that it has the means to monitor all matters
relating to all valuations, payments, defaults and rights with
respect to Posted Collateral without the need to rely on the
other party, in its capacity as Secured Party, and that, given
the provisions of this Annex on substitution, responsibility for
the preservation of the rights of the Pledgor with respect to all
such matters is reasonably allocated hereby to the Pledgor.
(iii) AGREEMENT AS TO SINGLE SECURED PARTY AND PLEDGOR. Each of
Pledgor and Secured Party agree that, notwithstanding anything to
the contrary in the recital to this Annex, Paragraph 1(b) or
Paragraph 2 or the definitions in Paragraph 12, (a) the term
"Secured Party" as used in this Annex means only Secured Party,
(b) the term "Pledgor" as used in this Annex means only Pledgor,
(c) only Pledgor makes the pledge and grant in Paragraph 2, the
acknowledgement in the final sentence of Paragraph 8(a) and the
representations in Paragraph 9 and (d) only Pledgor will be
required to make Transfers of Eligible Credit Support hereunder.
(iv) TRUSTEE. The Trustee is hereby authorized to (i) make demands on
behalf of the Secured Party pursuant to Paragraph 3 hereunder and
(ii) provide notice on behalf of the Secured Party pursuant to
Paragraph 7 hereunder.
(v) COLLATERAL ACCOUNT. Secured Party shall at all times maintain all
Posted Collateral in a segregated trust account.
(vi) EXTERNAL CALCULATIONS. At any time at which Pledgor (or, to the
extent applicable, its Credit Support Provider) does not have a
long-term unsubordinated and unsecured debt rating of at least
"BBB+" from S&P, the Valuation Agent shall (at its own expense)
obtain external calculations of the Secured Party's Exposure from
at least two Reference Market-makers on the last Local Business
Day of each calendar month. Any determination of the S&P
Collateral Amount shall be based on the greatest of the Secured
Party's Exposure
U-1-30
determined by the Valuation Agent and such Reference
Market-makers. Such external calculation may not be obtained from
the same Reference Market-maker more than four times in any
12-month period.
(vii) NOTICE TO S&P. At any time at which Pledgor (or, to the extent
applicable, its Credit Support Provider) does not have a
long-term unsubordinated and unsecured debt rating of at least
"BBB+" from S&P, the Valuation Agent shall provide to S&P not
later than the Notification Time on the Local Business Day
following each Valuation Date its calculations of the Secured
Party's Exposure and the Value of any Eligible Credit Support or
Posted Credit Support for that Valuation Date. The Valuation
Agent shall also provide to S&P any external marks of the Secured
Party's Exposure.
(viii) EXPENSES. Pledgor shall be responsible for all reasonable costs
and expenses incurred by Secured Party in connection with the
Transfer of any Eligible Collateral under this Annex.
(ix) ADDITIONAL DEFINED TERMS.
"DV01" means, with respect to a Transaction and any date of
determination, the sum of the estimated change in the Secured
Party's Exposure with respect to such Transaction that would
result from a one basis point change in the relevant swap curve
on such date, as determined by the Valuation Agent in good faith
and in a commercially reasonable manner. The Valuation Agent
shall, upon request of Secured Party, provide to Secured Party a
statement showing in reasonable detail such calculation.
"XXXXX'X FIRST LEVEL ADDITIONAL COLLATERALIZED AMOUNT" means,
with respect to any Transaction, the lesser of (x) the product of
15 and DV01 for such Transaction and such Valuation Date and (y)
the product of (i) 2%, (ii) if a Scale Factor is specified in
such Transaction, the Scale Factor (as defined in such
Transaction) for such Transaction, or, if no Scale Factor is
specified in such Transaction, 1 and (iii) the Notional Amount
for such Transaction for the Calculation Period which includes
such Valuation Date.
"XXXXX'X FIRST LEVEL COLLATERAL AMOUNT" means, (A) for any
Valuation Date on which (I) a Xxxxx'x First Level Downgrade has
occurred and has been continuing (x) for at least 30 Local
Business Days or (y) since this Annex was executed and (II) it is
not the case that a Xxxxx'x Second Level Downgrade has occurred
and been continuing for at least 30 Local Business Days, an
amount equal to the greater of (a) zero and (b) the sum of the
Secured Party's aggregate Exposure for all Transactions and the
aggregate of Xxxxx'x First Level Additional Collateralized
Amounts for each Transaction and (B)for any other Valuation Date,
zero.
"XXXXX'X FIRST LEVEL VALUE" means, for any date that the Xxxxx'x
First Level Collateral Amount is determined and the Value of any
Eligible Collateral or Posted Collateral that is a security, the
bid price for such security obtained by the Valuation Agent
multiplied by the Xxxxx'x First Level Valuation Percentage for
such security set forth on Schedule A hereto.
"XXXXX'X SECOND LEVEL ADDITIONAL COLLATERALIZED AMOUNT" means,
with respect to any Transaction,
U-1-31
(1) if such Transaction is not a Transaction-Specific Hedge, the
lesser of (i) the product of the 50 and DV01 for such Transaction
and such Valuation Date and (ii) the product of (x) 8%, (y) if a
Scale Factor is specified in such Transaction, the Scale Factor
(as defined in such Transaction) for such Transaction, or, if no
Scale Factor is specified in such Transaction, 1 and (z) the
Notional Amount for such Transaction for the Calculation Period
(as defined in the related Transaction) which includes such
Valuation Date; or
(2) if such Transaction is a Transaction-Specific Hedge, the
lesser of (i) the product of the 65 and DV01 for such Transaction
and such Valuation Date and (ii) the product of (x) 10%, (y) if a
Scale Factor is specified in such Transaction, the Scale Factor
(as defined in such Transaction) for such Transaction, or, if no
Scale Factor is specified in such Transaction, 1 and (z) the
Notional Amount for such Transaction for the Calculation Period
(as defined in the related Transaction) which includes such
Valuation Date.
"XXXXX'X SECOND LEVEL COLLATERAL AMOUNT" means, (A) for any
Valuation Date on which it is the case that a Xxxxx'x Second
Level Downgrade has occurred and been continuing for at least 30
Local Business Days, an amount equal to the greatest of (a) zero,
(b) the aggregate amount of the Next Payments for all Next
Payment Dates and (c) the sum of the Secured Party's aggregate
Exposure and the aggregate of Xxxxx'x Second Level Additional
Collateralized Amounts for each Transaction and (B) for any other
Valuation Date, zero.
"XXXXX'X SECOND LEVEL VALUE" means, for any date that the Xxxxx'x
Second Level Collateral Amount is determined and the Value of any
Eligible Collateral or Posted Collateral that is a security, the
bid price for such security obtained by the Valuation Agent
multiplied by the Xxxxx'x Second Level Valuation Percentage for
such security set forth on Schedule A hereto.
"NEXT PAYMENT" means, in respect of each Next Payment Date, the
greater of (i) the amount of any payments due to be made by the
Pledgor pursuant to Section 2(a) on such Next Payment Date less
any payments due to be made by the Secured Party under Section
2(a) on such Next Payment Date (in each case, after giving effect
to any applicable netting under Section 2(c)) and (ii) zero.
"NEXT PAYMENT DATE" means the next scheduled payment date under
any Transaction.
"REMAINING WEIGHTED AVERAGE MATURITY" means, with respect to a
Transaction, the expected weighted average maturity for such
Transaction as determined by the Valuation Agent.
"S&P COLLATERAL AMOUNT" means, (A) for any Valuation Date on
which a S&P First Level Downgrade has occurred and been
continuing for at least 30 days or on which a S&P Second Level
Downgrade has occurred and is continuing, an amount equal to the
sum of (1) 100.0% of the Secured Party's Exposure for such
Valuation Date and (2) the product of (x) the Volatility Buffer
for each Transaction, (y) if a Scale Factor is specified in such
Transaction, the Scale Factor (as defined in such Transaction)
for such Transaction, or, if no Scale Factor is specified in such
Transaction, 1 and (z) the Notional Amount of such Transaction
for the Calculation Period (as defined in the related
Transaction) of such Transaction which includes such Valuation
Date, or (B) for any other Valuation Date, zero.
U-1-32
"S&P VALUE" means, for any date that the S&P Collateral Amount is
determined and the Value of any Eligible Collateral or Posted
Collateral that is a security, the bid price for such security
obtained by the Valuation Agent multiplied by the S&P Valuation
Percentage for such security set forth on Schedule A hereto.
"TRANSACTION-SPECIFIC HEDGE" means any Transaction that is a cap,
floor or swaption or a Transaction in respect of which (x) the
notional amount of the interest rate swap is "balance guaranteed"
or (y) the notional amount of the interest rate swap for any
Calculation Period otherwise is not a specific dollar amount that
is fixed at the inception of the Transaction.
"VOLATILITY BUFFER" means, for any Transaction, the related
percentage set forth in the following table:
The higher of the Remaining Remaining Remaining Remaining
S&P short-term credit Weighted Weighted Weighted Weighted
rating of (i) Pledgor Average Average Average Average
and (ii) the Credit Maturity Maturity Maturity Maturity
Support Provider of up to 3 up to 5 up to 10 up to 30
Pledgor, if applicable years years years years
---------------------- --------- --------- --------- ---------
"A-2" or higher 2.75% 3.25% 4.00% 4.75%
"A-3" 3.25% 4.00% 5.00% 6.25%
"BB+" or lower 3.50% 4.50% 6.75% 7.50%
U-1-33
IN WITNESS WHEREOF, the parties have executed this Annex on the respective dates
specified below with effect from the date specified on the first page of this
document.
BEAR XXXXXXX FINANCIAL PRODUCTS INC. U.S. BANK NATIONAL ASSOCIATION, NOT IN
ITS INDIVIDUAL CAPACITY, BUT SOLELY AS
SUPPLEMENTAL INTEREST TRUST TRUSTEE ON
By: --------------------------------- BEHALF OF THE SUPPLEMENTAL INTEREST
Name: TRUST RELATING TO THE SPECIALTY
------------------------------- UNDERWRITING AND RESIDENTIAL FINANCE
Title: TRUST, SERIES 2007-BC2
------------------------------
Date:
By:
------------------------------------
Name:
----------------------------------
Title:
----------------------------------
Date:
----------------------------------
U-1-34
SCHEDULE A
COLLATERAL SCHEDULE
THE XXXXX'X FIRST LEVEL VALUATION PERCENTAGES SHALL BE USED IN DETERMINING THE
XXXXX'X FIRST LEVEL COLLATERAL AMOUNT.
THE XXXXX'X SECOND LEVEL VALUATION PERCENTAGES SHALL BE USED IN DETERMINING THE
XXXXX'X SECOND LEVEL COLLATERAL AMOUNT.
THE S&P VALUATION PERCENTAGES SHALL BE USED IN DETERMINING THE S&P COLLATERAL
AMOUNT.
ISDA COLLATERAL ASSET OODY'S FIRST LEVEL XXXXX'X SECOND LEVEL S&P
DEFINITION (ICAD) CODE REMAINING MATURITY VALUATION PERCENTAGE VALUATION PERCENTAGE VALUATION PERCENTAGE
---------------------- ------------------ -------------------- -------------------- -----------------------
US-CASH N/A 100% 100% 100%
EU-CASH N/A 98% 94% 92.5%
GB-CASH N/A 98% 95% 94.1%
< 1 Year 100% 100% 98.9%
1 to 2 years 100% 99% 98.0%
US-TBILL 2 to 3 years 100% 98% 97.4%
US-TNOTE 3 to 5 years 100% 97% 95.5%
US-TBOND 5 to 7 years 100% 96% 93.7%
(fixed rate) 7 to 10 years 100% 94% 92.5%
10 to 20 years 100% 90% 91.1%
> 20 years 100% 88% 88.6%
US-TBILL
US-TNOTE All Maturities 100% 99% Not Eligible Collateral
US-TBOND
(floating rate)
< 1 Year 100% 99% 98.5%
1 to 2 years 100% 99% 97.7%
2 to 3 years 100% 98% 97.3%
GA-US-AGENCY 3 to 5 years 100% 96% 94.5%
(fixed rate) 5 to 7 years 100% 93% 93.1%
7 to 10 years 100% 93% 90.7%
10 to 20 years 100% 89% 87.7%
> 20 years 100% 87% 84.4%
GA-US-AGENCY All Maturities 100% 98% Not Eligible Collateral
(floating rate)
GA-EUROZONE-GOV Rated Aa3 or better Rated Aa3 or better Rated AAA or better
(other than EU-CASH) by Xxxxx'x by Xxxxx'x by S&P
(fixed rate) < 1 Year 98% 94% 98.8%
1 to 2 years 98% 93% 97.9%
2 to 3 years 98% 92% 97.1%
3 to 5 years 98% 90% 91.2%
5 to 7 years 98% 89% 87.5%
7 to 10 years 98% 88% 83.8%
U-1-35
10 to 20 years 98% 84% 75.5%
> 20 years 98% 82% Not Eligible Collateral
GA-EUROZONE-GOV Rated Aa3 or better Rated Aa3 or better Rated AAA or better
(other than EU-CASH) by Xxxxx'x by Xxxxx'x by S&P
(floating rate) All Maturities 98% 93% Not Eligible Collateral
< 1 Year 98% 94% Not Eligible Collateral
1 to 2 years 98% 93% Not Eligible Collateral
2 to 3 years 98% 92% Not Eligible Collateral
GA-GB-GOV 3 to 5 years 98% 91% Not Eligible Collateral
(other than GB-CASH) 5 to 7 years 98% 90% Not Eligible Collateral
(fixed rate) 7 to 10 years 98% 89% Not Eligible Collateral
10 to 20 years 98% 86% Not Eligible Collateral
> 20 years 98% 84% Not Eligible Collateral
GA-GB-GOV
(other than GB-CASH) All Maturities 98% 94% Not Eligible Collateral
(floating rate)
The ISDA Collateral Asset Definition (ICAD) Codes used in this Collateral
Schedule shall have the meanings set forth in the Collateral Asset Definitions
(First Edition - June 2003) as published and copyrighted in 2003 by the
International Swaps and Derivatives Association, Inc.
U-1-36
EXHIBIT U-2
FORM OF CREDIT SUPPORT ANNEX FOR SWAP AGREEMENT
(Multicurrency - Cross Border)
ISDA(R)
INTERNATIONAL SWAP DEALERS ASSOCIATION, INC.
MASTER AGREEMENT
dated as of April 24, 2007
BEAR XXXXXXX FINANCIAL PRODUCTS INC. and U.S. BANK NATIONAL ASSOCIATION, NOT
IN ITS INDIVIDUAL CAPACITY, BUT
SOLELY AS TRUSTEE ON BEHALF OF THE
SPECIALTY UNDERWRITING AND
RESIDENTIAL FINANCE TRUST, SERIES
2007-BC2
have entered and/or anticipate entering into one of more transactions (each
a "Transaction") that are or will be governed by this Master Agreement,
which includes the schedule (the "Schedule"), and the documents and other
confirming evidence (each a "Confirmation") exchanged between the parties
confirming those Transactions.
Accordingly, the parties agree as follows: --
(1) INTERPRETATION
1. DEFINITIONS. The terms defined in Section 14 and in the Schedule will have
the meanings therein specified for the purpose of this Master Agreement.
2. INCONSISTENCY. In the event of any inconsistency between the provisions of
the Schedule and the other provisions of this Master Agreement, the Schedule
will prevail. In the event of any inconsistency between the provisions of any
Confirmation and this Master Agreement (including the Schedule), such
Confirmation will prevail for the purpose of the relevant Transaction.
3. SINGLE AGREEMENT. All Transactions are entered into in reliance on the fact
that this Master Agreement and all Confirmations form a single agreement between
the parties (collectively referred to as this "Agreement"), and the parties
would not otherwise enter into any Transactions.
(2) OBLIGATIONS
1. GENERAL CONDITIONS.
U-2-1
a) Each party will make each payment or delivery specified in each
Confirmation to be made by it, subject to the other provisions of this
Agreement.
b) Payments under this Agreement will be made on the due date for value on
that date in the place of the account specified in the relevant
Confirmation or otherwise pursuant to this Agreement, in freely
transferable funds and in the manner customary for payments in the required
currency. Where settlement is by delivery (that is, other than by payment),
such delivery will be made for receipt on the due date in the manner
customary for the relevant obligation unless otherwise specified in the
relevant Confirmation or elsewhere in this Agreement.
c) Each obligation of each party under Section 2(a)(i) is subject to (1)
the condition precedent that no Event of Default or Potential Event of
Default with respect to the other party has occurred and is continuing, (2)
the condition precedent that no Early Termination Date in respect of the
relevant Transaction has occurred or been effectively designated and (3)
each other applicable condition precedent specified in this Agreement.
U-2-2
2. CHANGE OF ACCOUNT. Either party may change its account for receiving a
payment or delivery by giving notice to the other party at least five Local
Business Days prior to the scheduled date for the payment or delivery to which
such change applies unless such other party gives timely notice of a reasonable
objection to such change.
3. NETTING. If on any date amounts would otherwise be payable: --
a) in the same currency; and
b) in respect of the same Transaction,
by each party to the other. then, on such date, each party's obligation to
make payment of any such amount will be automatically satisfied and
discharged and, if the aggregate amount that would otherwise have been
payable by one party exceeds the aggregate amount that would otherwise have
been payable by the other party, replaced by an obligation upon the party
by whom the larger aggregate amount would have been payable to pay to the
other party the excess of the larger aggregate amount over the smaller
aggregate amount.
The parties may elect in respect of two or more Transactions that a net
amount will be determined in respect of all amounts payable on the same
date in the same currency in respect of such Transactions, regardless of
whether such amounts are payable in respect of the same Transaction. The
election may be made in the Schedule or a Confirmation by specifying that
subparagraph (ii) above will not apply to the Transactions identified as
being subject to the election, together with the starting date (in which
case subparagraph (ii) above will not, or will cease to, apply to such
Transactions from such date). This election may be made separately for
different groups of Transactions and will apply separately to each pairing
of Offices through which the parties make and receive payments or
deliveries.
4. DEDUCTION OR WITHHOLDING FOR TAX.
a) Gross-Up. All payments under this Agreement will be made without any
deduction or withholding for or on account of any Tax unless such deduction
or withholding is required by any applicable law, as modified by the
practice of any relevant governmental revenue authority, then in effect. If
a party is so required to deduct or withhold, then that party ("X") will:
--
(1) promptly notify the other party ("Y") of such requirement;
(2) pay to the relevant authorities the full amount required to be
deducted or withheld (including the full amount required to be
deducted or withheld from any additional amount paid by X to Y under
this Section 2(d)) promptly upon the earlier of determining that such
deduction or withholding is required or receiving notice that such
amount has been assessed against Y;
U-2-3
(3) promptly forward to Y an official receipt (or a certified copy),
or other documentation reasonably acceptable to Y, evidencing such
payment to such authorities; and
(4) if such Tax is an Indemnifiable Tax, pay to Y, in addition to the
payment to which Y is otherwise entitled under this Agreement, such
additional amount as is necessary to ensure that the net amount
actually received by Y (free and clear of Indemnifiable Taxes. whether
assessed against X or Y) will equal ft full amount Y would have
received had no such deduction or withholding been required. However,
X will not be required to pay any additional amount to Y to the extent
that it would not be required to be paid but for: --
(1) the failure by Y to comply with or perform any agreement
contained in Section 4(a)(i), 4(a)(iii) or 4(d); or
(2) the failure of a representation made by Y pursuant to Section
3(f) to be accurate and true unless such failure would not have
occurred but for (I) any action taken by a taxing authority, or
brought in a court of competent jurisdiction, on or after the
date on which a Transaction is entered into (regardless of
whether such action is taken or brought with respect to a party
to this Agreement) or (II) a Change in Tax Law.
b) (ii) Liability. If: --
(1) X is required by any applicable law, as modified by the practice
of any relevant governmental revenue authority, to make any deduction
or withholding in respect of which X would not be required to pay an
additional amount to Y under Section 2(d)(i)(4);
(2) X does not so deduct or withhold; and
(3) a liability resulting from such Tax is assessed directly against
X,
then, except to the extent Y has satisfied or then satisfies the liability
resulting from such Tax, Y will promptly pay to X the amount of such
liability (including any related liability for interest, but including any
related liability for penalties only if Y has failed to comply with or
perform any agreement contained in Section 4(a)(i), 4(a)(iii) or 4(d)).
5. DEFAULT INTEREST; OTHER AMOUNTS. Prior to the occurrence or effective
designation of an Early Termination Date in respect of the relevant Transaction,
a party that defaults in the performance of any payment obligation will, to the
extent permitted by law and subject to Section 6(c), be required to pay interest
(before as well as after judgment) on the overdue amount to the other party on
demand in the same currency as such overdue amount, for the period from (and
including) the original due date for payment to (but excluding) the date of
actual payment, at the Default Rate. Such interest will be calculated on the
basis of daily compounding and the actual number of days elapsed. If, prior to
the occurrence or effective designation of an Early Termination Date in respect
of the relevant Transaction, a party defaults in the performance of any
obligation required to be settled by delivery, it will compensate
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the other party on demand if and to the extent provided for in the relevant
Confirmation or elsewhere in this Agreement.
(3) REPRESENTATIONS
Each party represents to the other party (which representations will be
deemed to be repeated by each party on each date on which a Transaction is
entered into and, in the case of the representations in Section 3(f), at
all times until the termination of this Agreement) that: --
1. BASIC REPRESENTATIONS.
a) Status. It is duly organised and validly existing under the laws of the
jurisdiction of its organisation or incorporation and, if relevant under
such laws, in good standing;
b) Powers. It has the power to execute this Agreement and any other
documentation relating to this Agreement to which it is a party, to deliver
this Agreement and any other documentation relating to this Agreement that
it is required by this Agreement to deliver and to perform its obligations
under this Agreement and any obligations it has under any Credit Support
Document to which it is a party and has taken all necessary action to
authorise such execution, delivery and performance;
c) No Violation or Conflict. Such execution, delivery and performance do
not violate or conflict with any law applicable to it, any provision of its
constitutional documents, any order or judgment of any court or other
agency of government applicable to it or any of its assets or any
contractual restriction binding on or affecting it or any of its assets;
d) Consents. All governmental and other consents that are required to have
been obtained by it with respect to this Agreement or any Credit Support
Document to which it is a party have been obtained and are in full force
and effect and all conditions of any such consents have been complied with;
and
e) Obligations Binding. Its obligations under this Agreement and any Credit
Support Document to which it is a party constitute its legal, valid and
binding obligations, enforceable in accordance with their respective terms
(subject to applicable bankruptcy, reorganisation, insolvency, moratorium
or similar laws affecting creditors' rights generally and subject, as to
enforceability, to equitable principles of general application (regardless
of whether enforcement is sought in a proceeding in equity or at law)).
2. (b) ABSENCE OF CERTAIN EVENTS. No Event of Default or Potential Event of
Default or, to its knowledge, Termination Event with respect to it has occurred
and is continuing and no such event or circumstance would occur as a result of
its entering into or performing its obligations under this Agreement or any
Credit Support Document to which it is a party.
3. ABSENCE OF LITIGATION. There is not pending or, to its knowledge, threatened
against it or any of its Affiliates any action, suit or proceeding at law or in
equity or before any court, tribunal, governmental body, agency or official or
any arbitrator that is likely to affect the legality, validity or enforceability
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against it of this Agreement or any Credit Support Document to which it is a
party or its ability to perform its obligations under this Agreement or such
Credit Support Document.
4. ACCURACY OF SPECIFIED INFORMATION. All applicable information that is
furnished in writing by or on behalf of it to the other party and is identified
for the purpose of this Section 3(d) in the Schedule is, as of the date of the
information, true, accurate and complete in every material respect.
5. PAYER TAX REPRESENTATION. Each representation specified in the Schedule as
being made by it for the purpose of this Section 3(e) is accurate and true.
6. PAYEE TAX REPRESENTATIONS. Each representation specified in the Schedule as
being made by it for the purpose of this Section 3(f) is accurate and true.
(4) AGREEMENTS
Each party agrees with the other that, so long as either party has or may
have any obligation under this Agreement or under any Credit Support
Document to which it is a party: --
1. FURNISH SPECIFIED INFORMATION. It will deliver to the other party or, in
certain cases under subparagraph (iii) below, to such government or taxing
authority as the other party reasonably directs: --
a) any forms, documents or certificates relating to taxation specified in
the Schedule or any Confirmation;
b) any other documents specified in the Schedule of any Confirmation; and
c) upon reasonable demand by such other party, any form or document that
may be required or reasonably requested in writing in order to allow such
other party or its Credit Support Provider to make a payment under this
Agreement or any applicable Credit Support Document without any deduction
or withholding for or on account of any Tax or with such deduction or
withholding at a reduced rate (so long as the completion, execution or
submission of such form or document would not materially prejudice the
legal or commercial position of the party in receipt of such demand), with
any such form or document to be accurate and completed in a manner
reasonably satisfactory to such other party and to be executed and to be
delivered with any reasonably required certification,
in each case by the date specified in the Schedule or such Confirmation or,
if none is specified, as soon as reasonably practicable.
2. MAINTAIN AUTHORISATIONS. It will use all reasonable efforts to maintain in
full force and effect all consents of any governmental or other authority that
are required to be obtained by it with respect to this Agreement or any Credit
Support Document to which it is a party and will use all reasonable efforts to
obtain any that may become necessary in the future.
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3. COMPLY WITH LAWS. It will comply in all material respects with all applicable
laws and orders to which it may be subject if failure so to comply would
materially impair its ability to perform its obligations under this Agreement or
any Credit Support Document to which it is a party.
4. TAX AGREEMENT. It will give notice of any failure of a representation made by
it under Section 3(f) to be accurate and true promptly upon learning of such
failure.
5. PAYMENT OF STAMP TAX. Subject to Section 11, it will pay any Stamp Tax levied
or imposed upon it or in respect of its execution or performance of this
Agreement by a jurisdiction in which it is incorporated, organised, managed and
controlled. or considered to have its seat, or in which a branch or office
through which it is acting for the purpose of this Agreement is located ("Stamp
Tax Jurisdiction") and will indemnify the other party against any Stamp Tax
levied or imposed upon the other party or in respect of the other party's
execution or performance of this Agreement by any such Stamp Tax Jurisdiction
which is not also a Stamp Tax Jurisdiction with respect to the other party.
(5) EVENTS OR DEFAULT AND TERMINATION EVENTS
1. EVENTS OF DEFAULT. The occurrence at any time with respect to a party or, if
applicable, any Credit Support Provider of such party or any Specified Entity of
such party of any of the following events constitutes an event of default (an
"Event of Default") with respect to such party: --
a) Failure to Pay or Deliver. Failure by the party to make, when due, any
payment under this Agreement or delivery under Section 2(a)(i) or 2(e)
required to be made by it if such failure is not remedied on or before the
third Local Business Day after notice of such failure is given to the
party;
b) Breach of Agreement. Failure by the party to comply with or perform any
agreement or obligation (other than an obligation to make any payment under
this Agreement or delivery under Section 2(a)(i) or 2(e) or to give notice
of a Termination Event or any agreement or obligation under Section
4(a)(i), 4(a)(iii) or 4(d)) to be complied with or performed by the party
in accordance with this Agreement if such failure is not remedied on or
before the thirtieth day after notice of such failure is given to the
party;
c) Credit Support Default.
(1) Failure by the party or any Credit Support Provider of such party
to comply with or perform any agreement or obligation to be complied
with or performed by it in accordance with any Credit Support Document
if such failure is continuing after any applicable grace period has
elapsed;
(2) the expiration or termination of such Credit Support Document or
the failing or ceasing of such Credit Support Document to be in full
force and effect for the purpose of this Agreement (in either case
other than in accordance with its terms) prior to the satisfaction of
all obligations of such party under each Transaction to which such
Credit Support Document relates without the written consent of the
other party; or
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(3) the party or such Credit Support Provider disaffirms, disclaims,
repudiates or rejects, in whole or in part, or challenges the validity
of, such Credit Support Document;
d) Misrepresentation. A representation (other than a representation under
Section 3(e) or (f)) made or repeated or deemed to have been made or
repeated by the party or any Credit Support Provider of such party in this
Agreement or any Credit Support Document proves to have been incorrect or
misleading in any material respect when made or repeated or deemed to have
been made or repeated;
e) Default under Specified Transaction. The party, any Credit Support
Provider of such party or any applicable Specified Entity of such party (1)
defaults under a Specified Transaction and, after giving effect to any
applicable notice requirement or grace period, there occurs a liquidation
of, an acceleration of obligations under, or an early termination of, that
Specified Transaction, (2) defaults, after giving effect to any applicable
notice requirement or grace period, in making any payment or delivery due
on the last payment, delivery or exchange date of, or any payment on early
termination of, a Specified Transaction (or such default continues for at
least three Local Business Days if there is no applicable notice
requirement or grace period) or (3) disaffirms, disclaims, repudiates or
rejects, in whole or in part, a Specified Transaction (or such action is
taken by any person or entity appointed or empowered to operate it or act
on its behalf);
f) Cross Default. If "Cross Default" is specified in the Schedule as
applying to the party, the occurrence or existence of (1) a default, event
of default or other similar condition or event (however described) in
respect of such party, any Credit Support Provider of such party or any
applicable Specified Entity of such party under one or more agreements or
instruments relating to Specific Indebtedness of any of them (individually
or collectively) in an aggregate amount of not less than the applicable
Threshold Amount (as specified in the Schedule) which has resulted in such
Specified Indebtedness becoming, or becoming capable at such time of being
declared, due and payable under such agreements or instruments, before it
would otherwise have been due and payable or (2) a default by such party,
such Credit Support Provider or such Specified Entity (individually or
collectively) in making one or more payments on the due date thereof in an
aggregate amount of not less than the applicable Threshold Amount under
such agreements or instruments (after giving effect to any applicable
notice requirement or grace period);
g) Bankruptcy. The party, any Credit Support Provider of such party or any
applicable Specified Entity of such party:-
(1) is dissolved (other than pursuant to a consolidation, amalgamation
or merger); (2) becomes insolvent or is unable to pay its debts or
fails or admits in writing its inability generally to pay its debts as
they become due; (3) makes a general assignment, arrangement or
composition with or for the benefit of its creditors; (4) institutes
or has instituted against it a proceeding seeking a judgment of
insolvency or bankruptcy or any other relief under any bankruptcy or
insolvency law or other similar law affecting creditors' rights, or a
petition is presented for its winding-up or liquidation, and, in the
case of any such proceeding or petition instituted or presented
against it, such proceeding or petition (A) results in a
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judgment of insolvency or bankruptcy or the entry of an order for
relief or the making of an order for its winding-up or liquidation or
(B) is not dismissed, discharged, stayed or restrained in each case
within 30 days of the institution or presentation thereof, (5) has a
resolution passed for its winding-up, official management or
liquidation (other than pursuant to a consolidation, amalgamation or
merger); (6) seeks or becomes subject to the appointment of an
administrator, provisional liquidator, conservator, receiver, trustee,
custodian or other similar official for it or for all or substantially
all its assets; (7) has a secured party take possession of all or
substantially all its assets or has a distress, execution, attachment,
sequestration or other legal process levied, enforced or sued on or
against all or substantially all its assets and such secured party
maintains possession, or any such process is not dismissed,
discharged, stayed or restrained, in each case within 30 days
thereafter; (8) causes or is subject to any event with respect to it
which. under the applicable laws of any jurisdiction, has an analogous
effect to any of the events specified in clauses (1) to (7)
(inclusive); or (9) takes any action in furtherance of, or indicating
its consent to, approval of, or acquiescence in, any of the foregoing
acts; or
h) Merger Without Assumption. The party or any Credit Support Provider of
such party consolidates or amalgamates with, or merges with or into, or
transfers all or substantially all its assets to, another entity and, at
the time of such consolidation, amalgamation, merger or transfer: -
(1) the resulting, surviving or transferee entity fails to assume all
the obligations of such party or such Credit Support Provider under
this Agreement or any Credit Support Document to which it or its
predecessor was a party by operation of law or pursuant to an
agreement reasonably satisfactory to the other party to this
Agreement; or
(2) the benefits of any Credit Support Document fail to extend
(without the consent of the other party) to the performance by such
resulting, surviving or transferee entity of its obligations under
this Agreement.
2. TERMINATION EVENTS. The occurrence at any time with respect to a party or, if
applicable, any Credit Support Provider of such party or any Specified Entity of
such party of any event specified below constitutes an Illegality if the event
is specified in (i) below, a Tax Event if the event is specified in (ii) below
or a Tax Event Upon Merger if the event is specified in (iii) below, and, if
specified to be applicable, a Credit Event Upon Merger if the event is specified
pursuant to (iv) below or an Additional Termination Event if the event is
specified pursuant to (v) below:--
a) Illegality. Due to the adoption of, or any change in, any applicable law
after the date on which a Transaction is entered into, or due to the
promulgation of, or any change in, the interpretation by any court,
tribunal or regulatory authority with competent jurisdiction of any
applicable law after such date. it becomes unlawful (other than as a result
of a breach by the party of Section 4(b)) for such party (which will be the
Affected Party):--
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(1) to perform any absolute or contingent obligation to make a payment
or delivery or to receive a payment or delivery in respect of such
Transaction or to comply with any other material provision of this
Agreement relating to such Transaction; or
(2) to perform, or for any Credit Support Provider of such party to
perform, any contingent or other obligation which the party (or such
Credit Support Provider) has under any Credit Support Document
relating to such Transaction;
b) Tax Event. Due to (x) any action taken by a taxing authority, or brought
in a court of competent jurisdiction, on or after the date on which a
Transaction is entered into (regardless of whether such action is taken or
brought with respect to a party to this Agreement) or (y) a Change in Tax
Law, the party (which will be the Affected Party) will, or there is a
substantial likelihood that it will, on the next succeeding Scheduled
Payment Date (1) be required to pay to the other party an additional amount
in respect of an Indemnifiable Tax under Section 2(d)(i)(4) (except in
respect of interest under Section 2(e), 6(d)(ii) or 6(e)) or (2) receive a
payment from which an amount is required to be deducted or withheld for or
on account of a Tax (except in respect of interest under Section 2(e),
6(d)(ii) or 6(e)) and no additional amount is required to be paid in
respect of such Tax under Section 2(d)(i)(4) (other than by reason of
Section 2(d)(i)(4)(A) or (B));
c) Tax Event Upon Merger. The party (the "Burdened Party") on the next
succeeding Scheduled Payment Date will either (1) be required to pay an
additional amount in respect of an Indemnifiable Tax under Section
2(d)(i)(4) (except in respect of interest under Section 2(e), 6(d)(ii) or
6(e)) or (2) receive a payment from which an amount has been deducted or
withheld for or on account of any Indemnifiable Tax in respect of which the
other party is not required to pay an additional amount (other than by
reason of Section 2(d)(i)(4)(A) or (B)), in either case as a result of a
party consolidating or amalgamating with, or merging with or into, or
transferring all or substantially all its assets to, another entity (which
will be the Affected Party) where such action does not constitute an event
described in Section 5(a)(viii);
d) Credit Event Upon Merger. If "Credit Event Upon Merger" is specified in
the Schedule as applying to the party, such party ("X"), any Credit Support
Provider of X or any applicable Specified Entity of X consolidates or
amalgamates with, or merges with or into, or transfers all or substantially
all its assets to, another entity and such action does not constitute an
event described in Section 5(a)(viii) but the creditworthiness of the
resulting, surviving or transferee entity is materially weaker than that of
X, such Credit Support Provider or such Specified Entity, as the case may
be, immediately prior to such action (and, in such event, X or its
successor or transferee, as appropriate, will be the Affected Party); of
e) Additional Termination Event. If any "Additional Termination Event" is
specified in the Schedule or any Confirmation as applying. the occurrence
of such event (and, in such event. the Affected Party or Affected Parties
shall be as specified for such Additional Termination Event in the Schedule
or such Confirmation).
3. EVENT OF DEFAULT AND ILLEGALITY. If an event or circumstance which would
otherwise constitute or give rise to an Event of Default also constitutes an
Illegality, it will be treated as an Illegality and will not constitute an Event
of Default.
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(6) EARLY TERMINATION
1. RIGHT TO TERMINATE FOLLOWING EVENT OF DEFAULT. If at any time an Event of
Default with respect to a party (the "Defaulting Party") has occurred and is
then continuing, the other party (the "Non-defaulting Party") may, by not more
than 20 days notice to the Defaulting Party specifying the relevant Event of
Default, designate a day not earlier than the day such notice is effective as an
Early Termination Date in respect of all outstanding Transactions. If, however,
"Automatic Early Termination" is specified in the Schedule as applying to a
party, then an Early Termination Date in respect of all outstanding Transactions
will occur immediately upon the occurrence with respect to such party of an
Event of Default specified in Section 5(a)(vii)(l), (3), (5), (6) or, to the
extent analogous thereto, (8), and as of the time immediately preceding the
institution of the relevant proceeding or the presentation of the relevant
petition upon the occurrence with respect to such party of an Event of Default
specified in Section 5(a)(vii)(4) or, to the extent analogous thereto, (8).
2. RIGHT TO TERMINATE FOLLOWING TERMINATION EVENT.
a) Notice. If a Termination Event occurs, an Affected Party will, promptly
upon becoming aware of it, notify the other party, specifying the nature of
that Termination Event and each Affected Transaction and will also give
such other information about that Termination Event as the other party may
reasonably require.
b) Transfer to Avoid Termination Event. If either an Illegality under
Section 5(b)(i)(1) or a Tax Event occurs and there is only one Affected
Party, or if a Tax Event Upon Merger occurs and the Burdened Party is the
Affected Party, the Affected Party will, as a condition to its right to
designate an Early Termination Date under Section 6(b)(iv), use all
reasonable efforts (which will not require such party to incur a loss,
excluding immaterial, incidental expenses) to transfer within 20 days after
it gives notice under Section 6(b)(i) all its rights and obligations under
this Agreement in respect of the Affected Transactions to another of its
Offices or Affiliates so that such Termination Event ceases to exist.
If the Affected Party is not able to make such a transfer it will give
notice to the other party to that effect within such 20 day period,
whereupon the other party may effect such a transfer within 30 days after
the notice is given under Section 6(b)(i).
Any such transfer by a party under this Section 6(b)(ii) will be subject to
and conditional upon the prior written consent of the other party, which
consent will not be withheld if such other party's policies in effect at
such time would permit it to enter into transactions with the transferee on
the terms proposed.
c) Two Affected Parties. If an Illegality under Section 5(b)(i)(1) or a Tax
Event occurs and there are two Affected Parties, each party will use all
reasonable efforts to reach agreement within 30 days after notice thereof
is given under Section 6(b)(i) on action to avoid that Termination Event.
d) Right to Terminate. If:--
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(1) a transfer under Section 6(b)(ii) or an agreement under Section
6(b)(iii), as the case may be, has not been effected with respect to
all Affected Transactions within 30 days after an Affected Party gives
notice under Section 6(b)(i); or
(2) an Illegality under Section 5(b)(i)(2), a Credit Event Upon Merger
or an Additional Termination Event occurs, or a Tax Event Upon Merger
occurs and the Burdened Party is not the Affected Party,
either party in the case of an Illegality, the Burdened Party in the case
of a Tax Event Upon Merger, any Affected Party in the case of a Tax Event
or an Additional Termination Event if there is more than one Affected
Party, or the party which is not the Affected Party in the case of a Credit
Event Upon Merger or an Additional Termination Event if there is only one
Affected Party may, by not more than 20 days notice to the other party and
provided that the relevant Termination Event is then continuing, designate
a day not earlier than the day such notice is effective as an Early
Termination Date in respect of all Affected Transactions.
3. EFFECT OF DESIGNATION.
a) If notice designating an Early Termination Date is given under Section
6(a) or (b), the Early Termination Date will occur on the date so
designated, whether or not the relevant Event of Default or Termination
Event is then continuing.
b) Upon the occurrence or effective designation of an Early Termination
Date, no further payments or deliveries under Section 2(a)(i) or 2(e) in
respect of the Terminated Transactions will be required to be made, but
without prejudice to the other provisions of this Agreement. The amount, if
any, payable in respect of an Early Termination Date shall be determined
pursuant to Section 6(e).
4. CALCULATIONS.
a) Statement. On or as soon as reasonably practicable following the
occurrence of an Early Termination Date, each party will make the
calculations on its part, if any, contemplated by Section 6(e) and will
provide to the other party a statement (1) showing, in reasonable detail,
such calculations (including all relevant quotations and specifying any
amount payable under Section 6(e)) and (2) giving details of the relevant
account to which any amount payable to it is to be paid. In the absence of
written confirmation from the source of a quotation obtained in determining
a Market Quotation, the records of the party obtaining such quotation will
be conclusive evidence of the existence and accuracy of such quotation.
b) Payment Date. An amount calculated as being due in respect of any Early
Termination Date under Section 6(e) will be payable on the day that notice
of the amount payable is effective (in the case of an Early Termination
Date which is designated or occurs as a result of an Event of Default) and
on the day which is two Local Business Days after the day on which notice
of the amount payable is effective (in the case of an Early Termination
Date which is designated as a result of a Termination Event). Such amount
will be paid together with (to the extent permitted
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under applicable law) interest thereon (before as well as after judgment)
in the Termination Currency, from (and including) the relevant Early
Termination Date to (but excluding) the date such amount is paid, at the
Applicable Rate. Such interest will be calculated on the basis of daily
compounding and the actual number of days elapsed.
5. PAYMENTS ON EARLY TERMINATION. If an Early Termination Date occurs, the
following provisions shall apply based on the parties' election in the Schedule
of a payment measure, either "Market Quotation" or "Loss", and a payment method,
either the "First Method" or the "Second Method". If the parties fail to
designate a payment measure or payment method in the Schedule, it will be deemed
that "Market Quotation" or the "Second Method", as the case may be, shall apply.
The amount, if any, payable in respect of an Early Termination Date and
determined pursuant to this Section will be subject to any Set-off.
a) Events of Default. If the Early Termination Date results from an Event
of Default:--
(1) First Method and Market Quotation. If the First Method and Market
Quotation apply, the Defaulting Party will pay to the Non-defaulting
Party the excess, if a positive number, of (A) the sum of the
Settlement Amount (determined by the Non-defaulting Party) in respect
of the Terminated Transactions and the Termination Currency Equivalent
of the Unpaid Amounts owing to the Non-defaulting Party over (B) the
Termination Currency Equivalent of the Unpaid Amounts owing to the
Defaulting Party.
(2) First Method and Loss. If the First Method and Loss apply, the
Defaulting Party will pay to the Non-defaulting Party, if a positive
number, the Non-defaulting Party's Loss in respect of this Agreement.
(3) Second Method and Market Quotation. If the Second Method and
Market Quotation apply, an amount will be payable equal to (A) the sum
of the Settlement Amount (determined by the Non-defaulting Party) in
respect of the Terminated Transactions and the Termination Currency
Equivalent of the Unpaid Amounts owing to the Non-defaulting Party
less (B) the Termination Currency Equivalent of the Unpaid Amounts
owing to the Defaulting Party. If that amount is a positive number,
the Defaulting Party will pay it to the Non-defaulting Party; if it is
a negative number, the Non-defaulting Party will pay the absolute
value of that amount to the Defaulting Party.
(4) Second Method and Loss. If the Second Method and Loss apply, an
amount will be payable equal to the Non-defaulting Party's Loss in
respect of this Agreement. If that amount is a positive number, the
Defaulting Party will pay it to the Non-defaulting Party; if it is a
negative number, the Non-defaulting Party will pay the absolute value
of that amount to the Defaulting Party.
b) Termination Events. If the Early Termination Date results from a
Termination Event:--
(1) One Affected Party. If there is one Affected Party, the amount
payable will be determined in accordance with Section 6(e)(i)(3), if
Market Quotation applies, or Section 6(e)(i)(4), if Loss applies,
except that, in either case, references to the Defaulting Party and to
the Non-defaulting Party will be deemed to be references to the
Affected Party and the party which is not the Affected Party,
respectively, and, if Loss applies and fewer
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than all the Transactions are being terminated, Loss shall be
calculated in respect of all Terminated Transactions.
(2) Two Affected Parties. If there are two Affected Parties:--
(1) if Market Quotation applies, each party will determine a
Settlement Amount in respect of the Terminated Transactions, and
an amount will be payable equal to (I) the sum of (a) one-half of
the difference between the Settlement Amount of the party with
the higher Settlement Amount ("X") and the Settlement Amount of
the party with the lower Settlement Amount ("Y") and (b) the
Termination Currency Equivalent of the Unpaid Amounts owing to X
less (II) the Termination Currency Equivalent of the Unpaid
Amounts owing to Y; and
(2) if Loss applies, each party will determine its Loss in
respect of this Agreement (or, if fewer than all the Transactions
are being terminated, in respect of all Terminated Transactions)
and an amount will be payable equal to one-half of the difference
between the Loss of the party with the higher Loss ("X") and the
Loss of the party with the lower Loss ("Y").
If the amount payable is a positive number, Y will pay it to X; if it
is a negative number, X will pay the absolute value of that amount to
Y.
c) Adjustment for Bankruptcy. In circumstances where an Early Termination
Date occurs because "Automatic Early Termination" applies in respect of a
party, the amount determined under this Section 6(e) will be subject to
such adjustments as are appropriate and permitted by law to reflect any
payments or deliveries made by one party to the other under this Agreement
(and retained by such other party) during the period from the relevant
Early Termination Date to the date for payment determined under Section
6(d)(ii).
d) Pre-Estimate. The parties agree that if Market Quotation applies an
amount recoverable under this Section 6(e) is a reasonable pre-estimate of
loss and not a penalty. Such amount is payable for the loss of bargain and
the loss of protection against future risks and except as otherwise
provided in this Agreement neither party will be entitled to recover any
additional damages as a consequence of such losses.
(7) TRANSFER
Subject to Section 6(b)(ii), neither this Agreement nor any interest or
obligation in or under this Agreement may be transferred (whether by way of
security or otherwise) by either party without the prior written consent of
the other party, except that:--
1. a party may make such a transfer of this Agreement pursuant to a
consolidation or amalgamation with, or merger with or into, or transfer of all
or substantially all its assets to, another entity (but without prejudice to any
other right or remedy under this Agreement); and
2. a party may make such a transfer of all or any part of its interest in any
amount payable to it from a Defaulting Party under Section 6(e).
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Any purported transfer that is not in compliance with this Section will be
void.
(8) CONTRACTUAL CURRENCY
1. PAYMENT IN THE CONTRACTUAL CURRENCY. Each payment under this Agreement will
be made in the relevant currency specified in this Agreement for that payment
(the "Contractual Currency"). To the extent permitted by applicable law, any
obligation to make payments under this Agreement in the Contractual Currency
will not be discharged or satisfied by any tender in any currency other than the
Contractual Currency, except to the extent such tender results in the actual
receipt by the party to which payment is owed, acting in a reasonable manner and
in good faith in converting the currency so tendered into the Contractual
Currency, of the full amount in the Contractual Currency of all amounts payable
in respect of this Agreement. If for any reason the amount in the Contractual
Currency so received falls short of the amount in the Contractual Currency
payable in respect of this Agreement, the party required to make the payment
will, to the extent permitted by applicable law, immediately pay such additional
amount in the Contractual Currency as may be necessary to compensate for the
shortfall. If for any reason the amount in the Contractual Currency so received
exceeds the amount in the Contractual Currency payable in respect of this
Agreement, the party receiving the payment will refund promptly the amount of
such excess.
2. JUDGMENTS. To the extent permitted by applicable law, if any judgment or
order expressed in a currency other than the Contractual Currency is rendered
(i) for the payment of any amount owing in respect of this Agreement, (ii) for
the payment of any amount relating to any early termination in respect of this
Agreement or (iii) in respect of a judgment or order of another court for the
payment of any amount described in (i) or (ii) above, the party seeking
recovery, after recovery in full of the aggregate amount to which such party is
entitled pursuant to the judgment or order, will be entitled to receive
immediately from the other party the amount of any shortfall of the Contractual
Currency received by such party as a consequence of sums paid in such other
currency and will refund promptly to the other party any excess of the
Contractual Currency received by such party as a consequence of sums paid in
such other currency if such shortfall or such excess arises or results from any
variation between the rate of exchange at which the Contractual Currency is
converted into the currency of the judgment or order for the purposes of such
judgment or order and the rate of exchange at which such party is able, acting
in a reasonable manner and in good faith in converting the currency received
into the Contractual Currency, to purchase the Contractual Currency with the
amount of the currency of the judgment or order actually received by such party.
The term "rate of exchange" includes, without limitation, any premiums and costs
of exchange payable in connection with the purchase of or conversion into the
Contractual Currency.
3. SEPARATE INDEMNITIES. To the extent permitted by applicable law, these
indemnities constitute separate and independent obligations from the other
obligations in this Agreement, will be enforceable as separate and independent
causes of action, will apply notwithstanding any indulgence granted by the party
to which any payment is owed and will not be affected by judgment being obtained
or claim or proof being made for any other sums payable in respect of this
Agreement.
4. EVIDENCE OF LOSS. For the purpose of this Section 8, it will be sufficient
for a party to demonstrate that it would have suffered a loss had an actual
exchange or purchase been made.
(9) MISCELLANEOUS
U-2-15
1. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement and
understanding of the parties with respect to its subject matter and supersedes
all oral communication and prior writings with respect thereto.
2. AMENDMENTS. No amendment, modification or waiver in respect of this Agreement
will be effective unless in writing (including a writing evidenced by a
facsimile transmission) and executed by each of the parties or confirmed by an
exchange of telexes or electronic messages on an electronic messaging system.
3. SURVIVAL OF OBLIGATIONS. Without prejudice to Sections 2(a)(iii) and
6(c)(ii), the obligations of the parties under this Agreement will survive the
termination of any Transaction.
4. REMEDIES CUMULATIVE. Except as provided in this Agreement, the rights,
powers, remedies and privileges provided in this Agreement are cumulative and
not exclusive of any rights, powers, remedies and privileges provided by law.
5. COUNTERPARTS AND CONFIRMATIONS.
a) This Agreement (and each amendment, modification and waiver in respect
of it) may be executed and delivered in counterparts (including by
facsimile transmission), each of which will be deemed an original.
b) The parties intend that they are legally bound by the terms of each
Transaction from the moment they agree to those terms (whether orally or
otherwise). A Confirmation shall be entered into as soon as practicable and
may be executed and delivered in counterparts (including by facsimile
transmission) or be created by an exchange of telexes or by an exchange of
electronic messages on an electronic messaging system, which in each case
will be sufficient for all purposes to evidence a binding supplement to
this Agreement. The parties will specify therein or through another
effective means that any such counterpart, telex or electronic message
constitutes a Confirmation.
6. NO WAIVER OF RIGHTS. A failure or delay in exercising any right, power or
privilege in respect of this Agreement will not be presumed to operate as a
waiver, and a single or partial exercise of any right, power or privilege will
not be presumed to preclude any subsequent or further exercise, of that right,
power or privilege or the exercise of any other right, power or privilege.
7. HEADINGS. The headings used in this Agreement are for convenience of
reference only and are not to affect the construction of or to be taken into
consideration in interpreting this Agreement.
(10) OFFICES; MULTIBRANCH PARTIES
1. If Section 10(a) is specified in the Schedule as applying, each party that
enters into a Transaction through an Office other than its head or home office
represents to the other party that, notwithstanding the place of booking office
or jurisdiction of incorporation or organisation of such party, the obligations
of such party are the same as if it had entered into the Transaction through its
head or home office. This representation will be deemed to be repeated by such
party on each date on which a Transaction is entered into.
U-2-16
2. Neither party may change the Office through which it makes and receives
payments or deliveries for the purpose of a Transaction without the prior
written consent of the other party.
3. If a party is specified as a Multibranch Party in the Schedule, such
Multibranch Party may make and receive payments or deliveries under any
Transaction through any Office listed in the Schedule, and the Office through
which it makes and receives payments or deliveries with respect to a Transaction
will be specified in the relevant Confirmation.
(11) EXPENSES
A Defaulting Party will, on demand, indemnify and hold harmless the other
party for and against all reasonable out-of-pocket expenses, including
legal fees and Stamp Tax, incurred by such other party by reason of the
enforcement and protection of its rights under this Agreement or any Credit
Support Document to which the Defaulting Party is a party or by reason of
the early termination of any Transaction, including, but not limited to,
costs of collection.
(12) NOTICES
1. EFFECTIVENESS. Any notice or other communication in respect of this Agreement
may be given in any manner set forth below (except that a notice or other
communication under Section 5 or 6 may not be given by facsimile transmission or
electronic messaging system) to the address or number or in accordance with the
electronic messaging system details provided (see the Schedule) and will be
deemed effective as indicated:--
a) if in writing and delivered in person or by courier, on the date it is
delivered;
b) if sent by telex, on the date the recipient's answerback is received;
c) if sent by facsimile transmission, on the date that transmission is
received by a responsible employee of the recipient in legible form (it
being agreed that the burden of proving receipt will be on the sender and
will not be met by a transmission report generated by the sender's
facsimile machine);
d) if sent by certified or registered mail (airmail, if overseas) or the
equivalent (return receipt requested), on the date that mail is delivered
or its delivery is attempted; or
e) if sent by electronic messaging system, on the date that electronic
message is received,
unless the date of that delivery (or attempted delivery) or that receipt as
applicable, is not a Local Business Day or that communication is delivered
(or attempted) or received, as applicable, after the close of business on a
Local Business Day, in which case that communication shall be deemed given
and effective on the first following day that is a Local Business Day.
U-2-17
2. CHANGE OF ADDRESSES. Either party may by notice to the other change the
address, telex or facsimile number or electronic messaging system details at
which notices or other communications are to be given to all
(13) GOVERNING LAW AND JURISDICTION
1. GOVERNING LAW. This Agreement will be governed by and construed in accordance
with the law specified in the Schedule.
2. JURISDICTION. With respect to any suit, action or proceedings relating to
this Agreement ("Proceedings"), each party irrevocably:--
a) submits to the jurisdiction of the English courts, if this Agreement is
expressed to be governed by English law, or to the non-exclusive
jurisdiction of the courts of the State of New York and the United States
District Court located in the Borough of Manhattan in New York City, if
this Agreement is expressed to be governed by the laws of the State of New
York; and
b) waives any objection which it may have at any time to the laying of
venue of any Proceedings brought in any such court, waives any claim that
such Proceedings have been brought in an inconvenient forum and further
waives the right to object, with respect to such Proceedings, that such
court does not have any jurisdiction over such party.
Nothing in this Agreement precludes either party from bringing Proceedings
in any other jurisdiction (outside, if this Agreement is expressed to be
governed by English law, the Contracting States, as defined in Section 1(3)
of the Civil Jurisdiction and Judgments Xxx 0000 or any modification,
extension or re-enactment thereof for the time being in force) nor will the
bringing of Proceedings in any one or more jurisdictions preclude the
bringing of Proceedings in any other jurisdiction.
3. SERVICE OF PROCESS. Each party irrevocably appoints the Process Agent (if
any) specified opposite its name in the Schedule to receive, for it and on its
behalf, service of process in any Proceedings. If for any reason any party's
Process Agent is unable to act as such, such party will promptly notify the
other party and within 30 days appoint a substitute process agent acceptable to
the other party. The parties irrevocably consent to service of process given in
the manner provided for notices in Section 12. Nothing in this Agreement will
affect the right of either party to serve process in any other manner permitted
by law.
4. WAIVER OF IMMUNITIES. Each party irrevocably waives, to the fullest extent
permitted by applicable law, with respect to itself and its revenues and assets
(irrespective of their use or intended use), all immunity on the grounds of
sovereignty or other similar grounds from (i) suit, (ii) jurisdiction of any
court, (iii) relief by way of injunction, order for specific performance or for
recovery of property, (iv) attachment of its assets (whether before or after
judgment) and (v) execution or enforcement of any judgment to which it or its
revenues or assets might otherwise be entitled in any Proceedings in the courts
of any jurisdiction and irrevocably agrees, to the extent permitted by
applicable law, that it will not claim any such immunity in any Proceedings.
U-2-18
(14) DEFINITIONS
As used in this Agreement: --
"Additional Termination Event" has the meaning specified in Section 5(b).
"Affected Party" has the meaning specified in Section 5(b).
"Affected Transactions" means (a) with respect to any Termination Event
consisting of an Illegality, Tax Event or Tax Event Upon Merger, all
Transactions affected by the occurrence of such Termination Event and (b)
with respect to any other Termination Event, all Transactions.
"Affiliate" means, subject to the Schedule, in relation to any person, any
entity controlled, directly or indirectly, by the person, any entity that
controls, directly or indirectly, the person or any entity directly or
indirectly under common control with the person. For this purpose,
"control" of any entity or person means ownership of a majority of the
voting power of the entity or person.
"Applicable Rate" means: --
1. in respect of obligations payable or deliverable (or which would have been
but for Section 2(a)(iii)) by a Defaulting Party, the Default Rate;
2. in respect of an obligation to pay an amount under Section 6(e) of either
party from and after the date (determined in accordance with Section 6(d)(ii))
on which that amount is payable, the Default Rate;
3. in respect of all other obligations payable or deliverable (or which would
have been but for Section 2(a)(iii)) by a Non-defaulting Party, the Non-default
Rate; and
4. in all other cases, the Termination Rate.
"Burdened Party" has the meaning specified in Section 5(b).
"Change in Tax Law" means the enactment, promulgation, execution or
ratification of, or any change in or amendment to, any law (or in the
application or official interpretation of any law) that occurs on or after
the date on which the relevant Transaction is entered into.
"consent" includes a consent, approval, action, authorisation, exemption,
notice, filing, registration or exchange control consent.
"Credit Event Upon Merger" has the meaning specified in Section 5(b).
U-2-19
"Credit Support Document" means any agreement or instrument that is
specified as such in this Agreement.
"Credit Support Provider" has the meaning specified in the Schedule.
"Default Rate" means a rate per annum equal to the cost (without proof or
evidence of any actual cost) to the relevant payee (as certified by it) if
it were to fund or of funding the relevant amount plus 1% per annum.
"Defaulting Party" has the meaning specified in Section 6(a).
"Early Termination Date" means the date determined in accordance with
Section 6(a) or 6(b)(iv).
"Event of Default" has the meaning specified in Section 5(a) and, if
applicable, in the Schedule.
"Illegality" has the meaning specified in Section 5(b).
"Indemnifiable Tax" means any Tax other than a Tax that would not be
imposed in respect of a payment under this Agreement but for a present or
former connection between the jurisdiction of the government or taxation
authority imposing such Tax and the recipient of such payment or a person
related to such recipient (including, without limitation, a connection
arising from such recipient or related person being or having been a
citizen or resident of such jurisdiction, or being or having been
organised, present or engaged in a trade or business in such jurisdiction,
or having or having had a permanent establishment or fixed place of
business in such jurisdiction, but excluding a connection arising solely
from such recipient or related person having executed, delivered, performed
its obligations or received a payment under, or enforced, this Agreement or
a Credit Support Document).
"law" includes any treaty, law, rule or regulation (as modified, in the
case of tax matters, by the practice of any relevant governmental revenue
authority) and "lawful" and "unlawful" will be construed accordingly.
"Local Business Day" means, subject to the Schedule, a day on which
commercial banks are open for business (including dealings in foreign
exchange and foreign currency deposits) (a) in relation to any obligation
under Section 2(a)(i), in the place(s) specified in the relevant
Confirmation or, if not so specified, as otherwise agreed by the parties in
writing or determined pursuant to provisions contained, or incorporated by
reference, in this Agreement, (b) in relation to any other payment, in the
place where the relevant account is located and, if different. in the
principal financial centre, if any, of the currency of such payment, (c) in
relation to any notice or other communication, including
U-2-20
notice contemplated under Section 5(a)(i), in the city specified in the
address for notice provided by the recipient and, in the case of a notice
contemplated by Section 2(b), in the place where the relevant new account
is to be located and (d) in relation to Section 5(a)(v)(2), in the relevant
locations for performance with respect to such Specified Transaction.
"Loss" means, with respect to this Agreement or one or more Terminated
Transactions, as the case may be, and a party, the Termination Currency
Equivalent of an amount that party reasonably determines in good faith to
be its total losses and costs (or gain, in which case expressed as a
negative number) in connection with this Agreement or that Terminated
Transaction or group of Terminated Transactions, as the case may be,
including any loss of bargain, cost of funding or, at the election of such
party but without duplication, loss or cost incurred as a result of its
terminating, liquidating, obtaining or reestablishing any hedge or related
trading position (or any gain resulting from any of them). Loss includes
losses and costs (or gains) in respect of any payment or delivery required
to have been made (assuming satisfaction of each applicable condition
precedent) on or before the relevant Early Termination Date and not made,
except, so as to avoid duplication, if Section 6(c)(i)(1) or (3) or
6(e)(ii)(2)(A) applies. Loss does not include a party's legal fees and
out-of-pocket expenses referred to under Section 11. A party will determine
its Loss as of the relevant Early Termination Date, or, if that is not
reasonably practicable, as of the earliest date thereafter as is reasonably
practicable. A party may (but need not) determine its Loss by reference to
quotations of relevant rates or prices from one or more leading dealers in
the relevant markets.
"Market Quotation" means, with respect to one or more Terminated
Transactions and a party making the determination, an amount determined on
the basis of quotations from Reference Market-makers. Each quotation will
be for an amount, if any, that would be paid to such party (expressed as a
negative number) or by such party (expressed as a positive number) in
consideration of an agreement between such party (taking into account any
existing Credit Support Document with respect to the obligations of such
party) and the quoting Reference Market-maker to enter into a transaction
(the "Replacement Transaction") that would have the effect of preserving
for such party the economic equivalent of any payment or delivery (whether
the underlying obligation was absolute or contingent and assuming the
satisfaction of each applicable condition precedent) by the parties under
Section 2(a)(i) in respect of such Terminated Transaction or group of
Terminated Transactions that would, but for the occurrence of the relevant
Early Termination Date, have been required after that date. For this
purpose, Unpaid Amounts in respect of the Terminated Transaction or group
of Terminated Transactions are to be excluded but, without limitation, any
payment or delivery that would, but for the relevant Early Termination
Date, have been required (assuming satisfaction of each applicable
condition precedent) after that Early Termination Date is to be included.
The Replacement Transaction would be subject to such documentation as such
party and the Reference
U-2-21
Market-maker may, in good faith, agree. The party making the determination
(or its agent) will request each Reference Market-maker to provide its
quotation to the extent reasonably practicable as of the same day and time
(without regard to different time zones) on or as soon as reasonably
practicable after the relevant Early Termination Date. The day and time as
of which those quotations are to be obtained will be selected in good faith
by the party obliged to make a determination under Section 6(e), and, if
each party is so obliged, after consultation with the other. If more than
three quotations are provided, the Market Quotation will be the arithmetic
mean of the quotations, without regard to the quotations having the highest
and lowest values, If exactly three such quotations are provided, the
Market Quotation will be the quotation remaining after disregarding the
highest and lowest quotations. For this purpose, if more than one quotation
has the same highest value or lowest value, then one of such quotations
shall be disregarded. If fewer than three quotations are provided, it will
be deemed that the Market Quotation in respect of such Terminated
Transaction or group of Terminated Transactions cannot be determined.
"Non-default Rate" means a rate per annum equal to the cost (without proof
or evidence of any actual cost) to the Non-defaulting Party (as certified
by it) if it were to fund the relevant amount.
"Non-defaulting Party" has the meaning specified in Section 6(a).
"Office" means a branch or office of a party, which may be such party's
head or home office.
"Potential Event of Default" means any event which, with the giving of
notice or the lapse of time or both, would constitute an Event of Default.
"Reference Market-makers" means four leading dealers in the relevant market
selected by the party determining a Market Quotation in good faith (a) from
among dealers of the highest credit standing which satisfy all the criteria
that such party applies generally at the time in deciding whether to offer
or to make an extension of credit and (b) to the extent practicable, from
among such dealers having an office in the same city.
"Relevant Jurisdiction" means, with respect to a party, the jurisdictions
(a) in which the party is incorporated, organised, managed and controlled
or considered to have its seat, (b) where an Office through which the party
is acting for purposes of this Agreement is located, (c) in which the party
executes this Agreement and (d) in relation to any payment, from or through
which such payment is made.
"Scheduled Payment Date" means a date on which a payment or delivery is to
be made under Section 2(a)(i) with respect to a Transaction.
U-2-22
"Set-off" means set-off, offset, combination of accounts, right of
retention or withholding or similar right or requirement to which the payer
of an amount under Section 6 is entitled or subject (whether arising under
this Agreement, another contract, applicable law or otherwise) that is
exercised by, or imposed on, such payer.
"Settlement Amount" means, with respect to a party and any Early
Termination Date, the sum of.-
the Termination Currency Equivalent of the Market Quotations (whether positive
or negative) for each Terminated Transaction or group of Terminated Transactions
for which a Market Quotation is determined; and
such party's Loss (whether positive or negative and without reference to any
Unpaid Amounts) for each Terminated Transaction or group of Terminated
Transactions for which a Market Quotation cannot be determined or would not (in
the reasonable belief of the party making the determination) produce a
commercially reasonable result.
"Specified Entity" has the meaning specified in the Schedule.
"Specified Indebtedness" means, subject to the Schedule, any obligation
(whether present or future, contingent or otherwise, as principal or surety
or otherwise) in respect of borrowed money.
"Specified Transaction" means, subject to the Schedule, (a) any transaction
(including an agreement with respect thereto) now existing or hereafter
entered into between one party to this Agreement (or any Credit Support
Provider of such party or any applicable Specified Entity of such party)
and the other party to this Agreement (or any Credit Support Provider of
such other party or any applicable Specified Entity of such other party)
which is a rate swap transaction, basis swap, forward rate transaction,
commodity swap, commodity option, equity or equity index swap, equity or
equity index option, bond option, interest rate option, foreign exchange
transaction, cap transaction, floor transaction, collar transaction,
currency swap transaction, cross-currency rate swap transaction, currency
option or any other similar transaction (including any option with respect
to any of these transactions), (b) any combination of these transactions
and (c) any other transaction identified as a Specified Transaction in this
Agreement or the relevant confirmation.
"Stamp Tax" means any stamp, registration, documentation or similar tax.
"Tax" means any present or future tax, levy, impost, duty, charge,
assessment or fee of any nature (including interest, penalties and
additions thereto) that is imposed by any government or other taxing
authority in respect of any payment under this Agreement other than a
stamp, registration, documentation or similar tax.
U-2-23
"Tax Event" has the meaning specified in Section 5(b).
"Tax Event Upon Merger" has the meaning specified in Section 5(b).
"Terminated Transactions" means with respect to any Early Termination Date
(a) if resulting from a Termination Event, all Affected Transactions and
(b) if resulting from an Event of Default, all Transactions (in either
case) in effect immediately before the effectiveness of the notice
designating that Early Termination Date (or, if "Automatic Early
Termination" applies, immediately before that Early Termination Date).
"Termination Currency" has the meaning specified in the Schedule.
"Termination Currency Equivalent" means, in respect of any amount
denominated in the Termination Currency, such Termination Currency amount
and, in respect of any amount denominated in a currency other than the
Termination Currency (the "Other Currency"), the amount in the Termination
Currency determined by the party making the relevant determination as being
required to purchase such amount of such Other Currency as at the relevant
Early Termination Date, or, if the relevant Market Quotation or Loss (as
the case may be), is determined as of a later date, that later date, with
the Termination Currency at the rate equal to the spot exchange rate of the
foreign exchange agent (selected as provided below) for the purchase of
such Other Currency with the Termination Currency at or about 11:00 a.m.
(in the city in which such foreign exchange agent is located) on such date
as would be customary for the determination of such a rate for the purchase
of such Other Currency for value on the relevant Early Termination Date or
that later date. The foreign exchange agent will, if only one party is
obliged to make a determination under Section 6(e), be selected in good
faith by that party and otherwise will be agreed by the parties
"Termination Event" means an Illegality, a Tax Event or a Tax Event Upon
Merger or, if specified to be applicable, a Credit Event Upon Merger or an
Additional Termination Event.
"Termination Rate" means a rate per annum equal to the arithmetic mean of
the cost (without proof or evidence of any actual cost) to each party (as
certified by such party) if it were to fund or of funding such amounts.
"Unpaid Amounts" owing to any party means, with respect to an Early
Termination Date, the aggregate of (a) in respect of all Terminated
Transactions, the amounts that became payable (or that would have become
payable but for Section 2(a)(iii)) to such party under Section 2(a)(i) on
or prior to such Early Termination Date and which remain unpaid as at such
Early Termination Date and (b) in respect of each Terminated Transaction.
for each obligation under Section 2(a)(i) which was (or would have been but
for Section 2(a)(iii)) required to be settled by delivery to such
U-2-24
party on or prior to such Early Termination Date and which has not been so
settled as at such Early Termination Date, an amount equal to the fair
market value of that which was (or would have been) required to be
delivered as of the originally scheduled date for delivery, in each case
together with (to the extent permitted under applicable law) interest, in
the currency of such amounts, from (and including) the date such amounts or
obligations were or would have been required to have been paid or performed
to (but excluding) such Early Termination Date, at the Applicable Rate.
Such amounts of interest will be calculated on the basis of daily
compounding and the actual number of days elapsed. The fair market value of
any obligation referred to in clause (b) above shall be reasonably
determined by the party obliged to make the determination under Section
6(e) or, if each party is so obliged, it shall be the average of the
Termination Currency Equivalents of the fair market values reasonably
determined by both parties.
U-2-25
IN WITNESS WHEREOF the parties have executed this document on the
respective dates specified below with effect from the date specified on the
first page of this document.
U.S. BANK NATIONAL ASSOCIATION, NOT IN
ITS INDIVIDUAL CAPACITY, BUT SOLELY AS
BEAR XXXXXXX FINANCIAL PRODUCTS INC. TRUSTEE ON BEHALF OF THE SPECIALTY
UNDERWRITING AND RESIDENTIAL FINANCE
(Name of Party) TRUST, SERIES 2007-BC2
(Name of Party)
By:
------------------------------------
Name:
----------------------------------
Title:
----------------------------------
Date:
----------------------------------
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
Date:
-------------------------------
U-2-26
SCHEDULE V
Item on Form 8-K Party Responsible
------------------------------------------------ -------------------------------------------------
*Item 1.01- Entry into a Material Definitive Each party to such agreement
Agreement
*Item 1.02- Termination of a Material Definitive Each party to such agreement
Agreement
Item 1.03- Bankruptcy or Receivership Depositor
Item 2.04- Triggering Events that Accelerate or Depositor
Increase a Direct Financial Obligation or an
Obligation under an Off-Balance Sheet
Arrangement
*Item 3.03- Material Modification to Rights of Depositor
Security Holders
Item 5.03- Amendments of Articles of Depositor
Incorporation or Bylaws; Change of Fiscal
Year
Item 6.01- ABS Informational and Computational Depositor
Material
*Item 6.02- Change of Servicer or Trustee Servicer (as to Trustee)/Trustee (as to Servicer)
*Item 6.03- Change in Credit Enhancement or Depositor/Trustee
External Support
*Item 6.04- Failure to Make a Required Trustee
Distribution
Item 6.05- Securities Act Updating Disclosure Depositor
Item 7.01- Regulation FD Disclosure Depositor
Item 8.01 Depositor
Item 9.01 Depositor
V-1
SCHEDULE W
Item on Form 10-D Party Responsible
----------------------------------------------------- ---------------------------------------------------
Item 1: Distribution and Pool Performance Information Trustee, Depositor
Plus any information required by 1121 which is NOT
included on the monthly statement to Servicer and Trustee (to the extent known and
Certificateholders required by Regulation AB)
Item 2: Legal Proceedings per Item 1117 of All parties to the Pooling and Servicing Agreement
Regulation AB (as to themselves), the Depositor/Servicer/Trustee
(to the extent known) as to the issuing entity, the
Sponsor, 1106(b) originator, any 1100(d)(1) party
Item 3: Sale of Securities and Use of Proceeds Depositor
Item 4: Defaults Upon Senior Securities Trustee
Item 5: Submission of Matters to a Vote of Security Trustee
Holders
Item 6: Significant Obligors of Pool Assets Depositor/Sponsor/Mortgage Loan Sponsor/ Servicer
Item 7: Significant Enhancement Provider Information Depositor/Sponsor
Item 8: Other Information Trustee/Servicer/Depositor (to the extent known)
and any other party responsible for disclosure
items on Form 8-K
Item 9: Exhibits Trustee/Depositor/Servicer to the extent applicable
to each
W-1
SCHEDULE X
Item on Form 10-K Party Responsible
-------------------------------------------------- ------------------------------------------------------
Item 1B: Unresolved Staff Comments Depositor
*Item 9B: Other Information Depositor and any other party responsible for
disclosure items on Form 8-K
*Item 15: Exhibits, Financial Statement Depositor/Servicer.
Schedules
*Additional Item: All parties to the Pooling and Servicing
Agreement (as to themselves), the
Disclosure per Item 1117 of Regulation AB Depositor/Servicer/Trustee (to the extent known)
as to the issuing entity, the Sponsor, 1106(b)
originator, any 1100(d)(1) party
*Additional Item: All parties to the Pooling and Servicing
Disclosure per Item 1119 of Regulation AB Agreement, the Sponsor, originator, significant
obligor, enhancement or support provider
Additional Item: Depositor/Sponsor/Mortgage Loan
Disclosure per Item 1112(b) of Regulation AB Sponsor/Servicer
Additional Item: Depositor/Sponsor
Disclosure per Items 1114(b) and 1115(b) of
Regulation AB
X-1
