STRUCTURED ASSET SECURITIES CORPORATION, as Depositor, AURORA LOAN SERVICES LLC, as Master Servicer, CLAYTON FIXED INCOME SERVICES INC., as Credit Risk Manager and U.S. BANK NATIONAL ASSOCIATION, as Trustee TRUST AGREEMENT Dated as of February 1, 2006...
EXECUTION
STRUCTURED
ASSET SECURITIES CORPORATION,
as
Depositor,
AURORA
LOAN SERVICES LLC,
as
Master
Servicer,
XXXXXXX
FIXED INCOME SERVICES INC., as Credit Risk Manager
and
U.S.
BANK
NATIONAL ASSOCIATION,
as
Trustee
___________________________
Dated
as
of February 1, 2006
___________________________
STRUCTURED
ASSET SECURITIES CORPORATION
MORTGAGE
PASS-THROUGH CERTIFICATES,
SERIES
2006-S1
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TABLE
OF CONTENTS
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Page
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ARTICLE
I DEFINITIONS
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12
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|
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Section
1.01
|
Definitions.
|
12
|
|
Section
1.02
|
Calculations
Respecting Mortgage Loans.
|
50
|
|
Section
1.03
|
Calculations
Respecting Accrued Interest.
|
50
|
|
ARTICLE
II DECLARATION OF TRUST; ISSUANCE OF CERTIFICATES
|
50
|
|
|
Section
2.01
|
Creation
and Declaration of Trust Fund; Conveyance of Mortgage
Loans.
|
50
|
|
Section
2.02
|
Acceptance
of Trust Fund by Trustee: Review of Documentation for Trust
Fund.
|
54
|
|
Section
2.03
|
Representations
and Warranties of the Depositor.
|
56
|
|
Section
2.04
|
Discovery
of Breach.
|
58
|
|
Section
2.05
|
Repurchase,
Purchase or Substitution of Mortgage Loans.
|
58
|
|
Section
2.06
|
Grant
Clause.
|
60
|
|
ARTICLE
III THE CERTIFICATES
|
61
|
|
|
Section
3.01
|
The
Certificates.
|
61
|
|
Section
3.02
|
Registration.
|
62
|
|
Section
3.03
|
Transfer
and Exchange of Certificates.
|
63
|
|
Section
3.04
|
Cancellation
of Certificates.
|
69
|
|
Section
3.05
|
Replacement
of Certificates.
|
69
|
|
Section
3.06
|
Persons
Deemed Owners.
|
69
|
|
Section
3.07
|
Temporary
Certificates.
|
70
|
|
Section
3.08
|
Appointment
of Paying Agent.
|
70
|
|
Section
3.09
|
Book-Entry
Certificates.
|
71
|
|
ARTICLE
IV ADMINISTRATION OF THE TRUST FUND
|
72
|
|
|
Section
4.01
|
Collection
Account.
|
72
|
|
Section
4.02
|
Application
of Funds in the Collection Account.
|
74
|
|
Section
4.03
|
Reports
to Certificateholders.
|
76
|
|
Section
4.04
|
Certificate
Account.
|
80
|
|
ARTICLE
V DISTRIBUTIONS TO HOLDERS OF CERTIFICATES
|
81
|
|
|
Section
5.01
|
Distributions
Generally.
|
81
|
|
Section
5.02
|
Distributions
from the Certificate Account.
|
82
|
|
Section
5.03
|
Allocation
of Losses.
|
92
|
|
Section
5.04
|
Advances
by Master Servicer, Servicers and Trustee.
|
92
|
|
Section
5.05
|
Compensating
Interest Payments.
|
93
|
|
Section
5.06
|
Basis
Risk Reserve Fund.
|
93
|
|
Section
5.07
|
Supplemental
Interest Trust.
|
94
|
|
Section
5.08
|
Rights
of Swap Counterparty.
|
96
|
|
Section
5.09
|
Swap
Termination Receipts.
|
96
|
i
|
ARTICLE
VI CONCERNING THE TRUSTEE EVENTS OF DEFAULT
|
97
|
|
|
Section
6.01
|
Duties
of Trustee.
|
97
|
|
Section
6.02
|
Certain
Matters Affecting the Trustee .
|
100
|
|
Section
6.03
|
Trustee
Not Liable for Certificates.
|
102
|
|
Section
6.04
|
Trustee
May Own Certificates.
|
102
|
|
Section
6.05
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Eligibility
Requirements for Trustee.
|
102
|
|
Section
6.06
|
Resignation
and Removal of Trustee.
|
102
|
|
Section
6.07
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Successor
Trustee.
|
103
|
|
Section
6.08
|
Merger
or Consolidation of Trustee.
|
104
|
|
Section
6.09
|
Appointment
of Co-Trustee, Separate Trustee or Custodian.
|
104
|
|
Section
6.10
|
Authenticating
Agents.
|
107
|
|
Section
6.11
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Indemnification
of Trustee.
|
107
|
|
Section
6.12
|
Fees
and Expenses of Trustee and Custodian.
|
108
|
|
Section
6.13
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Collection
of Monies.
|
109
|
|
Section
6.14
|
Events
of Default; Trustee To Act; Appointment of Successor.
|
109
|
|
Section
6.15
|
Additional
Remedies of Trustee Upon Event of Default.
|
113
|
|
Section
6.16
|
Waiver
of Defaults.
|
113
|
|
Section
6.17
|
Notification
to Holders.
|
114
|
|
Section
6.18
|
Directions
by Certificateholders and Duties of Trustee During Event of
Default.
|
114
|
|
Section
6.19
|
Action
Upon Certain Failures of the Master Servicer and Upon Event of
Default.
|
114
|
|
Section
6.20
|
Preparation
of Tax Returns and Other Reports.
|
115
|
|
Section
6.21
|
Reporting
Requirements of the Commission.
|
121
|
|
Section
6.22
|
No
Merger.
|
121
|
|
Section
6.23
|
Indemnification
by the Trustee.
|
121
|
|
ARTICLE
VII PURCHASE OF MORTGAGE LOANS AND TERMINATION OF THE TRUST
FUND
|
122
|
|
|
Section
7.01
|
Purchase
of Mortgage Loans; Termination of Trust Fund Upon Purchase or Liquidation
of All Mortgage Loans; Purchase of Lower Tier REMIC 1 Uncertificated
Regular Interests.
|
122
|
|
Section
7.02
|
Procedure
Upon Termination of Trust Fund or Purchase of Lower Tier REMIC 1
Uncertificated Regular Interests.
|
124
|
|
Section
7.03
|
Additional
Trust Fund Termination Event or Purchase of the Lower Tier REMIC 1
Uncertificated Regular Interests.
|
125
|
|
Section
7.04
|
Optional
Repurchase Right.
|
126
|
|
ARTICLE
VIII RIGHTS OF CERTIFICATEHOLDERS
|
127
|
|
|
Section
8.01
|
Limitation
on Rights of Holders.
|
127
|
|
Section
8.02
|
Access
to List of Holders.
|
127
|
|
Section
8.03
|
Acts
of Holders of Certificates.
|
128
|
ii
|
ARTICLE
IX ADMINISTRATION AND SERVICING OF MORTGAGE LOANS BY THE MASTER SERVICER;
CREDIT RISK MANAGER
|
129
|
|
|
Section
9.01
|
Duties
of the Master Servicer.
|
129
|
|
Section
9.02
|
Master
Servicer Fidelity Bond and Master Servicer Errors and Omissions Insurance
Policy.
|
129
|
|
Section
9.03
|
Master
Servicer’s Financial Statements and Related Information.
|
130
|
|
Section
9.04
|
Power
to Act; Procedures.
|
130
|
|
Section
9.05
|
Enforcement
of Servicer’s and Master Servicer’s Obligations.
|
132
|
|
Section
9.06
|
Collection
of Taxes, Assessments and Similar Items.
|
133
|
|
Section
9.07
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Termination
of Servicing Agreements; Successor Servicers.
|
134
|
|
Section
9.08
|
Master
Servicer Liable for Enforcement.
|
135
|
|
Section
9.09
|
No
Contractual Relationship Between Any Servicer and Trustee or
Depositor.
|
135
|
|
Section
9.10
|
Assumption
of Servicing Agreement by Trustee.
|
135
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|
Section
9.11
|
Due-on-Sale
Clauses; Assumption Agreements.
|
136
|
|
Section
9.12
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Release
of Mortgage Files.
|
136
|
|
Section
9.13
|
Documents,
Records and Funds in Possession of Master Servicer to be Held for
Trustee.
|
137
|
|
Section
9.14
|
Representations
and Warranties of the Master Servicer.
|
138
|
|
Section
9.15
|
Opinion.
|
141
|
|
Section
9.16
|
Standard
Hazard and Flood Insurance Policies.
|
141
|
|
Section
9.17
|
Presentment
of Claims and Collection of Proceeds.
|
141
|
|
Section
9.18
|
[Reserved]
|
142
|
|
Section
9.19
|
[Reserved]
|
142
|
|
Section
9.20
|
[Reserved]
|
142
|
|
Section
9.21
|
Compensation
to the Master Servicer.
|
142
|
|
Section
9.22
|
REO
Property.
|
142
|
|
Section
9.23
|
Notice
to the Sponsor, the Depositor and the Trustee.
|
143
|
|
Section
9.24
|
Reports
to the Trustee.
|
144
|
|
Section
9.25
|
Assessment
of Compliance and Attestation Reports.
|
144
|
|
Section
9.26
|
Annual
Statement of Compliance with Applicable Servicing
Criteria.
|
146
|
|
Section
9.27
|
Merger
or Consolidation.
|
146
|
|
Section
9.28
|
Resignation
of Master Servicer.
|
146
|
|
Section
9.29
|
Assignment
or Delegation of Duties by the Master Servicer.
|
147
|
|
Section
9.30
|
Limitation
on Liability of the Master Servicer and Others.
|
147
|
|
Section
9.31
|
Indemnification;
Third-Party Claims.
|
148
|
|
Section
9.32
|
Special
Servicing of Delinquent Mortgage Loans.
|
149
|
|
Section
9.33
|
Alternative
Index.
|
149
|
|
Section
9.34
|
Duties
of the Credit Risk Manager.
|
149
|
|
Section
9.35
|
Limitation
Upon Liability of the Credit Risk Manager.
|
151
|
|
Section
9.36
|
Indemnification
by the Credit Risk Manager.
|
151
|
|
Section
9.37
|
Removal
of Credit Risk Manager.
|
152
|
iii
|
ARTICLE
X REMIC ADMINISTRATION
|
152
|
|
|
Section
10.01
|
REMIC
Administration.
|
152
|
|
Section
10.02
|
Prohibited
Transactions and Activities.
|
155
|
|
Section
10.03
|
Indemnification
with Respect to Certain Taxes and Loss of REMIC Status.
|
155
|
|
Section
10.04
|
REO
Property.
|
156
|
|
ARTICLE
XI MISCELLANEOUS PROVISIONS
|
157
|
|
|
Section
11.01
|
Binding
Nature of Agreement; Assignment.
|
157
|
|
Section
11.02
|
Entire
Agreement.
|
157
|
|
Section
11.03
|
Amendment.
|
157
|
|
Section
11.04
|
Voting
Rights.
|
159
|
|
Section
11.05
|
Provision
of Information.
|
159
|
|
Section
11.06
|
Governing
Law.
|
160
|
|
Section
11.07
|
Notices.
|
160
|
|
Section
11.08
|
Severability
of Provisions.
|
160
|
|
Section
11.09
|
Indulgences;
No Waivers.
|
160
|
|
Section
11.10
|
Headings
Not To Affect Interpretation.
|
161
|
|
Section
11.11
|
[Reserved].
|
161
|
|
Section
11.12
|
Special
Notices to the Rating Agencies.
|
161
|
|
Section
11.13
|
Conflicts.
|
162
|
|
Section
11.14
|
Counterparts.
|
162
|
|
Section
11.15
|
Transfer
of Servicing.
|
162
|
iv
ATTACHMENTS
|
Exhibit
A
|
Forms
of Certificates
|
|
Exhibit
B-1
|
Form
of Initial Certification
|
|
Exhibit
B-2
|
Form
of Interim Certification
|
|
Exhibit
B-3
|
Form
of Final Certification
|
|
Exhibit
B-4
|
Form
of Endorsement
|
|
Exhibit
C
|
Request
for Release of Documents and Receipt
|
|
Exhibit
D-l
|
Form
of Residual Certificate Transfer Affidavit (Transferee)
|
|
Exhibit
D-2
|
Form
of Residual Certificate Transfer Affidavit (Transferor)
|
|
Exhibit
E
|
List
of Servicing Agreements
|
|
Exhibit
F
|
Form
of Rule 144A Transfer Certificate
|
|
Exhibit
G
|
Form
of Purchaser’s Letter for Institutional Accredited
Investors
|
|
Exhibit
H
|
Form
of ERISA Transfer Affidavit
|
|
Exhibit
I
|
Monthly
Remittance Advice
|
|
Exhibit
J
|
Monthly
Electronic Data Transmission
|
|
Exhibit
K
|
List
of Custodial Agreements
|
|
Exhibit
L
|
List
of Credit Risk Management Agreements
|
|
Exhibit
M
|
[Reserved]
|
|
Exhibit
N-1
|
Form
of Transfer Certificate for Transfer from Restricted Global Security
to
Regulation S Global Security
|
|
Exhibit
N-2
|
Form
of Transfer Certificate for Transfer from Regulation S Global Security
to
Restricted Global Security
|
|
Exhibit
O
|
Interest
Rate Cap Agreement
|
|
Exhibit
P
|
Swap
Agreement
|
|
Exhibit
Q-1
|
Additional
Form 10-D Disclosure
|
|
Exhibit
Q-2
|
Additional
Form 10-K Disclosure
|
|
Exhibit
Q-3
|
Additional
Form 8-K Disclosure
|
|
Exhibit
Q-4
|
Additional
Disclosure Notification
|
|
Exhibit
R
|
Form
of Back-Up Xxxxxxxx-Xxxxx Certification
|
|
Exhibit
S-1
|
Form
of Watch List Report
|
|
Exhibit
S-2
|
Form
of Loss Severity Report
|
|
Exhibit
S-3
|
Form
of Prepayment Premiums Report
|
|
Exhibit
S-4
|
Form
of Analytics Report
|
|
Exhibit
T
|
Servicing
Criteria to be Addressed in Report on Assessment of
Compliance
|
|
Exhibit
U
|
Form
of Certification to be Provided by the Credit Risk
Manager
|
|
Exhibit
V
|
Transaction
Parties
|
|
Schedule
A
|
Mortgage
Loan Schedule
|
|
Schedule
B
|
First
Payment Default Mortgage Loans
|
v
This
TRUST AGREEMENT (“Trust Agreement”) dated as of February 1, 2006 (the
“Agreement”), is by and among STRUCTURED ASSET SECURITIES CORPORATION, a
Delaware corporation, as depositor (the “Depositor”), AURORA LOAN SERVICES LLC,
as master servicer (the “Master Servicer”), U.S. BANK NATIONAL ASSOCIATION,
N.A., a national banking association, as trustee (the “Trustee”), and XXXXXXX
FIXED INCOME SERVICES INC., a Colorado corporation, as credit risk manager
(the
“Credit Risk Manager”).
PRELIMINARY
STATEMENT
The
Depositor has acquired the Mortgage Loans from the Seller, and at the Closing
Date is the owner of the Mortgage Loans and the other property being conveyed
by
it to the Trustee hereunder for inclusion in the Trust Fund. On the Closing
Date, the Depositor will acquire the Certificates from the Trust Fund as
consideration for its transfer to the Trust Fund of the Mortgage Loans and
the
other property constituting the Trust Fund. The Depositor has duly authorized
the execution and delivery of this Agreement to provide for the conveyance
to
the Trustee of the Mortgage Loans and the other property constituting the Trust
Fund. All covenants and agreements made by the Seller in the Mortgage Loan
Sale
Agreement and by the Depositor, the Master Servicer and the Trustee herein
with
respect to the Mortgage Loans and the other property constituting the Trust
Fund
are for the benefit of the Holders from time to time of the Certificates and,
to
the extent provided herein, any NIMS Insurer and the Swap Counterparty. The
Depositor, the Trustee, the Master Servicer and the Credit Risk Manager are
entering into this Agreement, and the Trustee is accepting the Trust Fund
created hereby, for good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged.
As
provided herein, an election shall be made that the Trust Fund (exclusive of
(i)
the Swap Agreement, (ii) the Swap Account, (iii) the right to receive and the
obligation to pay Basis Risk Shortfalls and Unpaid Basis Risk Shortfalls, (iv)
the Basis Risk Reserve Fund, (v), the Supplemental Interest Trust and (vi)
the
obligation to pay Class I Shortfalls (collectively, the “Excluded Trust
Assets”)) be treated for federal income tax purposes as comprising four real
estate mortgage investment conduits under Section 860D of the Code (each a
“REMIC” or, in the alternative “REMIC 1,” “REMIC 2,” “REMIC 3,” and “REMIC 4”
(REMIC 4 also being referred to as the “Upper Tier REMIC”)). Any inconsistencies
or ambiguities in this Agreement or in the administration of this Agreement
shall be resolved in a manner that preserves the validity of such REMIC
elections.
Each
Certificate, other than the Class R and Class LT-R Certificates, represents
ownership of a regular interest in the Upper Tier REMIC for purposes of the
REMIC Provisions. In addition, each Certificate, other than the Class R, Class
LT-R, Class X and Class P Certificates, represents (i) the right to receive
payments with respect to any Basis Risk Shortfalls and Unpaid Basis Risk
Shortfalls and (ii) the obligation to pay Class I Shortfalls. The Class LT-R
Certificate represents ownership of the sole Class of residual interest in
REMIC 1. The Class R Certificate represents ownership of the sole Class of
residual interest in each of REMIC 2, REMIC 3, and the Upper Tier REMIC for
purposes of the REMIC Provisions.
The
Upper
Tier REMIC shall hold as its assets the uncertificated Lower Tier Interests
in
REMIC 3, other than the Class LT3-R interest, and each such Lower Tier Interest
is hereby designated as a regular interest in REMIC 3 for purposes of the REMIC
Provisions. REMIC 3 shall hold as its assets the uncertificated Lower Tier
Interests in REMIC 2, other than the Class LT2-R interest, and each such
Lower Tier Interest is hereby designated as a regular interest in REMIC 2.
REMIC 2 shall hold as its assets the uncertificated Lower Tier Interests in
REMIC 1, and each such Lower Tier Interest is hereby designated as a regular
interest in REMIC 1. REMIC 1 shall hold as its assets the property of the Trust
Fund other than the Lower Tier Interests in REMIC 1, REMIC 2, and REMIC 3
and the Excluded Trust Assets.
The
startup day for each REMIC created hereby for purposes of the REMIC Provisions
is the Closing Date. In addition, for purposes of the REMIC Provisions, the
latest possible maturity date for each regular interest in each REMIC created
hereby is the Latest Possible Maturity Date.
REMIC
1:
REMIC
1
shall issue one uncertificated interest in respect of each Mortgage Loan held
by
the Trust Fund on the Closing Date, each of which is hereby designated as a
regular interest in REMIC 1 (the “REMIC 1 Regular Interests”). REMIC 1 shall
also issue the Class LT-R Certificate, which shall represent the sole class
of
residual interest in REMIC 1. Each REMIC 1 Regular Interest shall have an
initial principal balance equal to the Scheduled Principal Balance of the
Mortgage Loan to which it relates and shall bear interest at a per annum rate
equal to the Net Mortgage Rate of such Mortgage Loan. In the event a Qualified
Substitute Mortgage Loan is substituted for such Mortgage Loan (the “Original
Mortgage Loan”), no amount of interest payable on such Qualified Substitute
Mortgage Loan shall be distributed on such REMIC 1 Regular Interest at a rate
in
excess of the Net Mortgage Rate of the Original Mortgage Loan.
On
each
Distribution Date, the Trustee shall first pay or charge as an expense of REMIC
1 all expenses of the Trust Fund for such Distribution Date, other than any
expenses in respect of the Swap Agreement.
On
each
Distribution Date the Trustee shall distribute the aggregate Interest Remittance
Amount (net of expenses described in the preceding paragraph) with respect
to
each of the Lower Tier Interests in REMIC 1 based on the above-described
interest rates.
On
each
Distribution Date, the Trustee shall distribute the aggregate Principal
Remittance Amount among the Lower Tier Interests in REMIC 1 in accordance with
the amount of the Principal Remittance Amount attributable to the Mortgage
Loan
corresponding to each such Lower Tier Interest in REMIC 1. All losses on the
Mortgage Loans shall be allocated among the Lower Tier Interests in REMIC 1
in
the same manner that principal distributions are allocated.
On
each
Distribution Date, the Trustee shall distribute the Prepayment Premiums
collected during the preceding Prepayment Period, in the case of Principal
Prepayments in full, or during the related Collection Period, in the case of
Principal Prepayments in part, to the Lower Tier Interest in REMIC 1
corresponding to the Mortgage Loan with respect to which such amounts were
received.
2
REMIC
2:
The
following table sets forth the designations, principal balances and interest
rates for each interest in REMIC 2, each of which (other than the Class LT2-R
Lower Tier Interest) is hereby designated as a regular interest in REMIC 2
(the
“REMIC 2 Regular Interests”):
|
Class
Designation
|
Initial
Principal Balance
|
Interest
Rate
|
|||||
|
LT2-A
|
$
|
15,573,561.46
|
(1)
|
||||
|
LT2-F1
|
$
|
7,512,000.00
|
(2)
|
||||
|
LT2-V1
|
$
|
7,512,000.00
|
(3)
|
||||
|
LT2-F2
|
$
|
7,247,000.00
|
(2)
|
||||
|
LT2-V2
|
$
|
7,247,000.00
|
(3)
|
||||
|
LT2-F3
|
$
|
6,991,500.00
|
(2)
|
||||
|
LT2-V3
|
$
|
6,991,500.00
|
(3)
|
||||
|
LT2-F4
|
$
|
6,745,000.00
|
(2)
|
||||
|
LT2-V4
|
$
|
6,745,000.00
|
(3)
|
||||
|
LT2-F5
|
$
|
6,507,000.00
|
(2)
|
||||
|
LT2-V5
|
$
|
6,507,000.00
|
(3)
|
||||
|
LT2-F6
|
$
|
6,278,000.00
|
(2)
|
||||
|
LT2-V6
|
$
|
6,278,000.00
|
(3)
|
||||
|
LT2-F7
|
$
|
6,056,500.00
|
(2)
|
||||
|
LT2-V7
|
$
|
6,056,500.00
|
(3)
|
||||
|
LT2-F8
|
$
|
5,842,500.00
|
(2)
|
||||
|
LT2-V8
|
$
|
5,842,500.00
|
(3)
|
||||
|
LT2-F9
|
$
|
5,637,000.00
|
(2)
|
||||
|
LT2-V9
|
$
|
5,637,000.00
|
(3)
|
||||
|
LT2-F10
|
$
|
5,438,000.00
|
(2)
|
||||
|
LT2-V10
|
$
|
5,438,000.00
|
(3)
|
||||
|
LT2-F11
|
$
|
6,772,500.00
|
(2)
|
||||
|
LT2-V11
|
$
|
6,772,500.00
|
(3)
|
||||
|
LT2-F12
|
$
|
7,970,500.00
|
(2)
|
||||
|
LT2-V12
|
$
|
7,970,500.00
|
(3)
|
||||
|
LT2-F13
|
$
|
7,523,000.00
|
(2)
|
||||
|
LT2-V13
|
$
|
7,523,000.00
|
(3)
|
||||
|
LT2-F14
|
$
|
7,100,500.00
|
(2)
|
||||
|
LT2-V14
|
$
|
7,100,500.00
|
(3)
|
||||
|
LT2-F15
|
$
|
6,702,000.00
|
(2)
|
||||
|
LT2-V15
|
$
|
6,702,000.00
|
(3)
|
||||
|
LT2-F16
|
$
|
6,326,000.00
|
(2)
|
||||
|
LT2-V16
|
$
|
6,326,000.00
|
(3)
|
||||
|
LT2-F17
|
$
|
5,971,000.00
|
(2)
|
||||
|
LT2-V17
|
$
|
5,971,000.00
|
(3)
|
||||
|
LT2-F18
|
$
|
5,636,000.00
|
(2)
|
||||
|
LT2-V18
|
$
|
5,636,000.00
|
(3)
|
||||
|
LT2-F19
|
$
|
5,319,500.00
|
(2)
|
||||
|
LT2-V19
|
5,319,500.00
|
(3)
|
|||||
3
|
Class
Designation
|
Initial
Principal Balance
|
Interest
Rate
|
|||||
|
LT2-F20
|
$
|
5,021,000.00
|
(2)
|
||||
|
LT2-V20
|
$
|
5,021,000.00
|
(3)
|
||||
|
LT2-F21
|
$
|
14,742,500.00
|
(2)
|
||||
|
LT2-V21
|
$
|
14,742,500.00
|
(3)
|
||||
|
LT2-F22
|
$
|
10,191,500.00
|
(2)
|
||||
|
LT2-V22
|
$
|
10,191,500.00
|
(3)
|
||||
|
LT2-F23
|
$
|
7,468,500.00
|
(2)
|
||||
|
LT2-V23
|
$
|
7,468,500.00
|
(3)
|
||||
|
LT2-F24
|
$
|
5,677,500.00
|
(2)
|
||||
|
LT2-V24
|
$
|
5,677,500.00
|
(3)
|
||||
|
LT2-F25
|
$
|
4,425,000.00
|
(2)
|
||||
|
LT2-V25
|
$
|
4,425,000.00
|
(3)
|
||||
|
LT2-F26
|
$
|
3,513,000.00
|
(2)
|
||||
|
LT2-V26
|
$
|
3,513,000.00
|
(3)
|
||||
|
LT2-F27
|
$
|
2,824,500.00
|
(2)
|
||||
|
LT2-V27
|
$
|
2,824,500.00
|
(3)
|
||||
|
LT2-F28
|
$
|
2,291,500.00
|
(2)
|
||||
|
LT2-V28
|
$
|
2,291,500.00
|
(3)
|
||||
|
LT2-F29
|
$
|
2,144,000.00
|
(2)
|
||||
|
LT2-V29
|
$
|
2,144,000.00
|
(3)
|
||||
|
LT2-F30
|
$
|
2,006,000.00
|
(2)
|
||||
|
LT2-V30
|
$
|
2,006,000.00
|
(3)
|
||||
|
LT2-F31
|
$
|
1,876,500.00
|
(2)
|
||||
|
LT2-V31
|
$
|
1,876,500.00
|
(3)
|
||||
|
LT2-F32
|
$
|
1,756,000.00
|
(2)
|
||||
|
LT2-V32
|
$
|
1,756,000.00
|
(3)
|
||||
|
LT2-F33
|
$
|
1,643,000.00
|
(2)
|
||||
|
LT2-V33
|
$
|
1,643,000.00
|
(3)
|
||||
|
LT2-F34
|
$
|
1,537,500.00
|
(2)
|
||||
|
LT2-V34
|
$
|
1,537,500.00
|
(3)
|
||||
|
LT2-F35
|
$
|
1,438,000.00
|
(2)
|
||||
|
LT2-V35
|
$
|
1,438,000.00
|
(3)
|
||||
|
LT2-F36
|
$
|
1,346,000.00
|
(2)
|
||||
|
LT2-V36
|
$
|
1,346,000.00
|
(3)
|
||||
|
LT2-F37
|
$
|
1,259,000.00
|
(2)
|
||||
|
LT2-V37
|
$
|
1,259,000.00
|
(3)
|
||||
|
LT2-F38
|
$
|
1,178,000.00
|
(2)
|
||||
|
LT2-V38
|
$
|
1,178,000.00
|
(3)
|
||||
|
LT2-F39
|
$
|
1,102,000.00
|
(2)
|
||||
|
LT2-V39
|
$
|
1,102,000.00
|
(3)
|
||||
|
LT2-F40
|
$
|
1,031,000.00
|
(2)
|
||||
|
LT2-V40
|
$
|
1,031,000.00
|
(3)
|
||||
|
LT2-F41
|
$
|
965,000.00
|
(2)
|
||||
|
LT2-V41
|
$
|
965,000.00
|
(3)
|
||||
4
|
Class
Designation
|
Initial
Principal Balance
|
Interest
Rate
|
|||||
|
LT2-F42
|
$
|
902,500.00
|
(2)
|
||||
|
LT2-V42
|
$
|
902,500.00
|
(3)
|
||||
|
LT2-F43
|
$
|
844,500.00
|
(2)
|
||||
|
LT2-V43
|
$
|
844,500.00
|
(3)
|
||||
|
LT2-F44
|
$
|
790,500.00
|
(2)
|
||||
|
LT2-V44
|
$
|
790,500.00
|
(3)
|
||||
|
LT2-F45
|
$
|
739,500.00
|
(2)
|
||||
|
LT2-V45
|
$
|
739,500.00
|
(3)
|
||||
|
LT2-F46
|
$
|
691,500.00
|
(2)
|
||||
|
LT2-V46
|
$
|
691,500.00
|
(3)
|
||||
|
LT2-F47
|
$
|
647,000.00
|
(2)
|
||||
|
LT2-V47
|
$
|
647,000.00
|
(3)
|
||||
|
LT2-F48
|
$
|
606,000.00
|
(2)
|
||||
|
LT2-V48
|
$
|
606,000.00
|
(3)
|
||||
|
LT2-F49
|
$
|
566,500.00
|
(2)
|
||||
|
LT2-V49
|
$
|
566,500.00
|
(3)
|
||||
|
LT2-F50
|
$
|
530,000.00
|
(2)
|
||||
|
LT2-V50
|
$
|
530,000.00
|
(3)
|
||||
|
LT2-F51
|
$
|
496,000.00
|
(2)
|
||||
|
LT2-V51
|
$
|
496,000.00
|
(3)
|
||||
|
LT2-F52
|
$
|
464,000.00
|
(2)
|
||||
|
LT2-V52
|
$
|
464,000.00
|
(3)
|
||||
|
LT2-F53
|
$
|
434,000.00
|
(2)
|
||||
|
LT2-V53
|
$
|
434,000.00
|
(3)
|
||||
|
LT2-F54
|
$
|
406,500.00
|
(2)
|
||||
|
LT2-V54
|
$
|
406,500.00
|
(3)
|
||||
|
LT2-F55
|
$
|
380,000.00
|
(2)
|
||||
|
LT2-V55
|
$
|
380,000.00
|
(3)
|
||||
|
LT2-F56
|
$
|
355,500.00
|
(2)
|
||||
|
LT2-V56
|
$
|
355,500.00
|
(3)
|
||||
|
LT2-F57
|
$
|
332,500.00
|
(2)
|
||||
|
LT2-V57
|
$
|
332,500.00
|
(3)
|
||||
|
LT2-F58
|
$
|
311,500.00
|
(2)
|
||||
|
LT2-V58
|
$
|
311,500.00
|
(3)
|
||||
|
LT2-F59
|
$
|
4,524,000.00
|
(2)
|
||||
|
LT2-V59
|
$
|
4,524,000.00
|
(3)
|
||||
|
LT2-R
|
(4)
|
|
(4)
|
||||
___________________________
|
(1)
|
For
any Distribution Date (and the related Accrual Period) the interest
rate
for the Class LT2-A Interest shall be the Net WAC Rate.
|
5
|
(2)
|
For
any Distribution Date (and the related Accrual Period) the interest
rate
for each of these Lower Tier Interests shall be the lesser of (i)
the
REMIC Swap Rate for such Distribution Date, and (ii) the product
of (a)
the Net WAC Rate and (b) 2.
|
|
(3)
|
For
any Distribution Date (and the related Accrual Period) the interest
rate
for each of these Lower Tier Interests shall be the excess, if any,
of (i)
the product of (a) the Net WAC Rate and (b) 2, over (ii) the REMIC
Swap
Rate for such Distribution Date.
|
|
(4)
|
The
Class LT2-R interest shall not have a principal amount and shall
not bear
interest. The Class LT2-R interest is hereby designated as the sole
class
of residual interest in REMIC 2.
|
On
each
Distribution Date, the Trustee shall distribute the aggregate Interest
Remittance Amount for the Mortgage Pool (net of expenses described in the
preceding paragraph) with respect to each of the Lower Tier Interests in REMIC
2
based on the above-described interest rates.
On
each
Distribution Date, the Trustee shall distribute the aggregate Principal
Remittance Amount with respect to the two Mortgage Pools with respect to the
Lower Tier Interests in REMIC 2, first to the Class LT2-A Interest until its
principal balance is reduced to zero, and then sequentially, to the other Lower
Tier Interests in REMIC 2 in ascending order of their numerical class
designation, and, with respect to each pair of classes having the same numerical
designation, in equal amounts to each such class, until the principal balance
of
each such class is reduced to zero. All losses on the Mortgage Loans shall
be
allocated among the Lower Tier Interests in REMIC 2 in the same manner that
principal distributions are allocated.
On
each
Distribution Date, the Trustee shall distribute the Prepayment Premiums
collected during the preceding calendar month, to the Class LT2-F59 and Class
LT2-V59 Lower Tier Interests, respectively.
REMIC
3:
The
following table sets forth the designations, principal balances and interest
rates for each interest in REMIC 3, each of which (other than the Class LT3-R
interest) is hereby designated as a regular interest in REMIC 3 (the “REMIC 3
Regular Interests”):
|
REMIC
3
Lower
Tier
Class
Designation
|
REMIC
3
Lower
Tier
Interest
Rate
|
Initial
Class
Principal
Amount
|
Corresponding
Class of Certificate(s)
|
|||
|
Class
LT3-A1
|
(1)
|
(3)
|
A1
|
|||
|
Class
LT3-A2
|
(1)
|
(3)
|
A2
|
|||
|
Class
LT3-M1
|
(1)
|
(3)
|
M1
|
|||
|
Class
LT3-M2
|
(1)
|
(3)
|
M2
|
|||
|
Class
LT3-M3
|
(1)
|
(3)
|
M3
|
|||
|
Class
LT3-M4
|
(1)
|
(3)
|
M4
|
|||
|
Class
LT3-M5
|
(1)
|
(3)
|
M5
|
|||
|
Class
LT3-M6
|
(1)
|
(3)
|
M6
|
|||
|
Class
LT3-M7
|
(1)
|
(3)
|
M7
|
|||
|
Class
LT3-M8
|
(1)
|
(3)
|
M8
|
|||
|
Class
LT3-B1
|
(1)
|
(3)
|
B1
|
|||
|
Class
LT3-B2
|
(1)
|
(3)
|
B2
|
|||
|
Class
LT3-Q
|
(1)
|
(4)
|
N/A
|
|||
|
Class
LT3-IO
|
(2)
|
(2)
|
N/A
|
|||
|
Class
LT3-R
|
(5)
|
(5)
|
R
|
6
___________________________
|
(1)
|
For
any Distribution Date (and the related Accrual Period) the interest
rate
for each of these Lower Tier Interests in REMIC 3 is a per annum
rate
equal to the weighted average of the interest rates on the Lower
Tier
Interests in REMIC 2 for such Distribution Date, provided,
however, that
for any Distribution Date on which the Class LT3-IO Interest is entitled
to a portion of the interest accruals on a Lower Tier Interest in
REMIC 2
having an “F” in its class designation, as described in footnote two
below, such weighted average shall be computed by first subjecting
the
rate on such Lower Tier Interest in REMIC 2 to a cap equal to Swap
LIBOR
for such Distribution Date.
|
|
(2)
|
The
Class LT3-IO is an interest only class that does not have a principal
balance. For only those Distribution Dates listed in the first column
in
the table below, the Class LT3-IO shall be entitled to interest accrued
on
the Lower Tier Interest in REMIC 2 listed in the second column in
the
table below at a per annum rate equal to the excess, if any, of (i)
the
interest rate for such Lower Tier Interest in REMIC 2 for such
Distribution Date over (ii) Swap LIBOR for such Distribution
Date.
|
|
Distribution
Dates
|
REMIC
2
Class Designation
|
|
|
2
|
Class
LT2-F1
|
|
|
2-3
|
Class
LT2-F2
|
|
|
2-4
|
Class
LT2-F3
|
|
|
2-5
|
Class
LT2-F4
|
|
|
2-6
|
Class
LT2-F5
|
|
|
2-7
|
Class
LT2-F6
|
|
|
2-8
|
Class
LT2-F7
|
|
|
2-9
|
Class
LT2-F8
|
|
|
2-10
|
Class
LT2-F9
|
|
|
2-11
|
Class
LT2-F10
|
|
|
2-12
|
Class
LT2-F11
|
|
|
2-13
|
Class
LT2-F12
|
|
|
2-14
|
Class
LT2-F13
|
|
|
2-15
|
Class
LT2-F14
|
|
|
2-16
|
Class
LT2-F15
|
|
|
2-17
|
Class
LT2-F16
|
|
|
2-18
|
Class
LT2-F17
|
|
|
2-19
|
Class
LT2-F18
|
|
|
2-20
|
Class
LT2-F19
|
|
|
2-21
|
Class
LT2-F20
|
|
|
2-22
|
Class
LT2-F21
|
|
|
2-23
|
Class
LT2-F22
|
|
|
2-24
|
Class
LT2-F23
|
|
|
2-25
|
Class
LT2-F24
|
|
|
2-26
|
Class
LT2-F25
|
|
|
2-27
|
Class
LT2-F26
|
|
|
2-28
|
Class
LT2-F27
|
|
|
2-29
|
Class
LT2-F28
|
7
|
2-30
|
Class
LT2-F29
|
|
|
2-31
|
Class
LT2-F30
|
|
|
2-32
|
Class
LT2-F31
|
|
|
2-33
|
Class
LT2-F32
|
|
|
2-34
|
Class
LT2-F33
|
|
|
2-35
|
Class
LT2-F34
|
|
|
2-36
|
Class
LT2-F35
|
|
|
2-37
|
Class
LT2-F36
|
|
|
2-38
|
Class
LT2-F37
|
|
|
2-39
|
Class
LT2-F38
|
|
|
2-40
|
Class
LT2-F39
|
|
|
2-41
|
Class
LT2-F40
|
|
|
2-42
|
Class
LT2-F41
|
|
|
2-43
|
Class
LT2-F42
|
|
|
2-44
|
Class
LT2-F43
|
|
|
2-45
|
Class
LT2-F44
|
|
|
2-46
|
Class
LT2-F45
|
|
|
2-47
|
Class
LT2-F46
|
|
|
2-48
|
Class
LT2-F47
|
|
|
2-49
|
Class
LT2-F48
|
|
|
2-50
|
Class
LT2-F49
|
|
|
2-51
|
Class
LT2-F50
|
|
|
2-52
|
Class
LT2-F51
|
|
|
2-53
|
Class
LT2-F52
|
|
|
2-54
|
Class
LT2-F53
|
|
|
2-55
|
Class
LT2-F54
|
|
|
2-56
|
Class
LT2-F55
|
|
|
2-57
|
Class
LT2-F56
|
|
|
2-58
|
Class
LT2-F57
|
|
|
2-59
|
Class
LT2-F58
|
|
|
2-60
|
Class
LT2-F59
|
___________________________
|
(3)
|
This
interest shall have an initial class principal amount equal to one-half
of
the initial Class Principal Amount of its Corresponding Class of
Certificates.
|
|
(4)
|
This
interest shall have an initial class principal amount equal to the
excess
of (i) the aggregate Pool Balance as of the Cut-off Date, over (ii)
the
aggregate initial class principal amount of each other regular interest
in
REMIC 3.
|
|
(5)
|
The
Class LT3-R interest is the sole class of residual interests in REMIC
3.
It does not have an interest rate or a principal
balance.
|
On
each
Distribution Date, interest shall be distributed on the Lower Tier Interests
in
REMIC 3 based on the above-described interest rates,
provided, however,
that
interest that accrues on the Class LT3-Q Interest shall be deferred in an amount
equal to one-half of the increase, if any, in the Overcollateralization Amount
for such Distribution Date. Any interest so deferred shall itself bear interest
at the interest rate for the Class LT3-Q Interest. An amount equal to the
interest so deferred shall be distributed as additional principal on the other
Lower Tier Interests in REMIC 3 having a principal balance in the manner
described under priority (a) below.
8
On
each
Distribution Date principal shall be distributed, and Realized Losses shall
be
allocated, among the Lower Tier Interests in REMIC 3 in the following order
of
priority:
(a)
first,
to the
Class LT3-A1, Class LT3-A2, Class LT3-M1, Class LT3-M2, Class LT3-M3, Class
LT3-M4, Class LT3-M5, Class LT3-M6, Class LT3-M7, Class LT3-M8, Class LT3-B1
and
Class LT3-B2 Interests until the principal balance of each such Lower Tier
Interest equals one-half of the Class Principal Amount of the Corresponding
Class of Certificates immediately after such Distribution Date; and
(b)
second,
to the
Class LT3-Q Interests, any remaining amounts.
On
each
Distribution Date, the Trustee shall be deemed to have distributed the
Prepayment Premiums passed through with respect to the Class LT2-F59 and Class
LT2-V59 Lower Tier Interests in REMIC 2 on such Distribution Date to the Class
LT3-Q Interest.
REMIC
4
The
following table sets forth (or describes) the Class designation, Certificate
Interest Rate, initial Class Principal Amount and minimum denomination for
each
Class of Certificates comprising interests in the Trust Fund created hereunder.
Each Certificate, other than the Class R and Class LT-R Certificates represents
ownership of regular interests in the Upper Tier REMIC.
|
Class
Designation
|
Interest
Rate
|
Initial
Class
Principal
Amount ($)
|
Minimum
Denomination
|
|||||||
|
Class
A1
|
(1)(18)
|
$301,642,000
|
$25,000.00
|
|||||||
|
Class
A2
|
(2)(18)
|
$44,164,000
|
$25,000.00
|
|||||||
|
Class
M1
|
(3)(18)
|
$21,199,000
|
$100,000.00
|
|||||||
|
Class
M2
|
(4)(18)
|
$9,937,000
|
$100,000.00
|
|||||||
|
Class
M3
|
(5)(18)
|
$11,040,000
|
$100,000.00
|
|||||||
|
Class
M4
|
(6)(18)
|
$10,158,000
|
$100,000.00
|
|||||||
|
Class
M5
|
(7)(18)
|
$7,508,000
|
$100,000.00
|
|||||||
|
Class
M6
|
(8)(18)
|
$6,183,000
|
$100,000.00
|
|||||||
|
Class
M7
|
(9)(18)
|
$5,741,000
|
$100,000.00
|
|||||||
|
Class
M8
|
(10)(18)
|
$5,962,000
|
$100,000.00
|
|||||||
|
Class
B1
|
(11)
|
$7,287,000
|
$100,000.00
|
|||||||
|
Class
B2
|
(12)
|
$5,521,000
|
$100,000.00
|
|||||||
|
Class
P
|
(13)
|
(15)
|
(16)
|
|||||||
|
Class
X
|
(14)
|
(16)
|
(16)
|
|||||||
|
Class
R
|
(15)
|
(17)
|
(16)
|
|||||||
|
Class
LT-R
|
(16)
|
(17)
|
(17)
|
|||||||
9
|
(1)
|
The
Certificate Interest Rate with respect to any Distribution Date (and
the
related Accrual Period) for the Class A1 Certificates is the per
annum
rate equal to the lesser of (i) LIBOR plus
0.140%
and (ii) the Net Funds Cap for such Distribution Date;
provided
that if the Mortgage Loans and related property are not purchased
pursuant
to Section 7.01(b) on the Initial Optional Termination Date, then
with
respect to each subsequent Distribution Date the per annum rate calculated
pursuant to clause (i) above with respect to the Class A1 Certificates
will be LIBOR plus
0.280%.
|
|
(2)
|
The
Certificate Interest Rate with respect to any Distribution Date (and
the
related Accrual Period) for the Class A2 Certificates is the per
annum
rate equal to the lesser of (i) LIBOR plus
0.300%
and (ii) the Net Funds Cap for such Distribution Date;
provided
that if the Mortgage Loans and related property are not purchased
pursuant
to Section 7.01(b) on the Initial Optional Termination Date, then
with
respect to each subsequent Distribution Date the per annum rate calculated
pursuant to clause (i) above with respect to the Class A2 Certificates
will be LIBOR plus
0.600%.
|
|
(3)
|
The
Certificate Interest Rate with respect to any Distribution Date (and
the
related Accrual Period) for the Class M1 Certificates is the per
annum
rate equal to the lesser of (i) LIBOR plus
0.400% and (ii) the Net Funds Cap for such Distribution Date;
provided
that if the Mortgage Loans and related property are not purchased
pursuant
to Section 7.01(b) on the Initial Optional Termination Date, then
with
respect to each subsequent Distribution Date the per annum rate calculated
pursuant to clause (i) above with respect to the Class M1 Certificates
will be LIBOR plus
0.600%.
|
|
(4)
|
The
Certificate Interest Rate with respect to any Distribution Date (and
the
related Accrual Period) for the Class M2 Certificates is the per
annum
rate equal to the lesser of (i) LIBOR plus
0.430% and (ii) the Net Funds Cap for such Distribution Date;
provided
that if the Mortgage Loans and related property are not purchased
pursuant
to Section 7.01(b) on the Initial Optional Termination Date, then
with
respect to each subsequent Distribution Date the per annum rate calculated
pursuant to clause (i) above with respect to the Class M2 Certificates
will be LIBOR plus
0.645%.
|
|
(5)
|
The
Certificate Interest Rate with respect to any Distribution Date (and
the
related Accrual Period) for the Class M3 Certificates is the per
annum
rate equal to the lesser of (i) LIBOR plus
0.570% and (ii) the Net Funds Cap for such Distribution Date;
provided
that if the Mortgage Loans and related property are not purchased
pursuant
to Section 7.01(b) on the Initial Optional Termination Date, then
with
respect to each subsequent Distribution Date the per annum rate calculated
pursuant to clause (i) above with respect to the Class M3 Certificates
will be LIBOR plus
0.855%.
|
|
(6)
|
The
Certificate Interest Rate with respect to any Distribution Date (and
the
related Accrual Period) for the Class M4 Certificates is the per
annum
rate equal to the lesser of (i) LIBOR plus
0.600% and (ii) the Net Funds Cap for such Distribution Date;
provided
that if the Mortgage Loans and related property are not purchased
pursuant
to Section 7.01(b) on the Initial Optional Termination Date, then
with
respect to each subsequent Distribution Date the per annum rate calculated
pursuant to clause (i) above with respect to the Class M4 Certificates
will be LIBOR plus
0.900%.
|
|
(7)
|
The
Certificate Interest Rate with respect to any Distribution Date (and
the
related Accrual Period) for the Class M5 Certificates is the per
annum
rate equal to the lesser of (i) LIBOR plus
0.650% and (ii) the Net Funds Cap for such Distribution Date;
provided that
if the Mortgage Loans and related property are not purchased pursuant
to
Section 7.01(b) on the Initial Optional Termination Date, then with
respect to each subsequent Distribution Date the per annum rate calculated
pursuant to clause (i) above with respect to the Class M5 Certificates
will be LIBOR plus
0.975%.
|
|
(8)
|
The
Certificate Interest Rate with respect to any Distribution Date (and
the
related Accrual Period) for the Class M6 Certificates is the per
annum
rate equal to the lesser of (i) LIBOR plus
1.250% and (ii) the Net Funds Cap for such Distribution Date;
provided that
if the Mortgage Loans and related property are not purchased pursuant
to
Section 7.01(b) on the Initial Optional Termination Date, then with
respect to each subsequent Distribution Date the per annum rate calculated
pursuant to clause (i) above with respect to the Class M6 Certificates
will be LIBOR plus
1.875%.
|
10
|
(9)
|
The
Certificate Interest Rate with respect to any Distribution Date (and
the
related Accrual Period) for the Class M7 Certificates is the per
annum
rate equal to the lesser of (i) LIBOR plus
1.500% and (ii) the Net Funds Cap for such Distribution Date;
provided that
if the Mortgage Loans and related property are not purchased pursuant
to
Section 7.01(b) on the Initial Optional Termination Date, then with
respect to each subsequent Distribution Date the per annum rate calculated
pursuant to clause (i) above with respect to the Class M7 Certificates
will be LIBOR plus
2.250%.
|
|
(10)
|
The
Certificate Interest Rate with respect to any Distribution Date (and
the
related Accrual Period) for the Class M8 Certificates is the per
annum
rate equal to the lesser of (i) LIBOR plus
2.500% and (ii) the Net Funds Cap for such Distribution Date;
provided that
if the Mortgage Loans and related property are not purchased pursuant
to
Section 7.01(b) on the Initial Optional Termination Date, then with
respect to each subsequent Distribution Date the per annum rate calculated
pursuant to clause (i) above with respect to the Class M8 Certificates
will be LIBOR plus
3.750%.
|
|
(11)
|
The
Certificate Interest Rate with respect to any Distribution Date (and
the
related Accrual Period) for the Class B1 Certificates is the per
annum
rate equal to the lesser of (i) LIBOR plus
2.500% and (ii) the Net Funds Cap for such Distribution Date;
provided that
if the Mortgage Loans and related property are not purchased pursuant
to
Section 7.01(b) on the Initial Optional Termination Date, then with
respect to each subsequent Distribution Date the per annum rate calculated
pursuant to clause (i) above with respect to the Class B1 Certificates
will be LIBOR plus
3.750%.
|
|
(12)
|
The
Certificate Interest Rate with respect to any Distribution Date (and
the
related Accrual Period) for the Class B2 Certificates is the per
annum
rate equal to the lesser of (i) LIBOR plus
2.500% and (ii) the Net Funds Cap for such Distribution Date;
provided that
if the Mortgage Loans and related property are not purchased pursuant
to
Section 7.01(b) on the Initial Optional Termination Date, then with
respect to each subsequent Distribution Date the per annum rate calculated
pursuant to clause (i) above with respect to the Class B2 Certificates
will be LIBOR plus
3.750%.
|
|
(13)
|
The
Class P Certificates will not bear interest at a stated rate. The
Class P
Certificates shall have a Class P Principal Amount equal to $100
and shall
be entitled to receive all Prepayment Premiums paid with respect
to the
Mortgage Loans for which the Seller is entitled to such payment as
provided in Section 5.02(e).
|
|
(14)
|
The
Class X Certificates shall have an initial principal balance of
$5,300,461.46 (initial overcollateralization of $5,300,561.46 minus
$100.00 allocated to the Class P Certificates to create the $100
Class P
Principal Amount), but shall not accrue interest on that balance.
In
addition to the right to receive ultimately the initial principal
balance,
which right represents a regular interest Upper-Tier REMIC, the Class
X
Certificate shall also comprise 2 notional components, each of which
represents a regular interest in the Upper Tier REMIC. The first
such
component has a notional balance that will at all times equal the
aggregate of the principal balances of the regular interests in REMIC
3
(i.e.
the Pool Balance), and, for each Distribution Date (and the related
Accrual Period) this notional component shall bear interest at a
per annum
rate equal to the excess, if any, of (i) the excess of (a) the weighted
average of the interest rates on the regular interests in REMIC 3
(other
than any interest-only Interest) over (b) the Credit Risk Manager’s Fee,
over (ii) the Adjusted Lower-Tier WAC. The second notional component
represents the right to receive all distributions in respect of the
Class
LT3-IO Interest in REMIC 3 (the “Class I” interest). In addition, for
purposes of the REMIC Provisions, the Class X Certificate shall represent
beneficial ownership of (i) the Basis Risk Reserve Fund; (ii) the
Swap
Agreement and Swap Account, (iii) the Interest Rate Cap Agreement
and the
Interest Rate Cap Account and (iv) an interest in the notional principal
contracts described in Section 10.01(n)
hereof.
|
|
(15)
|
The
Class R Certificate will be issued without a Certificate Principal
Amount
and will not bear interest at a stated rate. The Class R Certificate
represents ownership of the residual interest in the Upper Tier REMIC,
as
well as ownership of the Class LT2-R Interest.
|
|
(16)
|
The
Class X Certificates and Class P Certificates will each be issued
in
minimum Percentage Interests of 10%. The Class R Certificate will
be
issued as a single Certificate evidencing the entire Percentage Interest
in such Class.
|
11
|
(17)
|
The
Class LT-R Certificate will be issued without a Class Principal Amount
and
will not bear interest at a stated rate. The Class LT-R Certificate
represents ownership of the residual interest in REMIC 1. The Class
LT-R
Certificate will be issued as a single Certificate evidencing the
entire
Percentage Interest in such Class.
|
|
(18)
|
For
purposes of the REMIC Provisions, the reference to “Net Funds Cap” in
clause (ii) of the preceding sentence shall be deemed to be a reference
to
the REMIC 3 Net Funds Cap. For any Distribution Date on which the
Certificate Interest Rate for this Certificate is based on the Net
Funds
Cap, the amount of interest that would have payable on such Certificates
if the REMIC 3 Net Funds Cap were substituted for the Net Funds Cap
over
the amount actually payable thereon shall be treated as having been
paid
to the owners of this Class Certificates and then deposited by such
owners
into the Supplemental Interest Trust pursuant to Section 10.01(n)
hereof.
|
As
of the
Cut-off Date, the Mortgage Loans had an aggregate Scheduled Principal Balance
of
$441,642,561.
In
consideration of the mutual agreements herein contained, the Depositor, the
Seller, the Credit Risk Manager, the Master Servicer and the Trustee hereby
agree as follows:
ARTICLE
I
DEFINITIONS
Section
1.01 Definitions.
The
following words and phrases, unless the context otherwise requires, shall have
the following meanings:
10-K
Filing Deadline:
As
defined in Section 6.20(e)(i).
Accepted
Servicing Practices:
With
respect to any Mortgage Loan, as applicable, either (x) those customary mortgage
servicing practices of prudent mortgage servicing institutions that service
or
master service mortgage loans of the same type and quality as such Mortgage
Loan
in the jurisdiction where the related Mortgaged Property is located, to the
extent applicable to the Trustee or the Master Servicer or (y) as provided
in
the applicable Servicing Agreement, to the extent applicable to the related
Servicer.
Accountant:
A
person engaged in the practice of accounting who (except when this Agreement
provides that an Accountant must be Independent) may be employed by or
affiliated with the Depositor or an Affiliate of the Depositor.
Accrual
Period:
With
respect to any Distribution Date and each Class of Certificates other than
the
Class X, Class P, Class LT-R and Class R Certificates, the period beginning
on
the Distribution Date in the calendar month immediately preceding the month
in
which the related Distribution Date occurs (or on February 25, 2006, in the
case
of the first Accrual Period) and ending on the day immediately preceding the
related Distribution Date. With respect to any Lower Tier Interest, the calendar
month immediately preceding the month in which such Distribution Date
occurs.
Additional
Collateral:
None.
12
Additional
Form 10-D Disclosure:
As
defined in Section 6.20(d)(i).
Additional
Form 10-K Disclosure:
As
defined in Section 6.20(e)(i).
Adjusted
Lower Tier WAC:
For any
Distribution Date (and the related Accrual Period) the product of (i) 2, and
(ii) the weighted average of the interest rates on the Lower Tier Interests
in
REMIC 3 (other than any interest-only interest), determined for this purpose
by
first subjecting the rate at which interest accrues on the Class LT3-Q Interest
to a cap of zero, and subjecting the rate at which interest accrues on each
remaining regular interest to a cap that corresponds to the Certificate Interest
Rate for its Corresponding Class of Certificates for such Distribution Date
(adjusted to reflect the day count convention used to compute the amount of
interest accruals for such Corresponding Class).
Additional
Servicer:
Each
affiliate of the Servicer that Services any of the Mortgage Loans and each
Person who is not an affiliate of the Servicer, who Services 10% or more of
the
Mortgage Loans.
Additional
Termination Event:
As
defined in the Swap Agreement.
Advance:
An
advance of the aggregate of payments (other than Balloon Payments) of principal
and interest (net of the applicable Servicing Fee) on one or more Mortgage
Loans
(other than Charged-off Loans or Released Mortgage Loans) that were due on
the
Due Date in the related Collection Period and not received as of the close
of
business on the related Determination Date, required to be made by the related
Servicer or by the Master Servicer on behalf of the related Servicer (or by
the
Trustee as successor Master Servicer) pursuant to Section 5.04.
Adverse
REMIC Event:
Either
(i) the loss of status as a REMIC, within the meaning of Section 860D of the
Code, for any group of assets identified as a REMIC in the Preliminary Statement
to this Agreement, or (ii) the imposition of any tax, including the tax imposed
under Section 860F(a)(1) of the Code on prohibited transactions, and the tax
imposed under Section 860G(d) of the Code on certain contributions to a REMIC,
on any REMIC created hereunder to the extent such tax would be payable from
assets held as part of the Trust Fund.
Affected
Party:
As
defined in the Swap Agreement.
Affiliate:
With
respect to any specified Person, any other Person controlling or controlled
by
or under common control with such specified Person. For the purposes of this
definition, “control” when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract
or
otherwise; and the terms “controlling” and “controlled” have meanings
correlative to the foregoing.
Aggregate
Overcollateralization Release Amount:
With
respect to any Distribution Date, the lesser of (x) the Principal Remittance
Amount for such Distribution Date and (y) the amount, if any, by which (i)
the
Overcollateralization Amount for such date (calculated for this purpose on
the
basis of the assumption that 100% of the Principal Remittance Amount for such
date is applied on such date in reduction of the aggregate Certificate Principal
Amount of the Certificates) exceeds (ii) the Targeted Overcollateralization
Amount for such Distribution Date.
13
Aggregate
Voting Interests:
The
aggregate of the Voting Interests of all the Certificates under this
Agreement.
Agreement:
This
Trust Agreement and all amendments and supplements hereto.
Anniversary
Year:
The
one-year period beginning on the Closing Date and ending on the first
anniversary thereof, and each subsequent one-year period beginning on the day
after the end of the preceding Anniversary Year and ending on the next
succeeding anniversary of the Closing Date.
Applied
Loss Amount:
With
respect to any Distribution Date, the amount, if any, by which (x) the aggregate
Certificate Principal Amount of the Certificates after giving effect to all
Realized Losses incurred with respect to the Mortgage Loans during the related
Collection Period and distributions of principal on such Distribution Date,
but
before giving effect to any application of the Applied Loss Amount with respect
to such date, exceeds (y) the Pool Balance for such Distribution
Date.
Appraised
Value:
With
respect to any Mortgage Loan, the amount set forth in an appraisal made in
connection with the origination of such Mortgage Loan as the value of the
related Mortgaged Property.
Assignment
of Mortgage:
An
assignment of the Mortgage, notice of transfer or equivalent instrument, in
recordable form, sufficient under the laws of the jurisdiction wherein the
related Mortgaged Property is located to reflect the sale of the Mortgage to
the
Trustee, which assignment, notice of transfer or equivalent instrument may
be in
the form of one or more blanket assignments covering the Mortgage Loans secured
by Mortgaged Properties located in the same jurisdiction, if permitted by law;
provided,
however,
that
none of the Custodians nor the Trustee shall be responsible for determining
whether any such assignment is in recordable form.
Aurora:
Aurora
Loan Services LLC.
Authenticating
Agent:
Any
authenticating agent appointed by the Trustee pursuant to Section
6.10.
Authorized
Officer:
Any
Person who may execute an Officer’s Certificate on behalf of the
Depositor.
B1
Principal Distribution Amount:
With
respect to any Distribution Date on or after the Stepdown Date and as long
as a
Trigger Event is not in effect with respect to such Distribution Date, the
amount, if any, by which (x) the sum of (i) the aggregate of the Class Principal
Amounts of the Senior Certificates and the Class M1, Class M2, Class M3, Class
M4, Class M5, Class M6, Class M7 and Class M8 Certificates, in each case after
giving effect to distributions on such Distribution Date, and (ii) the Class
Principal Amount of the Class B1 Certificates immediately prior to such
Distribution Date exceeds (y) the B1 Target Amount for such Distribution
Date.
14
B1
Target Amount:
With
respect to any Distribution Date, an amount equal to the lesser of (a) the
product of (1) 88.80% and (2) the Pool Balance for such Distribution Date
determined as of the last day of the related Collection Period and (b) the
amount, if any, by which (1) the Pool Balance for such Distribution Date
determined as of the last day of the related Collection Period exceeds (2)
the
Overcollateralization Floor.
B2
Principal Distribution Amount:
With
respect to any Distribution Date on or after the Stepdown Date and as long
as a
Trigger Event is not in effect with respect to such Distribution Date, the
amount, if any, by which (x) the sum of (i) the aggregate of the Class Principal
Amounts of the Senior Certificates and the Class M1, Class M2, Class M3, Class
M4, Class M5, Class M6, Class M7, Class M8 and Class B1 Certificates, in each
case after giving effect to distributions on such Distribution Date, and (ii)
the Class Principal Amount of the Class B2 Certificates immediately prior to
such Distribution Date exceeds (y) the B2 Target Amount for such Distribution
Date.
B2
Target Amount:
With
respect to any Distribution Date, an amount equal to the lesser of (a) the
product of (1) 91.30% and (2) the Pool Balance for such Distribution Date
determined as of the last day of the related Collection Period and (b) the
amount, if any, by which (1) the Pool Balance for such Distribution Date
determined as of the last day of the related Collection Period exceeds (2)
the
Overcollateralization Floor.
Back-Up
Certification:
As
defined in Section 6.20(e)(iv).
Balloon
Mortgage Loan:
Any
Mortgage Loan that provides for (i) equal monthly Scheduled Payments that will
not reduce the principal balance of such Mortgage Loan to zero at its maturity
date and (ii) a larger monthly payment due at its maturity date equal to the
unpaid principal balance of such Mortgage Loan, with interest
thereon.
Balloon
Payment:
The
final Scheduled Payment in respect of a Balloon Mortgage Loan.
Bankruptcy:
As to
any Person, the making of an assignment for the benefit of creditors, the filing
of a voluntary petition in bankruptcy, adjudication as a bankrupt or insolvent,
the entry of an order for relief in a bankruptcy or insolvency proceeding,
the
seeking of reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar relief, or seeking, consenting to or acquiescing in
the
appointment of a trustee, receiver or liquidator, dissolution, or termination,
as the case may be, of such Person pursuant to the provisions of either the
United States Bankruptcy Code of 1986, as amended, or any other similar state
laws.
Bankruptcy
Code:
The
United States Bankruptcy Code of 1986, as amended.
Basis
Risk Payment:
With
respect to any Distribution Date, the sum of (i) any Basis Risk Shortfall for
such Distribution Date, (ii) any Unpaid Basis Risk Shortfall from previous
Distribution Dates and (iii) any Required Reserve Fund Deposit for such
Distribution Date. The amount of the Basis Risk Payment for any Distribution
Date cannot exceed the amount of Monthly Excess Cashflow otherwise available
for
distribution pursuant to Section 5.02(d)(iv) of this Agreement.
15
Basis
Risk Reserve Fund:
A fund
created as part of the Trust Fund pursuant to Section 5.06 of this Agreement
but
which is not an asset of any of the REMICs.
Basis
Risk Shortfall:
With
respect to any Distribution Date and any Class of LIBOR Certificates, the amount
by which the amount of interest calculated at the Certificate Interest Rate
applicable to such Class for such date, determined without regard to the Net
Funds Cap for such date but subject to a cap equal to the Maximum Interest
Rate,
exceeds the amount of interest calculated at the Net Funds Cap.
Benefit
Plan Opinion:
An
Opinion of Counsel satisfactory to the Depositor and the Trustee to the effect
that any proposed transfer of Certificates will not (i) cause the assets of
the
Trust Fund to be regarded as “plan assets” for purposes of the Plan Asset
Regulations or (ii) give rise to any fiduciary duty on the part of the Depositor
or the Trustee, respectively.
Book-Entry
Certificates:
Beneficial interests in Certificates designated as “Book-Entry Certificates” in
this Agreement, ownership and transfers of which shall be evidenced or made
through book entries by a Clearing Agency as described in Section 3.09;
provided,
that after
the
occurrence of a condition whereupon book-entry registration and transfer are
no
longer permitted and Definitive Certificates are to be issued to Certificate
Owners, such Book-Entry Certificates shall no longer be “Book-Entry
Certificates.” As of the Closing Date, each Class of LIBOR Certificates
constitutes Book-Entry Certificates.
Business
Day:
Any day
other than (i) a Saturday or a Sunday, (ii) a day on which banking institutions
in New York City, New York or, if other than New York City, the city in which
the Corporate Trust Office of the Trustee is located or the States of Maryland,
Minnesota or Colorado are closed, or (iii) with respect to any Servicer
Remittance Date or any Servicer reporting date, the States specified in the
definition of “Business Day” in the related Servicing Agreement, are authorized
or obligated by law or executive order to be closed.
Cap
Counterparty:
The
counterparty to the Supplemental Interest Trust under the Interest Rate Cap
Agreement, and any successor in interest or assigns. Initially, the Cap
Counterparty shall be HSBC Bank USA, National Association.
Cap
Replacement Receipts:
As
defined in Section 5.09(b).
Cap
Replacement Receipts Account:
As
defined in Section 5.09(b).
Cap
Termination Payment:
Upon
the designation of an “Early Termination Date” as defined in the Interest Rate
Cap Agreement, the payment required to be made by the Cap Counterparty to the
Supplemental Interest Trust pursuant to the terms of the Interest Rate Cap
Agreement, and any unpaid amounts due on previous Interest Rate Cap Payment
Dates and accrued interest thereon as provided in the Interest Rate Cap
Agreement, as calculated by the Cap Counterparty and furnished to the Trustee
and the Securities Administrator.
Cap
Termination Receipts:
As
defined in Section 5.09(b).
Cap
Termination Receipts Account:
As
defined in Section 5.09(b).
16
Carryforward
Interest:
With
respect to any Class of LIBOR Certificates and any Distribution Date, the sum
of
(i) the amount, if any, by which (x) the sum of (A) Current Interest for such
Class for the immediately preceding Distribution Date and (B) any unpaid
Carryforward Interest for such Class from previous Distribution Dates exceeds
(y) the amount distributed in respect of interest on such Class on such
immediately preceding Distribution Date, and (ii) interest on such amount for
the related Accrual Period at the applicable Certificate Interest
Rate.
Certificate:
Any one
of the certificates signed and countersigned by the Trustee in substantially
the
forms attached hereto as Exhibit A.
Certificate
Account:
The
account maintained by the Trustee in accordance with the provisions of Section
4.04.
Certificate
Interest Rate:
With
respect to each Class of Certificates and any Distribution Date, the applicable
per annum rate set forth or described under the heading “The Certificates” in
the Preliminary Statement hereto.
Certificate
Owner:
With
respect to a Book-Entry Certificate, the Person who is the owner of such
Book-Entry Certificate, as reflected on the books of the Clearing Agency, or
on
the books of a Person maintaining an account with such Clearing Agency (directly
or as an indirect participant, in accordance with the rules of such Clearing
Agency).
Certificate
Principal Amount:
With
respect to any LIBOR Certificate, the initial Certificate Principal Amount
thereof on the Closing Date, less the amount of all principal distributions
previously distributed with respect to such Certificate and, in the case of
the
Subordinate Certificates, any Applied Loss Amount previously allocated to such
Certificate; provided,
however,
that on
each Distribution Date on which a Subsequent Recovery is distributed, the
Certificate Principal Amount of any Class of Subordinate Certificates whose
Certificate Principal Amount has previously been reduced by application of
Applied Loss Amounts will be increased, in order of seniority, by an amount
(to
be applied pro
rata
to all
Certificates of such Class) equal to the lesser of (1) any Deferred Amount
for
each such Class immediately prior to such Distribution Date and (2) the total
amount of any Subsequent Recovery distributed on such Distribution Date to
Certificateholders, after application for this purpose to any more senior
Classes of Certificates. The Class X, Class R and Class LT-R Certificates are
issued without Certificate Principal Amounts. The Class P Certificates are
issued with an initial Class P Principal Amount of $100.
Certificate
Register
and
Certificate
Registrar:
The
register maintained and the registrar appointed pursuant to Section
3.02.
Certificateholder:
The
meaning provided in the definition of “Holder.”
Certification
Parties:
As
defined in Section 6.20(e)(iv).
Certifying
Person:
As
defined in Section 6.20(e)(iv).
Charged-off
Loan:
As of
any date of determination, any Mortgage Loan other than a Covered Mortgage
Loan
that was delinquent in payment for a period of 180 days or more as of the
last
calendar day of the month immediately preceding the month in which such date
of
determination occurs, without giving effect to any grace period permitted
by the
related Mortgage Note, and for which foreclosure proceedings have not been
initiated.
17
Civil
Relief Act:
The
Servicemembers Civil Relief Act, as amended, or any similar state or local
statute.
Class:
All
Certificates bearing the same class designation, and, in the case of REMIC
2 and
REMIC 3, all Lower Tier Interests bearing the same Class
designation.
Class
B Certificates:
Collectively, the Class B1 and Class B2 Certificates.
Class
I Shortfalls:
As defined in Section 10.01(l) hereof. For purposes of clarity, the Class I
Shortfall for any Distribution Date shall equal the amount payable to the Swap
Counterparty on such Distribution Date in excess of the amount payable on the
Class I interest in the Upper Tier REMIC 1 on such Distribution Date, all as
further provided in Section 10.01(l) hereof.
Class
LT-R Certificate:
The
Class LT-R Certificate executed by the Trustee, and authenticated and delivered
by the Certificate Registrar, substantially in the form annexed hereto as
Exhibit A and evidencing the residual interest in REMIC 1.
Class
M Certificates:
Collectively, the Class M1, Class M2, Class M3, Class M4, Class M5, Class M6,
Class M7 and Class M8 Certificates.
Class
P Interest:
An
interest in the Upper-Tier REMIC, as described in the Preliminary Statement,
which interest shall be evidenced by the rights of the Class P Certificates
to
receive Prepayment Premiums.
Class
P Principal Amount:
As of
the Closing Date, $100.
Class
Principal Amount:
With
respect to each Class of Certificates other than the Class X, Class P, Class
LT-R and Class R Certificates, the aggregate of the Certificate Principal
Amounts of all Certificates of such Class at the date of determination. With
respect to the Class X, Class P, Class LT-R and Class R Certificates, zero.
With
respect to any Lower Tier Interest, the initial Class Principal Amount as shown
or described in the table set forth in the Preliminary Statement to this
Agreement for the issuing REMIC, as reduced by principal distributed with
respect to such Lower Tier Interest and Realized Losses allocated to such Lower
Tier Interest.
Class
R Certificate:
The
Class R Certificate executed by the Trustee, and authenticated and delivered
by
the Certificate Registrar, substantially in the form annexed hereto as Exhibit
A
and evidencing the ownership of the Class LT2-R Interest, the Class LT3-R
Interest and the residual interest in the Upper Tier REMIC.
Class
X Distributable Amount:
With
respect to any Distribution Date, the amount of interest that has accrued on
the
Class X Notional Balance, as described in the Preliminary Statement, but that
has not been distributed prior to such date. In addition, such amount shall
include the initial Overcollateralization Amount of $5,300,561.46 (less $100
of
such amount allocated to the Class P Certificates) to the extent such amount
has
not been distributed on an earlier Distribution Date as part of the Aggregate
Overcollateralization Release Amount.
18
Class
X Notional Balance:
With
respect to any Distribution Date (and the related Accrual Period) the aggregate
principal balance of the regular interests in REMIC 3 as specified in the
Preliminary Statement hereto.
Clearing
Agency:
An
organization registered as a “clearing agency” pursuant to Section 17A of the
Exchange Act. As of the Closing Date, the Clearing Agency shall be The
Depository Trust Company.
Clearing
Agency Participant:
A
broker, dealer, bank, other financial institution or other Person for whom
from
time to time a Clearing Agency effects book-entry transfers and pledges of
securities deposited with the Clearing Agency.
Clearstream:
Clearstream Banking, S.A., Luxembourg, and any successor thereto.
Closing
Date:
February 28, 2006.
Code:
The
Internal Revenue Code of 1986, as amended, and as it may be further amended
from
time to time, any successor statutes thereto, and applicable U.S. Department
of
Treasury regulations issued pursuant thereto in temporary or final
form.
Collection
Account:
A
separate account established and maintained by the Master Servicer pursuant
to
Section 4.01.
Collection
Period:
With
respect to any Distribution Date, the period commencing on the second day of
the
calendar month immediately preceding the month in which such Distribution Date
occurs and ending on the first day of the calendar month in which such
Distribution Date occurs.
Commission:
The
United States Securities and Exchange Commission.
Combined
Loan-to-Value Ratio or CLTV:
With
respect to any Mortgage Loan at any date of determination, the ratio of the
principal balance of such Mortgage Loan at the date of determination, plus
the
principal balance of each mortgage loan senior thereto based upon the most
recent information available to the Seller, to (a) in the case of a purchase,
the lesser of the sale price of the Mortgaged Property and its appraised value
at the time of sale, or (b) in the case of a refinancing or modification, the
appraised value of the Mortgaged Property at the time of such refinancing or
modification.
Compensating
Interest Payment:
With
respect to any Distribution Date, an amount equal to the aggregate amount of
any
Prepayment Interest Shortfalls required to be paid by the Servicers with respect
to such Distribution Date. The Master Servicer shall not be responsible for
making any Compensating Interest Payment.
Component:
Not
applicable.
19
Component
Interest Rate:
Not
applicable.
Component
Notional Amount:
Not
applicable.
Cooperative
Corporation:
Not
applicable.
Cooperative
Loan:
Not
applicable.
Cooperative
Loan Documents:
Not
applicable.
Cooperative
Property:
Not
applicable.
Cooperative
Shares:
Not
applicable.
Cooperative
Unit:
Not
applicable.
Controlling
Person:
With
respect to any Person, any other Person who “controls” such Person within the
meaning of the Securities Act.
Corporate
Trust Office:
The
principal corporate trust office of the Trustee at which, at any particular
time, its corporate trust business shall be administered, which office at the
date hereof is located at Xxx Xxxxxxx Xxxxxx, 0xx Xxxxx, Xxxxxx, XX 00000,
Attention: Structured Finance—SASCO 2006-S1.
Corresponding
Class:
The
Class of Certificates that corresponds with a class of Lower Tier Interests
in
REMIC 3 as described
in the
Preliminary Statement.
Covered
Mortgage Loan:
Any
mortgage loan that is covered by a Primary Mortgage Insurance
Policy.
Credit
Risk Management Agreement:
Each
credit risk management agreement dated as of the Closing Date, entered into
by a
Servicer and the Credit Risk Manager, identified on Exhibit M attached
hereto.
Credit
Risk Manager:
Xxxxxxx
Fixed Income Services Inc. (formerly known as The Murrayhill Company), a
Colorado corporation, and its successors and assigns.
Credit
Risk Manager’s Fee:
With
respect to any Distribution Date and each Mortgage Loan, an amount equal to
the
product of (a) one twelfth, (b) the Credit Risk Manager’s Fee Rate and (c) the
Scheduled Principal Balance of such Mortgage Loan as of the first day of the
related Collection Period.
Credit
Risk Manager’s Fee Rate:
0.009%
per annum.
Cumulative
Loss Trigger Event:
A
Cumulative Loss Trigger Event shall have occurred with respect to any
Distribution Date if the fraction, expressed as a percentage, obtained by
dividing (x) the aggregate amount of cumulative Realized Losses incurred on
the
Mortgage Loans from the Cut-off Date through the last day of the related
Collection Period by (y) the Cut-off Date Balance, exceeds the applicable
percentages described below with respect to such Distribution Date:
20
|
Distribution
Date
|
Loss
Percentage
|
|
March
2008 through February 2009
|
2.00%
for the first month, plus an additional 1/12th
of 2.45% for each month thereafter
|
|
March
2009 through February 2010
|
4.45%
for the first month, plus an additional 1/12th
of 2.45% for each month thereafter
|
|
March
2010 through February 2011
|
6.90%
for the first month, plus an additional 1/12th
of 1.90% for each month thereafter
|
|
March
2011 through February 2012
|
8.80%
for the first month, plus an additional 1/12th
of 0.50% for each month thereafter
|
|
March
2012 and thereafter
|
9.30%
|
Current
Interest:
With
respect to any Class of LIBOR Certificates and any Distribution Date, the
aggregate amount of interest accrued at the applicable Certificate Interest
Rate
during the related Accrual Period on the Class Principal Amount of such Class
immediately prior to such Distribution Date.
Custodial
Account:
Any
custodial account (other than an Escrow Account) established and maintained
by a
Servicer pursuant to the related Servicing Agreement.
Custodial
Agreement:
Each
custodial agreement identified on Exhibit K hereto, and any custodial agreement
subsequently executed by the Trustee and acknowledged by the Master Servicer
substantially in the form thereof.
Custodian:
Each
custodian appointed by the Trustee pursuant to a Custodial Agreement, and any
successor thereto. The initial Custodians are LaSalle Bank National Association
and U.S. Bank National Association.
Cut-off
Date:
February 1, 2006.
Cut-off
Date Balance:
The
Pool Balance as of the Cut-off Date.
Debt
Service Reduction:
With
respect to any Mortgage Loan, a reduction of the Scheduled Payment that the
related Mortgagor is obligated to pay on any Due Date as a result of, or in
connection with, any proceeding under Bankruptcy law or any similar proceeding.
Defaulting
Party:
As
defined in the Swap Agreement.
Deferred
Amount:
With
respect to any Distribution Date and each Class of the Subordinate Certificates,
the amount by which (x) the aggregate of Applied Loss Amounts previously applied
in reduction of the Class Principal Amount thereof exceeds (y) the sum of (1)
the aggregate of amounts previously reimbursed in respect thereof and (2) the
amount by which the Class Principal Amount of such Class has been increased
due
to any Subsequent Recovery.
21
Definitive
Certificate:
A
Certificate of any Class issued in definitive, fully registered, certificated
form.
Deleted
Mortgage Loan:
A
Mortgage Loan that is repurchased from the Trust Fund pursuant to the terms
hereof or as to which one or more Qualifying Substitute Mortgage Loans are
substituted therefor.
Delinquency
Event:
A
Delinquency Event shall have occurred with respect to any Distribution Date
if
the Rolling Three Month Delinquency Rate as of the last day of the immediately
preceding calendar month equals or exceeds 11.45% of the Senior Enhancement
Percentage for such Distribution Date.
Delinquency
Rate:
With
respect to any calendar month, the fraction, expressed as a percentage, the
numerator of which is the aggregate outstanding principal balance of all
Mortgage Loans 60 days Delinquent or more (including all foreclosures,
bankruptcies and REO Properties) as of the close of business on the last day
of
such month, and the denominator of which is the Pool Balance as of the close
of
business on the last day of such month.
Delinquent:
For
reporting purposes, a Mortgage Loan is “delinquent” when any payment
contractually due thereon has not been made by the close of business on the
Due
Date therefor. Such 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 first 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” and the second immediately succeeding month
and “90 days Delinquent” and the third immediately succeeding
month.
Depositor:
Structured Asset Securities Corporation, a Delaware corporation, having its
principal place of business in New York, or its successors in
interest.
Determination
Date:
With
respect to each Distribution Date, the 18th day of the month in which such
Distribution Date occurs, or, if such 18th day is not a Business Day, the next
succeeding Business Day.
Disqualified
Organization:
A
“disqualified organization” as defined in Section 860E(e)(5) of the
Code.
Distressed
Mortgage Loan:
Any
Mortgage Loan that at the date of determination is Delinquent in payment for
a
period of 90 days or more without giving effect to any grace period permitted
by
the related Mortgage Note or for which the applicable Servicer or the Trustee
has accepted a deed in lieu of foreclosure.
22
Distribution
Date:
The
25th day of each month or, if such 25th day is not a Business Day, the next
succeeding Business Day, commencing in March 2006.
Distribution
Date Statement:
As
defined in Section 4.03(a).
Due
Date:
With
respect to any Mortgage Loan, the date on which a Scheduled Payment is due
under
the related Mortgage Note.
Eligible
Account:
Either
(i) an account or accounts maintained with a federal or state chartered
depository institution or trust company acceptable to the Rating Agencies or
(ii) an account or accounts the deposits in which are insured by the FDIC to
the
limits established by such corporation, provided
that any
such deposits not so insured shall be maintained in an account at a depository
institution or trust company whose commercial paper or other short term debt
obligations (or, in the case of a depository institution or trust company which
is the principal subsidiary of a holding company, the commercial paper or other
short term debt or deposit obligations of such holding company or depository
institution, as the case may be) have been rated by each Rating Agency in its
highest short-term rating category, or (iii) a segregated trust account or
accounts (which shall be a “special deposit account”) maintained with the
Trustee or any other federal or state chartered depository institution or trust
company, acting in its fiduciary capacity, in a manner acceptable to the Trustee
and the Rating Agencies. Eligible Accounts may bear interest.
Eligible
Investments:
Any one
or more of the following obligations or securities:
(i) direct
obligations of, and obligations fully guaranteed as to timely payment of
principal and interest by, the United States of America or any agency or
instrumentality of the United States of America the obligations of which are
backed by the full faith and credit of the United States of America (“Direct
Obligations”);
(ii) federal
funds, or demand and time deposits in, certificates of deposits of, or bankers’
acceptances issued by, any depository institution or trust company (including
U.S. subsidiaries of foreign depositories and the Trustee or any agent of the
Trustee, acting in its respective commercial capacity) incorporated or organized
under the laws of the United States of America or any state thereof and subject
to supervision and examination by federal or state banking authorities, so
long
as at the time of investment or the contractual commitment providing for such
investment the commercial paper or other short-term debt obligations of such
depository institution or trust company (or, in the case of a depository
institution or trust company which is the principal subsidiary of a holding
company, the commercial paper or other short-term debt or deposit obligations
of
such holding company or deposit institution, as the case may be) have been
rated
by each Rating Agency in its highest short-term rating category or one of its
two highest long-term rating categories;
(iii) repurchase
agreements collateralized by Direct Obligations or securities guaranteed by
GNMA, FNMA or FHLMC with any registered broker/dealer subject to Securities
Investor Protection Corporation jurisdiction or any commercial bank insured
by
the FDIC, if such broker/dealer or bank has an uninsured, unsecured and
unguaranteed obligation rated by each Rating Agency in its highest short-term
rating category;
23
(iv) securities
bearing interest or sold at a discount issued by any corporation incorporated
under the laws of the United States of America or any state thereof which have
a
credit rating from each Rating Agency, at the time of investment or the
contractual commitment providing for such investment, at least equal to (a)
one
of the two highest short-term credit rating categories of each Rating Agency
and
(b) the highest short-term rating category of Fitch; provided,
however,
that
securities issued by any particular corporation will not be Eligible Investments
to the extent that investment therein will cause the then outstanding principal
amount of securities issued by such corporation and held as part of the Trust
Fund to exceed 20% of the sum of the Aggregate Pool Balance and the aggregate
principal amount of all Eligible Investments in the Certificate Account;
provided,
further,
that
such securities will not be Eligible Investments if they are published as being
under review with negative implications from any Rating Agency;
(v) commercial
paper (including both non-interest-bearing discount obligations and
interest-bearing obligations payable on demand or on a specified date not more
than 180 days after the date of issuance thereof) rated by each Rating Agency
in
its highest short-term rating category;
(vi) a
Qualified GIC;
(vii) certificates
or receipts representing direct ownership interests in future interest or
principal payments on obligations of the United States of America or its
agencies or instrumentalities (which obligations are backed by the full faith
and credit of the United States of America) held by a custodian in safekeeping
on behalf of the holders of such receipts; and
(viii) any
other
demand, money market, common trust fund or time deposit or obligation, or
interest-bearing or other security or investment (including those managed or
advised by the Trustee or any Affiliate thereof), (A) rated in the highest
rating category by each Rating Agency rating such investment or (B) that would
not adversely affect the then current rating assigned by each Rating Agency
of
any of the Certificates or the NIM Securities and has a short term rating of
at
least “A-1” or its equivalent by each Rating Agency. Such investments in this
subsection (viii) may include money market mutual funds or common trust funds,
including any fund for which U.S. Bank National Association (the “Bank”) in its
capacity other than as Trustee, the Trustee, the Master Servicer, any NIMS
Insurer or an affiliate thereof serves as an investment advisor, administrator,
shareholder servicing agent, and/or custodian or subcustodian, notwithstanding
that (x) the Bank, the Trustee, the Master Servicer, any NIMS Insurer or any
affiliate thereof charges and collects fees and expenses from such funds for
services rendered, (y) the Bank, the Trustee, the Master Servicer, any NIMS
Insurer or any affiliate thereof charges and collects fees and expenses for
services rendered pursuant to this Agreement, and (z) services performed for
such funds and pursuant to this Agreement may converge at any time. The Bank
or
an affiliate thereof is authorized hereby to charge and collect from the Trustee
such fees as are collected from all investors in such funds for services
rendered to such funds (but not to exceed investment earnings
thereon);
24
provided,
however,
that no
such instrument shall be an Eligible Investment if such instrument evidences
either (i) a right to receive only interest payments with respect to the
obligations underlying such instrument, or (ii) both principal and interest
payments derived from obligations underlying such instrument and the principal
and interest payments with respect to such instrument provide a yield to
maturity of greater than 120% of the yield to maturity at par of such underlying
obligations, provided that any such investment will be a “permitted investment”
within the meaning of Section 860G(a)(5) of the Code.
ERISA:
The
Employee Retirement Income Security Act of 1974, as amended.
ERISA-Qualifying
Underwriting:
A best
efforts or firm commitment underwriting or private placement that meets the
requirements of an Underwriter’s Exemption.
ERISA-Restricted
Certificate:
Any
Class B, Class X, Class R or Class LT-R Certificate, and any Offered
Certificate which does not have below the lowest applicable rating permitted
under the Underwriter’s Exemption.
ERISA-Restricted
Swap Certificate:
Any
Senior Certificate or Class M Certificate.
Errors
and Omission Insurance Policy:
The
errors or omission insurance policy required to be obtained by each Servicer
satisfying the requirements of the related Servicing Agreement.
Escrow
Account:
Any
account established and maintained by each Servicer pursuant to the related
Servicing Agreement.
Euroclear:
Euroclear Bank, S.A./N.V., as operator of the Euroclear System.
Event
of Default:
Any one
of the conditions or circumstances enumerated in Section 6.14(a).
Exchange
Act:
The
Securities Exchange Act of 1934, as amended.
Exchange
Act Signing Party:
Either
the Depositor or the Master Servicer, to be determined by mutual agreement
between such parties.
Excluded
Trust Assets:
As
described in the Preliminary Statement.
Xxxxxx
Xxx or FNMA:
Xxxxxx
Mae, f/k/a the Federal National Mortgage Association, a federally chartered
and
privately owned corporation organized and existing under the Federal National
Mortgage Association Charter Act, or any successor thereto.
FDIC:
The
Federal Deposit Insurance Corporation or any successor thereto.
Fidelity
Bond:
The
fidelity bond required to be obtained by each Servicer satisfying the
requirements of the related Servicing Agreement.
25
Final
Scheduled Distribution Date:
With
respect to each Class of Certificates, the Distribution Date in March
2036.
Financial
Intermediary:
A
broker, dealer, bank or other financial institution or other Person that clears
through or maintains a custodial relationship with a Clearing Agency
Participant.
First
Payment Default Loan:
Any
Mortgage Loan which does not make the first payment due to the Seller within
the
time frame required under the PPTLS and which are identified on Schedule B
hereof.
Fitch:
Fitch
Ratings, or any successor in interest.
Fixed
Rate Mortgage Loan:
Any
Mortgage Loan as to which the related Mortgage Note provides for a fixed rate
of
interest throughout the term of such Note.
Form
8-K Disclosure Information:
As
defined in Section 6.20(f)(i).
Form
10-K Certification:
The
certification required pursuant to Rule 13a-14 under the Exchange
Act.
Xxxxxxx
Mac or FHLMC:
Xxxxxxx
Mac, f/k/a the Federal Home Loan Mortgage Corporation, a corporate
instrumentality of the United States created and existing under Title III of
the
Emergency Home Finance Act of 1970, as amended, or any successor
thereto.
Global
Securities:
The
global certificates representing the Book-Entry Certificates.
GNMA:
The
Government National Mortgage Association, a wholly owned corporate
instrumentality of the United States within HUD.
Holder
or
Certificateholder:
The
registered owner of any Certificate as recorded on the books of the Certificate
Registrar except that, solely for the purposes of taking any action or giving
any consent pursuant to this Agreement, any Certificate registered in the name
of the Depositor, the Trustee, the Master Servicer, any Servicer, the Credit
Risk Manager or any Affiliate thereof shall be deemed not to be outstanding
in
determining whether the requisite percentage necessary to effect any such
consent has been obtained, except that, in determining whether the Trustee
shall
be protected in relying upon any such consent, only Certificates which a
Responsible Officer of the Trustee knows to be so owned shall be disregarded.
The Trustee may request and conclusively rely on certifications by the
Depositor, the Master Servicer, the Credit Risk Manager or the applicable
Servicer, in determining whether any Certificates are registered to an Affiliate
of the Depositor, the Master Servicer, the Credit Risk Manager or any Servicer.
After a Section 7.01(c) Purchase Event, other than in Sections 5.02(b) through
(e) and 11.03(a) and (b) and, except in the case of the Class LT-R Certificates,
Sections 3.03, 3.04, 3.05, 3.06, 3.07 and 3.09 herein, all references in this
Agreement to “Holder” or “Certificateholder” shall be deemed to be references to
the LTURI-holder, as recorded on the books of the Certificate Registrar, as
holder of the Lower Tier Uncertificated REMIC 1 Regular Interests.
26
HUD:
The
United States Department of Housing and Urban Development, or any successor
thereto.
Independent:
When
used with respect to any Accountants, a Person who is “independent” within the
meaning of Rule 2-01(b) of the Securities and Exchange Commission’s Regulation
S-X. When used with respect to any other Person, a Person who (a) is in fact
independent of another specified Person and any Affiliate of such other Person,
(b) does not have any material direct financial interest in such other Person
or
any Affiliate of such other Person, (c) is not connected with such other Person
or any Affiliate of such other Person as an officer, employee, promoter,
underwriter, trustee, partner, director or Person performing similar functions
and (d) is not a member of the immediate family of a Person defined in clause
(b) or (c) above.
Index:
The
index specified in the related Mortgage Note for calculation of the Mortgage
Rate thereof.
Initial
LIBOR Rate:
4.58063% per annum.
Initial
Optional Termination Date:
The
first Distribution Date following the date on which the Pool Balance is less
than 10.00% of the Cut-off Date Balance.
Insurance
Fee Rate:
With
respect to each Mortgage Loan insured by an Insurance Policy paid for by the
lender, the per annum rate specified in the Mortgage Loan Schedule.
Insurance
Policy:
Any
Primary Mortgage Insurance Policy, any standard hazard insurance policy, flood
insurance policy, earthquake insurance policy or title insurance policy relating
to the Mortgage Loans or the Mortgaged Properties, to be in effect as of the
Closing Date or thereafter during the term of this Agreement.
Insurance
Proceeds:
Amounts
paid by the insurer under any Insurance Policy, other than amounts (i) to cover
expenses incurred by or on behalf of any Servicer or Master Servicer in
connection with procuring such proceeds, (ii) to be applied to restoration
or
repair of the related Mortgaged Property or (iii) required to be paid over
to
the Mortgagor pursuant to law or the related Mortgage Note.
Interest
Rate Cap Account:
The
account created pursuant to Section 5.07(b).
Interest
Rate Cap Agreement:
The
interest rate cap agreement entered into by the Supplemental Interest Trust,
which agreement provides for the monthly payment specified therein to the
Trustee (for the benefit of the Certifcateholders) commencing with the
Distribution Date in March 2007 and ending on the Distribution Date in February
2011, by the Cap Counterparty, but subject to the conditions set forth therein
together with any schedules, confirmations or other agreements relating thereto,
attached hereto as Exhibit N.
Interest
Rate Cap Amount:
With
respect to each Distribution Date, the amount of any Interest Rate Cap Payment
deposited into the Interest Rate Cap Account.
27
Interest
Rate Cap Payment:
With
respect to each Distribution Date, any payment required to be made by the Cap
Counterparty to the Supplemental Interest Trust pursuant to the terms of the
Interest Rate Cap Agreement.
Interest
Rate Cap Payment Date:
For so
long as the Interest Rate Cap Agreement is in effect or any amounts remain
unpaid thereunder, the Business Day immediately preceding each Distribution
Date.
Interest
Remittance Amount:
With
respect to any Distribution Date, an amount equal to (a) the sum of (1) all
interest collected (other than Payaheads) or advanced in respect of Scheduled
Payments on the Mortgage Loans during the related Collection Period by the
Servicers, the Master Servicer or the Trustee (solely in its capacity as
successor master servicer), minus
(x) the
Servicing Fee with respect to such Mortgage Loans and (y) previously
unreimbursed Advances due to the Servicer, the Master Servicer or the Trustee
(solely in its capacity as successor master servicer) to the extent allocable
to
interest and the allocable portion of previously unreimbursed Servicing Advances
with respect to such Mortgage Loans, (2) any amounts actually paid by the
Servicer with respect to Prepayment Interest Shortfalls and any Compensating
Interest Payments with respect to such Mortgage Loans and the related Prepayment
Period, (3) the portion of any Purchase Price (or PPTL Purchase Price payable
with respect to a First Payment Default Loan) or Substitution Amount paid with
respect to such Mortgage Loans during the related Prepayment Period allocable
to
interest and (4) all Net Liquidation Proceeds, Insurance Proceeds, any
Subsequent Recovery and any other recoveries collected with respect to such
Mortgage Loans during the related Prepayment Period, as reduced by (ii) any
other costs, expenses or liabilities reimbursable to the Trustee, the Master
Servicer, each Custodian and each Servicer to the extent provided in this
Agreement, each Servicing Agreement and each Custodial Agreement; provided,
however,
that in
the case of the Trustee, such reimbursable amounts to the Trustee payable from
the Interest Remittance Amount and Principal Remittance Amount may not exceed
$200,000 during any Anniversary Year. In the event that the Trustee incurs
reimbursable amounts in excess of $200,000, it may seek reimbursement for such
amounts in subsequent Anniversary Years, but in no event shall more than
$200,000 be reimbursed to the Trustee per Anniversary Year. Notwithstanding
the
foregoing, costs and expenses incurred by the Trustee pursuant to Section
6.14(a) in connection with any transfer of servicing shall be excluded from
the
$200,000 per Anniversary Year limit on reimbursable amounts. For the avoidance
of doubt, (i) the Interest Remittance Amount available on each Swap Payment
Date
for distributions to the Swap Account shall be equal to the Interest Remittance
Amount on the related Distribution Date and (ii) the Interest Remittance Amount
for each Distribution Date shall be calculated without regard to any
distributions to the Swap Account on the related Swap Payment Date.
Intervening
Assignments:
The
original intervening assignments of the Mortgage, notices of transfer or
equivalent instrument.
Latest
Possible Maturity Date:
The
Distribution Date occurring in March 2036.
LBH:
Xxxxxx
Brothers Holdings Inc., or any successor in interest.
28
LIBOR:
With
respect to the first Accrual Period, the Initial LIBOR Rate. With respect to
each subsequent Accrual Period, a per annum rate determined on the LIBOR
Determination Date in the following manner by the Trustee on the basis of the
“Interest Settlement Rate” set by the British Bankers’ Association (the “BBA”)
for one-month United States dollar deposits, as such rates appear on the
Telerate Page 3750, as of 11:00 a.m. (London time) on such LIBOR Determination
Date.
If
on
such a LIBOR Determination Date, the BBA’s Interest Settlement Rate does not
appear on the Telerate Page 3750 as of 11:00 a.m. (London time), or if the
Telerate Page 3750 is not available on such date, the Trustee will obtain such
rate from Reuters’ “page LIBOR 01” or Bloomberg’s page “BBAM.” If such rate is
not published for such LIBOR Determination Date, LIBOR for such date will be
the
most recently published Interest Settlement Rate. In the event that the BBA
no
longer sets an Interest Settlement Rate, the Trustee will designate an
alternative index that has performed, or that the Trustee expects to perform,
in
a manner substantially similar to the BBA’s Interest Settlement Rate. The
Trustee will select a particular index as the alternative index only if it
receives an Opinion of Counsel, which opinion shall be an expense reimbursed
from the Certificate Account pursuant to Section 4.04, that the selection of
such index will not cause any of the REMICs to lose their classification as
REMICs for federal income tax purposes.
The
establishment of LIBOR by the Trustee and the Trustee’s subsequent calculation
of the Certificate Interest Rate applicable to the LIBOR Certificates for the
relevant Accrual Period, in the absence of manifest error, will be final and
binding.
LIBOR
Certificate:
Any
Class A1, Class A2, Class M1, Class M2, Class M3, Class M4, Class M5, Class
M6,
Class M7, Class M8, Class B1 or Class B2 Certificates.
LIBOR
Business Day:
Any day
on which banks in London, England and The City of New York are open and
conducting transactions in foreign currency and exchange.
LIBOR
Determination Date:
The
second LIBOR Business Day immediately preceding the commencement of each Accrual
Period for any Class of Certificates other than the Class P, Class X, Class
LT-R
and Class R Certificates.
Liquidated
Mortgage Loan:
Any
Charged-off Loan or defaulted Mortgage Loan as to which the Master Servicer
or
the applicable Servicer has determined that all amounts that it expects to
recover on behalf of the Trust Fund from or on account of such Mortgage Loan
have been recovered (exclusive of any possibility of a deficiency
judgment).
Liquidation
Expenses:
Expenses that are incurred by the Master Servicer or a Servicer in connection
with the liquidation of any defaulted Mortgage Loan and are not recoverable
under any Insurance Policy, if any, including, without limitation, foreclosure
and rehabilitation expenses, legal expenses and unreimbursed amounts, if any,
expended pursuant to Sections 9.06, 9.16 or 9.22.
Liquidation
Proceeds:
Cash
received in connection with the liquidation of a defaulted Mortgage Loan,
whether through the sale or assignment of such Mortgage Loan, trustee’s sale,
foreclosure sale, payment in full, discounted payoff or otherwise, or the sale
of the related Mortgaged Property if the Mortgaged Property is acquired in
satisfaction of the Mortgage Loan, including any amounts remaining in the
related Escrow Account.
29
Loan-to-Value
Ratio:
With
respect to any Mortgage Loan, the ratio of the principal balance of such
Mortgage Loan at origination, or such other date as is specified, to the
Original Value of the related Mortgaged Property.
Lower
Tier Interest:
As
described in the Preliminary Statement.
Lower
Tier REMIC 1 Uncertificated Regular Interests:
Lower
Tier Interests of REMIC 1 constituting regular interests held in uncertificated
form pursuant to a Section 7.01(c) Purchase Event.
LTURI-holder:
The
holder of Lower Tier REMIC 1 Uncertificated Regular Interests, which upon the
occurrence of a Section 7.01(c) Purchase Event shall be the Master Servicer
or
its designee, including any trustee in its capacity as trustee of any privately
placed securitization.
M1
Principal Distribution Amount:
With
respect to any Distribution Date on or after the Stepdown Date and as long
as a
Trigger Event is not in effect with respect to such Distribution Date, the
amount, if any, by which (x) the sum of (i) the aggregate Class Principal
Amounts of the Senior Certificates after giving effect to distributions on
such
Distribution Date and (ii) the Class Principal Amount of the Class M1
Certificates immediately prior to such Distribution Date exceeds (y) the M1
Target Amount for such Distribution Date.
M1
Target Amount:
With
respect to any Distribution Date, an amount equal to the lesser of (a) the
product of (i) 59.90% and (ii) the Pool Balance for such Distribution Date
determined as of the last day of the related Collection Period and (b) the
amount, if any, by which (1) the Pool Balance for such Distribution Date
determined as of the last day of the related Collection Period exceeds (2)
the
Overcollateralization Floor.
M2
Principal Distribution Amount:
With
respect to any Distribution Date on or after the Stepdown Date and as long
as a
Trigger Event is not in effect with respect to such Distribution Date, the
amount, if any, by which (x) the sum of (i) the aggregate Class Principal
Amounts of the Senior Certificates and the Class M1 Certificates, after giving
effect to distributions on such Distribution Date, and (ii) the Class Principal
Amount of the Class M2 Certificates immediately prior to such Distribution
Date
exceeds (y) the M2 Target Amount for such Distribution Date.
M2
Target Amount:
With
respect to any Distribution Date, an amount equal to the lesser of (a) the
product of (i) 64.40% and (ii) the Pool Balance for such Distribution Date
determined as of the last day of the related Collection Period immediately
prior
to such Distribution Date and (b) the amount, if any, by which (1) the Pool
Balance for such Distribution Date determined as of the last day of the related
Collection Period exceeds (2) the Overcollateralization Floor.
M3
Principal Distribution Amount:
With
respect to any Distribution Date on or after the Stepdown Date and as long
as a
Trigger Event is not in effect with respect to such Distribution Date, the
amount, if any, by which (x) the sum of (i) the aggregate Class Principal
Amounts of the Senior Certificates, the Class M1 and Class M2 Certificates,
in
each case after giving effect to distributions on such Distribution Date, and
(ii) the Class Principal Amount of the Class M3 Certificates immediately prior
to such Distribution Date exceeds (y) the M3 Target Amount for such Distribution
Date.
30
M3
Target Amount:
With
respect to any Distribution Date, an amount equal to the lesser of (a) the
product of (i) 69.40% and (ii) the Pool Balance for such Distribution Date
determined as of the last day of the related Collection Period immediately
prior
to such Distribution Date and (b) the amount, if any, by which (1) the Pool
Balance for such Distribution Date determined as of the last day of the
Collection Period exceeds (2) the Overcollateralization Floor.
M4
Principal Distribution Amount:
With
respect to any Distribution Date on or after the Stepdown Date and as long
as a
Trigger Event is not in effect with respect to such Distribution Date, the
amount, if any, by which (x) the sum of (i) the aggregate Class Principal
Amounts of the Senior Certificates, Class M1, Class M2 and Class M3
Certificates, in each case after giving effect to distributions on such
Distribution Date, and (ii) the Class Principal Amount of the Class M4
Certificates immediately prior to such Distribution Date exceeds (y) the M4
Target Amount for such Distribution Date.
M4
Target Amount:
With
respect to any Distribution Date, an amount equal to the lesser of (a) the
product of (i) 74.00% and (ii) the Pool Balance for such Distribution Date
determined as of the last day of the related Collection Period immediately
prior
to such Distribution Date and (b) the amount, if any, by which (1) the Pool
Balance for such Distribution Date determined as of the last day of the
Collection Period exceeds (2) the Overcollateralization Floor.
M5
Principal Distribution Amount:
With
respect to any Distribution Date on or after the Stepdown Date and as long
as a
Trigger Event is not in effect with respect to such Distribution Date, the
amount, if any, by which (x) the sum of (i) the aggregate Class Principal
Amounts of the Senior Certificates, Class M1, Class M2, Class M3 and Class
M4
Certificates, in each case after giving effect to distributions on such
Distribution Date, and (ii) the Class Principal Amount of the Class M5
Certificates immediately prior to such Distribution Date exceeds (y) the M5
Target Amount for such Distribution Date.
M5
Target Amount:
With
respect to any Distribution Date, an amount equal to the lesser of (a) the
product of (i) 77.40% and (ii) the Pool Balance for such Distribution Date
determined as of the last day of the related Collection Period immediately
prior
to such Distribution Date and (b) the amount, if any, by which (1) the Pool
Balance for such Distribution Date determined as of the last day of the
Collection Period exceeds (2) the Overcollateralization Floor.
M6
Principal Distribution Amount:
With
respect to any Distribution Date on or after the Stepdown Date and as long
as a
Trigger Event is not in effect with respect to such Distribution Date, the
amount, if any, by which (x) the sum of (i) the aggregate Class Principal
Amounts of the Senior Certificates, Class M1, Class M2, Class M3, Class M4
and
Class M5 Certificates, in each case after giving effect to distributions on
such
Distribution Date, and (ii) the Class Principal Amount of the Class M6
Certificates immediately prior to such Distribution Date exceeds (y) the M6
Target Amount for such Distribution Date.
M6
Target Amount:
With
respect to any Distribution Date, an amount equal to the lesser of (a) the
product of (i) 80.20% and (ii) the Pool Balance for such Distribution Date
determined as of the last day of the related Collection Period immediately
prior
to such Distribution Date and (b) the amount, if any, by which (1) the Pool
Balance for such Distribution Date determined as of the last day of the
Collection Period exceeds (2) the Xxxxxxxxxxxxxxxxxxxxx Xxxxx.
00
X0
Principal Distribution Amount:
With
respect to any Distribution Date on or after the Stepdown Date and as long
as a
Trigger Event is not in effect with respect to such Distribution Date, the
amount, if any, by which (x) the sum of (i) the aggregate Class Principal
Amounts of the Senior Certificates, Class M1, Class M2, Class M3, Class M4,
Class M5 and Class M6 Certificates, in each case after giving effect to
distributions on such Distribution Date, and (ii) the Class Principal Amount
of
the Class M7 Certificates immediately prior to such Distribution Date exceeds
(y) the M7 Target Amount for such Distribution Date.
M7
Target Amount:
With
respect to any Distribution Date, an amount equal to the lesser of (a) the
product of (i) 82.80% and (ii) the Pool Balance for such Distribution Date
determined as of the last day of the related Collection Period immediately
prior
to such Distribution Date and (b) the amount, if any, by which (1) the Pool
Balance for such Distribution Date determined as of the last day of the
Collection Period exceeds (2) the Overcollateralization Floor.
M8
Principal Distribution Amount:
With
respect to any Distribution Date on or after the Stepdown Date and as long
as a
Trigger Event is not in effect with respect to such Distribution Date, the
amount, if any, by which (x) the sum of (i) the aggregate Class Principal
Amounts of the Senior Certificates, Class M1, Class M2, Class M3, Class M4,
Class M5, Class M6 and Class M7 Certificates, in each case after giving effect
to distributions on such Distribution Date, and (ii) the Class Principal Amount
of the Class M8 Certificates immediately prior to such Distribution Date exceeds
(y) the M8 Target Amount for such Distribution Date.
M8
Target Amount:
With
respect to any Distribution Date, an amount equal to the lesser of (a) the
product of (i) 85.50% and (ii) the Pool Balance for such Distribution Date
determined as of the last day of the related Collection Period immediately
prior
to such Distribution Date and (b) the amount, if any, by which (1) the Pool
Balance for such Distribution Date determined as of the last day of the
Collection Period exceeds (2) the Overcollateralization Floor.
Master
Servicer:
Aurora
Loan Services LLC, or any successor in interest, or if any successor master
servicer shall be appointed as herein provided, then such successor master
servicer.
Master
Servicer Remittance Date:
With
respect to each Distribution Date, two (2) Business Days immediately preceding
such Distribution Date.
Master
Servicing Fee:
As to
any Distribution Date, an amount equal to one-twelfth the product of (a) the
Master Servicing Fee Rate and (b) the outstanding principal balance of each
Mortgage Loan.
Master
Servicing Fee Rate:
0.00%
per annum.
Material
Defect:
As
defined in Section 2.02(c) hereof.
32
Maximum
Interest Rate:
For
each Distribution Date, an annual rate equal to (a) the product, expressed
as a
percentage, of (1) the amount, if any, by which the weighted average of the
Net
“lifetime” Mortgage Rates, as specified in the related Mortgage Notes and (2) a
fraction, the numerator of which is 30 and the denominator of which is the
actual number of days in the Accrual Period related to such Distribution Date;
plus
(b) the
product, expressed as a percentage, of (1) the sum of (x) the amount of any
Net
Swap Payment owed by the Swap Counterparty on
the
related Swap Payment Date
divided
by the Pool Balance as of the beginning of the related Collection Period and
(y)
any Interest Rate Cap Amount owed by the Cap Counterparty on the related
Interest Rate Cap Payment Date divided by the Pool Balance as of the beginning
of the related Collection Period and (2) a fraction, the numerator of which
is
360 and the denominator of which is the actual number of days in the Accrual
Period related to such Distribution Date; minus
(c) the
product, expressed as a percentage, of (1) a fraction, expressed as a
percentage, the numerator of which is the sum of the amount of any Net Swap
Payment owed to the Swap Counterparty on the related Swap Payment Date for
such
Distribution Date and the denominator of which is the Pool Balance as of the
beginning of the related Collection Period and (2) a fraction, the numerator
of
which is 360 and the denominator of which is the actual number of days in the
Accrual Period related to such Distribution Date.
MERS:
Mortgage Electronic Registration Systems, Inc., a Delaware corporation, or
any
successor in interest thereto.
MERS
Mortgage Loan:
Any
Mortgage Loan as to which the related Mortgage, or an Assignment of Mortgage,
has been or will be recorded in the name of MERS, as nominee for the holder
from
time to time of the Mortgage Note.
Monthly
Excess Cashflow:
With
respect to any Distribution Date, the sum of (x) the Monthly Excess Interest
for
such Distribution Date, (y) the Aggregate Overcollateralization Release Amount
for such Distribution Date and (z) the Monthly Excess Principal for such
Distribution Date.
Monthly
Excess Interest:
With
respect to any Distribution Date, the amount of any Interest Remittance Amount
remaining after application pursuant to clauses (i) through (xv) of Section
5.02(b) on such Distribution Date.
Monthly
Excess Principal:
With
respect to any Distribution Date, the amount of any Principal Distribution
Amount remaining after application pursuant to clauses (A) through (N) of
Section 5.02(c)(i) or clauses (A) through (L) of Section 5.02(c)(ii) on such
Distribution Date.
Moody’s:
Xxxxx’x
Investors Service, Inc., or any successor in interest.
Mortgage:
A
mortgage, deed of trust or other instrument encumbering a fee simple interest
in
real property securing a Mortgage Note, together with improvements
thereto.
Mortgage
File:
The
mortgage documents listed in Section 2.01(b) pertaining to a particular Mortgage
Loan required to be delivered to the Trustee pursuant to this
Agreement.
Mortgage
Loan:
A
Mortgage and the related notes or other evidences of indebtedness secured by
each such Mortgage conveyed, transferred, sold, assigned to or deposited with
the Trustee pursuant to Section 2.01 or Section 2.05, including without
limitation, each Mortgage Loan listed on the Mortgage Loan Schedule, as amended
from time to time. Any Released Mortgage Loan shall not be considered a Mortgage
Loan subject to this Agreement.
33
Mortgage
Loan Sale Agreement:
The
mortgage loan sale and assignment agreement dated as of February 1, 2006, for
the sale of the Mortgage Loans by the Seller to the Depositor.
Mortgage
Loan Schedule:
The
schedule attached hereto as Schedule A, which shall identify each Mortgage
Loan,
as such schedule may be amended from time to time to reflect the addition of
Mortgage Loans to, or the deletion of Mortgage Loans from, the Trust Fund.
Such
schedule shall set forth, among other things, the following information with
respect to each Mortgage Loan: (i) the Mortgage Loan identifying number; (ii)
the city, state and zip code of the Mortgaged Property; (iii) the original
principal amount of the Mortgage Loan; (iv) the Mortgage Rate; (v) the monthly
payment of principal and interest at origination; (vi) the applicable
Servicer servicing such Mortgage Loan and the applicable Servicing Fee Rate;
(vii) the Custodian with respect to the Mortgage File related to such Mortgage
Loan; and (viii) whether such Mortgage Loan is subject to a Prepayment Premium
for voluntary prepayments by the Mortgagor, the term during which such
Prepayment Premiums are imposed and the method(s) of calculation of the
Prepayment Premium. The Depositor shall be responsible for providing the Trustee
and the Master Servicer with all amendments to the Mortgage Loan
Schedule.
Mortgage
Note:
The
note or other evidence of the indebtedness of a Mortgagor secured by a Mortgage
under a Mortgage Loan.
Mortgage
Rate:
With
respect to any Mortgage Loan, the per annum rate at which interest accrues
on
such Mortgage Loan, as determined under the related Mortgage Note as reduced
by
the application of the Civil Relief Act.
Mortgaged
Property:
The fee
simple interest in real property, together with improvements thereto including
any exterior improvements to be completed within 120 days of disbursement of
the
related Mortgage Loan proceeds.
Mortgagor:
The
obligor on a Mortgage Note.
Net
Excess Spread:
With
respect to any Distribution Date, (A) the fraction, expressed as a percentage,
the numerator of which is equal to the product of (i) the amount, if any, by
which (a) the Interest Remittance Amount for such Distribution Date (as reduced
by the aggregate Credit Risk Manager’s Fee) exceeds (b) the Current Interest
payable with respect to the Certificates for such date and (ii) twelve, and
the
denominator of which is the Pool Balance for such Distribution Date,
multiplied
by (B) a
fraction, the numerator of which is thirty and the denominator of which is
the
greater of thirty and the actual number of days in the immediately preceding
calendar month minus
(C)
the
product, expressed as a percentage, of (i) the amount of any Net Swap Payment
owed to the Swap Counterparty for such Distribution Date divided by the Pool
Balance as of the beginning of the related Collection Period and (ii) a
fraction, the numerator of which is 360 and the denominator of which is the
actual number of days in the Accrual Period related to such Distribution Date,
plus
(D)
the
product, expressed as a percentage, of (i) the sum of (a) the amount of any
Net
Swap Payment and (b) any Interest Rate Cap Payment received by the Supplemental
Interest Trust for such Distribution Date divided by the Pool Balance as of
the
beginning of the related Collection Period and (ii) a fraction, the numerator
of
which is 360 and the denominator of which is the actual number of days in the
Accrual Period related to such Distribution Date.
34
Net
Funds Cap:
With
respect to any Distribution Date, a per annum rate equal to (a) the excess,
if
any, of (i) the weighted average of the Net Mortgage Rates of the Mortgage
Loans
as of the first day of the related Collection Period for such date over (ii)
a
fraction, expressed as a percentage, the numerator of which is any Net Swap
Payment or Swap Termination Payment owed to the Swap Counterparty on the related
Swap Payment Date and denominator of which is the Pool Balance as of the first
day of the related Collection Period multiplied by (b) a fraction, the numerator
of which is 30 and the denominator of which is the actual number of days in
the
Accrual Period related to such Distribution Date.
Net
“lifetime” Mortgage Rate:
With
respect to any Mortgage Loan the “lifetime” Mortgage Rate as specified in the
related Mortgage Note reduced by the Servicing Fee for such Mortgage
Loan.
Net
Liquidation Proceeds:
With
respect to any Liquidated Mortgage Loan, the related Liquidation Proceeds net
of
(i) unreimbursed expenses and (ii) any unreimbursed Advances, if any, received
and retained in connection with the liquidation of such Mortgage
Loan.
Net
Mortgage Rate:
With
respect to any Mortgage Loan, the Mortgage Rate thereof reduced by the Servicing
Fee Rate for such Mortgage Loan.
Net
Prepayment Interest Shortfall:
With
respect to any Master Servicer Remittance Date, the excess, if any, of any
Prepayment Interest Shortfalls with respect to the Mortgage Loans for such
date
over any amounts paid with respect to such shortfalls by a Servicer pursuant
to
the related Servicing Agreement.
Net
Swap Payment:
With
respect to each Swap Payment Date, the sum of (i) net payment required to be
made pursuant to the terms of the Swap Agreement, which net payment shall not
take into account any Swap Termination Payment, and (ii) any unpaid amounts
due
on previous Swap Payment Dates and accrued interest thereon as provided in
the
Swap Agreement, as calculated by the Swap Counterparty and furnished to the
Trustee.
NIM
Redemption Amount:
As
defined in Section 7.01(b).
NIM
Securities:
Any net
interest margin securities issued by a trust or other special purpose entity,
the principal assets of such trust including the Class P and Class X
Certificates and the payments received thereon, which principal assets back
such
securities.
NIMS
Agreement:
Any
agreement pursuant to which the NIM Securities are issued.
NIMS
Insurer:
One or
more insurers issuing financial guaranty insurance policies in connection with
the issuance of NIM Securities.
Non-Book-Entry
Certificate:
Any
Certificate other than a Book-Entry Certificate.
35
Non-MERS
Mortgage Loan:
Any
Mortgage Loan other than a MERS Mortgage Loan.
Non-permitted
Foreign Holder:
As
defined in Section 3.03(f).
Non-U.S.
Person:
Any
person other than a “United States person” within the meaning of Section
7701(a)(30) of the Code.
Offered
Certificates:
The
Class A1, Class A2, Class M1, Class M2, Class M3, Class M4, Class M5, Class
M6,
Class M7 and Class M8 Certificates.
Offering
Document:
Each of
the Prospectus and the Private Placement Memorandum.
Officer’s
Certificate:
A
certificate signed by the Chairman of the Board, any Vice Chairman, the
President, any Vice President or any Assistant Vice President of a Person,
and
in each case delivered to the Trustee.
Opinion
of Counsel:
A
written opinion of counsel, reasonably acceptable in form and substance to
the
Trustee, and who may be in-house or outside counsel to the Depositor, the Master
Servicer or the Trustee but which must be Independent outside counsel with
respect to any such opinion of counsel concerning the transfer of any Residual
Certificate or concerning certain matters with respect to ERISA, or the
taxation, or the federal income tax status, of each REMIC.
Original
Value:
The
lesser of (a) the Appraised Value of a Mortgaged Property at the time the
related Mortgage Loan was originated and (b) if the Mortgage Loan was made
to
finance the acquisition of the related Mortgaged Property, the purchase price
paid for the Mortgaged Property by the Mortgagor at the time the related
Mortgage Loan was originated.
Overcollateralization
Amount:
With
respect to any Distribution Date, the amount, if any, by which (x) the Pool
Balance for such Distribution Date exceeds (y) the aggregate Class Principal
Amount of the LIBOR Certificates after giving effect to distributions on such
Distribution Date.
Overcollateralization
Deficiency:
With
respect to any Distribution Date, the amount, if any, by which (x) the Targeted
Overcollateralization Amount exceeds (y) the Overcollateralization Amount for
such Distribution Date, calculated for this purpose after giving effect to
the
reduction on such Distribution Date of the Certificate Principal Amounts of
the
LIBOR Certificates resulting from the distribution of the Principal Distribution
Amount on such Distribution Date, but prior to allocation of any Applied Loss
Amount on such Distribution Date.
Overcollateralization
Floor:
An
amount equal to approximately 0.50% of the Cut-off Date Balance.
Payahead:
With
respect to any Mortgage Loan and any Due Date therefor, any Scheduled Payment
received by the applicable Servicer during any Collection Period in addition
to
the Scheduled Payment due on such Due Date, intended by the related Mortgagor
to
be applied on a subsequent Due Date or Due Dates.
36
Paying
Agent:
Any
paying agent appointed pursuant to Section 3.08.
PCAOB:
The
Public Company Accounting Oversight Board.
Percentage
Interest:
With
respect to any Certificate, its percentage interest in the undivided beneficial
ownership interest in the Trust Fund evidenced by all Certificates of the same
Class as such Certificate. With respect to any LIBOR Certificate, the Percentage
Interest evidenced thereby shall equal the Certificate Principal Amount thereof
divided by the Class Principal Amount of all Certificates of the same Class.
With respect to the Class X, Class P, Class R and Class LT-R Certificates,
the Percentage Interest evidenced thereby shall be as specified on the face
thereof, or otherwise be equal to 100%.
Permitted
Servicing Amendment:
Any
amendment to any Servicing Agreement pursuant to Section 11.03(a)(iii) hereunder
in connection with any servicing transfer or transfer of any servicing
rights.
Person:
Any
individual, corporation, partnership, joint venture, association, joint-stock
company, limited liability company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
Plan:
An
employee benefit plan or other retirement arrangement which is subject to
Section 406 of ERISA and/or Section 4975 of the Code or any entity whose
underlying assets include such plan’s or arrangement’s assets by reason of their
investment in the entity.
Plan
Asset Regulations:
The
Department of Labor regulations set forth in 29 C.F.R. 2510.3-101.
Pool
Balance:
As of
any date of determination, the aggregate of the Scheduled Principal Balances
of
all Mortgage Loans.
PPTL
Purchase Price:
The
purchase price paid for a First Payment Default Mortgage Loan which is required
to be repurchased by a Transferor pursuant to the related PPTLS.
PPTLS:
As to
any First Payment Default Mortgage Loan, (i)
the
Purchase Price and Terms Letter between National City Mortgage Co. and Xxxxxx
Brothers Bank, FSB, dated November 3, 2005 and (ii) the Purchase Price and
Terms
Letter between Mortgage Access Corp. d/b/a Weichert Financial Services and
Xxxxxx Brothers Bank, FSB, dated December 1, 2005.
Prepayment
Interest Shortfall:
With
respect to any full or partial Principal Prepayment of a Mortgage Loan, the
excess, if any, of (i) one full month’s interest at the applicable Mortgage Rate
(as reduced by the Servicing Fee, as applicable, in the case of Principal
Prepayments in full) on the outstanding principal balance of such Mortgage
Loan
immediately prior to such prepayment over (ii) the amount of interest actually
received with respect to such Mortgage Loan in connection with such Principal
Prepayment.
Prepayment
Period:
With
respect to each Distribution Date, the calendar month immediately preceding
the
month in which such Distribution Date occurs.
37
Prepayment
Premiums:
Any
prepayment fees and penalties to be paid by the Mortgagor on a Mortgage
Loan.
Primary
Mortgage Insurance Policy:
Any
mortgage guaranty insurance, if any, on an individual Mortgage Loan as evidenced
by a policy or certificate, whether such policy is obtained by the originator,
the lender or the borrower.
Prime
Rate:
The
prime rate of the United States money center commercial banks as published
in
The
Wall Street Journal.
Principal
Distribution Amount:
With
respect to any Distribution Date, an amount equal to the Principal Remittance
Amount for such date minus
the
Aggregate Overcollateralization Release Amount, if any, for such Distribution
Date.
Principal
Prepayment:
Any
Mortgagor payment of principal (other than a Balloon Payment) or other recovery
of principal on a Mortgage Loan that is recognized as having been received
or
recovered in advance of its scheduled Due Date and applied to reduce the
principal balance of the Mortgage Loan in accordance with the terms of the
Mortgage Note or the Servicing Agreement.
Principal
Remittance Amount:
With
respect to any Distribution Date, (a) the sum of (i) all principal collected
(other than Payaheads) or advanced in respect of Scheduled Payments on the
Mortgage Loans during the related Collection Period whether by the applicable
Servicers or the Master Servicer or the Trustee (less unreimbursed Advances
due
to the Master Servicer, any Servicer or the Trustee with respect to the Mortgage
Loans, to the extent allocable to principal, and any unreimbursed Servicing
Advances not reimbursed by a reduction from the Interest Remittance Amount),
(ii) all Principal Prepayments in full or in part received during the related
Prepayment Period, (iii) the outstanding principal balance of the Mortgage
Loans
that were purchased from the Trust Fund by the Seller or the related Transferor
during the related Prepayment Period or by NIMS Insurer (in the case of certain
Mortgage Loans 90 days or more delinquent) during the related Prepayment Period,
(iv) the portion of any Substitution Amount paid with respect to any Deleted
Mortgage Loan during the related Prepayment Period allocable to principal and
(v) all Net Liquidation Proceeds, Insurance Proceeds, any Subsequent Recovery
and other recoveries collected with respect to the Mortgage Loans during the
related Prepayment Period, to the extent allocable to principal, as reduced
by
(b) to the extent not reimbursed from amounts otherwise allocable to interest,
any other costs, expenses or liabilities reimbursable to the Trustee, the Master
Servicer, each Custodian and each Servicer to the extent provided in this
Agreement, each Servicing Agreement and each Custodial Agreement and, with
respect to the Trustee, to the extent the Interest Remittance Amount is less
than amounts reimbursable to the Trustee pursuant to Section 4.04(b)(i), any
amounts reimbursable during the related Anniversary Year to the Trustee
therefrom and not reimbursed from the Interest Remittance Amount, or otherwise;
provided,
however,
that
such reimbursable amounts from the Interest Remittance Amount and Principal
Remittance Amount may not exceed $200,000 in the aggregate during any
Anniversary Year. In the event that the Trustee incurs reimbursable amounts
in
excess of $200,000, it may seek reimbursement for such amounts in subsequent
Anniversary Years, but in no event shall more than $200,000 be reimbursed to
the
Trustee per Anniversary Year. Notwithstanding the foregoing, costs and expenses
incurred by the Trustee pursuant to Section 6.14(a) in connection with any
transfer of servicing shall be excluded from the $200,000 per Anniversary Year
limit on reimbursable amounts. For the avoidance of doubt, (i) the Principal
Remittance Amount available on each Swap Payment Date for distribution to the
Swap Account shall be equal to the Principal Remittance Amount on the related
Distribution Date and (ii) the Principal Remittance Amount for each Distribution
Date shall be calculated without regard to any distributions to the Swap Account
on the related Swap Payment Date.
38
Private
Placement Memorandum:
The
confidential Private Placement Memorandum dated February 23, 2006, relating
to
the Class B1 and Class B2 Certificates.
Proceeding:
Any
suit in equity, action at law or other judicial or administrative
proceeding.
Proprietary
Lease:
Not
applicable.
Prospectus:
The
prospectus supplement dated February 23, 2006, together with the accompanying
prospectus dated September 26, 2005, relating to the Publicly Offered
Certificates.
Publicly
Offered Certificates:
The
Certificates offered under the Prospectus which include the Senior Certificates
and Class M Certificates.
Purchase
Price:
With
respect to the purchase of a Mortgage Loan or related REO Property pursuant
to
this Agreement, an amount equal to the sum of (a) 100% of the unpaid principal
balance of such Mortgage Loan; (b) accrued interest thereon at the applicable
Mortgage Rate, from the date as to which interest was last paid to (but not
including) the Due Date in the Collection Period immediately preceding the
related Distribution Date; (c) the amount of any costs and damages incurred
by
the Trust Fund as a result of any violation of any applicable federal, state
or
local predatory- or abusive-lending law arising from or in connection with
the
origination of such Mortgage Loan; (d) any unreimbursed Servicing Advances
with
respect to such Mortgage Loan; and (e) any Swap Termination Payment payable
to
the Swap Counterparty due to the exercise of the Master Servicer’s option to
purchase the Mortgage Loans.
QIB:
As
defined in Section 3.03(c).
Qualified
GIC:
A
guaranteed investment contract or surety bond providing for the investment
of
funds in the Collection Account or the Certificate Account and insuring a
minimum, fixed or floating rate of return on investments of such funds, which
contract or surety bond shall:
(i) be
an
obligation of an insurance company or other corporation whose long-term debt
is
rated by each Rating Agency in one of its two highest rating categories or,
if
such insurance company has no long-term debt, whose claims paying ability is
rated by each Rating Agency in one of its two highest rating categories, and
whose short-term debt is rated by each Rating Agency in its highest rating
category;
(ii) provide
that the Trustee may exercise all of the rights under such contract or surety
bond without the necessity of taking any action by any other
Person;
39
(iii) provide
that if at any time the then current credit standing of the obligor under such
guaranteed investment contract is such that continued investment pursuant to
such contract of funds would result in a downgrading of any rating of the
Certificates, the Trustee shall terminate such contract without penalty and
be
entitled to the return of all funds previously invested thereunder, together
with accrued interest thereon at the interest rate provided under such contract
to the date of delivery of such funds to the Trustee;
(iv) provide
that the Trustee’s interest therein shall be transferable to any successor
trustee hereunder; and
(v) provide
that the funds reinvested thereunder and accrued interest thereon be returnable
to the Collection Account or the Certificate Account, as the case may be, not
later than the Business Day prior to any Distribution Date.
Qualified
Insurer:
An
insurance company duly qualified as such under the laws of the states in which
the related Mortgaged Properties are located, duly authorized and licensed
in
such states to transact the applicable insurance business and to write the
insurance provided and whose claims paying ability is rated by each Rating
Agency in its highest rating category or whose selection as an insurer will
not
adversely affect the ratings of the Certificates.
Qualifying
Substitute Mortgage Loan:
In the
case of a Mortgage Loan substituted for a Deleted Mortgage Loan pursuant to
the
terms of this Agreement, a Mortgage Loan that, on the date of such substitution,
(i) has an outstanding Scheduled Principal Balance (or in the case of a
substitution of more than one mortgage loan for a Deleted Mortgage Loan, an
aggregate Scheduled Principal Balance), after application of all Scheduled
Payments due during or prior to the month of substitution, not in excess of,
and
not more than 5% less than, the outstanding Scheduled Principal Balance of
the
Deleted Mortgage Loan as of the Due Date in the calendar month during which
the
substitution occurs, (ii) has a Mortgage Rate not less than the Mortgage Rate
on
the Deleted Mortgage Loan, (iii) if applicable, has a maximum Mortgage Rate
not
less than the maximum Mortgage Rate on the Deleted Mortgage Loan, (iv) if
applicable, has a minimum Mortgage Rate not less than the minimum Mortgage
Rate
of the Deleted Mortgage Loan, (v) if applicable, has a gross margin equal to
or
greater than the gross margin of the Deleted Mortgage Loan, (vi) if applicable,
has a next adjustment date not later than the next adjustment date on the
Deleted Mortgage Loan, (vii) has the same Due Date as the Deleted Mortgage
Loan,
(viii) has a remaining stated term to maturity not longer than 18 months and
not
more than 18 months shorter than the remaining stated term to maturity of the
related Deleted Mortgage Loan; provided,
that
in
no case should such substitute Mortgage Loan have a maturity date later than
the
Final Scheduled Distribution Date, (ix) is current as of the date of
substitution, (x) has a Loan-to-Value Ratio as of the date of substitution
equal
to or lower than the Loan-to-Value Ratio of the Deleted Mortgage Loan as of
such
date, (xi) has been underwritten by the Transferor in accordance with the same
underwriting criteria and guidelines as the Deleted Mortgage Loan, (xii) has
a
risk grading determined by the Seller at least equal to the risk grading
assigned on the Deleted Mortgage Loan, (xiii) is secured by the same
property type as the Deleted Mortgage Loan, (xiv) conforms to each
representation and warranty applicable to the Deleted Mortgage Loan made in
the
Mortgage Loan Sale Agreement, (xv) has the same or higher lien position as
the
Deleted Mortgage Loan, (xvi) contains provisions covering the payment of
Prepayment Premium by the Mortgagor for early prepayment of the Mortgage Loan
at
least as favorable as the Deleted Mortgage Loan and has an original Scheduled
Principal Balance within the maximum dollar amount limitations prescribed by
Xxxxxxx Mac for conforming one-to-four-family mortgage loans. In the event
that
one or more mortgage loans are substituted for one or more Deleted Mortgage
Loans, the amounts described in clause (i) hereof shall be determined on the
basis of aggregate Scheduled Principal Balances, the Mortgage Rates described
in
clause (ii) hereof shall be determined on the basis of weighted average Mortgage
Rates, the risk gradings described in clause (xiii) hereof shall be satisfied
as
to each such mortgage loan, the terms described in clause (ix) hereof shall
be
determined on the basis of a weighted average remaining term to maturity;
provided,
that
the stated maturity date of any Qualifying Substitute Mortgage Loan shall not
be
later than the Final Scheduled Distribution Date, the Loan-to-Value Ratios
described in clause (xi) hereof shall be satisfied as to each such mortgage
loan
and, except to the extent otherwise provided in this sentence, the
representations and warranties described in clause (xv) hereof must be satisfied
as to each Qualifying Substitute Mortgage Loan or in the aggregate, as the
case
may be.
40
Rating
Agency:
Each of
Fitch, Xxxxx’x and S&P.
Realized
Loss:
With
respect to each Liquidated Mortgage Loan, an amount equal to (i) the unpaid
principal balance of such Mortgage Loan as of the date of liquidation, minus
(ii) Liquidation Proceeds received, to the extent allocable to principal, net
of
amounts that are reimbursable therefrom to the Master Servicer or any Servicer
with respect to such Mortgage Loan (other than Advances of principal) including
expenses of liquidation. In determining whether a Realized Loss is a Realized
Loss of principal, Liquidation Proceeds shall be allocated, first, to payment
of
expenses related to such Liquidated Mortgage Loan, then to accrued unpaid
interest and finally to reduce the principal balance of the Mortgage
Loan.
Recognition
Agreement:
Not
applicable.
Record
Date:
With
respect to any Class of Certificates other than the Class X, Class P, Class
LT-R
and Class R Certificates and any Distribution Date, the close of business on
the
Business Day immediately preceding such Distribution Date. With respect to
any
Class of Definitive Certificates and any Distribution Date, the last Business
Day of the month immediately preceding the month in which the Distribution
Date
occurs (or, in the case of the first Distribution Date, the Closing
Date).
Regulation
AB:
Subpart
229.1100 –
Asset Backed Securities (Regulation AB), 17 C.F.R. §§229.1100-229.1123, as such
may be amended from time to time, and subject to such clarification and
interpretation as have been provided by the Commission in the adopting release
(Asset-Backed Securities, Securities Act Release No. 33-8518, 70 Fed. Reg.
1,506, 1,531 (Jan. 7, 2005)) or by the staff of the Commission, or as may be
provided by the Commission or its staff from time to time.
Regulation
S:
Regulation S promulgated under the Securities Act or any successor provision
thereto, in each case as the same may be amended from time to time; and all
references to any rule, section or subsection of, or definition or term
contained in, Regulation S means such rule, section, subsection, definition
or
term, as the case may be, or any successor thereto, in each case as the same
may
be amended from time to time.
41
Regulation
S Global Security:
The
meaning specified in Section 3.01(d).
Released
Mortgage Loan:
As of
any transfer date as set forth in the related Servicing Agreement, any Mortgage
Loan other than a Covered Mortgage Loan that was delinquent in payment for
a
period of 210 days or more as of the last calendar day of the month immediately
proceeding the month in which such transfer date occurs, without giving effect
to any grace period permitted by the related Mortgage Note, and for which
foreclosure proceedings have not been initiated.
Released
Mortgage Transferee:
Initially, Aurora Loan Services LLC, and its successors and
assigns.
Relevant
Servicing Criteria:
The
Servicing Criteria applicable to each party, as set forth on Exhibit T attached
hereto. Multiple parties can have responsibility for the same Relevant Servicing
Criteria. With respect to a Servicing Function Participant engaged by the Master
Servicer, the Paying Agent, the Trustee, the Credit Risk Manager, the Custodian
or the Servicer, the term “Relevant Servicing Criteria” may refer to a portion
of the Relevant Servicing Criteria applicable to such parties.
Relief
Act Reduction:
With
respect to any Mortgage Loan as to which there has been a reduction in the
amount of interest collectible thereon as a result of application of the Civil
Relief Act, any amount by which interest collectible on such Mortgage Loan
for
the Due Date in the related Due Period is less than interest accrued thereon
for
the applicable one-month period at the Mortgage Rate without giving effect
to
such reduction.
REMIC:
Each
pool of assets in the Trust Fund designated as a REMIC pursuant to the
Preliminary Statement.
REMIC
1:
As
described in the Preliminary Statement.
REMIC
2:
As
described in the Preliminary Statement.
REMIC
3:
As
described in the Preliminary Statement.
REMIC
3 Net Funds Cap:
For any
Distribution Date (and the related Accrual Period) and any Class of
Certificates, an amount equal to (i) the weighted average of the interest rates
on the regular interests in REMIC 3 (other than the Class LT3-IO Interests),
weighted in proportion to their Class Principal Amounts as of the beginning
of
the related Accrual Period, multiplied by (ii) the quotient of (a) 30 divided
by
(b) the actual number of days in the Accrual Period.
REMIC
4:
As
described in the Preliminary Statement.
REMIC
Provisions:
The
provisions of the federal income tax law relating to real estate mortgage
investment conduits, which appear at sections 860A through 860G of Subchapter
M
of Chapter 1 of the Code, and related provisions, and regulations, including
proposed regulations and rulings, and administrative pronouncements promulgated
thereunder, as the foregoing may be in effect from time to time.
42
REMIC
Swap Rate:
For
each Distribution Date (and the related Accrual Period), a per annum rate equal
to the product of: (i) the “Rate of Payment (%)” under the Swap Agreement for
such Distribution Date, as set forth in Annex D to the Prospectus Supplement,
(ii) 2, and (iii) the quotient of (a) the actual number of days in the related
Accrual Period divided by (b) 30.
Reportable
Event:
As
defined in Section 6.20(f)(i).
Reporting
Servicer:
As
defined in Section 6.20(e)(i).
REO
Property:
A
Mortgaged Property acquired by the Trust Fund through foreclosure or
deed-in-lieu of foreclosure in connection with a defaulted Mortgage Loan or
otherwise treated as having been acquired pursuant to the REMIC
Provisions.
Required
Reserve Fund Deposit:
With
respect to any Distribution Date on which the Net Excess Spread is less than
0.25%, the amount, if any by which (a) the product of 1.00% and the Pool Balance
for such date exceeds (b) the amount on deposit in the Basis Risk Reserve Fund
immediately prior to such date. With respect to any Distribution Date on which
the Net Excess Spread is equal to or greater than 0.25%, the amount, if any,
by
which (i) $1,000 exceeds the amount on deposit in the Basis Risk Reserve Fund
immediately prior to such date; provided,
however,
that on
any Distribution Date on which the Class Principal Amount of each Class of
Offered Certificates, the Class B1 Certificates and the Class B2 Certificates
has been reduced to zero, the Required Reserve Fund Deposit shall be
zero.
Residual
Certificate:
Any
Class LT-R or Class R Certificate.
Responsible
Officer:
When
used with respect to the Trustee, any vice president, assistant vice president,
the secretary, any assistant secretary, or any officer, working in its Corporate
Trust Office and having responsibility for the administration of this Agreement,
and any other officer to whom a matter arising under this Agreement may be
referred.
Restricted
Certificate:
Any
Class B1, Class B2, Class P, Class X, Class R or Class LT-R
Certificate.
Rolling
Three Month Delinquency Rate:
With
respect to any Distribution Date, the fraction, expressed as a percentage,
equal
to the average of the Delinquency Rates for each of the three (or one and two,
in the case of the first and second Distribution Dates, respectively)
immediately preceding calendar months.
Rule
144A:
Rule
144A under the Securities Act.
Rules:
As
defined in Section 6.20(c).
S&P:
Standard & Poor’s Ratings Services, a division of The McGraw Hill Companies,
Inc., or any successor in interest.
43
Xxxxxxxx-Xxxxx
Act:
The
Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations of the Commission
promulgated thereunder (including any interpretations thereof by the
Commission’s staff).
Xxxxxxxx-Xxxxx
Certification:
A
written certification covering the activities of all Servicing Function
Participants and signed by an officer of the Exchange Act Signing Party that
complies with Section 302 of the Xxxxxxxx-Xxxxx Act, as amended from time to
time.
Scheduled
Payment:
Each
scheduled payment of principal and interest (or of interest only, if applicable)
to be paid by the Mortgagor on a Mortgage Loan, as reduced (except where
otherwise specified herein) by the amount of any related Debt Service Reduction,
excluding all amounts of principal and interest that were due on or before
the
Cut-off Date whenever received) and, in the case of an REO Property, an amount
equivalent to the Scheduled Payment that would have been due on the related
Mortgage Loan if such Mortgage Loan had remained in existence.
Scheduled
Principal Balance:
With
respect to (i) any Mortgage Loan as of any Distribution Date, the principal
balance of such Mortgage Loan at the close of business on the Cut-off Date
after
giving effect to principal payments due on or before the Cut-off Date, whether
or not received, less an amount equal to principal payments due after the
Cut-off Date, and on or before the Due Date in the related Collection Period,
whether or not received from the Mortgagor or advanced by any Servicer or the
Master Servicer, and all amounts allocable to unscheduled principal payments
(including Principal Prepayments, Liquidation Proceeds, Insurance Proceeds
and
condemnation proceeds, in each case to the extent identified and applied prior
to or during the related Prepayment Period) and (ii) any REO Property as of
any
Distribution Date, the Scheduled Principal Balance of the related Mortgage
Loan
on the Due Date immediately preceding the date of acquisition of such REO
Property by or on behalf of the Trustee (reduced by any amount applied as a
reduction of principal on the Mortgage Loan). With respect to any Mortgage
Loan
as of the Cut-off Date, the principal balance of such Mortgage Loan as specified
in the Mortgage Loan Schedule. The Scheduled Principal Balance of any Liquidated
Mortgage Loan shall be zero.
Section
7.01(c) Purchase Event:
The
purchase of all the Lower Tier REMIC 1 Uncertificated Regular
Interests.
Securities
Act:
The
Securities Act of 1933, as amended.
Security
Agreement:
Not
applicable.
Seller:
Xxxxxx
Brothers Holdings Inc., or any successor in interest.
Senior
Certificate:
Any
Class A1 or Class A2 Certificate.
Senior
Enhancement Percentage:
With
respect to any Distribution Date, the fraction, expressed as a percentage,
the
numerator of which is the sum of the aggregate Class Principal Amount of the
Subordinate Certificates and the Overcollateralization Amount (which amount,
for
purposes of this definition only, shall not be less than zero and assuming
for
purposes of this definition that the Principal Distribution Amount has been
distributed on such Distribution Date and no Trigger Event has occurred) and
the
denominator of which is the Pool Balance for such Distribution Date, in each
case after giving effect to distributions on such Distribution
Date.
44
Senior
Principal Distribution Amount:
With
respect to any Distribution Date on or after the Stepdown Date and as long
as a
Trigger Event is not in effect with respect to such Distribution Date, the
lesser of (x) the Principal Distribution Amount and (y) the amount, if any
by
which (A) the aggregate Class Principal Amount of the Senior Certificates
immediately prior to such Distribution Date exceeds (B) the Senior Target
Amount.
Senior
Priority:
To the
Class A1 and Class A2 Certificates, sequentially, in that order.
Senior
Target Amount:
With
respect to any Distribution Date, an amount equal to the lesser of (a) the
product of (i) 50.30% and (ii) the Pool Balance for such Distribution Date
determined as of the last day of the related Collection Period and (b) the
amount, if any, by which (i) the Pool Balance for such Distribution Date
determined as of the last day of the Collection Period exceeds (ii) the
Overcollateralization Floor.
Servicer:
Each of
Aurora Loan Services LLC and GMAC Mortgage Corporation or any of their
respective successors in interest.
Servicer
Remittance Date:
The day
in each calendar month on which each Servicer is required to remit payments
to
the Collection Account, as specified in the related Servicing Agreement, which
is the 18th
day of
each calendar month (or, if such 18th
day is
not a Business Day, either the next succeeding Business Day or the preceding
Business Day, as specified in the applicable Servicing Agreement).
Service(s)(ing):
In
accordance with Regulation AB, the act of managing or collecting payments on
the
Mortgage Loans or any other assets of the Trust Fund by an entity that meets
the
definition of “servicer’ set forth in Item 1101 of Regulation AB. For
clarification purposes, any uncapitalized occurrence of this term shall have
the
meaning commonly understood by participants in the residential mortgage-backed
securitization market.
Servicing
Advances:
All
customary, reasonable and necessary “out of pocket” costs and expenses other
than Advances (including reasonable attorneys’ fees and disbursements) incurred
in the performance by a Servicer of its servicing obligations, including, but
not limited to, the cost of (a) satisfying the outstanding amount of a senior
mortgage lien on the Mortgaged Property in order to prevent a foreclosure,
(b)
the preservation, inspection, restoration and protection of the Mortgaged
Property, (c) any enforcement or administrative or judicial proceedings,
including foreclosures, (d) the management and liquidation of the Mortgaged
Property if the Mortgaged Property is acquired in satisfaction of the Mortgage,
(e) taxes, assessments, water rates, sewer rents and other charges which are
or
may become a lien upon the Mortgaged Property, any insurance premiums related
to
insurance on the Mortgaged Property and (f) any losses sustained by a Servicer
with respect to the liquidation of the Mortgaged Property.
45
Servicing
Agreement:
Each
servicing agreement or securitization subservicing agreement identified in
Exhibit E hereto, each dated as of February 1, 2006, among the Seller, the
Master Servicer and one of the above-named Servicers, and any other servicing
agreement entered into between a successor servicer and the Seller pursuant
to
the terms of this Agreement.
Servicing
Fee:
As to
any Distribution Date and each Mortgage Loan, an amount equal to the product
of
(a) one-twelfth of the Servicing Fee Rate and (b) the outstanding principal
balance of such Mortgage Loan as of the first day of the related Collection
Period. No Servicing Fee will accrue with respect to any Charged-off Loan.
Servicing
Fee Rate:
With
respect to each Mortgage Loan, the rate specified in the related Servicing
Agreement.
Servicing
Function Participant:
Any
Subservicer, Subcontractor or any other Person, other than the Servicer, the
Custodian, the Master Servicer, the Paying Agent and the Trustee, that is
participating in the servicing function within the meaning of Regulation AB,
unless such Person’s activities relate only to 5% or less of the Mortgage
Loans.
Sponsor:
Xxxxxx
Brothers Holdings Inc., or any successor in interest.
Startup
Day:
The day
designated as such pursuant to Section 10.01(b) hereof.
Stepdown
Date:
The
earlier of (i) the first Distribution Date following the Distribution Date
on
which the Class Principal Amounts of the Senior Certificates have each been
reduced to zero or (ii) the later to occur of (x) the Distribution Date in
March
2009 and (y) the first Distribution Date on which the Senior Enhancement
Percentage (calculated for this purpose after giving effect to payments or
other
recoveries in respect of the Mortgage Loans during the related Collection Period
but before giving effect to distributions on the Certificates on such
Distribution Date) is greater than or equal to 49.70%.
Subcontractor:
Any
vendor, subcontractor or other Person that is not responsible for the overall
servicing (as “servicing” is commonly understood by participants in the
mortgage-backed securities market) of the Mortgage Loans but performs one or
more discrete functions identified in Item 1122(d) of Regulation AB with respect
to the Mortgage Loans under the direction or authority of the Trustee, the
Master Servicer, a Custodian, a Servicer or the Credit Risk
Manager.
Subordinate
Certificate:
Any
Class M Certificate or Class B Certificate.
Subordinate
Priority:
To the
Class M1, Class M2, Class M3, Class M4, Class M5, Class M6, Class M7, Class
M8,
Class B1 and Class B2 Certificates, sequentially, in that order.
Subsequent
Recovery:
Any
amount recovered by a Servicer or the Master Servicer with respect to a
Liquidated Mortgage Loan (other than a Released Mortgage Loan) with respect
to
which a Realized Loss was incurred after the liquidation or disposition of
such
Mortgage Loan.
Subservicer:
Any
Person that (i) is considered to be a Servicing Function Participant, (ii)
services Mortgage Loans on behalf of the Servicer or Additional Servicer, and
(iii) is responsible for the performance (whether directly or through
subservicers or Subcontractors) of Servicing functions required to be performed
under this Agreement, any related Servicing Agreement or any subservicing
agreement that are identified in Item 1122(d) of Regulation AB.
46
Substitution
Amount:
The
amount, if any, by which the Scheduled Principal Balance of a Deleted Mortgage
Loan exceeds the Scheduled Principal Balance of the related Qualifying
Substitute Mortgage Loan, or aggregate Scheduled Principal Balance, if
applicable, plus
unpaid
interest thereon; any related unpaid Advances or Servicing Advances or unpaid
Servicing Fees; and the amount of any costs and damages incurred by the Trust
Fund associated with a violation of any applicable federal, state or local
predatory or abusive lending law in connection with the origination of such
Deleted Mortgage Loan.
Supplemental
Interest Trust:
The
corpus of a trust created pursuant to Section 5.07 of this Agreement and
designated as the “Supplemental Interest Trust,” consisting of the Swap
Agreement, the Swap Account, the Interest Rate Cap Agreement, the Interest
Rate
Cap Account, the right to receive the Class X Distributable Amount as provided
in Section 5.02(d)(vi), the Class LT4-I interest in REMIC 4 and the right to
receive Class I Shortfalls.
Swap
Account:
The
account created pursuant to Section 5.07(a) of this Agreement.
Swap
Agreement:
The
interest rate swap agreement entered into by the Supplemental Interest Trust,
which agreement provides for, among other things, a Net Swap Payment to be
paid
pursuant to the conditions provided therein, together with any schedules,
confirmations or other agreements relating thereto, attached hereto as Exhibit
P.
Swap
Amount:
With
respect to each Distribution Date and the related Swap Payment Date, the sum
of
any Net Swap Payment and any Swap Termination Payment deposited into the Swap
Account.
Swap
Counterparty:
The
counterparty to the Supplemental Interest Trust under the Swap Agreement, and
any successor in interest or assigns. Initially, the Swap Counterparty shall
be
HSBC Bank USA, National Association.
Swap
Counterparty Trigger Event:
A Swap
Counterparty Trigger Event shall have occurred if any of a Swap Default with
respect to which the Swap Counterparty is a Defaulting Party, a Termination
Event with respect to which the Swap Counterparty is the sole Affected Party
or
an Additional Termination Event with respect to which the Swap Counterparty
is
the sole Affected Party has occurred.
Swap
Default:
Any of
the circumstances constituting an “Event of Default” under the Swap
Agreement.
Swap
LIBOR:
With
respect to any Distribution Date and the related Swap Payment Date (and the
Accrual Period relating to such Distribution Date), the product of (i) the
Floating Rate Option (as defined in the Swap Agreement) for the related Swap
Payment Date, (ii) two, and (iii) the quotient of (a) the actual number of
days
in the Accrual Period for the Offered Certificates and the Class B1 and Class
B2
Certificates and (b) 30, as calculated by the Swap Counterparty and furnished
to
the Securities Administrator.
Swap
Payment Date:
For so
long as the Swap Agreement is in effect or any amounts remain unpaid thereunder,
the Business Day immediately preceding each Distribution Date.
47
Swap
Replacement Receipts:
As
defined in Section 5.09(a).
Swap
Replacement Receipts Account:
As
defined in Section 5.09(a).
Swap
Termination Payment:
Upon
the designation of an “Early Termination Date” as defined in the Swap Agreement,
the payment required to be made by the Supplemental Interest Trust to the Swap
Counterparty, or by the Swap Counterparty to the Supplemental Interest Trust,
as
applicable, pursuant to the terms of the Swap Agreement, and any unpaid amounts
due on previous Swap Payment Dates and accrued interest thereon as provided
in
the Swap Agreement, as calculated by the Swap Counterparty and furnished to
the
Trustee and the Securities Administrator.
Swap
Termination Receipts:
As
defined in Section 5.09(a).
Swap
Termination Receipts Account:
As
defined in Section 5.09(a).
Target
Amount:
With
respect to any Distribution Date, an amount equal to the Pool Balance as of
such
Distribution Date minus
the
Targeted Overcollateralization Amount for such Distribution Date.
Targeted
Overcollateralization Amount:
With
respect to any Distribution Date on or prior to the Distribution Date in August
2006, $5,300,561.46. For any Distribution Date after August 2006 and prior
to
the Stepdown Date, an amount equal to approximately $19,211,451 (approximately
4.35% of the Cut-off Date Balance). For any Distribution Date on or after the
Stepdown Date and for which a Trigger Event is not in effect, an amount equal
to
the greater of (i) the lesser of (a) an amount equal to approximately
$19,211,451 (approximately 4.35% of the Cut-off Date Balance) and (b)
approximately 8.70% of the Pool Balance, after giving effect to distributions
on
that Distribution Date, and (ii) approximately $2,208,212 (approximately 0.50%
of the Cut-off Date Balance). For any Distribution Date on or after the Stepdown
Date and for which a Trigger Event is in effect, the Targeted
Overcollateralization Amount for the immediately preceding Distribution
Date.
Tax
Matters Person:
The
“tax matters person” as specified in the REMIC Provisions.
Telerate
Page 3750:
The
display currently so designated as “Page 3750” on the Reuters Telerate Service
(or such other page selected by the Trustee as may replace Page 3750 on that
service for the purpose of displaying daily comparable rates on
prices).
Termination
Price:
As
defined in Section 7.01.
Title
Insurance Policy:
A title
insurance policy maintained with respect to a Mortgage Loan.
Total
Distribution Amount:
With
respect to any Distribution Date, the sum of (i) the Interest Remittance Amount
for such date; (ii) the Principal Remittance Amount for such date; and (iii)
all
Prepayment Premiums collected during the related Prepayment Period.
Transfer
Agreements:
As
defined in the Mortgage Loan Sale Agreement.
48
Transferor:
Each
seller of Mortgage Loans to the Seller pursuant to the Transfer
Agreements.
Trigger
Event:
A
Trigger Event shall have occurred with respect to any Distribution Date if
either a Delinquency Event or a Cumulative Loss Trigger Event is in effect
for
such Distribution Date.
Trust
Fund:
The
corpus of the trust created pursuant to this Agreement, consisting of the
Mortgage Loans, the assignment of the Depositor’s rights under the Transfer
Agreement, the Mortgage Loan Sale Agreement and the Servicing Agreement, such
amounts as shall from time to time be held in the Collection Account, the
Certificate Account, the Custodial Account and any Escrow Account, the Swap
Termination Receipts Account, the Swap Replacement Receipts Account, the Cap
Termination Receipts Account, the Cap Replacement Receipts Account, the Basis
Risk Reserve Fund, the Insurance Policies, any REO Property and the other items
referred to in, and conveyed to the Trustee under, Section 2.01(a).
Trust
Fund Termination Event:
As
defined in Section 7.01(a).
Trustee:
U.S.
Bank National Association, not in its individual capacity but solely as Trustee,
or any successor in interest, or if any successor trustee shall be appointed
as
herein provided, then such successor in interest or successor trustee, as the
case may be.
UCC:
The
Uniform Commercial Code as in effect in any applicable jurisdiction from time
to
time.
Underwriter:
Xxxxxx
Brothers Inc.
Underwriter’s
Exemption:
Prohibited Transaction Exemption 2002-41, 67 Fed. Reg. 54487 (2002), as amended
(or any successor thereto), or any substantially similar administrative
exemption granted by the U.S. Department of Labor.
Uniform
Commercial Code:
The
Uniform Commercial Code as in effect in any applicable jurisdiction from time
to
time.
Unpaid
Basis Risk Shortfall:
With
respect to any Distribution Date and any LIBOR Certificate, the aggregate of
all
Basis Risk Shortfalls with respect to such Certificate remaining unpaid from
previous Distribution Dates, plus interest accrued thereon at the applicable
Certificate Interest Rate (calculated without giving effect to the applicable
Net Funds Cap) but limited to a rate no greater than the applicable Maximum
Interest Rate.
Upper
Tier REMIC:
As
described in the Preliminary Statement.
Voting
Interests:
The
portion of the voting rights of all the Certificates that is allocated to any
Certificate for purposes of the voting provisions of this Agreement. At all
times during the term of this Agreement, 97.00% of all Voting Interests shall
be
allocated to the LIBOR Certificates. Voting Interests shall be allocated among
the Classes of LIBOR Certificates (and among the Certificates within each such
Class) in proportion to their Class Principal Amounts (or Certificate Principal
Amounts). At all times during the term of this Agreement, 1% of all Voting
Interests shall be allocated to each of the Class P, Class R and Class X
Certificates while they remain outstanding. Voting Interests shall be allocated
among the other Classes of Certificates (and among the Certificates within
each
such Class) in proportion to their Class Principal Amounts (or Certificate
Principal Amounts) or Percentage Interests. In the case of the purchase by
the
Master Servicer of the Lower Tier REMIC 1 Uncertificated Regular Interests
pursuant to a Section 7.01(c) Purchase Event, the LTURI-holder shall be
allocated 100% of the Voting Interests and upon such Purchase any provision
in
this Agreement which requires a vote by, a direction or notice given by, an
action taken by, a request in writing by or the consent of, any percentage
of
the Holders of the Certificates or any Class of Certificates may be exercised
by
the LTURI-holder.
49
Section
1.02 Calculations
Respecting Mortgage Loans.
Calculations
required to be made pursuant to this Agreement with respect to any Mortgage
Loan
in the Trust Fund shall be made based upon current information as to the terms
of the Mortgage Loans and reports of payments received from the Mortgagor on
such Mortgage Loans and payments to be made to the Trustee as supplied to the
Trustee by the Master Servicer. The Trustee shall not be required to recompute,
verify or recalculate the information supplied to it by the Master Servicer,
any
Servicer or the Credit Risk Manager.
Section
1.03 Calculations
Respecting Accrued Interest.
Accrued
interest, if any, on any Certificate other than a Class X, Class P, Class LT-R
or Class R Certificate shall be calculated based upon a 360-day year and the
actual number of days in each Accrual Period. Accrued interest, if any, on
any
Lower Tier Interest shall be calculated based upon a 360-day year consisting
of
twelve 30-day months, and each Accrual Period shall be deemed to have 30
days.
ARTICLE
II
DECLARATION
OF TRUST;
ISSUANCE
OF CERTIFICATES
Section
2.01 Creation
and Declaration of Trust Fund; Conveyance of Mortgage Loans.
(a) Concurrently
with the execution and delivery of this Agreement, the Depositor does hereby
transfer, assign, set over, deposit with and otherwise convey to the Trustee,
without recourse, subject to Sections 2.02, 2.04, 2.05 and 2.06, in trust,
all
the right, title and interest of the Depositor in and to the Mortgage Loans.
Such conveyance includes, without limitation, the right to all payments of
principal and interest received on or with respect to the Mortgage Loans on
and
after the Cut-off Date (other than payments of principal and interest due on
or
before such date), and all such payments due after such date but received prior
to such date and intended by the related Mortgagors to be applied after such
date together with all of the Depositor’s right, title and interest in and to
the Collection Account and all amounts from time to time credited to and the
proceeds of the Collection Account, the Certificate Account and all amounts
from
time to time credited to and the proceeds of the Certificate Account (exclusive
of investment earnings thereon), the Custodial Accounts and all amounts from
time to time credited to and the proceeds of the Custodial Accounts, any Escrow
Account established pursuant to Section 9.06 and any Basis Risk Reserve Fund
established pursuant to Section 5.06 and all amounts from time to time credited
to and the proceeds of each such account, any REO Property and the proceeds
thereof, the Depositor’s rights under any Insurance Policies related to the
Mortgage Loans, the Depositor’s security interest in any collateral pledged to
secure the Mortgage Loans, including the Mortgaged Properties and any Additional
Collateral, and any proceeds of the foregoing, to have and to hold, in trust;
and the Trustee declares that, subject to the review provided for in Section
2.02, it has received and shall hold the Trust Fund, as trustee, in trust,
for
the benefit and use of the Holders of the Certificates and for the purposes
and
subject to the terms and conditions set forth in this Agreement, and,
concurrently with such receipt, has caused to be executed, authenticated and
delivered to or upon the order of the Depositor, in exchange for the Trust
Fund,
Certificates in the authorized denominations evidencing the entire ownership
of
the Trust Fund.
50
Concurrently
with the execution of this Agreement, the Swap Agreement shall be delivered
to
the Trustee. In connection therewith, the Depositor hereby directs the Trustee
(solely in its capacity as such) and the Trustee is hereby authorized to execute
and deliver the Swap Agreement on behalf of the Supplemental Interest Trust
and
for the benefit of the Certificateholders. The Seller, the Master Servicer,
the
Trustee, the Depositor, the Servicer and the Certificateholders (by their
acceptance of such Certificates) acknowledge and agree that the Trustee is
executing and delivering the Swap Agreement solely in its capacity as Trustee
of
the Supplemental Interest Trust and the Trust Fund and not in its individual
capacity. The Trustee shall have no duty or responsibility to enter into any
other swap agreement upon the expiration or termination of the Swap
Agreement.
Concurrently
with the execution and delivery of this Agreement, the Swap Agreement and the
Interest Rate Cap Agreement shall be delivered to the Trustee. In connection
therewith, the Depositor hereby directs the Trustee (solely in its capacity
as
such) and the Trustee is hereby authorized to execute and deliver the Swap
Agreement and the Interest Rate Cap Agreement (each on behalf of the
Supplemental Interest Trust) for the benefit of the Certificateholders. The
Seller, the Master Servicer, the Depositor, the Servicers and the
Certificateholders (by their acceptance of such Certificates) acknowledge and
agree that the Trustee is executing and delivering the Swap Agreement and the
Interest Rate Cap Agreement solely in its capacity as Trustee of the
Supplemental Interest Trust and the Trust Fund not in its individual capacity.
The Trustee shall have no duty or responsibility to enter into any other swap
agreement upon the expiration or termination of the Swap Agreement or the
Interest Rate Cap Agreement.
Concurrently
with the execution and delivery of this Agreement, the Depositor does hereby
assign to the Trustee all of its rights and interest under the Mortgage Loan
Sale Agreement, including all rights of the Seller under each Servicing
Agreement and each Transfer Agreement (including the right to enforce the
Transferor’s obligation pursuant to the PPTLS) but only to the extent assigned
under the Mortgage Loan Sale Agreement. The Trustee hereby accepts such
assignment, and shall be entitled to exercise all the rights of the Depositor
under the Mortgage Loan Sale Agreement as if, for such purpose, it were the
Depositor.
It
is
agreed and understood by the Depositor and the Trustee (and the Seller has
so
represented and recognized in the Mortgage Loan Sale Agreement) that it is
not
intended that any Mortgage Loan to be included in the Trust Fund be (i) a
“High-Cost Home Loan” as defined in the New Jersey Home Ownership Act effective
November 27, 2003, (ii) a “High-Cost Home Loan” as defined in the New Mexico
Home Loan Protection Act effective January 1, 2004, (iii) a “High-Cost Home
Mortgage Loan” as defined in the Massachusetts Predatory Home Loan Practices Act
effective November 7, 2004 or (iv) a “High Cost Home Loan” as defined in the
Indiana Home Loan Practices Act effective January 1, 2005.
51
The
foregoing sale, transfer, assignment, set-over, deposit and conveyance does
not
and is not intended to result in the creation or assumption by the Trustee
of
any obligation of the Depositor, the Seller or any other Person in connection
with the Mortgage Loans.
(b) In
connection with such transfer and assignment, the Depositor does hereby deliver
to, and deposit with, or cause to be delivered to and deposited with, the
Trustee, and/or the applicable Custodian acting on the Trustee’s behalf, the
following documents or instruments with respect to each Mortgage Loan (each
a
“Mortgage File”) so transferred and assigned:
(i) with
respect to each Mortgage Loan, the original Mortgage Note endorsed without
recourse in proper form to the order of the Trustee, as shown on Exhibit B-4
hereto, or in blank (in each case, with all necessary intervening endorsements,
as applicable) or with respect to any lost Mortgage Note, a lost note affidavit
stating that the original Mortgage Note was lost, misplaced or destroyed,
together with a copy of the related Mortgage Note;
(ii) the
original of any guarantee executed in connection with the Mortgage Note,
assigned to the Trustee;
(iii) with
respect to any Mortgage Loan, the original recorded Mortgage with evidence
of
recording indicated thereon and the original recorded power of attorney, with
evidence of recording thereon. If, in connection with any Mortgage Loan, the
Depositor cannot deliver the Mortgage or power of attorney with evidence of
recording thereon on or prior to the Closing Date because of a delay caused
by
the public recording office where such Mortgage has been delivered for
recordation or because such Mortgage or power of attorney has been lost, the
Depositor shall deliver or cause to be delivered to the Trustee (or the
applicable Custodian), in the case of a delay due to recording, a true copy
of
such Mortgage or power of attorney, pending delivery of the original thereof,
together with an Officer’s Certificate of the Depositor certifying that the copy
of such Mortgage or power of attorney delivered to the Trustee (or the
applicable Custodian) is a true copy and that the original of such Mortgage
or
power of attorney has been forwarded to the public recording office, or, in
the
case of a Mortgage or power of attorney that has been lost, a copy thereof
(certified as provided for under the laws of the appropriate jurisdiction)
and a
written Opinion of Counsel acceptable to the Trustee and the Depositor that
an
original recorded Mortgage or power of attorney is not required to enforce
the
Trustee’s interest in the Mortgage Loan;
(iv) the
original of each assumption, modification or substitution agreement, if any,
relating to the Mortgage Loans, or, as to any assumption, modification or
substitution agreement which cannot be delivered on or prior to the Closing
Date
because of a delay caused by the public recording office where such assumption,
modification or substitution agreement has been delivered for recordation,
a
photocopy of such assumption, modification or substitution agreement, pending
delivery of the original thereof, together with an Officer’s Certificate of the
Depositor certifying that the copy of such assumption, modification or
substitution agreement delivered to the Trustee (or the Custodian) is a true
copy and that the original of such agreement has been forwarded to the public
recording office;
52
(v) with
respect to each Non-MERS Mortgage Loan, an original Assignment of Mortgage,
in
form and substance acceptable for recording. The related Mortgage shall be
assigned either (A) in blank, without recourse or (B) to “U.S. Bank National
Association, as Trustee of the Structured Asset Securities Corporation Mortgage
Pass Through Certificates, Series 2006-S1, without recourse”;
(vi) if
applicable, such original intervening assignments of the Mortgage, notice of
transfer or equivalent instrument (each, an “Intervening Assignment”), as may be
necessary to show a complete chain of assignment from the originator, or, in
the
case of an Intervening Assignment that has been lost, a written Opinion of
Counsel acceptable to the Trustee and any NIMS Insurer that such original
Intervening Assignment is not required to enforce the Trustee’s interest in the
Mortgage Loan;
(vii) with
respect to any Mortgage Loan, the original mortgagee title insurance policy
(or,
in lieu thereof, a commitment to issue such title insurance policy with an
original or certified copy of such title insurance policy to follow as soon
after the Closing Date as reasonably practicable) or attorney’s opinion of title
and abstract of title;
(viii) the
original of any security agreement, chattel mortgage or equivalent instrument
executed in connection with the Mortgage or as to any security agreement,
chattel mortgage or their equivalent instrument that cannot be delivered on
or
prior to the Closing Date because of a delay caused by the public recording
office where such document has been delivered for recordation, a photocopy
of
such document, pending delivery of the original thereof, together with an
Officer’s Certificate of the Depositor certifying that the copy of such security
agreement, chattel mortgage or their equivalent instrument delivered to the
Trustee (or the applicable Custodian) is a true copy and that the original
of
such document has been forwarded to the public recording office;
(ix) with
respect to any manufactured housing contract, any related manufactured housing
sales contract, installment loan agreement or participation
interest.
The
parties hereto acknowledge and agree that the form of endorsement attached
hereto as Exhibit B-4 is intended to effect the transfer to the Trustee, for
the
benefit of the Certificateholders, of the Mortgage Notes and the
Mortgages.
(c) (i)
Assignments of Mortgage with respect to each Non-MERS Mortgage Loan shall
be recorded; provided,
however,
that
such Assignments need not be recorded if, on or prior to the Closing Date,
the
Depositor delivers, at its own expense, an Opinion of Counsel addressed to
the
Trustee (which must be Independent counsel) acceptable to the Trustee and the
Rating Agencies, to the effect that recording in such states is not required
to
protect the Trustee’s interest in the related Non-MERS Mortgage Loans;
provided,
further,
that
notwithstanding the delivery of any Opinion of Counsel, the Master Servicer
shall cause the applicable Servicer to submit each Assignment of Mortgage for
recording upon the occurrence of a bankruptcy, insolvency or foreclosure
relating to the Mortgagor under the related Mortgage. Subject to the preceding
sentence, as soon as practicable after the Closing Date (but in no event more
than three months thereafter except to the extent delays are caused by the
applicable recording office), the Master Servicer, at the expense of the
Depositor and with the cooperation of the applicable Servicer, shall cause
to be
properly recorded by each Servicer in each public recording office where the
related Mortgages are recorded each Assignment of Mortgage referred to in
subsection (b)(v) above with respect to each Non-MERS Mortgage Loan.
53
(ii)
With
respect to each MERS Mortgage Loan, the Master Servicer shall cause the
applicable Servicer, at the expense of the Depositor, to take such actions
as
are necessary to cause the Trustee to be clearly identified as the owner of
each
such Mortgage Loan on the records of MERS for purposes of the system of
recording transfers of beneficial ownership of mortgages maintained by
MERS.
(d) In
instances where a Title Insurance Policy is required to be delivered to the
Trustee or the applicable Custodian on behalf of the Trustee under clause
(b)(vii) above and is not so delivered, the Depositor will provide a copy of
such Title Insurance Policy to the Trustee, or to the applicable Custodian
on
behalf of the Trustee, as promptly as practicable after the execution and
delivery hereof, but in any case within 180 days of the Closing
Date.
(e) For
Mortgage Loans (if any) that have been prepaid in full after the Cut-off Date
and prior to the Closing Date, the Depositor, in lieu of delivering the above
documents, herewith delivers to any NIMS Insurer and the Trustee, or to the
applicable Custodian on behalf of the Trustee, an Officer’s Certificate which
shall include a statement to the effect that all amounts received in connection
with such prepayment that are required to be deposited in the Collection Account
pursuant to Section 4.01 have been so deposited. All original documents that
are
not delivered to the Trustee or the applicable Custodian on behalf of the
Trustee shall be held by the Master Servicer or the applicable Servicer in
trust
for the benefit of the Trustee and the Certificateholders.
Section
2.02 Acceptance
of Trust Fund by Trustee: Review of Documentation for Trust
Fund.
(a)
The
Trustee, by execution and delivery hereof, acknowledges receipt by it or by
the
applicable Custodian on its behalf of the Mortgage Files pertaining to the
Mortgage Loans listed on the Mortgage Loan Schedule, subject to review thereof
by the Trustee, or by the applicable Custodian on behalf of the Trustee, under
this Section 2.02. The Trustee, or the applicable Custodian on behalf of the
Trustee, will execute and deliver to the Depositor, the Master Servicer, the
Trustee and any NIMS Insurer on the Closing Date an Initial Certification in
the
form annexed hereto as Exhibit B-1 (or in the form annexed to the applicable
Custodial Agreement as Exhibit B-1, as applicable).
54
(b) Within
45
days after the Closing Date, the Trustee or the applicable Custodian on behalf
of the Trustee, will, for the benefit of Holders of the Certificates, review
each Mortgage File to ascertain that all required documents set forth in Section
2.01 have been received and appear on their face to contain the requisite
signatures by or on behalf of the respective parties thereto, and shall deliver
to the Trustee, the Depositor, the Master Servicer and any NIMS Insurer an
Interim Certification in the form annexed hereto as Exhibit B-2 (or in the
form
annexed to the applicable Custodial Agreement as Exhibit B-2, as applicable)
to
the effect that, as to each Mortgage Loan listed in the Mortgage Loan Schedule
(other than any Mortgage Loan prepaid in full or any Mortgage Loan specifically
identified in such certification as not covered by such certification), (i)
all
of the applicable documents specified in Section 2.01(b) are in its possession
and (ii) such documents have been reviewed by it and appear to relate to such
Mortgage Loan. The Trustee, or the applicable Custodian on behalf of the
Trustee, shall determine whether such documents are executed and endorsed,
but
shall be under no duty or obligation to inspect, review or examine any such
documents, instruments, certificates or other papers to determine that the
same
are valid, binding, legally effective, properly endorsed, genuine, enforceable
or appropriate for the represented purpose or that they have actually been
recorded or are in recordable form or that they are other than what they purport
to be on their face. Neither the Trustee nor any applicable Custodian shall
have
any responsibility for verifying the genuineness or the legal effectiveness
of
or authority for any signatures of or on behalf of any party or
endorser.
(c) If
in the
course of the review described in paragraph (b) above the Trustee or the
applicable Custodian discovers any document or documents constituting a part
of
a Mortgage File that is missing, does not appear regular on its face (i.e.,
is
mutilated, damaged, defaced, torn or otherwise physically altered) or appears
to
be unrelated to the Mortgage Loans identified in the Mortgage Loan Schedule
(each, a “Material Defect”), the Trustee, or the applicable Custodian on behalf
of the Trustee, discovering such Material Defect shall promptly identify the
Mortgage Loan to which such Material Defect relates in the Interim Certification
delivered to the Depositor and the Master Servicer. Within 90 days of its
receipt of such notice, the Transferor, or, if the Transferor does not do so,
the Depositor shall be required to cure such Material Defect (and, in such
event, the Depositor shall provide the Trustee with an Officer’s Certificate
confirming that such cure has been effected). If the applicable Transferor
or
the Depositor, as applicable, does not so cure such Material Defect, the
Transferor, or, if the Transferor does not do so, the Depositor, shall, if
a
loss has been incurred with respect to such Mortgage Loan that would, if such
Mortgage Loan were not purchased from the Trust Fund, constitute a Realized
Loss, and such loss is attributable to the failure of the Depositor to cure
such
Material Defect, repurchase the related Mortgage Loan from the Trust Fund at
the
Purchase Price. A loss shall be deemed to be attributable to the failure of
the
Depositor to cure a Material Defect if, as determined by the Depositor, upon
mutual agreement with the Trustee each acting in good faith, absent such
Material Defect, such loss would not have been incurred. Within the two-year
period following the Closing Date, the Depositor may, in lieu of repurchasing
a
Mortgage Loan pursuant to this Section 2.02, substitute for such Mortgage Loan
a
Qualifying Substitute Mortgage Loan subject to the provisions of Section 2.05.
The failure of the Trustee or the Custodian to give the notice contemplated
herein within 45 days after the Closing Date shall not affect or relieve the
Depositor of its obligation to repurchase any Mortgage Loan pursuant to this
Section 2.02 or any other Section of this Agreement requiring the repurchase
of
Mortgage Loans from the Trust Fund.
55
(d) Within
180 days following the Closing Date, the Trustee, or the applicable Custodian,
shall deliver to the Trustee, the Depositor, the Master Servicer and any NIMS
Insurer a Final Certification substantially in the form attached as Exhibit
B-3
(or in the form annexed to the applicable Custodial Agreement as Exhibit B-3,
as
applicable) evidencing the completeness of the Mortgage Files in its possession
or control, with any exceptions noted thereto.
(e) Nothing
in this Agreement shall be construed to constitute an assumption by the Trust
Fund, the Trustee, any Custodian or the Certificateholders of any unsatisfied
duty, claim or other liability on any Mortgage Loan or to any
Mortgagor.
(f) Each
of
the parties hereto acknowledges that the applicable Custodian shall perform
the
applicable review of the Mortgage Loans and respective certifications thereof
as
provided in this Section 2.02 and the applicable Custodial Agreement. The
Trustee is hereby authorized and directed by the Depositor to appoint each
such
Custodian and to execute and deliver each of the Custodial Agreements and to
execute and deliver Transaction Addendum No. 58 to the Master Consulting
Agreement with the Credit Risk Manager.
(g) Upon
execution of this Agreement, the Depositor hereby delivers to the Trustee and
the Trustee acknowledges a receipt of the Mortgage Loan Sale Agreement and
each
Servicing Agreement. The Depositor hereby directs the Trustee, solely in its
capacity as Trustee hereunder, to execute and deliver, concurrently with the
execution and delivery of this Agreement, each Servicing Agreement.
Section
2.03 Representations
and Warranties of the Depositor.
(a)
The
Depositor hereby represents and warrants to the Trustee, for the benefit of
Certificateholders, the Master Servicer and any NIMS Insurer as of the Closing
Date or such other date as is specified, that:
(i)
the
Depositor is a corporation duly organized, validly existing and in good standing
under the laws governing its creation and existence and has full corporate
power
and authority to own its property, to carry on its business as presently
conducted, to enter into and perform its obligations under this Agreement,
and
to create the trust pursuant hereto;
(ii)
the
execution and delivery by the Depositor of this Agreement have been duly
authorized by all necessary corporate action on the part of the Depositor;
neither the execution and delivery of this Agreement, nor the consummation
of
the transactions herein contemplated, nor compliance with the provisions hereof,
will conflict with or result in a breach of, or constitute a default under,
any
of the provisions of any law, governmental rule, regulation, judgment, decree
or
order binding on the Depositor or its properties or the certificate of
incorporation or bylaws of the Depositor;
(iii)
the
execution, delivery and performance by the Depositor of this Agreement and
the
consummation of the transactions contemplated hereby do not require the consent
or approval of, the giving of notice to, the registration with, or the taking
of
any other action in respect of, any state, federal or other governmental
authority or agency, except such as has been obtained, given, effected or taken
prior to the date hereof;
56
(iv)
this
Agreement has been duly executed and delivered by the Depositor and, assuming
due authorization, execution and delivery by the Trustee, the Master Servicer
and the Credit Risk Manager, constitutes a valid and binding obligation of
the
Depositor enforceable against it in accordance with its terms except as such
enforceability may be subject to (A) applicable bankruptcy and insolvency laws
and other similar laws affecting the enforcement of the rights of creditors
generally and (B) general principles of equity regardless of whether such
enforcement is considered in a proceeding in equity or at law;
(v)
there
are
no actions, suits or proceedings pending or, to the knowledge of the Depositor,
threatened or likely to be asserted against or affecting the Depositor, before
or by any court, administrative agency, arbitrator or governmental body (A)
with
respect to any of the transactions contemplated by this Agreement or (B) with
respect to any other matter which in the judgment of the Depositor will be
determined adversely to the Depositor and will if determined adversely to the
Depositor materially and adversely affect it or its business, assets, operations
or condition, financial or otherwise, or adversely affect its ability to perform
its obligations under this Agreement; and
(vi)
immediately
prior to the transfer and assignment of the Mortgage Loans to the Trustee,
the
Depositor was the sole owner of record and holder of each Mortgage Loan, and
the
Depositor had good and marketable title thereto, and had full right to transfer
and sell each Mortgage Loan to the Trustee free and clear, subject only to
(1)
liens of current real property taxes and assessments not yet due and payable
and, if the related Mortgaged Property is a condominium unit, any lien for
common charges permitted by statute, (2) covenants, conditions and restrictions,
rights of way, easements and other matters of public record as of the date
of
recording of such Mortgage acceptable to mortgage lending institutions in the
area in which the related Mortgaged Property is located and specifically
referred to in the lender’s Title Insurance Policy or attorney’s opinion of
title and abstract of title delivered to the originator of such Mortgage Loan,
and (3) such other matters to which like properties are commonly subject which
do not, individually or in the aggregate, materially interfere with the benefits
of the security intended to be provided by the Mortgage, of any encumbrance,
equity, participation interest, lien, pledge, charge, claim or security
interest, and had full right and authority, subject to no interest or
participation of, or agreement with, any other party, to sell and assign each
Mortgage Loan pursuant to this Agreement.
(b) The
representations and warranties of each Transferor with respect to the related
Mortgage Loans in the applicable Transfer Agreement, which have been assigned
to
the Trustee hereunder, were made as of the date specified in the applicable
Transfer Agreement (or underlying agreement, if such Transfer Agreement is
in
the form of an assignment of a prior agreement). To the extent that any fact,
condition or event with respect to a Mortgage Loan constitutes a breach of
both
(i) a representation or warranty of the applicable Transferor under the
applicable Transfer Agreement and (ii) a representation or warranty of the
Seller under the Mortgage Loan Sale Agreement, the only right or remedy of
the
Trustee, any Certificateholder or any NIMS Insurer hereunder shall be their
rights to enforce the obligations of the applicable Transferor under any
applicable representation or warranty made by it. The Trustee acknowledges
that,
except as otherwise provided in the Mortgage Loan Sale Agreement, the Seller
shall not have any other obligation or liability with respect to any breach
of a
representation or warranty made by it with respect to the Mortgage Loans sold
by
it if the fact, condition or event constituting such breach also constitutes
a
breach of a representation or warranty made by the applicable Transferor in
the
applicable Transfer Agreement, without regard to whether such Transferor
fulfills its contractual obligations in respect of such representation or
warranty. The Trustee further acknowledges that the Depositor shall have no
obligation or liability with respect to any breach of any representation or
warranty with respect to the Mortgage Loans (except as set forth in Section
2.03(a)(vi)) under any circumstances.
57
Section
2.04 Discovery
of Breach.
It
is
understood and agreed that the representations and warranties (i) of the
Depositor set forth in Section 2.03, (ii) of the Seller set forth in the
Mortgage Loan Sale Agreement and assigned to the Depositor by the Seller under
the Mortgage Loan Sale Agreement and to the Trustee by the Depositor hereunder
and (iii) of each Transferor and of each Servicer assigned by the Seller to
the
Depositor pursuant to the Mortgage Loan Sale Agreement and assigned to the
Trustee by the Depositor hereunder, shall each survive delivery of the Mortgage
Files and the Assignment of Mortgage of each Mortgage Loan to the Trustee and
shall continue throughout the term of this Agreement. Upon discovery by any
of
the Depositor, the Master Servicer or the Trustee of a breach of any of such
representations and warranties that adversely and materially affects the value
of the related Mortgage Loan, the party discovering such breach shall give
prompt written notice to the other parties. Within 90 days of the discovery
of a
breach of any representation or warranty given to the Trustee by the Depositor
or given by any Transferor or the Seller and assigned to the Trustee, the
Depositor, such Transferor or the Seller, as applicable, shall either (a) cure
such breach in all material respects, (b) repurchase such Mortgage Loan or
any
property acquired in respect thereof from the Trustee at the Purchase Price,
or
(c) within the two-year period following the Closing Date, substitute a
Qualifying Substitute Mortgage Loan for the affected Mortgage Loan. In the
event
of discovery of a breach of any representation and warranty of any Transferor
assigned to the Trustee, the Trustee shall enforce its rights under the
applicable Transfer Agreement and the Mortgage Loan Sale Agreement for the
benefit of Certificateholders and any NIMS Insurer. As provided in the Mortgage
Loan Sale Agreement, if the Transferor substitutes a mortgage loan for a Deleted
Mortgage Loan pursuant to the related Transfer Agreement and such substitute
mortgage loan is not a Qualifying Substitute Mortgage Loan, then pursuant to
the
terms of each Mortgage Loan Sale Agreement the Seller will, in exchange for
such
substitute mortgage loan, (i) pay to the Trust Fund the applicable Purchase
Price for the affected Mortgage Loan or (ii) within two years of the
Closing Date, substitute a Qualifying Substitute Mortgage Loan.
Section
2.05 Repurchase,
Purchase or Substitution of Mortgage Loans.
58
(a)
With
respect to any Mortgage Loan repurchased by the Depositor pursuant to this
Agreement, by the Seller pursuant to the Mortgage Loan Sale Agreement or by
the
Transferor pursuant to the applicable Transfer Agreement, the principal portion
of the funds (including the related PPTL Purchase Price in the case of a First
Payment Default Mortgage Loan) received by the Trustee in respect of such
repurchase of a Mortgage Loan will be considered a Principal Prepayment and
the
Purchase Price or PPTL Purchase Price shall be deposited in the Collection
Account or a Custodial Account, as applicable. The Master Servicer, the
Servicer, the Custodian (or the Trustee, if applicable) shall be reimbursed
from
the Purchase Price for any Mortgage Loan or related REO Property for any
Advances made or other amounts advanced with respect to such Mortgage Loan
that
are reimbursable to the Master Servicer or the Servicer under this Agreement
or
the Servicing Agreement (or to the Trustee, if applicable), together with any
accrued and unpaid compensation due to the Master Servicer, the Servicer, the
Custodian or the Trustee hereunder or thereunder. The Trustee (i) upon receipt
of the full amount of the Purchase Price for a Deleted Mortgage Loan, (ii)
upon
receipt of a written certification from the Master Servicer that it has received
the full amount of the Purchase Price for a Deleted Mortgage Loan and has
deposited such amount in the Collection Account or (iii) upon receipt of
notification from the related Custodian that it had received the Mortgage File
for a Qualifying Substitute Mortgage Loan substituted for a Deleted Mortgage
Loan (and any applicable Substitution Amount), shall release or cause to be
released and reassign to the Depositor, the Seller or the Transferor, as
applicable, the related Mortgage File for the Deleted Mortgage Loan and shall
execute and deliver such instruments of transfer or assignment, in each case
without recourse, representation or warranty, as shall be necessary to vest
in
such party or its designee or assignee title to any Deleted Mortgage Loan
released pursuant hereto, free and clear of all security interests, liens and
other encumbrances created by this Agreement, which instruments shall be
prepared by the related Servicer and the Trustee shall have no further
responsibility with respect to the Mortgage File relating to such Deleted
Mortgage Loan. The Seller indemnifies and holds the Trust Fund, the Master
Servicer, the Trustee, the Depositor, and NIMS Insurer and each
Certificateholder harmless against any and all taxes, claims, losses, penalties,
fines, forfeitures, reasonable legal fees and related costs, judgments, and
any
other costs, fees and expenses that the Trust Fund, the Trustee, the Master
Servicer, the Depositor, any NIMS Insurer and any Certificateholder may sustain
in connection with any actions of such Seller relating to a repurchase of a
Mortgage Loan other than in compliance with the terms of this Section 2.05
and
the Mortgage Loan Sale Agreement, to the extent that any such action causes
an
Adverse REMIC Event.
(b) With
respect to each Qualifying Substitute Mortgage Loan to be delivered to the
Trustee (or the applicable Custodian) pursuant to the terms of this Article
II
in exchange for a Deleted Mortgage Loan: (i) the Depositor, the Transferor
or
the Seller, as applicable, must deliver to the Trustee (or the applicable
Custodian) the Mortgage File for the Qualifying Substitute Mortgage Loan
containing the documents set forth in Section 2.01(b) along with a written
certification certifying as to the delivery of such Mortgage File and containing
granting language substantially comparable to that set forth in the first
paragraph of Section 2.01(a); and (ii) the Depositor will be deemed to have
made, with respect to such Qualifying Substitute Mortgage Loan, each of the
representations and warranties made by it with respect to the related Deleted
Mortgage Loan. As soon as practicable after the delivery of any Qualifying
Substitute Mortgage Loan hereunder, the Master Servicer, at the expense of
the
Depositor and at the direction and with the cooperation of the applicable
Servicer, shall (i) with respect to a Qualifying Substitute Mortgage Loan
that is a Non-MERS Mortgage Loan, cause the Assignment of Mortgage to be
recorded by the applicable Servicer if required pursuant to Section 2.01(c),
or
(ii) with respect to a Qualifying Substitute Mortgage Loan that is a MERS
Mortgage Loan, cause to be taken such actions as are necessary to cause the
Trustee to be clearly identified as the owner of each such Mortgage Loan on
the
records of MERS if required pursuant to Section 2.01(c).
59
(c) Notwithstanding
any other provision of this Agreement, the right to substitute Mortgage Loans
pursuant to this Article II shall be subject to the additional limitations
that
no substitution of a Qualifying Substitute Mortgage Loan for a Deleted Mortgage
Loan shall be made unless the Trustee and any NIMS Insurer has received an
Opinion of Counsel addressed to the Trustee (at the expense of the party seeking
to make the substitution) that, under current law, such substitution will not
cause an Adverse REMIC Event.
Section
2.06 Grant
Clause.
(a)
It
is
intended that the conveyance of the Depositor’s right, title and interest in and
to property constituting the Trust Fund pursuant to this Agreement shall
constitute, and shall be construed as, a sale of such property and not a grant
of a security interest to secure a loan. However, if such conveyance is deemed
to be in respect of a loan, it is intended that: (1) the rights and obligations
of the parties shall be established pursuant to the terms of this Agreement;
(2)
the Depositor hereby grants to the Trustee for the benefit of the Holders of
the
Certificates a first priority security interest to secure repayment of an
obligation in an amount equal to the aggregate Class Principal Amount of the
Certificates (or the aggregate principal balance of the Lower Tier REMIC 1
Uncertificated Regular Interests, if applicable) in all of the Depositor’s
right, title and interest in, to and under, whether now owned or hereafter
acquired, the Trust Fund and the Supplemental Interest Trust and all proceeds
of
any and all property constituting the Trust Fund and the Supplemental Interest
Trust to secure payment of the Certificates or Lower Tier REMIC 1
Uncertificated Regular Interests, as applicable, (such security interest being,
to the extent of the assets that constitute the Supplemental Interest Trust,
pari
passu
with the
security interest as provided in clause (4) below); (3) this Agreement shall
constitute a security agreement under applicable law; and (4) the Swap
Counterparty shall be deemed, during the term of such agreement and while such
agreement is the property of the Trustee, to have a security interest in all
of
the assets that constitute the Supplemental Interest Trust, but only to the
extent of such Swap Counterparty’s right to payment under the Swap Agreement
(such security interest being pari passu with the security interest as provided
in clause (2) above). If such conveyance is deemed to be in respect of a loan
and the trust created by this Agreement terminates prior to the satisfaction
of
the claims of any Person holding any Certificate or Lower Tier REMIC 1
Uncertificated Regular Interests, as applicable, the security interest created
hereby shall continue in full force and effect and the Trustee shall be deemed
to be the collateral agent for the benefit of such Person, and all proceeds
shall be distributed as herein provided.
(b) The
Depositor shall, to the extent consistent with this Agreement, take such
reasonable actions as may be necessary to ensure that, if this Agreement were
deemed to create a security interest in the Mortgage Loans and the other
property described above, such security interest would be deemed to be a
perfected security interest of first priority under applicable law and shall
be
maintained as such throughout the term of this Agreement. The Depositor shall,
at its own expense, make all initial filings on or about the Closing Date and
shall forward a copy of such filing or filings to the Trustee. Without limiting
the generality of the foregoing, the Depositor shall prepare and forward for
filing, or shall cause to be forwarded for filing, at the expense of the
Depositor, all filings necessary to maintain the effectiveness of any original
filings necessary under the relevant UCC to perfect the Trustee’s security
interest in or lien on the Mortgage Loans, including without limitation (x)
continuation statements, and (y) such other statements as may be occasioned
by
(1) any change of name of the Seller, the Depositor or the Trustee, (2) any
change of location of the jurisdiction of organization of the Seller or the
Depositor, (3) any transfer of any interest of the Seller or the Depositor
in
any Mortgage Loan or (4) any change under the relevant UCC or other applicable
laws. Neither the Seller nor the Depositor shall organize under the law of
any
jurisdiction other than the State under which each is organized as of the
Closing Date (whether changing its jurisdiction of organization or organizing
under an additional jurisdiction) without giving 30 days prior written notice
of
such action to its immediate and intermediate transferee, including the Trustee.
Before effecting such change, the Seller or the Depositor proposing to change
its jurisdiction of organization shall prepare and file in the appropriate
filing office any financing statements or other statements necessary to continue
the perfection of the interests of its immediate and intermediate transferees,
including the Trustee, in the Mortgage Loans. In connection with the
transactions contemplated by this Agreement, each of the Seller and the
Depositor authorizes its immediate or intermediate transferee to file in any
filing office any initial financing statements, any amendments to financing
statements, any continuation statements, or any other statements or filings
described in this paragraph (b).
60
ARTICLE
III
THE
CERTIFICATES
Section
3.01 The
Certificates.
(a) The
Certificates shall be issuable in registered form only and shall be securities
governed by Article 8 of the New York Uniform Commercial Code. The Book-Entry
Certificates will be evidenced by one or more certificates, beneficial ownership
of which will be held in the dollar denominations in Certificate Principal
Amount or in the Percentage Interests, specified herein. Each Class of
Book-Entry Certificates will be issued in the minimum denominations in
Certificate Principal Amount specified in the Preliminary Statement hereto
and
in integral multiples of $1 in excess thereof. The Class P and Class X
Certificates shall each be maintained in definitive, fully registered form
in
the minimum denomination specified in the Preliminary Statement hereto and
in
integral multiples of 1% in excess thereof. Each of the Class LT-R and Class
R
Certificate shall each be issued as a single Certificate and maintained in
definitive, fully registered form in a minimum denomination equal to 100% of
the
Percentage Interest of each such Class. The Certificates may be issued in the
form of typewritten certificates.
(b) The
Certificates shall be executed by manual or facsimile signature on behalf of
the
Trustee by an authorized officer. Each Certificate shall, on original issue,
be
authenticated by the Trustee upon the order of the Depositor upon receipt by
the
Trustee (or its applicable Custodian) of the Mortgage Files described in Section
2.01. No Certificate shall be entitled to any benefit under this Agreement,
or
be valid for any purpose, unless there appears on such Certificate a certificate
of authentication substantially in the form provided for herein, executed by
an
authorized officer of the Trustee or the Authenticating Agent, if any, by manual
signature, and such certification upon any Certificate shall be conclusive
evidence, and the only evidence, that such Certificate has been duly
authenticated and delivered hereunder. All Certificates shall be dated the
date
of their authentication. At any time and from time to time after the execution
and delivery of this Agreement, the Depositor may deliver Certificates executed
by the Depositor to the Trustee or the Authenticating Agent for authentication
and the Trustee or the Authenticating Agent shall authenticate and deliver
such
Certificates as in this Agreement provided and not otherwise.
61
(c) The
Class
B Certificates offered and sold in reliance on the exemption from registration
under Rule 144A under the Securities Act shall be issued initially in the form
of one or more permanent global Certificates in definitive, fully registered
form without interest coupons with the applicable legends set forth in Exhibit
A
added to the forms of such Certificates (each, a “Restricted Global Security”),
which shall be deposited on behalf of the subscribers for such Certificates
represented thereby with the Trustee, as custodian for The Depository Trust
Company (“DTC”) and registered in the name of a nominee of DTC, duly executed
and authenticated by the Trustee as hereinafter provided. The aggregate
principal amounts of the Restricted Global Securities may from time to time
be
increased or decreased by adjustments made on the records of the Trustee or
DTC
or its nominee, as the case may be, as hereinafter provided.
(d) The
Class
B Certificates sold in offshore transactions in reliance on Regulation S shall
be issued initially in the form of one or more permanent global Certificates
in
definitive, fully registered form without interest coupons with the applicable
legends set forth in Exhibit A hereto added to the forms of such Certificates
(each, a “Regulation S Global Security”), which shall be deposited on behalf of
the subscribers for such Certificates represented thereby with the Trustee,
as
custodian for DTC and registered in the name of a nominee of DTC, duly executed
and authenticated by the Trustee as hereinafter provided. The aggregate
principal amounts of the Regulation S Global Securities may from time to time
be
increased or decreased by adjustments made on the records of the Trustee or
DTC
or its nominee, as the case may be, as hereinafter provided.
(e) The
Class
B Certificates sold to an “accredited investor” under Rule 501(a)(1), (2), (3)
or (7) under the Securities Act shall be issued initially in the form of one
or
more Definitive Certificates.
Section
3.02 Registration.
The
Trustee is hereby appointed, and hereby accepts its appointment as, Certificate
Registrar in respect of the Certificates (and, after a Section 7.01(c) Purchase
Event, the Lower Tier REMIC 1 Uncertificated Regular Interests) and shall
maintain books for the registration and for the transfer of Certificates (and,
after a Section 7.01(c) Purchase Event, the Lower Tier REMIC 1
Uncertificated Regular Interests) (the “Certificate Register”). The Trustee may
appoint a bank or trust company to act as Certificate Registrar. A registration
book shall be maintained for the Certificates (and Lower Tier REMIC 1
Uncertificated Regular Interests, as the case may be) collectively. The
Certificate Registrar may resign or be discharged or removed and a new successor
may be appointed in accordance with the procedures and requirements set forth
in
Sections 6.06 and 6.07 hereof with respect to the resignation, discharge or
removal of the Trustee and the appointment of a successor Trustee. The
Certificate Registrar may appoint, by a written instrument delivered to the
Holders, any NIMS Insurer and the Master Servicer, any bank or trust company
to
act as co-registrar under such conditions as the Certificate Registrar may
prescribe; provided,
however,
that the
Certificate Registrar shall not be relieved of any of its duties or
responsibilities hereunder by reason of such appointment.
62
Upon
the
occurrence of a Section 7.01(c) Purchase Event, the Master Servicer shall
provide the Trustee with written notice of the identity of any transferee of
the
Master Servicer’s interest in the Lower Tier REMIC 1 Uncertificated Regular
Interests which notice shall contain a certification that such transferee is
a
permitted LTURI-holder hereunder. The Lower Tier REMIC 1 Uncertificated Regular
Interests may only be transferred in whole and not in part to no more than
one
LTURI-holder at a time who is either (1) an affiliate of the Master Servicer
or
(2) a trustee of a privately placed securitization. The Trustee and the
Depositor shall treat the Person in whose name the Lower Tier REMIC 1
Uncertificated Regular Interests are registered on the books of the Certificate
Registrar as the LTURI-holder for all purposes hereunder.
Section
3.03 Transfer
and Exchange of Certificates.
(a)
A
Certificate (other than a Book-Entry Certificate which shall be subject to
Section 3.09 hereof) may be transferred by the Holder thereof only upon
presentation and surrender of such Certificate at the office of the Certificate
Registrar duly endorsed or accompanied by an assignment duly executed by such
Holder or his duly authorized attorney in such form as shall be satisfactory
to
the Certificate Registrar. Upon the transfer of any Certificate in accordance
with the preceding sentence, the Trustee shall execute, and the Trustee or
any
Authenticating Agent shall authenticate and deliver to the transferee, one
or
more new Certificates of the same Class and evidencing, in the aggregate, the
same aggregate Certificate Principal Amount or Percentage Interest as the
Certificate being transferred. No service charge shall be made to a
Certificateholder for any registration of transfer of Certificates, but the
Certificate Registrar may require payment of a sum sufficient to cover any
tax
or governmental charge that may be imposed in connection with any registration
of transfer of Certificates.
(b) A
Certificate may be exchanged by the Holder thereof for any number of new
Certificates of the same Class, in authorized denominations, representing in
the
aggregate the same Certificate Principal Amount or Percentage Interest as the
Certificate surrendered, upon surrender of the Certificate to be exchanged
at
the office of the Certificate Registrar duly endorsed or accompanied by a
written instrument of transfer duly executed by such Holder or his duly
authorized attorney in such form as is satisfactory to the Certificate
Registrar. Certificates delivered upon any such exchange will evidence the
same
obligations, and will be entitled to the same rights and privileges, as the
Certificates surrendered. No service charge shall be made to a Certificateholder
for any exchange of Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or governmental charge that may
be
imposed in connection with any exchange of Certificates. Whenever any
Certificates are so surrendered for exchange, the Trustee shall execute, and
the
Trustee or the Authenticating Agent shall authenticate, date and deliver the
Certificates which the Certificateholder making the exchange is entitled to
receive.
63
(c) By
acceptance of a Restricted Certificate or a Regulation S Global Security,
whether upon original issuance or subsequent transfer, each Holder of such
a
Certificate acknowledges the restrictions on the transfer of such Certificate
set forth thereon and agrees that it will transfer such a Certificate only
as
provided herein. In addition, each Holder of a Regulation S Global Security
shall be deemed to have represented and warranted to the Trustee, the
Certificate Registrar and any of their respective successors that: (i) such
Person is not a U.S. person within the meaning of Regulation S and was, at
the
time the buy order was originated, outside the United States and (ii) such
Person understands that such Certificates have not been registered under the
Securities Act, and that (x) until the expiration of the 40-day distribution
compliance period (within the meaning of Regulation S), no offer, sale, pledge
or other transfer of such Certificates or any interest therein shall be made
in
the United States or to or for the account or benefit of a U.S. person (each
as
defined in Regulation S), (y) if in the future it decides to offer, resell,
pledge or otherwise transfer such Certificates, such Certificates may be
offered, resold, pledged or otherwise transferred only (A) to a person which
the
seller reasonably believes is a “qualified institutional buyer” (a “QIB”) as
defined in Rule 144A under the Securities Act, that is purchasing such
Certificates for its own account or for the account of a qualified institutional
buyer to which notice is given that the transfer is being made in reliance
on
Rule 144A or (B) in an offshore transaction (as defined in Regulation S) in
compliance with the provisions of Regulation S, in each case in compliance
with
the requirements of this Agreement; and it will notify such transferee of the
transfer restrictions specified in this Section.
The
following restrictions shall apply with respect to the transfer and registration
of transfer of a Restricted Certificate to a transferee that takes delivery
in
the form of a Definitive Certificate:
(i) The
Certificate Registrar shall register the transfer of a Restricted Certificate
if
the requested transfer is (x) to the Depositor or the Placement Agent, an
affiliate (as defined in Rule 405 under the Securities Act) of the Depositor
or
the Placement Agent or (y) being made to a “qualified institutional buyer” (a
“QIB”) as defined in Rule 144A under the Securities Act by a transferor that has
provided the Trustee with a certificate in the form of Exhibit F hereto;
and
(ii) The
Certificate Registrar shall register the transfer of a Restricted Certificate
if
the requested transfer is being made to an “accredited investor” under Rule
501(a)(1), (2), (3) or (7) under the Securities Act, or to any Person all of
the
equity owners in which are such accredited investors, by a transferor who
furnishes to the Trustee a letter of the transferee substantially in the form
of
Exhibit G hereto.
(d) (i)
No
transfer of an ERISA-Restricted Certificate in the form of a Definitive
Certificate shall be made to any Person unless the Trustee has received (A)
a
certificate substantially in the form of Exhibit H hereto (or Exhibit D-1,
in
the case of a Residual Certificate) from such transferee or (B) an Opinion
of
Counsel satisfactory to the Trustee, to the effect that the purchase and holding
of such a Certificate will not constitute or result in prohibited transactions
under Title I of ERISA or Section 4975 of the Code and will not subject the
Trustee, the Master Servicer, any Servicer, any NIMS Insurer or the Depositor
to
any obligation in addition to those undertaken in the Agreement; provided,
however, that the Trustee will not require such certificate or opinion in the
event that, as a result of a change of law or otherwise, counsel satisfactory
to
the Trustee, has rendered an opinion to the effect that the purchase and holding
of an ERISA-Restricted Certificate by a Plan or a Person that is purchasing
or
holding such a Certificate with the assets of a Plan will not constitute or
result in a prohibited transaction under Title I of ERISA or Section 4975 of
the
Code. Each Transferee of an ERISA-Restricted Certificate that is a Book-Entry
Certificate shall be deemed to have made the representations set forth in
Exhibit H. The preparation and delivery of the certificate and opinions referred
to above shall not be an expense of the Trust Fund, the Trustee, the Master
Servicer, any Servicer, any NIMS Insurer or the Depositor.
64
Notwithstanding
the foregoing, no opinion or certificate shall be required for the initial
issuance of the ERISA-Restricted Certificates. The Trustee shall have no
obligation to monitor transfers of Book-Entry Certificates that are
ERISA-Restricted Certificates and shall have no liability for transfers of
such
Certificates in violation of the transfer restrictions. The Trustee shall be
under no liability to any Person for any registration of transfer of any
ERISA-Restricted Certificate that is in fact not permitted by this Section
3.03(d) or for making any payments due on such Certificate to the Holder thereof
or taking any other action with respect to such Holder under the provisions
of
this Agreement so long as the transfer was registered by the Trustee in
accordance with the foregoing requirements. The Trustee shall be entitled,
but
not obligated, to recover from any Holder of any ERISA-Restricted Certificate
that was in fact a Plan or a Person acting on behalf of any such Plan any
payments made on such ERISA-Restricted Certificate at and after either such
time. Any such payments so recovered by the Trustee shall be paid and delivered
by the Trustee to the last preceding Holder of such Certificate that is not
such
a Plan or Person acting on behalf of a Plan.
(ii) No
transfer of an ERISA-Restricted Swap Certificate prior to the termination of
the
Swap Agreement shall be made unless the Trustee shall have received a
representation letter from the transferee of such Certificate, substantially
in
the form set forth in Exhibit H, to the effect that either (i) such transferee
is neither a Plan nor a Person acting on behalf of any such Plan or using the
assets of any such Plan to effect such transfer or (ii) the acquisition and
holding of the ERISA-Restricted Swap Certificate are eligible for exemptive
relief under Prohibited Transaction Class Exemption (“PTCE”) 84-14, XXXX 00-0,
XXXX 00-00, XXXX 95-60 or PTCE 96-23. Notwithstanding anything else to the
contrary herein, any purported transfer of an ERISA-Restricted Swap Certificate
prior to the termination of the Swap Agreement to or on behalf of a Plan without
the delivery to the Trustee of a representation letter as described above shall
be void and of no effect. If the ERISA-Restricted Swap Certificate is a
Book-Entry Certificate, prior to the termination of the Swap Agreement, the
transferee will be deemed to have made a representation as provided in clause
(i) or (ii) of this paragraph, as applicable.
If
any
ERISA-Restricted Swap Certificate, or any interest therein, is acquired or
held
in violation of the provisions of the preceding paragraph, the next preceding
permitted beneficial owner will be treated as the beneficial owner of that
Certificate, retroactive to the date of transfer to the purported beneficial
owner. Any purported beneficial owner whose acquisition or holding of an
ERISA-Restricted Swap Certificate, or interest therein, was effected in
violation of the provisions of the preceding paragraph shall indemnify to the
extent permitted by law and hold harmless the Depositor, the Trustee, any NIMS
Insurer and the Master Servicer from and against any and all liabilities,
claims, costs or expenses incurred by such parties as a result of such
acquisition or holding.
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(e) To
the
extent permitted under applicable law (including, but not limited to, ERISA),
the Trustee shall be under no liability to any Person for any registration
of
transfer of any ERISA-Restricted Swap Certificate that is in fact not permitted
by this Section 3.03(d)(ii) or for making any payments due on such Certificate
to the Holder thereof or taking any other action with respect to such Holder
under the provisions of this Agreement so long as the transfer was registered
by
the Trustee in accordance with the foregoing requirements.
(f) As
a
condition of the registration of transfer or exchange of any Certificate, the
Certificate Registrar may require the certified taxpayer identification number
of the owner of the Certificate and the payment of a sum sufficient to cover
any
tax or other governmental charge imposed in connection therewith; provided,
however, that the Certificate Registrar shall have no obligation to require
such
payment or to determine whether or not any such tax or charge may be applicable.
No service charge shall be made to the Certificateholder for any registration,
transfer or exchange of a Certificate.
(a) Notwithstanding
anything to the contrary contained herein, no Residual Certificate may be owned,
pledged or transferred, directly or indirectly, by or to (i) a Disqualified
Organization or (ii) an individual, corporation or partnership or other person
unless such person is (A) not a Non-U.S. Person or (B) is a Non-U.S. Person
that
holds a Residual Certificate in connection with the conduct of a trade or
business within the United States and has furnished the transferor and the
Trustee with an effective Internal Revenue Service W-8ECI or successor form
at
the time and in the manner required by the Code (any such person who is not
covered by clause (A) or (B) above is referred to herein as a “Non-permitted
Foreign Holder”).
Prior
to
and as a condition of the registration of any transfer, sale or other
disposition of a Residual Certificate, the proposed transferee shall deliver
to
the Trustee an affidavit in substantially the form attached hereto as Exhibit
D-1 representing and warranting, among other things, that such transferee is
neither a Disqualified Organization, an agent or nominee acting on behalf of
a
Disqualified Organization, nor a Non-Permitted Foreign Holder (any such
transferee, a “Permitted Transferee”), and the proposed transferor shall deliver
to the Trustee an affidavit in substantially the form attached hereto as Exhibit
D-2. In addition, the Trustee may (but shall have no obligation to) require,
prior to and as a condition of any such transfer, the delivery by the proposed
transferee of an Opinion of Counsel, addressed to the Depositor, the Master
Servicer, any NIMS Insurer and the Trustee satisfactory in form and substance
to
the Depositor, that such proposed transferee or, if the proposed transferee
is
an agent or nominee, the proposed beneficial owner, is not a Disqualified
Organization, agent or nominee thereof, or a Non-Permitted Foreign Holder.
Notwithstanding the registration in the Certificate Register of any transfer,
sale, or other disposition of a Residual Certificate to a Disqualified
Organization, an agent or nominee thereof, or Non-Permitted Foreign Holder,
such
registration shall be deemed to be of no legal force or effect whatsoever and
such Disqualified Organization, agent or nominee thereof, or Non-Permitted
Foreign Holder shall not be deemed to be a Certificateholder for any purpose
hereunder, including, but not limited to, the receipt of distributions on such
Residual Certificate. The Trustee shall not be under any liability to any person
for any registration or transfer of a Residual Certificate to a Disqualified
Organization, agent or nominee thereof or Non-permitted Foreign Holder or for
the maturity of any payments due on such Residual Certificate to the Holder
thereof or for taking any other action with respect to such Holder under the
provisions of the Agreement, so long as the transfer was effected in accordance
with this Section 3.03(f), unless a Responsible Officer of the Trustee shall
have actual knowledge at the time of such transfer or the time of such payment
or other action that the transferee is a Disqualified Organization, or an agent
or nominee thereof, or Non-permitted Foreign Holder. The Trustee shall be
entitled, but not obligated, to recover from any Holder of a Residual
Certificate that was a Disqualified Organization, agent or nominee thereof,
or
Non-permitted Foreign Holder at the time it became a Holder or any subsequent
time it became a Disqualified Organization, agent or nominee thereof, or
Non-permitted Foreign Holder, all payments made on such Residual Certificate
at
and after either such times (and all costs and expenses, including but not
limited to attorneys’ fees, incurred in connection therewith). Any payment (not
including any such costs and expenses) so recovered by the Trustee shall be
paid
and delivered to the last preceding Holder of such Residual
Certificate.
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If
any
purported transferee shall become a registered Holder of a Residual Certificate
in violation of the provisions of this Section 3.03(f), then upon receipt of
written notice to the Trustee that the registration of transfer of such Residual
Certificate was not in fact permitted by this Section 3.03(f), the last
preceding Permitted Transferee shall be restored to all rights as Holder thereof
retroactive to the date of such registration of transfer of such Residual
Certificate. The Trustee shall be under no liability to any Person for any
registration of transfer of a Residual Certificate that is in fact not permitted
by this Section 3.03(f), for making any payment due on such Certificate to
the
registered Holder thereof or for taking any other action with respect to such
Holder under the provisions of this Agreement so long as the transfer was
registered upon receipt of the affidavit described in the preceding paragraph
of
this Section 3.03(f).
(g) Each
Holder or Certificate Owner of a Restricted Certificate, ERISA-Restricted
Certificate or Residual Certificate, or an interest therein, by such Holder’s or
Owner’s acceptance thereof, shall be deemed for all purposes to have consented
to the provisions of this section.
(h) Notwithstanding
any provision to the contrary herein, so long as a Global Security representing
any Class B Certificate remains outstanding and is held by or on behalf of
DTC,
transfers of a Global Security representing any such Certificates, in whole
or
in part, shall only be made in accordance with Section 3.01 and this Section
3.03(h).
(A) Subject
to clauses (B) and (C) of this Section 3.03(h), transfers of a Global Security
representing any Class B Certificate shall be limited to transfers of such
Global Security, in whole or in part, to nominees of DTC or to a successor
of
DTC or such successor’s nominee.
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(B) Restricted
Global Security to Regulation S Global Security. If a holder of a beneficial
interest in a Restricted Global Security deposited with or on behalf of DTC
wishes at any time to exchange its interest in such Restricted Global Security
for an interest in a Regulation S Global Security, or to transfer its interest
in such Restricted Global Security to a Person who wishes to take delivery
thereof in the form of an interest in a Regulation S Global Security, such
holder, provided such holder is not a U.S. person, may, subject to the rules
and
procedures of DTC, exchange or cause the exchange of such interest for an
equivalent beneficial interest in the Regulation S Global Security. Upon
receipt
by the Trustee, as Certificate Registrar, of (I) instructions from DTC directing
the Trustee, as Certificate Registrar, to be credited a beneficial interest
in a
Regulation S Global Security in an amount equal to the beneficial interest
in
such Restricted Global Security to be exchanged but not less than the minimum
denomination applicable to such holder’s Certificates held through a Regulation
S Global Security, (II) a written order given in accordance with DTC’s
procedures containing information regarding the participant account of DTC
and,
in the case of a transfer pursuant to and in accordance with Regulation S,
the
Euroclear or Clearstream account to be credited with such increase and (III)
a
certificate in the form of Exhibit N-1 hereto given by the holder of such
beneficial interest stating that the exchange or transfer of such interest
has
been made in compliance with the transfer restrictions applicable to the
Global
Securities, including that the holder is not a U.S. person, and pursuant
to and
in accordance with Regulation S, the Trustee, as Certificate Registrar, shall
reduce the principal amount of the Restricted Global Security and increase
the
principal amount of the Regulation S Global Security by the aggregate principal
amount of the beneficial interest in the Restricted Global Security to be
exchanged, and shall instruct Euroclear or Clearstream, as applicable,
concurrently with such reduction, to credit or cause to be credited to the
account of the Person specified in such instructions a beneficial interest
in
the Regulation S Global Security equal to the reduction in the principal
amount
of the Restricted Global Security.
(C) Regulation
S Global Security to Restricted Global Security. If a holder of a beneficial
interest in a Regulation S Global Security deposited with or on behalf of DTC
wishes at any time to transfer its interest in such Regulation S Global Security
to a Person who wishes to take delivery thereof in the form of an interest
in a
Restricted Global Security, such holder may, subject to the rules and procedures
of DTC, exchange or cause the exchange of such interest for an equivalent
beneficial interest in a Restricted Global Security. Upon receipt by the
Trustee, as Certificate Registrar, of (I) instructions from DTC directing the
Trustee, as Certificate Registrar, to cause to be credited a beneficial interest
in a Restricted Global Security in an amount equal to the beneficial interest
in
such Regulation S Global Security to be exchanged but not less than the minimum
denomination applicable to such holder’s Certificates held through a Restricted
Global Security, to be exchanged, such instructions to contain information
regarding the participant account with DTC to be credited with such increase,
and (II) a certificate in the form of Exhibit N-2 hereto given by the holder
of
such beneficial interest and stating, among other things, that the Person
transferring such interest in such Regulation S Global Security reasonably
believes that the Person acquiring such interest in a Restricted Global Security
is a QIB, is obtaining such beneficial interest in a transaction meeting the
requirements of Rule 144A under the Securities Act and in accordance with any
applicable securities laws of any State of the United States or any other
jurisdiction, then the Trustee, as Certificate Registrar, will reduce the
principal amount of the Regulation S Global Security and increase the principal
amount of the Restricted Global Security by the aggregate principal amount
of
the beneficial interest in the Regulation S Global Security to be transferred
and the Trustee, as Certificate Registrar, shall instruct DTC, concurrently
with
such reduction, to credit or cause to be credited to the account of the Person
specified in such instructions a beneficial interest in the Restricted Global
Security equal to the reduction in the principal amount of the Regulation S
Global Security.
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(D) Other
Exchanges. In the event that a Global Security is exchanged for Certificates
in
definitive registered form without interest coupons, pursuant to Section 3.09(c)
hereof, such Certificates may be exchanged for one another only in accordance
with such procedures as are substantially consistent with the provisions above
(including certification requirements intended to insure that such transfers
comply with Rule 144A, comply with Rule 501(a)(1), (2), (3) or (7) or are to
non-U.S. persons in compliance with Regulation S under the Securities Act,
as
the case may be), and as may be from time to time adopted by the
Trustee.
(E) Restrictions
on U.S. Transfers. Transfers of interests in the Regulation S Global Security
to
U.S. persons (as defined in Regulation S) shall be limited to transfers made
pursuant to the provisions of Section 3.03(l)(C).
Section
3.04 Cancellation
of Certificates.
Any
Certificate surrendered for registration of transfer or exchange shall be
cancelled and retained in accordance with the Trustee’s normal retention
policies with respect to cancelled certificates maintained by the Trustee or
the
Certificate Registrar.
Section
3.05 Replacement
of Certificates.
If
(i)
any Certificate is mutilated and is surrendered to the Trustee or any
Authenticating Agent or (ii) the Trustee or any Authenticating Agent receives
evidence to its satisfaction of the destruction, loss or theft of any
Certificate, and there is delivered to the Trustee and the Authenticating Agent
and any NIMS Insurer such security or indemnity as may be required by them
to
save each of them harmless, then, in the absence of notice to the Trustee and
any Authenticating Agent that such destroyed, lost or stolen Certificate has
been acquired by a bona fide purchaser, the Trustee shall execute and the
Trustee or any Authenticating Agent shall authenticate and deliver, in exchange
for or in lieu of any such mutilated, destroyed, lost or stolen Certificate,
a
new Certificate of like tenor and Certificate Principal Amount. Upon the
issuance of any new Certificate under this Section 3.05, the Trustee and
Authenticating Agent may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in relation thereto and
any
other expenses (including the fees and expenses of the Trustee or the
Authenticating Agent) connected therewith. Any replacement Certificate issued
pursuant to this Section 3.05 shall constitute complete and indefeasible
evidence of ownership in the applicable Trust Fund, as if originally issued,
whether or not the lost, stolen or destroyed Certificate shall be found at
any
time.
Section
3.06 Persons
Deemed Owners.
Subject
to the provisions of Section 3.09 with respect to Book-Entry Certificates,
the
Depositor, the Master Servicer, the Trustee, the Certificate Registrar, any
NIMS
Insurer and any agent of any of them may treat the Person in whose name any
Certificate is registered upon the books of the Certificate Registrar as the
owner of such Certificate for the purpose of receiving distributions pursuant
to
Sections 5.01 and 5.02 and for all other purposes whatsoever, and neither the
Depositor, the Master Servicer, the Trustee, the Certificate Registrar, any
NIMS
Insurer nor any agent of any of them shall be affected by notice to the
contrary.
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Section
3.07 Temporary
Certificates.
(a) Pending
the preparation of definitive Certificates, upon the order of the Depositor,
the
Trustee shall execute and shall authenticate and deliver temporary Certificates
that are printed, lithographed, typewritten, mimeographed or otherwise produced,
in any authorized denomination, substantially of the tenor of the definitive
Certificates in lieu of which they are issued and with such variations as
the
authorized officers executing such Certificates may determine, as evidenced
by
their execution of such Certificates.
(b) If
temporary Certificates are issued, the Depositor will cause definitive
Certificates to be prepared without unreasonable delay. After the preparation
of
definitive Certificates, the temporary Certificates shall be exchangeable
for
definitive Certificates upon surrender of the temporary Certificates at the
office or agency of the Trustee without charge to the Holder. Upon surrender
for
cancellation of any one or more temporary Certificates, the Trustee shall
execute and authenticate and deliver in exchange therefor a like aggregate
Certificate Principal Amount of definitive Certificates of the same Class
in the
authorized denominations. Until so exchanged, the temporary Certificates
shall
in all respects be entitled to the same benefits under this Agreement as
definitive Certificates of the same Class.
Section
3.08 Appointment
of Paying Agent.
(a) The
Trustee, subject to the consent of the NIMS Insurer, may appoint a Paying
Agent
(which may be the Trustee) for the purpose of making distributions to
Certificateholders hereunder. The Trustee shall cause such Paying Agent (if
other than the Trustee) to execute and deliver to the Trustee an instrument
in
which such Paying Agent shall agree with the Trustee that such Paying Agent
will
hold all sums held by it for the payment to Certificateholders in an Eligible
Account in trust for the benefit of the Certificateholders entitled thereto
until such sums shall be paid to the Certificateholders. All funds remitted
by
the Trustee to any such Paying Agent for the purpose of making distributions
shall be paid to Certificateholders on each Distribution Date and any amounts
not so paid shall be returned on such Distribution Date to the Trustee. If
the
Paying Agent is not the Trustee, the Trustee shall cause to be remitted to
the
Paying Agent on or before the Business Day prior to each Distribution Date,
by
wire transfer in immediately available funds, the funds to be distributed
on
such Distribution Date. Any Paying Agent shall be either a bank or trust
company
or otherwise authorized under law to exercise corporate trust
powers.
(b) Any
Paying Agent (other than the Trustee) shall comply with its reporting
obligations under Regulation AB with respect to the Trust Fund in form and
substance similar to those of the Trustee pursuant to Section 6.21, and the
related assessment of compliance shall cover, at a minimum, the elements
of the
servicing criteria applicable to the Paying Agent indicated in Exhibit T
attached hereto. In addition, the Paying Agent (other than the Trustee) shall
notify the Sponsor, the Master Servicer and the Depositor with five (5) calendar
days of knowledge therefo (i) of any legal proceedings pending against the
Paying Agent of the type described in Item 1117 (§ 229.1117) of Regulation AB,
(ii) any merger, consolidation or sale of substantially all of the assets
of the
Paying Agent and (iii) if the Paying Agent shall become (but only to the
extent
not previously disclosed) at any time an affiliate of any of the parties
listed
on Exhibit V hereto or any of their affiliates.
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(c) Any
Paying Agent (other than the Trustee) agrees to indemnify the Depositor,
the
Sponsor, the Trustee (if other than the Trustee) and the Master Servicer,
and
each of their respective directors, officers, employees and agents and the
Trust
Fund and hold each of them harmless from and against any losses, damages,
penalties, fines, forfeitures, legal fees and expenses and related costs,
judgments, and any other costs, fees and expenses that any of them may sustain
arising out of or based upon the failure by such Paying Agent to deliver
any
information, report or certification when and as required under Section 6.20
and
Section 9.25(a); provided,
however,
that
this sentence shall not apply in connection with the failure by the Paying
Agent
to comply with the provisions of Section 6.20 and Section 9.25(a) if the
Trustee
is the Paying Agent. This indemnification shall survive the termination of
this
Agreement or the termination of such Paying Agent hereunder.
Section
3.09 Book-Entry
Certificates.
(a)
Each
Class of Book-Entry Certificates, upon original issuance, shall be issued
in the
form of one or more typewritten Certificates representing the Book-Entry
Certificates. The Book-Entry Certificates shall initially be registered on
the
Certificate Register in the name of the nominee of the Clearing Agency, and
no
Certificate Owner will receive a definitive certificate representing such
Certificate Owner’s interest in the Book-Entry Certificates, except as provided
in Section 3.09(c). Unless Definitive Certificates have been issued to
Certificate Owners of Book-Entry Certificates pursuant to Section
3.09(c):
(i) the
provisions of this Section 3.09 shall be in full force and effect;
(ii) the
Depositor, the Master Servicer, the Paying Agent, the Registrar, any NIMS
Insurer and the Trustee may deal with the Clearing Agency for all purposes
(including the making of distributions on the Book-Entry Certificates) as
the
authorized representatives of the Certificate Owners and the Clearing Agency
shall be responsible for crediting the amount of such distributions to the
accounts of such Persons entitled thereto, in accordance with the Clearing
Agency’s normal procedures;
(iii) to
the
extent that the provisions of this Section 3.09 conflict with any other
provisions of this Agreement, the provisions of this Section 3.09 shall control;
and
(iv) the
rights of Certificate Owners shall be exercised only through the Clearing
Agency
and the Clearing Agency Participants and shall be limited to those established
by law and agreements between such Certificate Owners and the Clearing Agency
and/or the Clearing Agency Participants. Unless and until Definitive
Certificates are issued pursuant to Section 3.09(c), the initial Clearing
Agency
will make book-entry transfers among the Clearing Agency Participants and
receive and transmit distributions of principal of and interest on the
Book-Entry Certificates to such Clearing Agency Participants.
(b) Whenever
notice or other communication to the Certificateholders is required under
this
Agreement, unless and until Definitive Certificates shall have been issued
to
Certificate Owners pursuant to Section 3.09(c), the Trustee shall give all
such
notices and communications specified herein to be given to Holders of the
Book-Entry Certificates to the Clearing Agency.
71
(c) If
(i)
(A) the Depositor advises the Trustee in writing that the Clearing Agency
is no
longer willing or able to discharge properly its responsibilities with respect
to the Book-Entry Certificates, and (B) the Depositor is unable to locate
a
qualified successor or (ii) after the occurrence of an Event of Default,
Certificate Owners representing beneficial interests aggregating not less
than
50% of the Class Principal Amount of a Class of Book-Entry Certificates
identified as such to the Trustee by an Officer’s Certificate from the Clearing
Agency advise the Trustee and the Clearing Agency through the Clearing Agency
Participants in writing that the continuation of a book-entry system through
the
Clearing Agency is no longer in the best interests of the Certificate Owners
of
a Class of Book-Entry Certificates, the Trustee shall notify any NIMS Insurer
and shall notify or cause the Certificate Registrar to notify the Clearing
Agency to effect notification to all Certificate Owners, through the Clearing
Agency, of the occurrence of any such event and of the availability of
Definitive Certificates to Certificate Owners requesting the same. Upon
surrender to the Trustee of the Book-Entry Certificates by the Clearing Agency,
accompanied by registration instructions from the Clearing Agency for
registration, the Trustee shall issue the Definitive Certificates. Neither
the
Depositor nor the Trustee shall be liable for any delay in delivery of such
instructions and may conclusively rely on, and shall be protected in relying
on,
such instructions. Upon the issuance of Definitive Certificates all references
herein to obligations imposed upon or to be performed by the Clearing Agency
shall be deemed to be imposed upon and performed by the Trustee, to the extent
applicable, with respect to such Definitive Certificates and the Trustee
shall
recognize the holders of the Definitive Certificates as Certificateholders
hereunder. Notwithstanding the foregoing, the Trustee, upon the instruction
of
the Depositor, shall have the right to issue Definitive Certificates on the
Closing Date in connection with credit enhancement programs.
ARTICLE
IV
ADMINISTRATION
OF THE TRUST FUND
Section
4.01 Collection
Account.
(a) On
the
Closing Date, the Master Servicer shall open and shall thereafter maintain
a
segregated account held in trust (the “Collection Account”), entitled
“Collection Account, Aurora Loan Services LLC, as Master Servicer, in trust
for
the benefit of the Holders of Structured Asset Securities Corporation Mortgage
Pass-Through Certificates, Series 2006-S1. The Collection Account shall relate
solely to the Certificates and to the Lower Tier REMIC 1 Uncertificated Regular
Interests issued by the Trust Fund hereunder, and funds in such Collection
Account shall not be commingled with any other monies.
(b) The
Collection Account shall be an Eligible Account. If an existing Collection
Account ceases to be an Eligible Account, the Master Servicer shall establish
a
new Collection Account that is an Eligible Account within 10 days and transfer
all funds and investment property on deposit in such existing Collection
Account
into such new Collection Account.
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(c) The
Master Servicer shall give to the Trustee prior written notice of the name
and
address of the depository institution at which the Collection Account is
maintained and the account number of such Collection Account. The Master
Servicer shall take such actions as are necessary to cause the depository
institution holding the Collection Account to hold such account in the name
of
the Master Servicer under this Agreement. On each Master Servicer Remittance
Date, the entire amount on deposit in the Collection Account (subject to
permitted withdrawals set forth in Section 4.02), other than amounts not
included in the Total Distribution Amount for such Distribution Date, shall
be
remitted to the Trustee for deposit into the Certificate Account by wire
transfer in immediately available funds. The Master Servicer, at its option,
may
choose to make daily remittances from the Collection Account to the Trustee
for
deposit into the Certificate Account.
(d) The
Master Servicer shall deposit or cause to be deposited into the Collection
Account, no later than the second Business Day following the Closing Date,
any
amounts received with respect to the Mortgage Loans representing Scheduled
Payments on the Mortgage Loans due after the Cut-off Date and unscheduled
payments received on or after the Cut-off Date and on or before the Closing
Date. Thereafter, the Master Servicer shall deposit or cause to be deposited
in
the Collection Account on the earlier of the applicable Master Servicer
Remittance Date and two Business Days following receipt thereof, the following
amounts received or payments made by it (other than in respect of principal
of
and interest on the Mortgage Loans due on or before the Cut-off
Date):
(i) all
payments on account of principal, including Principal Prepayments, any
Subsequent Recovery and any Scheduled Payment attributable to principal received
after its related Due Date, on the Mortgage Loans;
(ii) all
payments on account of interest on the Mortgage Loans, including Prepayment
Premiums, in all cases, net of the Servicing Fee with respect to each such
Mortgage Loan, but only to the extent of the amount permitted to be withdrawn
or
withheld from the Collection Account in accordance with Sections 5.04 and
9.21;
(iii) any
unscheduled payment or other recovery with respect to a Mortgage Loan not
otherwise specified in this paragraph (d), including all Net Liquidation
Proceeds with respect to the Mortgage Loans and REO Property, and all amounts
received in connection with the operation of any REO Property, net of (x)
any
unpaid Servicing Fees with respect to such Mortgage Loans (but only to the
extent of the amount permitted to be withdrawn or withheld from the Collection
Account in accordance with Sections 5.04 and 9.21) and (y) any amounts
reimbursable to a Servicer with respect to such Mortgage Loan under the
applicable Servicing Agreement and retained by such Servicer;
(iv) all
Insurance Proceeds;
(v) all
Advances made by the Master Servicer or any Servicer pursuant to Section
5.04 or
the applicable Servicing Agreement;
(vi) all
amounts paid by any Servicer with respect to Prepayment Interest Shortfalls;
and
73
(vii) the
Purchase Price or PPTL Purchase Price of any Mortgage Loan repurchased by
the
Depositor, the Seller, the Master Servicer or any other Person and any
Substitution Amount related to any Qualifying Substitute Mortgage
Loan and
any
purchase price paid by any NIMS Insurer for the purchase of any Distressed
Mortgage Loan under Section 7.04.
(e) Funds
in
the Collection Account may be invested in Eligible Investments selected by
and
at the written direction of the Master Servicer, which shall mature not later
than one Business Day prior to the Master Servicer Remittance Date (except
that
if such Eligible Investment is an obligation of the Trustee, then such Eligible
Investment shall mature not later than such applicable Master Servicer
Remittance Date) and any such Eligible Investment shall not be sold or disposed
of prior to its maturity. All such Eligible Investments shall be made in
the
name of the Master Servicer in trust for the benefit of the Trustee and Holders
of the Structured Asset Securities Corporation Mortgage Pass-Through
Certificates, Series 2006-S1. All income and gain realized from any Eligible
Investment shall be for the benefit of the Master Servicer and shall be subject
to its withdrawal or order from time to time, subject to Section 5.05 hereof,
and shall not be part of the Trust Fund. The amount of any losses incurred
in
respect of any such investments shall be deposited in such Collection Account
by
the Master Servicer out of its own funds, without any right of reimbursement
therefor, immediately as realized. The foregoing requirements for deposit
in the
Collection Account are exclusive, it being understood and agreed that, without
limiting the generality of the foregoing, payments of interest on funds in
the
Collection Account and payments in the nature of late payment charges,
assumption fees and other incidental fees and charges relating to the Mortgage
Loans (other than Prepayment Premiums) need not be deposited by the Master
Servicer in the Collection Account and may be retained by the Master Servicer
or
the applicable Servicer as additional servicing compensation. If the Master
Servicer deposits in the Collection Account any amount not required to be
deposited therein, it may at any time withdraw such amount from such Collection
Account.
Section
4.02 Application
of Funds in the Collection Account.
The
Master Servicer may, from time to time, make, or cause to be made, withdrawals
from the Collection Account for the following purposes:
(i) to
reimburse itself or any Servicer for Advances or Servicing Advances made
by it
or by such Servicer pursuant to Section 5.04 or the applicable Servicing
Agreement; such right to reimbursement pursuant to this subclause (i) is
limited
to amounts received on or in respect of a particular Mortgage Loan (including,
for this purpose, Liquidation Proceeds and amounts representing Insurance
Proceeds with respect to the property subject to the related Mortgage) which
represent late recoveries (net of the applicable Servicing Fee) of payments
of
principal or interest respecting which any such Advance was made, it being
understood, in the case of any such reimbursement, that the Master Servicer’s or
Servicer’s right thereto shall be prior to the rights of the
Certificateholders;
(ii) to
reimburse itself or any Servicer, following a final liquidation of a Mortgage
Loan (except as otherwise provided in the related Servicing Agreement) for
any
previously unreimbursed Advances made by it or by such Servicer (A) that
it
determines in good faith will not be recoverable from amounts representing
late
recoveries of payments of principal or interest respecting the particular
Mortgage Loan as to which such Advance was made or from Liquidation Proceeds
or
Insurance Proceeds with respect to such Mortgage Loan and/or (B) to the extent
that such unreimbursed Advances exceed the related Liquidation Proceeds or
Insurance Proceeds, it being understood, in the case of each such reimbursement,
that such Master Servicer’s or Servicer’s right thereto shall be prior to the
rights of the Certificateholders;
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(iii) to
reimburse itself or any Servicer from Liquidation Proceeds for Liquidation
Expenses and for amounts expended by it pursuant to Section 9.22(c) or the
applicable Servicing Agreement in good faith in connection with the restoration
of damaged property and, to the extent that Liquidation Proceeds after such
reimbursement exceed the unpaid principal balance of the related Mortgage
Loan,
together with accrued and unpaid interest thereon at the applicable Mortgage
Rate less the applicable Servicing Fee Rate for such Mortgage Loan to the
Due
Date next succeeding the date of its receipt of such Liquidation Proceeds,
to
pay to itself out of such excess the amount of any unpaid assumption fees,
late
payment charges or other Mortgagor charges on the related Mortgage Loan and
to
retain any excess remaining thereafter as additional servicing compensation,
it
being understood, in the case of any such reimbursement or payment, that
such
Master Servicer’s or Servicer’s right thereto shall be prior to the rights of
the Certificateholders;
(iv) to
reimburse itself or any Servicer for expenses incurred by and recoverable
by or
reimbursable to it or any Servicer pursuant to this Agreement, including,
without limitation, Sections 9.04, 9.05(b), 9.07(a), 9.30 or 11.15;
(v) to
pay to
the Depositor, the Seller or any Transferor, as applicable, with respect
to each
Mortgage Loan or REO Property acquired in respect thereof that has been
purchased pursuant to this Agreement, all amounts received thereon and not
distributed on the date on which the related repurchase was effected, and
to pay
to the applicable Person any Advances and Servicing Advances to the extent
specified in the definition of Purchase Price or (PPTL Purchase Price (in
the
case of a First Payment Default Loan));
(vi) subject
to Section 5.05, to pay to itself income earned on the investment of funds
deposited in the Collection Account;
(vii) to
make
payments to the Trustee on each Master Servicer Remittance Date for deposit
into
the Certificate Account in the amount provided in Section 4.04;
(viii) to
make
payment to itself and others pursuant to any other provision of this
Agreement;
(ix) to
withdraw funds deposited in error in the Collection Account;
(x) to
clear
and terminate the Collection Account pursuant to Section 7.02;
(xi) to
reimburse a successor Master Servicer (solely in its capacity as successor
Master Servicer), for any fee or advance occasioned by a termination of the
Master Servicer, and the assumption of such duties by the Trustee or a successor
Master Servicer appointed by the Trustee pursuant to Section 6.14, in each
case
to the extent not reimbursed by the terminated Master Servicer, it being
understood, in the case of any such reimbursement or payment, that the right
of
the Master Servicer or the Trustee thereto shall be prior to the rights of
the
Certificateholders; and
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(xii) to
reimburse any Servicer for such amounts as are due thereto under the applicable
Servicing Agreement and have not been retained by or paid to such Servicer,
to
the extent provided in such Servicing Agreement.
In
the
event that the Master Servicer fails on any Master Servicer Remittance Date
to
remit to the Trustee any amounts required to be so remitted to the Trustee
pursuant to sub-clause (vii) by such date, the Master Servicer shall pay
the
Trustee, for the account of the Trustee, interest calculated at the “prime rate”
(as published in the “Money Rates” section of The
Wall Street Journal)
on such
amounts not timely remitted for the period from and including that Master
Servicer Remittance Date to but not including the related Distribution Date.
The
Master Servicer shall only be required to pay the Trustee interest for the
actual number of days such amounts are not timely remitted (e.g.,
one
day's interest, if such amounts are remitted one day after the Master Servicer
Remittance Date).
In
connection with withdrawals made pursuant to subclauses (i), (iii), and (v)
above, the Master Servicer’s, any Servicer’s or such other Person’s entitlement
thereto is limited to collections or other recoveries on the related Mortgage
Loan. The Master Servicer shall therefore keep and maintain a separate
accounting for each Mortgage Loan it master services for the purpose of
justifying any withdrawal made from the Collection Account it maintains pursuant
to such subclause (i), (iii) and (v).
Section
4.03 Reports
to Certificateholders.
(a) On
each
Distribution Date, the Trustee shall have prepared (based solely on information
provided by the Master Servicer or the Swap Counterparty) and shall make
available to any NIMS Insurer, the Swap Counterparty, the Credit Risk Manager,
the Seller and each Certificateholder a report (the “Distribution Date
Statement”) setting forth the following information (on the basis of Mortgage
Loan level information obtained from the Master Servicer):
(i) the
aggregate amount of the distribution to be made on such Distribution Date
to the
Holders of each Class of Certificates, to the extent applicable, allocable
to
principal on the Mortgage Loans, including Liquidation Proceeds and Insurance
Proceeds, stating separately the amount attributable to scheduled principal
payments and unscheduled payments in the nature of principal;
(ii) the
aggregate amount of the distribution to be made on such Distribution Date
to the
Holders of each Class of Certificates allocable to interest and the calculation
thereof;
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(iii) the
amount, if any, of any distribution to the Holders of the Class P Certificate,
the Class X Certificates, the Class LT-R Certificates and the Residual
Certificate;
(iv) (A) the
aggregate amount of any Advances required to be made by or on behalf of the Servicer
(or
the Master Servicer) with respect to the related Collection Period, (B) the aggregate
amount of such Advances actually made, and (C) the amount, if any, by which
(A) above exceeds (B) above;
(v) the
total
number of Mortgage Loans, the aggregate Scheduled Principal Balance of all
the
Mortgage Loans as of the close of business on the last day of the related
Collection Period, after giving effect to payments allocated to principal
reported under clause (i) above;
(vi) the
Class
Principal Amount of each Class of Certificates, to the extent applicable,
as of
such Distribution Date after giving effect to payments allocated to principal
reported under clause (i) above, separately identifying any reduction of
any of
the foregoing Certificate Principal Amounts due to Applied Loss Amounts;
(vii) the
amount of any Prepayment Premiums distributed to the Class P
Certificates;
(viii) the
amount of any Realized Losses incurred with respect to the Mortgage Loans
(x) in
the applicable Prepayment Period and (y) in the aggregate since the Cut-off
Date;
(ix) the
amount of the Servicing Fees and Credit Risk Manager’s Fees paid during the
Collection Period to which such distribution relates;
(x) the
number and aggregate Scheduled Principal Balance of Mortgage Loans, as reported
to the Trustee by the Master Servicer, (a) remaining outstanding (b) Delinquent
30 to 59 days on a contractual basis, (c) Delinquent 60 to 89 days on a
contractual basis, (d) Delinquent 90 or more days on a contractual basis,
(e) as
to which foreclosure proceedings have been commenced, each as of the close
of
business on the last Business Day of the calendar month immediately preceding
the month in which such Distribution Date occurs, (f) in bankruptcy and (g)
that
are REO Properties, (h) that are Charged-off Loans and (i) that are Released
Mortgage Loans;
(xi) the
aggregate Scheduled Principal Balance of any Mortgage Loans with respect
to
which the related Mortgaged Property became a REO Property, each as of the
close
of business on the last Business Day of the calendar month immediately preceding
the month in which such Distribution Date occurs;
(xii) with
respect to substitution of Mortgage Loans in the preceding calendar month,
the
Scheduled Principal Balance of each Deleted Mortgage Loan, and of each
Qualifying Substitute Mortgage Loan;
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(xiii) the
aggregate outstanding Carryforward Interest, Net Prepayment Interest Shortfalls,
Deferred Amounts, Basis Risk Shortfalls and Unpaid Basis Risk Shortfalls,
if
any, for each Class of Certificates, after giving effect to the distribution
made on such Distribution Date;
(xiv) the
Certificate Interest Rate applicable to such Distribution Date with respect
to
each Class of Certificates;
(xv) the
Interest Remittance Amount and the Principal Remittance Amount applicable
to
such Distribution Date;
(xvi) if
applicable, the amount of any shortfall (i.e., the difference between the
aggregate amounts of principal and interest which Certificateholders would
have
received if there were sufficient available amounts in the Certificate Account
and the amounts actually distributed);
(xvii) the
amount of any Overcollateralization Deficiency after giving effect to the
distributions made in such Distribution Date;
(xviii) the
level
of LIBOR for such Distribution Date;
(xix) the
amount of any payments made by the Cap Counterparty to the Supplemental Interest
Trust made pursuant to Section 5.07(d);
(xx) the
amount of any Net Swap Payment to the Supplemental Interest Trust made pursuant
to Section 5.02, any Net Swap Payment to the Swap Counterparty made pursuant
to
Section 5.02, any Swap Termination Payment to the Supplemental Interest Trust
made pursuant to Sections 5.02 and any Swap Termination Payment to the Swap
Counterparty made pursuant to Section 5.02; and
(xxi) whether
a
Trigger Event is in effect for that Distribution Date.
In
addition to the information listed above, such Distribution Date Statement
shall
also include such other information as is required by Form 10-D, including,
but
not limited to, the information required by Item 1121 (§ 229.1121) of Regulation
AB.
In
the
case of information furnished pursuant to subclauses (i), (ii) and (vi) above,
the amounts shall (except in the case of the report delivered to the holder
of
the Class X Certificates) be expressed as a dollar amount per $1,000 of original
principal amount of Certificates.
On
any
Distribution Date after the occurrence of a Section 7.01(c) Purchase Event,
the
information required by subclauses (i), (iii), (iv), (v), (vii), (viii),
(ix),
(x), (xi), (xii) and (xv) provided to any NIMS Insurer, the Swap Counterparty,
the Credit Risk Manager, the Seller, the Holder of the Class LT-R Certificate
and the LTURI-holder with regard to the Lower Tier REMIC 1 Uncertificated
Regular Interests in lieu of the Certificates.
The
Trustee shall make such report and any additional loan level information
(and,
at its option, any additional files containing the same information in an
alternative format) provided to it by the Master Servicer available each
month
to any NIMS Insurer, Certificateholders, the Rating Agencies and any other
parties entitled thereto via the Trustee’s internet website. The Trustee’s
internet website shall initially be located at “xxxxx://xxxxxxxxxxxxxxxxxxxxxx.xxxxxx.xxx.”
Such
parties that are unable to use the website are entitled to have a paper copy
mailed to them via first class mail by calling the customer service desk
and
indicating such. The Trustee shall have the right to change the way such
statements are distributed in order to make such distribution more convenient
and/or more accessible to the above parties and the Trustee shall provide
timely
and adequate notification to all above parties regarding any such
changes.
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The
foregoing information and reports shall be prepared and determined by the
Trustee based solely on Mortgage Loan data provided to the Trustee by the
Master
Servicer (in a format agreed to by the Trustee and the Master Servicer) and
information provided by the Swap Counterparty no later than 2:00 p.m. Eastern
Time four Business Days prior to the Distribution Date. In preparing or
furnishing the foregoing information to the Certificateholders and any NIMS
Insurer, the Trustee shall be entitled to rely conclusively on the accuracy
of
the information or data (i) regarding the Mortgage Loans and the related
REO
Property, that has been provided to the Trustee by the Master Servicer based
on
information received by the Master Servicer from the Servicer (ii) regarding
the
Swap Agreement, that has been provided by the Swap Counterparty, and (iii)
regarding the Interest Rate Cap Agreement, that has been provided by the
Cap
Counterparty and the Trustee shall not be obligated to verify, recompute,
reconcile or recalculate any such information or data. The Trustee shall
be
entitled to conclusively rely on the Mortgage Loan data provided by the Master
Servicer and shall have no liability for any errors in such Mortgage Loan
data.
The Master Servicer shall be entitled to conclusively rely on the Mortgage
Loan
data provided by the Servicer and shall have no liability for any errors
in such
Mortgage Loan data.
(b) Upon
the
reasonable advance written request of any NIMS Insurer or any Certificateholder
that is a savings and loan, bank or insurance company, which request, if
received by the Trustee, shall be promptly forwarded to the Master Servicer,
the
Master Servicer shall provide, or cause to be provided, (or, to the extent
that
such information or documentation is not required to be provided by the Servicer
under the Servicing Agreement, shall use reasonable efforts to obtain such
information and documentation from the Servicer, and provide) to any NIMS
Insurer and such Certificateholder such reports and access to information
and
documentation regarding the Mortgage Loans as any NIMS Insurer or such
Certificateholder may reasonably deem necessary to comply with applicable
regulations of the Office of Thrift Supervision or its successor or other
regulatory authorities with respect to an investment in the Certificates;
provided, however, that the Master Servicer shall be entitled to be reimbursed
by such Certificateholder or the NIMS Insurer for the actual expenses incurred
in providing such reports and access.
(c) Upon
request of a Certificateholder and prior to a Section 7.01(c) Purchase Event,
the Trustee shall have prepared and the Trustee shall make available to any
NIMS
Insurer and each Person who at any time during the calendar year was a
Certificateholder of record, and make available to Certificate Owners
(identified as such by the Clearing Agency) in accordance with applicable
regulations, a report summarizing the items provided to any NIMS Insurer
and the
Certificateholders pursuant to Sections 4.03(a)(i) and 4.03(a)(ii) on an
annual
basis as may be required to enable any NIMS Insurer and such Holders to prepare
their federal income tax returns; provided, however, that this Section 4.03(c)
shall not be applicable where relevant reports or summaries are required
elsewhere in this Agreement. Such information shall also include the amount
of
original issue discount accrued on each Class of Certificates and information
regarding the expenses of the Trust Fund. The Trustee shall be deemed to
have
satisfied this requirement if it forwards such information in any other format
permitted by the Code. The Master Servicer shall provide the Trustee with
such
information as is necessary for the Trustee to prepare such reports (and
the
Trustee may rely solely upon such information).
79
(d) The
Trustee shall furnish any other information that is required by the Code
and
regulations thereunder to be made available to Certificateholders. The Master
Servicer shall provide the Trustee with such information as is necessary
for the
Trustee to prepare such reports (and the Trustee may rely solely upon such
information).
Section
4.04 Certificate
Account.
(a) The
Trustee shall establish and maintain in its name, as trustee, a trust account
(the “Certificate Account”) entitled “Certificate Account, U.S. Bank National
Association, as Trustee, in trust for the benefit of the Holders of Structured
Asset Securities Corporation Mortgage Pass-Through Certificates, Series 2006-S1”
until disbursed pursuant to the terms of this Agreement. The Certificate
Account
shall be an Eligible Account and shall be for the benefit of the
Certificateholders, subject to the rights of the Trustee set forth herein.
If
the existing Certificate Account ceases to be an Eligible Account, the Trustee
shall establish a new Certificate Account that is an Eligible Account within
10
Business Days and transfer all funds and investment property on deposit in
such
existing Certificate Account into such new Certificate Account. The Certificate
Account shall relate solely to the Certificates and the Lower Tier REMIC
1
Uncertificated Regular Interests issued hereunder and funds in the Certificate
Account shall be held separate and apart from and shall not be commingled
with
any other monies including, without limitation, other monies of the Trustee
held
under this Agreement.
(b) The
Trustee shall deposit or cause to be deposited into the Certificate Account,
on
the day on which, or, if such day is not a Business Day, the Business Day
immediately following the day on which, any monies are remitted by the Master
Servicer to the Trustee, all such amounts. The Trustee shall make withdrawals
from the Certificate Account only for the following purposes:
(i) to
make payment to itself pursuant to any provision of this Agreement or to
reimburse itself or its agents for any amounts reimbursable to it pursuant
to
Sections 6.11 or 6.12; provided,
however,
that any amounts in excess of the annual cap described in clause (b) of the
definition of “Interest Remittance Amount” and clause (b) of the definition of
“Principal Remittance Amount” in any Anniversary Year, other than costs and
expenses incurred by the Trustee pursuant to Section 6.14, in connection
with
any transfer of servicing, shall not be withdrawn from the Certificate Account
and paid to the Trustee and the Trustee’s reimbursement for such excess amounts
shall be made pursuant to Section 5.02(d)(iv) hereof;
(ii) to
withdraw amounts deposited in the Certificate Account in error;
80
(iii) to
pay
itself any investment income earned with respect to funds in the Certificate
Account invested in Eligible Investments as set forth below and to make payments
to itself and others pursuant to any provision of this Agreement;
(iv) to
make
distributions to Certificateholders pursuant to Article V; and
(v) to
clear
and terminate the Certificate Account pursuant to Section 7.02.
Funds
in the Certificate Account may be invested by the Trustee in Eligible
Investments (which may be obligations of the Trustee or its affiliates).
If
invested, all such investments must be payable on demand or mature no later
than
one Business Day prior to the next Distribution Date, and shall not be sold
or
disposed of prior to their maturity. All such Eligible Investments will be
made
in the name of the Trustee (in its capacity as such) or its nominee. All
income
and gain realized from any such investment for each Distribution Date shall
be
compensation to the Trustee and be subject to withdrawal by the Trustee from
time to time. The amount of any losses incurred in respect of any such
investments shall be paid by the Trustee for deposit in the Certificate Account
out of its own funds, without any right of reimbursement therefor, immediately
as realized.
Funds
held in the Certificate Account may also be held uninvested.
ARTICLE
V
DISTRIBUTIONS
TO HOLDERS OF CERTIFICATES
Section
5.01 Distributions
Generally.
(a)
Subject
to Section 7.01 respecting the final distribution on the Certificates or
Lower
Tier REMIC 1 Uncertificated Regular Interests, on each Distribution Date
the
Trustee or the Paying Agent shall make distributions in accordance with this
Article V. Such distributions shall be made by wire transfer in immediately
available funds to an account specified in writing to the Trustee at least
five
(5) Business Days prior to the first Distribution Date to such Certificateholder
and at the expense of such Certificateholder.
(b) The
final
distribution in respect of any Certificate shall be made only upon presentation
and surrender of such Certificate at the Corporate Trust Office; provided,
however,
that
the foregoing provisions shall not apply to any Class of Certificates as
long as
such Certificate remains a Book-Entry Certificate in which case all payments
made shall be made through the Clearing Agency and its Clearing Agency
Participants. Notwithstanding such final payment of principal of any of the
Certificates, each Residual Certificate will remain outstanding until the
termination of each REMIC and the payment in full of all other amounts due
with
respect to the Residual Certificates and at such time such final payment
in
retirement of any Residual Certificate will be made only upon presentation
and
surrender of such Certificate at the Corporate Trust Office. If any payment
required to be made on the Certificates or Lower Tier REMIC 1 Uncertificated
Regular Interests is to be made on a day that is not a Business Day, then
such
payment will be made on the next succeeding Business Day.
(c) All
distributions or allocations made with respect to Certificateholders within
each
Class on each Distribution Date shall be allocated among the outstanding
Certificates in such Class equally in proportion to their respective initial
Class Principal Amounts (or Percentage Interests).
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(d)
The
Trustee shall make payments to Certificateholders and to the Swap Counterparty
and any person pursuant to this Article V and make deposits to the Supplemental
Interest Trust in accordance with the monthly report prepared in accordance
with
Section 4.03(a), based on the information provided by the Master Servicer
and
the Swap Counterparty, and shall be entitled to conclusively rely on such
information, reports, and on the calculations contained therein, when making
distributions to Certificateholders and the Swap Counterparty. The Trustee
shall
have no liability for any errors in such reports or information, and shall
not
be required to verify, recompute, reconcile or recalculate any such information
or data.
Section
5.02 Distributions
from the Certificate Account.
(a) On
each
Distribution Date on or prior to a Section 7.01(c) Purchase Event or a
Trust Fund Termination Event the Trustee (or the Paying Agent on behalf of
the
Trustee) shall withdraw from the Certificate Account the Total Distribution
Amount (to the extent such amount is on deposit in the Certificate Account),
and
amounts that are available for payment to the Swap Counterparty, and shall
allocate such amount to the interests issued in respect of each REMIC created
pursuant to this Agreement and shall distribute such amount as specified
in
subparagraphs (b) through (g) of this Section; provided,
that
amounts
that are available for payment to the Swap Counterparty shall be paid on
the
related Swap Payment Date. On each Distribution Date after a Section 7.01(c)
Purchase Event but on or prior to a Trust Fund Termination Event, the Trustee
(or the Paying Agent on behalf of the Trustee) shall withdraw from the
Certificate Account the Total Distribution Amount (to the extent such amount
is
on deposit in the Certificate Account), and amounts that are available for
payment to the Swap Counterparty, and shall allocate such amount to the
interests issued in respect of REMIC 1 created pursuant to this Agreement
and
shall distribute such amount as specified in subparagraphs (h) and (j) of
this
Section; provided,
that
amounts
that are available for payment to the Swap Counterparty shall be paid on
the
related Swap Payment Date.
(b)
On each
Distribution Date (or, with respect to clauses (i) below, on the related
Swap
Payment Date) the Trustee shall distribute the Interest Remittance Amount
in the
following order of priority:
(i) for
deposit into the Swap Account, an amount equal to the lesser of (x) the amount
of any Net Swap Payment or Swap Termination Payment owed to the Swap
Counterparty on the related Swap Payment Date and (y) the Interest Remittance
Amount for such Distribution Date;
(ii) concurrently,
to each Class of Senior Certificates, Current Interest and any Carryforward
Interest for each such Class and such Distribution Date, provided,
however,
that
any shortfall in Current Interest and Carryforward Interest shall be allocated
among such Classes in proportion to the amount of Current Interest and
Carryforward Interest that would otherwise be distributable thereon;
82
(iii) to
each
Class of Subordinate Certificates, in accordance with the Subordinate Priority,
Current Interest and any Carryforward Interest for each such Class and such
Distribution Date;
(iv) to
the
Credit Risk Manager, the Credit Risk Manager’s Fee;
(v) to
the
Trustee, any amounts reimbursable pursuant to Section 4.04(b)(i) and not
previously reimbursed to the Trustee; and
(vi) for
application as part of Monthly Excess Cashflow for such Distribution Date,
as
provided in subsection (d) of this Section, any Interest Remittance Amount
remaining undistributed for such Distribution Date.
(c) On
each
Distribution Date or related Swap Payment Date, as applicable, the Trustee
shall
distribute the Principal Distribution Amount for such date as
follows:
(i) On
each
Distribution Date (or, with respect to clause (A) below, on the related Swap
Payment Date) (a) prior to the Stepdown Date or (b) with respect to which
a
Trigger Event is in effect, until the aggregate Certificate Principal Amount
of
the LIBOR Certificates equals the Target Amount for such Distribution Date,
the
Trustee shall distribute the Principal Distribution Amount in the following
order of priority:
(A)
for
deposit into the Swap Account, an amount equal to the lesser of (x) the amount
of any Net Swap Payment or Swap Termination Payment owed to the Swap
Counterparty on the related Swap Payment Date (to the extent not paid previously
from the Interest Remittance Amount for such Distribution Date) and (y) the
Principal Remittance Amount for such Distribution Date;
(B) to
each
Class of Senior Certificates, in accordance with the Senior Priority, until
the
Class Principal Amount of each such Class has been reduced to zero;
(C) to
each
Class of Subordinate Certificates, in accordance with the Subordinate Priority,
until the Class Principal Amount of each such Class has been reduced to zero;
and
(D) for
application as part of Monthly Excess Cashflow for such Distribution Date,
as
provided in subsection (d) of
this
Section, any Principal Distribution Amount remaining after application pursuant
to clauses (A) through (C) of this Section 5.02(c)(i).
Any
Principal Distribution Amount remaining on any Distribution Date after the
Target Amount is achieved will be applied as part of Monthly Excess Cashflow
for
such Distribution Date as provided in subsection (d) of this
Section.
(ii) On
each
Distribution Date (or, with respect to clause (A) below, on the related Swap
Payment Date) (a) on or after the Stepdown Date and (b) with respect to which
a
Trigger Event is not in effect, the Principal Distribution Amount for such
date
will be distributed in the following order of priority:
83
(A) for
deposit into the Swap Account, an amount equal to the lesser of (x) the amount
of any Net Swap Payment or Swap Termination Payment owed to the Swap
Counterparty on the related Swap Payment Date (to the extent not paid previously
or from the Interest Remittance Amount for such Distribution Date) and (y)
the
Principal Remittance Amount for such Distribution Date;
(B) (1)
so
long as any of the Subordinate Certificates are outstanding, to the Senior
Certificates in accordance with the Senior Priority, an amount equal to the
lesser of (x) the excess of (a) the Principal Distribution Amount for such
Distribution Date over (b) the amount paid to the Supplemental Interest Trust
for deposit into the Swap Account on the related Swap Payment Date pursuant
to
clause (A) above and (y) the Senior Principal Distribution Amount for such
Distribution Date, until the Class Principal Amount of each such Class has
been
reduced to zero; or (2) if none of the Subordinate Certificates are outstanding,
to the Senior Certificates, in accordance with the Senior Priority, the excess
of (i) the Principal Distribution Amount for such Distribution Date over
(ii)
the amount paid to the Supplemental Interest Trust for deposit into the Swap
Account on the related Swap Payment Date pursuant to clause (A) above, until
the
Class Principal Amount of each such Class has been reduced to zero;
(C) to
the
Class M1 Certificates, an amount equal to the lesser of (x) the excess of
(a)
the Principal Distribution Amount for such Distribution Date over (b) the
amount
paid to the Supplemental Interest Trust for deposit into the Swap Account
or
distributed to the Senior Certificates on such date pursuant to clauses (A)
through (B) above, and (y) the M1 Principal Distribution Amount for such
date,
until the Class Principal Amount of such Class has been reduced to
zero;
(D) to
the
Class M2 Certificates, an amount equal to the lesser of (x) the excess of
(a)
the Principal Distribution Amount for such Distribution Date over (b) the
amount
paid to the Supplemental Interest Trust for deposit into the Swap Account
or
distributed to the Senior Certificates and the Class M1 Certificates on such
date pursuant to clauses (A) through (C) above, and (y) the M2 Principal
Distribution Amount for such date, until the Class Principal Amount of such
Class has been reduced to zero;
(E) to
the
Class M3 Certificates, an amount equal to the lesser of (x) the excess of
(a)
the Principal Distribution Amount for such Distribution Date over (b) the
amount
paid to the Supplemental Interest Trust for deposit into the Swap Account
or
distributed to the Senior Certificates and the Class M1 and Class M2
Certificates on such date pursuant to clauses (A) through (D) above, and
(y) the
M3 Principal Distribution Amount for such date, until the Class Principal
Amount
of such Class has been reduced to zero;
84
(F) to
the
Class M4 Certificates, an amount equal to the lesser of (x) the excess of
(a) the Principal Distribution Amount for such Distribution Date over (b)
the
amount paid to the Supplemental Interest Trust for deposit into the Swap
Account
or distributed to the Senior Certificates and the Class M1, Class M2 and
Class
M3 Certificates on such date pursuant to clauses (A) through (E) above, and
(y)
the M4 Principal Distribution Amount for such date, until the Class Principal
Amount of such Class has been reduced to zero;
(G) to
the
Class M5 Certificates, an amount equal to the lesser of (x) the excess of
(a)
the Principal Distribution Amount for such Distribution Date over (b) the
amount
paid to the Supplemental Interest Trust for deposit into the Swap Account
or
distributed to the Senior Certificates and the Class M1, Class M2, Class
M3 and
Class M4 Certificates on such date pursuant to clauses (A) through (F) above,
and (y) the M5 Principal Distribution Amount for such date, until the Class
Principal Amount of such Class has been reduced to zero;
(H) to
the
Class M6 Certificates, an amount equal to the lesser of (x) the excess of
(a)
the Principal Distribution Amount for such Distribution Date over (b) the
amount
paid to the Supplemental Interest Trust for deposit into the Swap Account
or
distributed to the Senior Certificates and the Class M1, Class M2, Class
M3,
Class M4 and Class M5 Certificates on such date pursuant to clauses (A) through
(G) above, and (y) the M6 Principal Distribution Amount for such date, until
the
Class Principal Amount of such Class has been reduced to zero;
(I) to
the
Class M7 Certificates, an amount equal to the lesser of (x) the excess of
(a)
the Principal Distribution Amount for such Distribution Date over (b) the
amount
paid to the Supplemental Interest Trust for deposit into the Swap Account
or
distributed to the Senior Certificates and the Class M1, Class M2, Class
M3,
Class M4, Class M5 and Class M6 Certificates on such date pursuant to clauses
(A) through (H) above, and (y) the M7 Principal Distribution Amount for such
date, until the Class Principal Amount of such Class has been reduced to
zero;
(J) to
the
Class M8 Certificates, an amount equal to the lesser of (x) the excess of
(a)
the Principal Distribution Amount for such Distribution Date over (b) the
amount
paid to the Supplemental Interest Trust for deposit into the Swap Account
or
distributed to the Senior Certificates and the Class M1, Class M2, Class
M3,
Class M4, Class M5, Class M6 and Class M7 Certificates on such date pursuant
to
clauses (A) through (I) above, and (y) the M8 Principal Distribution Amount
for
such date, until the Class Principal Amount of such Class has been reduced
to
zero;
(K) to
the
Class B1 Certificates, an amount equal to the lesser of (x) the excess of
(a)
the Principal Distribution Amount for such Distribution Date over (b) the
amount
paid to the Supplemental Interest Trust for deposit into the Swap Account
or
distributed to the Senior Certificates and the Class M1, Class M2, Class
M3,
Class M4, Class M5, Class M6, Class M7 and Class M8 Certificates on such
date
pursuant to clauses (A) through (J) above, and (y) the B1 Principal Distribution
Amount for such date, until the Class Principal Amount of such Class has
been
reduced to zero;
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(L) to
the
Class B2 Certificates, an amount equal to the lesser of (x) the excess of
(a)
the Principal Distribution Amount for such Distribution Date over (b) the
amount
paid to the Supplemental Interest Trust for deposit into the Swap Account
or
distributed to the Senior Certificates and the Class M1, Class M2, Class
M3,
Class M4, Class M5, Class M6, Class M7 and Class M8 and Class B1 Certificates
on
such date pursuant to clauses (A) through (K) above, and (y) the B2 Principal
Distribution Amount for such date, until the Class Principal Amount of such
Class has been reduced to zero; and
(M) for
application as part of Monthly Excess Cashflow for such Distribution Date,
as
provided in Section 5.02(d), any Principal Distribution Amount remaining
after
application pursuant to clauses (A) through (L) above.
(d) On
each
Distribution Date, the Trustee shall distribute the Monthly Excess Cashflow
for
such date in the following order of priority; provided,
however,
that for
each Distribution Date occurring on and prior to the Distribution Date in
August
2006,
first
any
Monthly Excess Cashflow shall be applied for distribution in the priorities
set
forth in Section 5.02(d)(i) or 5.02(d)(ii), as applicable, until the
Overcollateralization Amount for such Distribution Date is equal to the
Overcollateralization Amount on the Closing Date and second
the
remaining Monthly Excess Cashflow for such Distribution Date shall be
distributed pursuant to Section 5.02(d)(vi) below:
(i) for
each
Distribution Date occurring (a) before the Stepdown Date or (b) on or after
the Stepdown Date but for which a Trigger Event is in effect, then until
the
aggregate Certificate Principal Amount of the LIBOR Certificates equals the
Target Amount for such Distribution Date, in the following order of
priority:
(A) to
the
Senior Certificates, after giving effect to principal distributions on such
Distribution Date, in accordance with the Senior Priority, in reduction of
their
respective Class Principal Amounts, until the Class Principal Amount of each
such Class has been reduced to zero; and
(B) to
each
Class of Subordinate Certificates, after giving effect to principal
distributions on such Distribution Date, in accordance with the Subordinate
Priority, in reduction of their respective Class Principal Amounts, until
the
Class Principal Amount of each such Class has been reduced to zero.
(ii) for
each
Distribution Date occurring on or after the Stepdown Date and for which a
Trigger Event is not in effect, in the following order of priority:
(A) to
the
Senior Certificates, in accordance with the Senior Priority, in reduction
of
their respective Class Principal Amounts, until the aggregate Class Principal
Amount of each such Class, after giving effect to distributions on such
Distribution Date, equals the Senior Target Amount;
86
(B) to
the
Class M1 Certificates, in reduction of their Class Principal Amount, until
the
aggregate of the Class Principal Amounts of such Class and the Senior
Certificates, after giving effect to distributions on such Distribution Date,
equals the M1 Target Amount;
(C) to
the
Class M2 Certificates, in reduction of their Class Principal Amount, until
the
aggregate of the Class Principal Amounts of such Class, the Senior Certificates
and the Class M1 Certificates, after giving effect to distributions on such
Distribution Date, equals the M2 Target Amount;
(D) to
the
Class M3 Certificates, in reduction of their Class Principal Amount, until
the
aggregate of the Class Principal Amounts of such Class, the Senior Certificates
and the Class M1 and Class M2 Certificates, after giving effect to distributions
on such Distribution Date, equals the M3 Target Amount;
(E) to
the
Class M4 Certificates, in reduction of their Class Principal Amount, until
the
aggregate of the Class Principal Amounts of such Class, the Senior Certificates
and the Class M1, Class M2 and Class M3 Certificates, after giving effect
to
distributions on such Distribution Date, equals the M4 Target Amount;
(F) to
the
Class M5 Certificates, in reduction of their Class Principal Amount, until
the
aggregate of the Class Principal Amounts of such Class, the Senior Certificates
and the Class M1, Class M2, Class M3 and Class M4 Certificates, after giving
effect to distributions on such Distribution Date, equals the M5 Target Amount;
(G) to
the
Class M6 Certificates, in reduction of their Class Principal Amount, until
the
aggregate of the Class Principal Amounts of such Class, the Senior Certificates
and the Class M1, Class M2, Class M3, Class M4 and Class M5 Certificates,
after
giving effect to distributions on such Distribution Date, equals the M6 Target
Amount;
(H) to
the
Class M7 Certificates, in reduction of their Class Principal Amount, until
the
aggregate of the Class Principal Amounts of such Class, the Senior Certificates
and the Class M1, Class M2, Class M3, Class M4, Class M5, and Class M6
Certificates, after giving effect to distributions on such Distribution Date,
equals the M7 Target Amount;
(I) to
the
Class M8 Certificates, in reduction of their Class Principal Amount, until
the
aggregate of the Class Principal Amounts of such Class, the Senior Certificates
and the Class M1, Class M2, Class M3, Class M4, Class M5, Class M6 and Class
M7
Certificates, after giving effect to distributions on such Distribution Date,
equals the M8 Target Amount;
87
(J) to
the
Class B1 Certificates, in reduction of their Class Principal Amount, until
the
aggregate of the Class Principal Amounts of such Class, the Senior Certificates
and the Class M1, Class M2, Class M3, Class M4, Class M5, Class M6, Class
M7 and
Class M8 Certificates, after giving effect to distributions on such Distribution
Date, equals the B1 Target Amount; and
(K) to
the
Class B2 Certificates, in reduction of their Class Principal Amount, until
the
aggregate of the Class Principal Amounts of such Class, the Senior Certificates
and the Class M1, Class M2, Class M3, Class M4, Class M5, Class M6, Class
M7,
Class M8 and Class B1 Certificates, after giving effect to distributions
on such
Distribution Date, equals the B2 Target Amount; and
(iii) to
each
Class of Subordinate Certificates, in accordance with the Subordinate Priority,
any Deferred Amount for each such Class and such Distribution Date;
(iv) to
the
Basis Risk Reserve Fund, an amount equal to the Basis Risk Payment for such
Distribution Date, and then from the Basis Risk Reserve Fund, in the following
order of priority:
(A) concurrently,
in proportion to their respective Basis Risk Shortfalls and Unpaid Basis
Risk
Shortfalls, to each Class of Senior Certificates, any applicable Basis Risk
Shortfall and Unpaid Basis Risk Shortfall for each such Class and such
Distribution Date;
(B) to
each
Class of Subordinate Certificates, in accordance with the Subordinate Priority,
any applicable Basis Risk Shortfall and Unpaid Basis Risk Shortfall for each
such Class and such Distribution Date; and
(C) to
the
Swap Account, for application pursuant to Section 5.02(d)(vi), any amounts
remaining in the Basis Risk Reserve Fund, after taking into account
distributions pursuant to clauses (A) and (B) above, in excess of the
Required Reserve Fund Deposit for such Distribution Date;
(v) on
the
Distribution Date occurring in January 2011 (or the next succeeding Distribution
Date on which sufficient funds are available in the Certificate Account to
make
such distributions to the Class P Certificates), $100 to the Class P
Certificates in payment of its Class P Principal Amount;
(vi) to
the
Swap Account, the Class X Distributable Amount (less any Basis Risk Payment
for
such Distribution Date) for such Distribution Date, for application pursuant
to
Section 5.02(e)(xi) below; and
(vii) to
the
Class R Certificate, any amount remaining on such date after application
pursuant to clauses (i) through (vi) above.
88
(e) On
each
Distribution Date (or, with respect to clauses (i), (ii), (ix) and (x) below,
on
the related Swap Payment Date), the Trustee shall distribute the Swap Amount
for
such date after making all distributions under Section 5.02(d) above as
follows:
(i) to
the
Swap Counterparty, any Net Swap Payment owed to the Swap Counterparty pursuant
to the Swap Agreement for such Swap Payment Date;
(ii) to
the
Swap Counterparty, any Swap Termination Payment not due to a Swap Counterparty
Trigger Event owed to the Swap Counterparty pursuant to the Swap Agreement
for
such Swap Payment Date;
(iii) concurrently,
to the Senior Certificates, Current Interest and any Carryforward Interest
for
each such Class and such Distribution Date, to the extent unpaid (any shortfall
in Current Interest and Carryforward Interest to be allocated among such
Classes
in proportion to the amount of Current Interest and Carryforward Interest
that
would have otherwise been distributable thereon);
(iv) to
the
Subordinate Certificates, in accordance with the Subordinate Priority, Current
Interest and any Carryforward Interest for each such Class and such Distribution
Dates to the extent unpaid;
(v) to
the
LIBOR Certificates, any amount necessary to maintain the Targeted
Overcollateralization Amount as specified in Sections 5.02(d)(i) and (ii)
above
for such Distribution Date, for application pursuant to the priorities set
forth
in such Sections, after giving effect to distributions pursuant to such
Sections; provided,
however,
that the
sum of all such amounts distributed pursuant to this Section 5.02(e)(v) and
all
amounts distributed pursuant to Section 5.02(e)(vi) and Sections 5.02(f)(iii)
and (iv) shall not exceed the aggregate amount of cumulative Realized Losses
incurred from the Cut-off Date through the last day of the related Collection
Period less any amounts previously distributed pursuant to this Section
5.02(e)(v) and Section 5.02(e)(vi) together with any amounts previously
distributed pursuant to Sections 5.02(f)(iii) and (iv);
(vi) to
the
Subordinate Certificates, in accordance with the Subordinate Priority, any
Deferred Amount for each such Class and such Distribution Date, to the extent
unpaid; provided,
however,
that the
sum of all such amounts distributed pursuant to this Section 5.02(e)(vi)
and all
amounts distributed pursuant to Section 5.02(e)(v) and Sections 5.02(f)(iii)
and
(iv) shall not exceed the aggregate amount of cumulative Realized Losses
incurred from the Cut-off Date through the last day of the related Collection
Period less any amounts previously distributed pursuant to this Section
5.02(e)(vi) and Section 5.02(e)(v) together with any amounts previously
distributed pursuant to Sections 5.02(f)(iii) and (iv);
(vii) to
the
Senior Certificates, any Basis Risk Shortfalls and Unpaid Basis Risk Shortfalls
for each such Class for such Distribution Date, for application pursuant
to the
priorities set forth in Section 5.02(d)(iv)(A), to the extent
unpaid;
89
(viii) to
the
Subordinate Certificates, any Basis Risk Shortfalls and Unpaid Basis Risk
Shortfalls for each such class and for such Distribution Date, for application
pursuant to the priorities set forth Section 5.02(d)(iv)(B), to the extent
unpaid;
(ix) if
applicable, to the Swap Termination Receipts Account for application to the
purchase of a replacement swap agreement pursuant to Section
5.09(a);
(x) to
the
Swap Counterparty, any Swap Termination Payment due to a Swap Counterparty
Trigger Event owed to the Swap Counterparty pursuant to the Swap
Agreement;
(xi) to
the
Class X Certificates, any amount deposited into the Swap Account pursuant
to
Section 5.02(d)(iv)(C) or Section 5.02(d)(vi) and any remaining Swap Amount;
and
(xii) on
the
first Distribution Date on which the Class Principal Amount of each Class
of
Certificates has been reduced to zero, to the Class X Certificates, all amounts
remaining in the Swap Account.
(f) On
each
Distribution Date, the Trustee shall distribute the Interest Rate Cap Amount
for
such date after making all distributions under Section 5.02(e) above as
follows:
(i) concurrently,
to the Senior Certificates, Current Interest and any Carryforward Interest
for
each such class for such Distribution Date, to the extent unpaid pursuant
to
Section 5.02(e)(iii) above (any shortfall in Current Interest and Carryforward
Interest to be allocated among such Classes in proportion to the amount of
Current Interest and Carryforward Interest that would have otherwise been
distributable thereon);
(ii) to
the
Subordinate Certificates, in accordance with the Subordinate Priority, Current
Interest and any Carryforward Interest for such class and such Distribution
Date
to the extent unpaid;
(iii) to
the
LIBOR Certificates, any amount necessary to maintain the Targeted
Overcollateralization Amount specified in Sections 5.02(d)(i) and (ii) above
for
such Distribution Date, for application pursuant to the priorities set forth
in
such Sections; provided,
however,
that
the sum of all such amounts distributed pursuant to this Section 5.02(f)(iii)
and all amounts distributed pursuant to Section 5.02(f)(iv) and Sections
5.02(e)(v) and (vi) shall not exceed the aggregate amount of cumulative Realized
Losses incurred from the Cut-off Date through the last day of the related
Collection Period less any amounts previously distributed pursuant to this
Section 5.02(f)(iii) and Section 5.02(f)(iv) together with any amounts
previously distributed pursuant to Sections 5.02(e)(v) and (vi);
(iv) to
the
Subordinate Certificates, in accordance with the Subordinate Priority, any
Deferred Amount for each such class and such Distribution Date to the extent
unpaid; provided,
however,
that the
sum of all such amounts distributed pursuant to this Section 5.02(f)(iv)
and all
amounts distributed pursuant to Section 5.02(f)(iii) and Sections 5.02(e)(v)
and
(vi) shall not exceed the aggregate amount of cumulative Realized Losses
incurred from the Cut-off Date through the last day of the related Collection
Period less any amounts previously distributed pursuant to this Section
5.02(f)(iv) and Section 5.02(f)(iii) together with any amounts previously
distributed pursuant to Sections 5.02(e)(v) and (vi);
90
(v) to
the
Senior Certificates, any Basis Risk Shortfalls and Unpaid Basis Risk Shortfalls
for each such class and for such Distribution Date, for application pursuant
to
the priorities set forth in Section 5.02(d)(iv)(A), to the extent
unpaid;
(vi) to
the
Subordinate Certificates, any Basis Risk Shortfalls and Unpaid Basis Risk
Shortfalls for each such class and for such Distribution Date, for application
pursuant to the priorities set forth in Section 5.02(d)(iv)(B), to the extent
unpaid;
(vii) to
the
Cap Termination Receipts Account for application to the purchase of a
replacement cap agreement pursuant to Section 5.09(b); and
(viii) to
the
Class X Certificates, any remaining Interest Rate Cap Amount.
(g) On
each
Distribution Date, an amount equal to the aggregate of all Prepayment Premiums
collected during the preceding Prepayment Period shall be distributed to
the
Class P Certificates.
(h) On
each
Distribution Date occurring after a Section 7.01(c) Purchase Event but on
or
prior to a Trust Fund Termination Event, the Trustee (or the Paying Agent
on
behalf of the Trustee), shall withdraw from the Certificate Account the Total
Distribution Amount (to the extent such amount is on deposit in the Certificate
Account), and shall allocate such amount to the interests issued in respect
of
the Lower Tier REMIC 1 Uncertificated Regular Interests created pursuant
to this
Agreement and shall distribute such amount first,
for
deposit into the Swap Account, an amount equal to any Net Swap Payment or
Swap
Termination Payment owed to the Swap Counterparty on the related Swap Payment
Date, second,
to the
Credit Risk Manager, the Credit Risk Manager’s Fee, third,
to the
Trustee, any amounts reimbursable pursuant to Section 4.04(b)(i) and not
previously reimbursed to the Trustee and fourth,
to the
LTURI-holder, any remaining Total Distribution Amount to the extent payable
on
the Lower Tier REMIC I Uncertificated Regular Interests as provided in the
Preliminary Statement, and fifth,
to the
Class LT-R Certificates.
(i) On
each
Swap Payment Date occurring after a Section 7.01(c) Purchase Event but on
or
prior to a Trust Fund Termination Event, the Trustee shall distribute the
Swap
Amount for such date first,
to the
Swap Counterparty to pay any Net Swap Payment owed to the Swap Counterparty
pursuant to the Swap Agreement for such Swap Payment Date; second,
to the
Swap Counterparty, to pay any Swap Termination Payment owed to the Swap
Counterparty pursuant to the Swap Agreement for such Swap Payment Date,
third,
if
applicable, to the Swap Termination Receipts Account, for application to
the
purchase of a replacement swap agreement pursuant to Section 5.09(a); and
fourth,
any
remaining amount of Swap Amount, to the LTURI-holder.
(j) On
each Distribution Date occurring after a Section 7.01(c) Purchase Event but
on
or prior to a Trust Fund Termination Event, the Trustee shall distribute
any
amounts received from the Cap Counterparty under the Interest Rate Cap Agreement
for such Distribution Date first,
to the Cap Termination Receipts Account, for application to the purchase
of a
replacement cap agreement pursuant to Section 5.09(b); and second,
any remaining amount from the Cap Counterparty under the Interest Rate Cap
Agreement, to the LTURI-holder.
91
Section
5.03 Allocation
of Losses.
(a) On
each
Distribution Date, the Class Principal Amounts of the Subordinate Certificates
will be reduced by the amount of any Applied Loss Amount for such date, in
the
following order of priority:
(i) to
the
Class B2 Certificates, until the Class Principal Amount thereof has been
reduced
to zero;
(ii) to
the
Class B1 Certificates, until the Class Principal Amount thereof has been
reduced
to zero;
(iii) to
the
Class M8 Certificates, until the Class Principal Amount thereof has been
reduced
to zero;
(iv) to
the
Class M7 Certificates, until the Class Principal Amount thereof has been
reduced
to zero;
(v) to
the
Class M6 Certificates, until the Class Principal Amount thereof has been
reduced
to zero;
(vi) to
the
Class M5 Certificates, until the Class Principal Amount thereof has been
reduced
to zero;
(vii) to
the
Class M4 Certificates, until the Class Principal Amount thereof has been
reduced
to zero;
(viii) to
the
Class M3 Certificates, until the Class Principal Amount thereof has been
reduced
to zero;
(ix) to
the
Class M2 Certificates, until the Class Principal Amount thereof has been
reduced
to zero; and
(x) to
the
Class M1 Certificates, until the Class Principal Amount thereof has been
reduced
to zero.
Section
5.04 Advances
by Master Servicer, Servicers and Trustee.
92
(a)
Subject
to Section 9.07, Advances shall be made in respect of each Master Servicer
Remittance Date as provided herein. If, on any Determination Date, any Servicer
determines that any Scheduled Payments due during the related Collection
Period
(other than Balloon Payments) have not been received, such Servicer shall
advance such amount to the extent provided in the applicable Servicing
Agreement. If any Servicer fails to remit Advances required to be made under
the
applicable Servicing Agreement, the Master Servicer shall itself make, or
shall
cause the successor Servicer to make, such Advance on the Master Servicer
Remittance Date immediately following such Determination Date. If the Master
Servicer determines that an Advance is required, it shall on the Master Servicer
Remittance Date immediately following such Determination Date either (i)
remit
to the Trustee from its own funds (or funds advanced by the applicable Servicer)
for deposit in the Certificate Account immediately available funds in an
amount
equal to such Advance, (ii) cause to be made an appropriate entry in the
records
of the Collection Account that funds in such account being held for future
distribution or withdrawal have been, as permitted by this Section 5.04,
used by
the Master Servicer to make such Advance, and remit such immediately available
funds to the Trustee for deposit in the Certificate Account or (iii) make
Advances in the form of any combination of clauses (i) and (ii) aggregating
the
amount of such Advance. Any funds being held in the Collection Account for
future distribution to Certificateholders and so used shall be replaced by
the
Master Servicer from its own funds by remittance to the Trustee for deposit
in
the Certificate Account on or before any future Master Servicer Remittance
Date
to the extent that funds in the Certificate Account on such Master Servicer
Remittance Date shall be less than payments to Certificateholders required
to be
made on the related Distribution Date. The Master Servicer and each Servicer
shall be entitled to be reimbursed from the Collection Account for all Advances
made by it as provided in Section 4.02. Notwithstanding anything to the contrary
herein, in the event the Master Servicer determines in its reasonable judgment
that an Advance is non-recoverable, the Master Servicer shall be under no
obligation to make such Advance.
(b) In
the
event that the Master Servicer or any Servicer fails for any reason to make
an
Advance required to be made pursuant to this Section 5.04 on or before the
Master Servicer Remittance Date, the Trustee, solely in its capacity as
successor Master Servicer pursuant to Section 6.14, shall, on or before the
related Distribution Date, deposit in the Certificate Account an amount equal
to
the excess of (a) Advances required to be made by the Master Servicer or
the
Servicers that would have been deposited in such Certificate Account over
(b)
the amount of any Advance made by the Master Servicer or any Servicer with
respect to such Distribution Date; provided,
however,
that
the Trustee shall be required to make such Advance only if it is not prohibited
by law from doing so and it has determined that such Advance would be
recoverable from amounts to be received with respect to such Mortgage Loan,
including late payments, Liquidation Proceeds, Insurance Proceeds, or otherwise.
The Trustee shall be entitled to be reimbursed from the Certificate Account
for
Advances made by it pursuant to this Section 5.04 as if it were the Master
Servicer.
Section
5.05 Compensating
Interest Payments.
The
Master Servicer shall not be responsible for making any Compensating Interest
Payments not made by the Servicers. Any Compensating Interest Payments made
by
the Servicers shall be a component of the Interest Remittance
Amount.
Section
5.06 Basis
Risk Reserve Fund.
(a)
On the
Closing Date, the Trustee shall establish and maintain in its name, in trust
for
the benefit of the Certificateholders, a Basis Risk Reserve Fund, into which
Xxxxxx Brothers Holdings Inc. (“LBH”) shall initially deposit $1,000. The Basis
Risk Reserve Fund shall be an Eligible Account, and funds on deposit therein
shall be held separate and apart from, and shall not be commingled with,
any
other monies, including, without limitation, other monies of the Trustee
held
pursuant to this Agreement.
93
(b) On
each
Distribution Date, the Trustee shall distribute in the order of priorty and
to
the extent specified in Section 5.02(d)(iv) of this Agreement the Basis Risk
Payment, if any, for such Distribution Date.
(c) Funds
in
the Basis Risk Reserve Fund shall be invested in Eligible Investments. The
Class
X Certificates shall evidence ownership of the Basis Risk Reserve Fund for
federal income tax purposes and LBH on behalf of the Holder thereof shall
direct
the Trustee, in writing, as to investment of amounts on deposit therein.
LBH
shall be liable for any losses incurred on such investments. In the absence
of
written instructions from LBH as to investment of funds on deposit in the
Basis
Risk Reserve Fund (Class A), such funds shall be invested in the U.S. Bank
First
American Prime Obligation Fund. The Basis Risk Reserve Fund will be terminated
after the earlier of (A) a Section 7.01(c) Purchase Event or (B) a Trust
Fund
Termination Event and any funds remaining in such Fund upon such termination
shall be released to Holders of the Class X Certificates.
Section
5.07 Supplemental
Interest Trust.
(a) A
separate trust is hereby established (the “Supplemental Interest Trust”), the
corpus of which shall be held by the Trustee in trust for the benefit of
the
Certificateholders and the Swap Counterparty. The Trustee, as trustee of
the
Supplemental Interest Trust, shall establish an account (the “Swap Account”),
into which LBH shall initially deposit $1,000. The Swap Account shall be
an
Eligible Account, and funds on deposit therein shall be held separate and
apart
from, and shall not be commingled with, any other monies, including, without
limitation, other monies of the Trustee held pursuant to this Agreement.
(b) In
addition, the Trustee, as trustee of the Supplemental Interest Trust, shall
establish an account (the “Interest Rate Cap Account”), into which LBH shall
initially deposit $1,000. The Interest Rate Cap Account shall be an Eligible
Account, and funds on deposit therein shall be held separate and apart from,
and
shall not be commingled with, any other monies, including, without limitation,
other monies of the Trustee held pursuant to this Agreement.
(c) The
Trustee shall deposit into the Swap Account any Net Swap Payment required
pursuant to Sections 5.02(b), (c) and (e), any Swap Termination Payment required
pursuant to Sections 5.02(b), (c) and (e), any amounts received from the
Swap
Counterparty under the Swap Agreement and any amounts distributed from the
Basis
Risk Reserve Fund required pursuant to Sections 5.02(d)(iv)(C) and (d)(vi),
and
shall distribute from the Swap Account any Net Swap Payment required pursuant
to
Section 5.02(e)(i) or Section 5.02(i), applicable, or Swap Termination
Payment required pursuant to Sections 5.02(e)(ii) and 5.02(e)(x) or
Section 5.02(i), as applicable.
(d) The
Trustee shall deposit into the Interest Rate Cap Account any amounts received
from the Cap Counterparty under the Interest Rate Cap Agreement.
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(e) Funds
in
the Swap Account shall be invested in Eligible Investments. Any earnings
on such
amounts shall be distributed on each Distribution Date pursuant to Section
5.02(e) or Section 5.02 (i), as applicable. The Class X Certificates shall
evidence ownership of the Swap Account for federal income tax purposes and
the
Holder thereof shall direct the Trustee, in writing, as to investment of
amounts
on deposit therein. LBH shall be liable for any losses incurred on such
investments. In the absence of written instructions from the Class X
Certificateholders as to investment of funds on deposit in the Swap Account,
such funds shall be invested in the First American Government Obligations
Fund
or comparable investment vehicle. Any amounts on deposit in the Swap Account
in
excess of the Swap Amount on any Distribution Date shall be held for
distribution pursuant to Section 5.02(e) or Section 5.02(i), as applicable,
on the following Distribution Date.
(f) Funds
in
the Interest Rate Cap Account shall be invested in Eligible Investments.
Any
earnings on such amounts shall be distributed on each Distribution Date pursuant
to Section 5.02(f) or Section 5.02(j), as applicable. The Class X Certificates
shall evidence ownership of the Interest Rate Cap Account for federal income
tax
purposes and the Holder thereof shall direct the Trustee, in writing, as
to
investment of amounts on deposit therein. LBH shall be liable for any losses
incurred on such investments. In the absence of written instructions from
the
Class X Certificateholders as to investment of funds on deposit in the Interest
Rate Cap Account, such funds shall be invested in the First American Government
Obligations Fund or comparable investment vehicle. Any amounts on deposit
in the
Interest Rate Cap Account in excess of the Interest Rate Cap Amount on any
Distribution Date shall be held for distribution pursuant to Section 5.02(f)
or
Section 5.02(j), as applicable, on the following Distribution Date.
(g) Upon
termination of the Trust Fund, any amounts remaining in the Swap Account
shall
be distributed pursuant to the priorities set forth in Section 5.02(e) or
Section 5.02(i), as applicable.
(h) Upon
termination of the Trust Fund, any amounts remaining in the Interest Rate
Cap
Account shall be distributed pursuant to the priorities set forth in Section
5.02(f) or Section 5.02(j), as applicable.
(i) It
is the
intention of the parties hereto that, for federal and state income and state
and
local franchise tax purposes, the Supplemental Interest Trust be disregarded
as
an entity separate from the holder of the Class X Certificates unless and
until
the date when either (a) there is more than one Class X Certificateholder
or (b)
any Class of Certificates in addition to the Class X Certificates is
recharacterized as an equity interest in the Supplemental Interest Trust
for
federal income tax purposes. The Trustee shall not be responsible for any
entity
level tax reporting for the Supplemental Interest Trust.
(j) To
the
extent that the Supplemental Interest Trust is determined to be a separate
legal
entity from the Trustee, any obligation of the Trustee under the Swap Agreement
or the Interest Rate Cap Agreement shall be deemed to be an obligation of
the
Supplemental Interest Trust.
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Section
5.08 Rights
of Swap Counterparty.
The
Swap
Counterparty shall be deemed a third-party beneficiary of this Agreement
to the
same extent as if it were a party hereto and shall have the right, upon
designation of an “Early Termination Date” (as defined in the Swap Agreement),
to enforce its rights under this Agreement, which rights include but are
not
limited to the obligation of the Trustee (A) to deposit any Net Swap Payment
required pursuant to Sections 5.02(b), (c) and (e) and any Swap Termination
Payment required pursuant to Sections 5.02(b), (c) and (e) into the Swap
Account, (B) to deposit any amounts from the Basis Risk Reserve Fund required
pursuant to Sections 5.02(d)(iv)(C) and Section 5.02(d)(vi) into the Swap
Account, (C) to pay any Net Swap Payment required pursuant to Section 5.02(e)(i)
and Section 5.02(i), as applicable, or Swap Termination Payment required
pursuant to Section 5.02(e)(ii) and Section 5.02(e)(x) or
Section 5.02(i), as applicable, to the Swap Counterparty and (D) to
establish and maintain the Swap Account, to make such deposits thereto,
investments therein and distributions therefrom as are required pursuant
to
Section 5.07. For the protection and enforcement of the provisions of this
Section the Swap Counterparty shall be entitled to such relief as can be
given
either at law or in equity.
Section
5.09 Termination
Receipts.
(a) In
the
event of an “Early Termination Event” as defined under the Swap Agreement, (i)
any Swap Termination Payment made by the Swap Counterparty to the Supplemental
Interest Trust paid pursuant to Section 5.02(e)(ix), Section 5.02(h) or
Section 5.02(i), as applicable, (“Swap Termination Receipts”) will be deposited
in a segregated non-interest bearing account which shall be an Eligible Account
established by the Trustee (the “Swap Termination Receipts Account”) and (ii)
any amounts received from a replacement Swap Counterparty (“Swap Replacement
Receipts”) will be deposited in a segregated non-interest bearing account which
shall be an Eligible Account established by the Trustee (the “Swap Replacement
Receipts Account”). The Trustee shall invest, or cause to be invested, funds
held in the Swap Termination Receipts Account and the Swap Replacement Receipts
Account in time deposits of the Trustee as permitted by clause (ii) of the
definition of Eligible Investments or as otherwise directed in writing by
a
majority of the Certificateholders. All such investments must be payable
on
demand or mature on a Swap Payment Date, a Distribution Date or such other
date
as directed by the Certificateholders. All such Eligible Investments will
be
made in the name of the Trustee of the Supplemental Interest Trust (in its
capacity as such) or its nominee. All income and gain realized from any such
investment shall be deposited in the Swap Termination Receipts Account or
the
Swap Replacement Receipts Account, as applicable, and all losses, if any,
shall
be borne by the related account.
Unless
otherwise permitted by the Rating Agencies as evidenced in a written
confirmation, the Depositor shall arrange for replacement Swap Agreement(s)
and
the Trustee shall promptly, with the assistance and cooperation of the
Depositor, use amounts on deposit in the Swap Termination Receipts Account,
if
necessary, to enter into replacement Swap Agreement(s) which shall be executed
and delivered by the Trustee on behalf of the Supplemental Interest Trust
upon
receipt of written confirmation from each Rating Agency that such replacement
Swap Agreement(s) will not result in the reduction or withdrawal of the rating
of any outstanding Class of Certificates with respect to which it is a Rating
Agency.
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Amounts
on deposit in the Swap Replacement Receipts Account shall be held for the
benefit of the related Swap Counterparty and paid to such Swap Counterparty
if
the Supplemental Interest Trust is required to make a payment to such Swap
Counterparty following an event of default or termination event with respect
to
the Supplemental Interest Trust under the related Swap Agreement. Any amounts
not so applied shall, following the termination or expiration of such Swap
Agreement, be paid to the Class X Certificates.
(b) In
the
event of an “Early Termination Event” as defined under the Interest Rate Cap
Agreement, (i) any Cap Termination Payment made by the Cap Counterparty to
the
Interest Rate Cap Account and paid pursuant to Section 5.02(f)(vii) (“Cap
Termination Receipts”) shall be deposited in a segregated non-interest bearing
account which shall be an Eligible Account established by the Trustee (the
“Cap
Termination Receipts Account”) and (ii) any amounts received from a replacement
Cap Counterparty (“Cap Replacement Receipts”) will be deposited in a segregated
non-interest bearing account which shall be an Eligible Account established
by
the Trustee (the “Cap Replacement Receipts Account”). The Trustee shall invest,
or cause to be invested, funds held in the Cap Termination Receipts Account
in
time deposits of the Trustee as permitted by clause (ii) of the definition
of
Eligible Investments or as otherwise directed in writing by a majority of
the
Certificateholders. All such investments must be payable on demand or mature
on
a Interest Rate Cap Payment Date, a Distribution Date or such other date
as
directed by the Certificateholders. All such Eligible Investments shall be
made
in the name of the Trustee of the Supplemental Interest Trust (in its capacity
as such) or its nominee. All income and gain realized from any such investment
shall be deposited in the Cap Termination Receipts Account and all losses,
if
any, shall be borne by such account.
Unless
otherwise permitted by the Rating Agencies as evidenced in a written
confirmation, the Depositor shall arrange for replacement Interest Rate Cap
Agreement(s) and the Trustee shall promptly, with the assistance and cooperation
of the Depositor, use amounts on deposit in the Cap Termination Receipts
Account, if necessary, to enter into replacement Interest Rate Cap Agreement(s)
which shall be executed and delivered by the Trustee on behalf of the
Supplemental Interest Trust upon receipt of written confirmation from each
Rating Agency that such replacement Interest Rate Cap Agreement(s) will not
result in the reduction or withdrawal of the rating of any outstanding Class
of
Certificates with respect to which it is a Rating Agency.
ARTICLE
VI
CONCERNING
THE TRUSTEE EVENTS OF DEFAULT
Section
6.01 Duties
of Trustee.
(a)
The
Trustee, except during the continuance of an Event of Default of which a
Reponsible Officer of the Trustee shall have actual knowledge undertakes
to
perform such duties and only such duties as are specifically set forth in
this
Agreement. Any permissive right of the Trustee provided for in this Agreement
shall not be construed as a duty of the Trustee. If an Event of Default (of
which a Reponsible Officer of the Trustee shall have actual knowledge) has
occurred and has not otherwise been cured or waived, the Trustee shall exercise
such of the rights and powers vested in it by this Agreement and use the
same
degree of care and skill in their exercise as a prudent Person would exercise
or
use under the circumstances in the conduct of such Person’s own affairs, unless
the Trustee is acting as Master Servicer, in which case it shall use the
same
degree of care and skill as the Master Servicer hereunder.
97
(b) The
Trustee , upon receipt of all resolutions, certificates, statements, opinions,
reports, documents, orders or other instruments furnished to the Trustee
which
are specifically required to be furnished pursuant to any provision of this
Agreement, shall examine them to determine whether they are on their face
in the
form required by this Agreement; provided, however, that the Trustee shall
not
be responsible for the accuracy or content of any such resolution, certificate,
statement, opinion, report, document, order or other instrument furnished
by the
Master Servicer, any Servicer, the Swap Counterparty, the Cap Counterparty
or
the Credit Risk Manager to the Trustee pursuant to this Agreement, and shall
not
be required to recalculate or verify any numerical information furnished
to the
Trustee pursuant to this Agreement. Subject to the immediately preceding
sentence, if any such resolution, certificate, statement, opinion, report,
document, order or other instrument is found not to conform on its face to
the
form required by this Agreement in a material manner the Trustee shall notify
the Person providing such resolutions, certificates, statements, opinions,
reports or other documents of the non-conformity, and if the instrument is
not
corrected to the Trustee’s satisfaction, the Trustee will provide notice thereof
to the Certificateholders and any NIMS Insurer and will, at the expense of
the
Trust Fund, which expense shall be reasonable given the scope and nature
of the
required action, take such further action as directed by the Certificateholders
and any NIMS Insurer.
(c) The
Trustee shall not have any liability arising out of or in connection with
this
Agreement, except for its negligence or willful misconduct. No provision
of this
Agreement shall be construed to relieve the Trustee from liability for its
own
negligent action, its own negligent failure to act or its own willful
misconduct; provided, however, that:
(i) The
Trustee shall not be liable with respect to any action taken, suffered or
omitted to be taken by it in good faith in accordance with the direction
or with
the consent of Holders as provided in Section 6.18 hereof;
(ii) For
all
purposes under this Agreement, the Trustee shall not be deemed to have notice
of
any Event of Default (other than resulting from a failure by the Master Servicer
to (i) remit funds (or make Advances) or (ii) to furnish information to the
Trustee when required to do so) unless a Responsible Officer of the Trustee
has
actual knowledge thereof or unless written notice of any event which is in
fact
such a default is received by the Trustee at the Corporate Trust Office,
and
such notice references the Holders of the Certificates and this
Agreement;
(iii) No
provision of this Agreement shall require the Trustee to expend or risk its
own
funds or otherwise incur any financial liability in the performance of any
of
its duties hereunder, or in the exercise of any of its rights or powers,
if it
shall have reasonable grounds for believing that repayment of such funds
or
adequate indemnity against such risk or liability is not reasonably assured
to
it; and none of the provisions contained in this Agreement shall in any event
require the Trustee to perform, or be responsible for the manner of performance
of, any of the obligations of the Master Servicer under this
Agreement;
98
(iv) The
Trustee shall not be responsible for any act or omission of the Master Servicer,
any Servicer, the Credit Risk Manager, the Depositor, the Seller, the Swap
Counterparty, the Cap Counterparty or any Custodian.
(d) The
Trustee shall have no duty hereunder with respect to any complaint, claim,
demand, notice or other document it may receive or which may be alleged to
have
been delivered to or served upon it by the parties as a consequence of the
assignment of any Mortgage Loan hereunder; provided,
however,
that
the Trustee shall promptly remit to the Master Servicer upon receipt any
such
complaint, claim, demand, notice or other document (i) which is delivered
to the
Corporate Trust Office of the Trustee and makes reference to this series
of
Certificate or this Agreement, (ii) of which a Responsible Officer has actual
knowledge, and (iii) which contains information sufficient to permit the
Trustee
to make a determination that the real property to which such document relates
is
a Mortgaged Property.
(e) The
Trustee shall not be personally liable with respect to any action taken,
suffered or omitted to be taken by it in good faith in accordance with the
direction of any NIMS Insurer or the Certificateholders of any Class holding
Certificates which evidence, as to such Class, Percentage Interests aggregating
not less than 25% as to the time, method and place of conducting any proceeding
for any remedy available to the Trustee or exercising any trust or power
conferred upon the Trustee under this Agreement.
(f) The
Trustee shall not be required to perform services under this Agreement, or
to
expend or risk its own funds or otherwise incur financial liability for the
performance of any of its duties hereunder or the exercise of any of its
rights
or powers if there is reasonable ground for believing that the timely payment
of
its fees and expenses or the repayment of such funds or adequate indemnity
against such risk or liability is not reasonably assured to it, and none
of the
provisions contained in this Agreement shall in any event require the Trustee
to
perform, or be responsible for the manner of performance of, any of the
obligations of the Master Servicer or any Servicer under this Agreement or
any
Servicing Agreement except during such time, if any, as the Trustee shall
be the
successor to, and be vested with the rights, duties, powers and privileges
of,
the Master Servicer in accordance with the terms of this Agreement.
(g) The
Trustee shall not be held liable by reason of any insufficiency in the
Collection Account resulting from any investment loss on any Eligible Investment
included therein (except to the extent that the Trustee is the obligor and
has
defaulted thereon).
(h) The
Trustee shall not have any duty (A) to see to any recording, filing, or
depositing of this Agreement or any agreement referred to herein or any
financing statement or continuation statement evidencing a security interest,
or
to see to the maintenance of any such recording or filing or depositing or
to
any rerecording, refiling or redepositing of any thereof, (B) to see to any
insurance or claim under any Insurance Policy, and (C) to see to the payment
or
discharge of any tax, assessment, or other governmental charge or any lien
or
encumbrance of any kind owing with respect to, assessed or levied against,
any
part of the Trust Fund or the Supplemental Interest Trust other than from
funds
available in the Collection Account or the Certificate Account, as applicable.
Except as otherwise provided herein, the Trustee shall not have any duty to
confirm or verify the contents of any reports or certificates of the Master
Servicer, any Servicer, the Swap Counterparty, the Cap Counterparty or the
Credit Risk Manager delivered to the Trustee pursuant to this Agreement believed
by the Trustee to be genuine and to have been signed or presented by the
proper
party or parties.
99
(i) The
Trustee shall not be liable in its individual capacity for an error of judgment
made in good faith by a Responsible Officer or other officers of the Trustee
unless it shall be proved that the Trustee was negligent in ascertaining
the
pertinent facts.
(j) Notwithstanding
anything in this Agreement to the contrary, the Trustee shall not be liable
for
special, indirect or consequential losses or damages of any kind whatsoever
(including, but not limited to, lost profits), even if the Trustee has been
advised of the likelihood of such loss or damage and regardless of the form
of
action.
(k) This
Agreement shall not be construed to render the Trustee an agent of the Master
Servicer or any Servicer.
(l) For
so
long as the Depositor is subject to Exchange Act reporting requirements for
the
Structured Asset Securities Corporation Mortgage Pass Through Certificates,
Series 2006-S1 transaction, the Trustee shall give prior written notice to
the
Sponsor, the Master Servicer and the Depositor of the appointment of any
Subcontractor by it and a written description (in form and substance
satisfactory to the Sponsor and the Depositor) of the role and function of
each
Subcontractor utilized by the Trustee, specifying (A) the identity of each
such
Subcontractor and (B) which elements of the servicing criteria set forth
under
Item 1122(d) of Regulation AB will be addressed in assessments of compliance
provided by each such Subcontractor.
(m) The
Trustee shall notify the Sponsor, the Master Servicer and the Depositor within
five (5) calendar days of knowledge thereof (i) of any legal proceedings
pending
against the Trustee, of the type described in Item 1117 (§ 229.1117) of
Regulation AB, (ii) of any merger, consolidation or sale of substantially
all of
the assets of the Trustee and (iii) if the Trustee shall become (but only
to the
extent not previously disclosed) at any time an affiliate of any of the parties
listed on Exhibit V hereto or any of their affiliates. On or before March
1st of
each year, the Depositor shall distribute the information in Exhibit V to
the
Trustee.
Section
6.02 Certain
Matters Affecting the Trustee.
Except
as
otherwise provided in Section 6.01:
(a) The
Trustee may request, and may rely and shall be protected in acting or refraining
from acting upon any resolution, Officer’s Certificate, certificate of auditors
or any other certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, bond or other paper or document believed
by
it to be genuine and to have been signed or presented by the proper party
or
parties;
100
(b) The
Trustee may consult with counsel and any advice of its counsel or Opinion
of
Counsel shall be full and complete authorization and protection in respect
of
any action taken or suffered or omitted by it hereunder in good faith and
in
accordance with such advice or Opinion of Counsel;
(c) The
Trustee shall not be personally liable for any action taken, suffered or
omitted
by it in good faith and reasonably believed by it to be authorized or within
the
discretion or rights or powers conferred upon it by this Agreement;
(d) Unless
an
Event of Default shall have occurred and be continuing, the Trustee shall
not be
bound to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, bond or other paper or document (provided
the
same appears regular on its face), unless requested in writing to do so by
any
NIMS Insurer or the Holders of at least a majority in Class Principal Amount
(or
Percentage Interest) of each Class of Certificates; provided,
however,
that,
if the payment within a reasonable time to the Trustee of the costs, expenses
or
liabilities likely to be incurred by it in the making of such investigation
is,
in the opinion of the Trustee not reasonably assured to the Trustee by the
security afforded to it by the terms of this Agreement, the Trustee may require
reasonable indemnity against such expense or liability or payment of such
estimated expenses from any NIMS Insurer or the Certificateholders, as
applicable, as a condition to proceeding. The reasonable expense thereof
shall
be paid by the party requesting such investigation and if not reimbursed
by the
requesting party shall be reimbursed to the Trustee by the Trust
Fund;
(e) The
Trustee may execute any of the trusts or powers hereunder or perform any
duties
hereunder either directly or by or through agents, custodians or attorneys,
which agents, custodians or attorneys shall have any and all of the rights,
powers, duties and obligations of the Trustee conferred on them by such
appointment, provided that the Trustee shall continue to be responsible for
its
duties and obligations hereunder to the extent provided herein, and provided
further that the Trustee shall not be responsible for any misconduct or
negligence on the part of any such agent or attorney appointed with due care
by
the Trustee;
(f) The
Trustee shall not be under any obligation to exercise any of the trusts or
powers vested in it by this Agreement or to institute, conduct or defend
any
litigation hereunder or in relation hereto, in each case at the request,
order
or direction of any of the Certificateholders or any NIMS Insurer pursuant
to
the provisions of this Agreement, unless such Certificateholders or any NIMS
Insurer shall have offered to the Trustee reasonable security or indemnity
against the costs, expenses and liabilities which may be incurred therein
or
thereby;
(g) The
right
of the Trustee to perform any discretionary act enumerated in this Agreement
shall not be construed as a duty, and the Trustee shall not be answerable
for
other than its negligence or willful misconduct in the performance of such
act;
and
(h) The
Trustee shall not be required to give any bond or surety in respect of the
execution of the Trust Fund or Supplemental Interest Trust created hereby
or the
powers granted hereunder.
101
Section
6.03 Trustee
Not Liable for Certificates.
The
Trustee makes no representations as to the validity or sufficiency of this
Agreement, the Swap Agreement, the Certificates (other than the certificate
of
authentication on the Certificates) or the Lower Tier REMIC 1 Uncertificated
Regular Interests or of any Mortgage Loan, or related document save that
the
Trustee represents that, assuming due execution and delivery by the other
parties hereto, this Agreement has been duly authorized, executed and delivered
by it and constitutes its valid and binding obligation, enforceable against
it
in accordance with its terms except that such enforceability may be subject
to
(A) applicable bankruptcy and insolvency laws and other similar laws affecting
the enforcement of the rights of creditors generally, and (B) general principles
of equity regardless of whether such enforcement is considered in a proceeding
in equity or at law. The Trustee shall not be accountable for the use or
application by the Depositor of funds paid to the Depositor in consideration
of
the assignment of the Mortgage Loans to the Trust Fund by the Depositor or
for
the use or application of any funds deposited into the Collection Account,
the
Certificate Account, any Escrow Account or any other fund or account maintained
with respect to the Certificates. The Trustee shall not be responsible for
the
legality or validity of this Agreement or the Swap Agreement or the validity,
priority, perfection or sufficiency of the security for the Certificates
or the
Lower Tier REMIC 1 Uncertificated Regular Interests issued or intended to
be
issued hereunder. The Trustee shall not have any responsibility for filing
any
financing or continuation statement in any public office at any time or to
otherwise perfect or maintain the perfection of any security interest or
lien
granted to it hereunder or to record this Agreement.
Section
6.04 Trustee
May Own Certificates.
The
Trustee and any Affiliate or agent of it in its individual or any other capacity
may become the owner or pledgee of Certificates and may transact banking
and
trust business with the other parties hereto and their Affiliates with the
same
rights it would have if it were not Trustee or such agent.
Section
6.05 Eligibility
Requirements for Trustee.
The
Trustee hereunder shall at all times be (i) an institution whose accounts
are
insured by the FDIC, (ii) a corporation or national banking association,
organized and doing business under the laws of any State or the United States
of
America, authorized under such laws to exercise corporate trust powers, having
a
combined capital and surplus of not less than $50,000,000 and subject to
supervision or examination by federal or state authority and (iii) not an
Affiliate of the Master Servicer or any Servicer (except in the case of the
Trustee). If such corporation or national banking association publishes reports
of condition at least annually, pursuant to law or to the requirements of
the
aforesaid supervising or examining authority, then, for the purposes of this
Section, the combined capital and surplus of such corporation or national
banking association shall be deemed to be its combined capital and surplus
as
set forth in its most recent report of condition so published. In case at
any
time the Trustee shall cease to be eligible in accordance with provisions
of
this Section, the Trustee shall resign immediately in the manner and with
the
effect specified in Section 6.06.
Section
6.06 Resignation
and Removal of Trustee.
102
(a) The
Trustee may at any time resign and be discharged from the trust hereby created
by giving written notice thereof to the Trustee, the Depositor, any NIMS
Insurer
and the Master Servicer. Upon receiving such notice of resignation, the
Depositor will promptly appoint a successor trustee acceptable to any NIMS
Insurer by written instrument, one copy of which instrument shall be delivered
to the resigning Trustee, one copy to the successor trustee, and one copy
to
each of the Master Servicer and any NIMS Insurer. If no successor trustee
shall
have been so appointed and shall have accepted appointment within 30 days
after
the giving of such notice of resignation, the resigning Trustee may petition
any
court of competent jurisdiction for the appointment of a successor
trustee.
(b) If
at any
time (i) the Trustee shall cease to be eligible in accordance with the
provisions of Section 6.05 and shall fail to resign after written request
therefor by the Depositor or any NIMS Insurer, (ii) the Trustee shall become
incapable of acting, or shall be adjudged a bankrupt or insolvent, or a receiver
of the Trustee of its property shall be appointed, or any public officer
shall
take charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation, (iii) a tax is imposed
or threatened with respect to the Trust Fund by any state in which the Trustee
or the Trust Fund held by the Trustee is located, (iv) the continued use
of the
Trustee would result in a downgrading of the rating by any Rating Agency
of any
Class of Certificates with a rating, (v) the Trustee shall fail to provide
any
information, reports, assessments or attestations required pursuant to
Subsection 6.01(l) or Section 9.25 and (m) hereof or (vi) the Depositor desires
to replace the Trustee with a successor trustee, then the Depositor or any
NIMS
Insurer shall remove the Trustee and the Depositor shall appoint a successor
trustee acceptable to any NIMS Insurer and the Master Servicer by written
instrument, one copy of which instrument shall be delivered to the Trustee
so
removed, one copy each to the successor trustee and one copy to the Master
Servicer and any NIMS Insurer.
(c) The
Holders of more than 50% of the Class Principal Amount (or Percentage Interest)
of each Class of Certificates (or any NIMS Insurer in the event of failure
of
the Trustee to perform its obligations hereunder) may at any time upon 30
days’
written notice to the Trustee and to the Depositor remove the Trustee by
such
written instrument, signed by such Holders or their attorney-in-fact duly
authorized (or by any NIMS Insurer), one copy of which instrument shall be
delivered to the Depositor, one copy to the Trustee, one copy each to the
Master
Servicer and any NIMS Insurer; the Depositor shall thereupon appoint a successor
trustee in accordance with this Section mutually acceptable to the Depositor,
the Master Servicer and any NIMS Insurer.
(d) Any
resignation or removal of the Trustee and appointment of a successor trustee
pursuant to any of the provisions of this Section shall become effective
upon
(i) the payment of all unpaid amounts owed to the Trustee and (ii) the
acceptance of appointment by the successor trustee as provided in Section
6.07.
Section
6.07 Successor
Trustee.
103
(a) Any
successor trustee appointed as provided in Section 6.06 shall execute,
acknowledge and deliver to the Depositor, the Master Servicer, any NIMS Insurer,
the Swap Counterparty and to its predecessor trustee an instrument accepting
such appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee shall become effective and such successor trustee without
any further act, deed or conveyance, shall become fully vested with all the
rights, powers, duties and obligations of its predecessor hereunder, with
like
effect as if originally named as trustee herein. A predecessor trustee (or
its
custodian) shall deliver to the Trustee or any successor trustee (or assign
to
the Trustee its interest under each Custodial Agreement, to the extent permitted
thereunder), all Mortgage Files and documents and statements related to each
Mortgage File held by it hereunder, and shall duly assign, transfer, deliver
and
pay over to the successor trustee the entire Trust Fund, together with all
necessary instruments of transfer and assignment or other documents properly
executed necessary to effect such transfer and such of the records or copies
thereof maintained by the predecessor trustee in the administration hereof
as
may be requested by the successor trustee and shall thereupon be discharged
from
all duties and responsibilities under this Agreement. In addition, the Master
Servicer and the predecessor trustee shall execute and deliver such other
instruments and do such other things as may reasonably be required to more
fully
and certainly vest and confirm in the successor trustee all such rights,
powers,
duties and obligations.
(b) No
successor trustee shall accept appointment as provided in this Section unless
at
the time of such appointment such successor trustee shall be eligible under
the
provisions of Section 6.05.
(c) Upon
acceptance of appointment by a successor trustee as provided in this Section,
the predecessor trustee shall mail notice of the succession of such trustee
hereunder to all Holders of Certificates at their addresses as shown in the
Certificate Register and to any Rating Agency. The expenses of such mailing
shall be borne by the predecessor trustee.
(d) Upon
the
resignation or removal of the Trustee pursuant to this Section 6.07, the
Trustee
shall deliver the amounts held in its possession for the benefit of the
Certificateholders to the successor trustee upon the appointment of such
successor trustee.
Section
6.08 Merger
or Consolidation of Trustee.
Any
Person into which the Trustee may be merged or with which it may be
consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any Persons succeeding
to the corporate trust business of the Trustee, shall be the successor to
the
Trustee hereunder, without the execution or filing of any paper or any further
act on the part of any of the parties hereto, anything herein to the contrary
notwithstanding, provided that, such Person shall be eligible under the
provisions of Section 6.05. Unless and until a Form 15 suspension notice
shall
have been filed, as a condition to the succession to the Trustee under this
Agreement by any Person (i) into which the Trustee may be merged or
consolidated, or (ii) which may be appointed as a successor to the Trustee,
the
Trustee shall notify the Sponsor, the Master Servicer and the Depositor,
at
least 15 calendar days prior to the effective date of such succession or
appointment, of such succession or appointment and shall furnish to the Sponsor,
the Master Servicer and the Depositor in writing and in form and substance
reasonably satisfactory to the Sponsor, the Master Servicer and the Depositor,
all information reasonably necessary for the Trustee to accurately and timely
report, pursuant to Section 6.20, the event under Item 6.02 of Form 8-K pursuant
to the Exchange Act (if such reports under the Exchange Act are required
to be
filed under the Exchange Act).
Section
6.09 Appointment
of Co-Trustee, Separate Trustee or Custodian.
104
(a) Notwithstanding
any other provisions hereof, at any time, the Trustee, the Depositor or the
Certificateholders evidencing more than 50% of the Class Principal Amount
(or
Percentage Interest) of every Class of Certificates shall
have the power from time to time to appoint one or more Persons, approved
by the
Trustee and any NIMS Insurer, to act either as co-trustees jointly with the
Trustee, or as separate trustees, or as custodians, for the purpose of holding
title to, foreclosing or otherwise taking action with respect to any Mortgage
Loan outside the state where the Trustee has its principal place of business
where such separate trustee or co-trustee is necessary or advisable (or the
Trustee has been advised by the Master Servicer that such separate trustee
or
co-trustee is necessary or advisable) under the laws of any state in which
a
property securing a Mortgage Loan is located or for the purpose of otherwise
conforming to any legal requirement, restriction or condition in any state
in
which a property securing a Mortgage Loan is located or in any state in which
any portion of the Trust Fund is located. The separate Trustees, co-trustees,
or
custodians so appointed shall be trustees or custodians for the benefit of
all
the Certificateholders and shall have such powers, rights and remedies as
shall
be specified in the instrument of appointment; provided,
however,
that no
such appointment shall, or shall be deemed to, constitute the appointee an
agent
of the Trustee. The obligation of the Trustee to make Advances pursuant to
Section 5.04 and 6.14 hereof shall not be affected or assigned by the
appointment of a co-trustee. Notwithstanding the foregoing, if such co-custodian
or co-trustee is determined to be a Servicing Function Participant, no such
co-custodian or co-trustee shall be vested with any powers, rights and remedies
under this Agreement unless such party has agreed to comply with all Regulation
AB requirements set forth under this Agreement or each Custodial Agreement,
as
applicable.
(b) Every
separate trustee, co-trustee, and custodian shall, to the extent permitted
by
law, be appointed and act subject to the following provisions and
conditions:
(i) all
powers, duties, obligations and rights conferred upon the Trustee in respect
of
the receipt, custody and payment of monies shall be exercised solely by the
Trustee;
(ii) all
other
rights, powers, duties and obligations conferred or imposed upon the Trustee
shall be conferred or imposed upon and exercised or performed by the Trustee
and
such separate trustee, co-trustee, or custodian jointly, except to the extent
that under any law of any jurisdiction in which any particular act or acts
are
to be performed the Trustee shall be incompetent or unqualified to perform
such
act or acts, in which event such rights, powers, duties and obligations,
including the holding of title to the Trust Fund or any portion thereof in
any
such jurisdiction, shall be exercised and performed by such separate trustee,
co-trustee, or custodian;
(iii) no
trustee or custodian hereunder shall be personally liable by reason of any
act
or omission of any other trustee or custodian hereunder; and
(iv) the
Trustee or the Certificateholders evidencing more than 50% of the Aggregate
Voting Interests of the Certificates may at any time accept the resignation
of
or remove any separate trustee, co-trustee or custodian, so appointed by
it or
them, if such resignation or removal does not violate the other terms of
this
Agreement.
105
(c) Any
notice, request or other writing given to the Trustee shall be deemed to
have
been given to each of the then separate trustees and co-trustees, as effectively
as if given to each of them. Every instrument appointing any separate trustee,
co-trustee or custodian shall refer to this Agreement and the conditions
of this
Article VI. Each separate trustee and co-trustee, upon its acceptance of
the
trusts conferred, shall be vested with the estates or property specified
in its
instrument of appointment, either jointly with the Trustee or separately,
as may
be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the
conduct
of, affecting the liability of, or affording protection to, the Trustee.
Every
such instrument shall be filed with the Trustee and a copy given to the Master
Servicer and any NIMS Insurer.
(d) Any
separate trustee, co-trustee or custodian may, at any time, constitute the
Trustee its agent or attorney-in-fact with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of
this
Agreement on its behalf and in its name. If any separate trustee, co-trustee
or
custodian shall die, become incapable of acting, resign or be removed, all
of
its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
(e) No
separate trustee, co-trustee or custodian hereunder shall be required to
meet
the terms of eligibility as a successor trustee under Section 6.05 hereunder
and
no notice to Certificateholders of the appointment shall be required under
Section 6.07 hereof.
(f) The
Trustee agrees to instruct the co-trustees, if any, to the extent necessary
to
fulfill the Trustee’s obligations hereunder.
(g) The
Trustee shall pay the reasonable compensation of the co-trustees requested
by
the Trustee to be so appointed (which compensation shall not reduce any
compensation payable to the Trustee ) and, if paid by the Trustee, shall
be a
reimbursable expense pursuant to Section 6.12.
(h) Notwithstanding
the foregoing, for so long as reports are required to be filed with the
Commission under the Exchange Act with respect to the Trust, the Trustee
shall
not utilize any Subcontractor for the performance of its duties hereunder
if
such Subcontractor would be “participating in the servicing function” within the
meaning of Item 1122 of Regulation AB without (a) giving notice to the Seller,
the Master Servicer, the Sponsor and the Depositor and (b) requiring any
such
Subcontractor to provide to the Trustee an assessment report as provided
in
Section 9.25(a) and an attestation report as provided in Section 9.25(b),
which
reports the Trustee shall include in its assessment and attestation reports.
The
Trustee shall indemnify the Sponsor, the Depositor and the Master Servicer
and
any director, officer, employee or agent of each of the Sponsor, the Depositor
and the Master Servicer and hold 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 them may sustain in any way related to any failure by the Trustee
(i) to
give notice of the engagement of any Subcontractor or (ii) to require any
Subcontractor to provide the Trustee an assessment of compliance as provided
in
Section 9.25(a) and an attestation report as provided in Section 9.25(b).
This
indemnity shall survive the termination of this Agreement or the earlier
resignation or removal of the Trustee.
106
Section
6.10 Authenticating
Agents.
(a) The
Trustee may appoint one or more Authenticating Agents which shall be authorized
to act on behalf of the Trustee in authenticating Certificates. Wherever
reference is made in this Agreement to the authentication of Certificates
by the
Trustee or the Trustee’s certificate of authentication, such reference shall be
deemed to include authentication on behalf of the Trustee by an Authenticating
Agent and a certificate of authentication executed on behalf of the Trustee
by
an Authenticating Agent. Each Authenticating Agent must be a corporation
organized and doing business under the laws of the United States of America
or
of any state, having a combined capital and surplus of at least $15,000,000,
authorized under such laws to do a trust business and subject to supervision
or
examination by federal or state authorities and acceptable to any NIMS
Insurer.
(b) Any
Person into which any Authenticating Agent may be merged or converted or
with
which it may be consolidated, or any Person resulting from any merger,
conversion or consolidation to which any Authenticating Agent shall be a
party,
or any Person succeeding to the corporate agency business of any Authenticating
Agent, shall continue to be the Authenticating Agent without the execution
or
filing of any paper or any further act on the part of the Trustee or the
Authenticating Agent.
(c) Any
Authenticating Agent may at any time resign by giving at least 30 days’ advance
written notice of resignation to the Trustee, any NIMS Insurer and the
Depositor. The Trustee may at any time terminate the agency of any
Authenticating Agent by giving written notice of termination to such
Authenticating Agent, any NIMS Insurer and the Depositor. Upon receiving
a
notice of resignation or upon such a termination, or in case at any time
any
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section 6.10, the Trustee may appoint a successor
Authenticating Agent, shall give written notice of such appointment to the
Depositor and any NIMS Insurer and shall mail notice of such appointment
to all
Holders of Certificates. Any successor Authenticating Agent upon acceptance
of
its appointment hereunder shall become vested with all the rights, powers,
duties and responsibilities of its predecessor hereunder, with like effect
as if
originally named as Authenticating Agent. No successor Authenticating Agent
shall be appointed unless eligible under the provisions of this Section 6.10.
No
Authenticating Agent shall have responsibility or liability for any action
taken
by it as such at the direction of the Trustee. Any Authenticating Agent shall
be
entitled to reasonable compensation for its services and, if paid by the
Trustee, it shall be a reimbursable expense pursuant to Section
6.12.
Section
6.11 Indemnification
of Trustee.
The
Trustee and its directors, officers, employees and agents shall be entitled
to
indemnification from the Trust Fund for any loss, liability or expense incurred
in connection with any legal proceeding or incurred without negligence or
willful misconduct on their part arising out of, or in connection with, the
acceptance or administration of the trusts created hereunder or in connection
with the performance of their duties hereunder or under the Swap Agreement,
the
Interest Rate Cap Agreement, the Mortgage Loan Sale Agreement, each Transfer
Agreement, each Servicing Agreement or each Custodial Agreement, including
any
applicable fees and expenses payable pursuant to Section 6.12 and the costs
and
expenses of defending themselves against any claim in connection with the
exercise or performance of any of their powers or duties hereunder, provided
that:
107
(i) with
respect to any such claim, the Trustee shall have given the Depositor, the
Master Servicer, any NIMS Insurer and the Holders written notice thereof
promptly after a Responsible Officer of the Trustee shall have knowledge
thereof
provided that the failure to provide such prompt written notice shall not
affect
the Trustee’s right to indemnification hereunder;
(ii) while
maintaining control over its own defense, the Trustee shall cooperate and
consult fully with the Depositor, the Master Servicer and any NIMS Insurer
in
preparing such defense; and
(iii) notwithstanding
anything to the contrary in this Section 6.11, the Trust Fund shall not be
liable for settlement of any such claim by the Trustee entered into without
the
prior consent of the Depositor, the Master Servicer and any NIMS Insurer,
which
consent shall not be unreasonably withheld.
The
Trustee shall be further indemnified by the Seller for and held harmless
against, any loss, liability or expense arising out of, or in connection
with,
the provisions set forth in the fourth paragraph of Section 2.01(a) hereof,
including, without limitation, all costs, liabilities and expenses (including
reasonable legal fees and expenses) of investigating and defending itself
against any claim, action or proceeding, pending or threatened, relating
to the
provisions of such paragraph.
The
provisions of this Section 6.11 shall survive any termination of this Agreement
and the resignation or removal of the Trustee and shall be construed to include,
but not be limited to any loss, liability or expense under any environmental
law.
Section
6.12 Fees
and Expenses of Trustee and Custodian.
The
Trustee shall be entitled to receive, and is authorized to pay itself, any
investment income and earnings on the Certificate Account. The Trustee shall
be
entitled to reimbursement of all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with this Agreement (including
fees and expenses of its counsel and all persons not regularly in its employment
and any amounts described in Section 10.01 to which the Trustee is entitled
as
provided therein), except for expenses, disbursements and advances that either
(i) do not constitute “unanticipated expenses” within the meaning of Treasury
Regulation Section 1.860G-1(b)(3)(ii) or (ii) arise from its negligence,
bad
faith or willful misconduct. Each Custodian shall receive compensation and
reimbursement or payment of its expenses under the related Custodial Agreement
as provided therein; provided that, to the extent required under Section
6 or
Section 20 of the Custodial Agreement, the Trustee is hereby authorized to
pay
such compensation or reimbursement from amounts on deposit in the Certificate
Account prior to any distributions to Certificateholders pursuant to Section
5.02 hereof.
108
Section
6.13 Collection
of Monies.
Except
as
otherwise expressly provided in this Agreement, the Trustee may demand payment
or delivery of, and shall receive and collect, all money and other property
payable to or receivable by the Trustee pursuant to this Agreement. The Trustee
shall hold all such money and property received by it as part of the Trust
Fund
and shall distribute it as provided in this Agreement. If the Trustee shall
not
have timely received amounts to be remitted with respect to the Mortgage
Loans
from the Master Servicer, the Trustee shall request the Master Servicer to
make
such distribution as promptly as practicable or legally permitted. If the
Trustee shall subsequently receive any such amounts, it may withdraw such
request.
Section
6.14 Events
of Default; Trustee To Act; Appointment of Successor.
(a) The
occurrence of any one or more of the following events shall constitute an
“Event
of Default”:
(i) Any
failure by the Master Servicer to furnish to the Trustee the Mortgage Loan
data
sufficient to prepare the reports described in Section 4.03(a) (other than
with
respect to the information referred to in clause (xvii) of such Section 4.03(a))
which continues unremedied for a period of two (2) Business Days after the
date
upon which written notice of such failure shall have been given to such Master
Servicer by the Trustee, or to such Master Servicer and the Trustee by the
Holders of not less than 25% of the Class Principal Amount of each Class
of
Certificates affected thereby; or
(ii) Any
failure by the Master Servicer to duly perfom, within the required time period
and without notice, its obligations to provide any certifications required
pursuant to Sections 9.25 and 9.26, which failure continues unremedied for
a
period of five (5) days from the date of delivery required with respect to
such
certification; or
(iii) Except
with respect to those items listed in clause (ii) above, any failure by the
Servicer to duly perform, within the required time period, without notice
or
grace period, its obligations to provide any information, data or materials
required to be provided hereunder pursuant to Sections 9.23 and 9.29(b),
including any items required to be included in any Exchange Act report;
or
(iv) Any
failure on the part of the Master Servicer duly to observe or perform in
any
material respect any other of the covenants or agreements on the part of
the
Master Servicer contained in this Agreement which continues unremedied for
a
period of 30 days after the date on which written notice of such failure,
requiring the same to be remedied, shall have been given to the Master Servicer
by the Trustee, or to the Master Servicer and the Trustee by the Holders
of more
than 50% of the Aggregate Voting Interests of the Certificates or by any
NIMS
Insurer; or
(v) A
decree
or order of a court or agency or supervisory authority having jurisdiction
for
the appointment of a conservator or receiver or liquidator in any insolvency,
readjustment of debt, marshalling of assets and liabilities or similar
proceedings, or for the winding-up or liquidation of its affairs, shall have
been entered against the Master Servicer, and such decree or order shall
have
remained in force undischarged or unstayed for a period of 60 days or any
Rating
Agency reduces or withdraws or threatens to reduce or withdraw the rating
of the
Certificates because of the financial condition or loan servicing capability
of
such Master Servicer; or
109
(vi) The
Master Servicer shall consent to the appointment of a conservator or receiver
or
liquidator in any insolvency, readjustment of debt, marshalling of assets
and
liabilities, voluntary liquidation or similar proceedings of or relating
to the
Master Servicer or of or relating to all or substantially all of its property;
or
(vii) The
Master Servicer shall admit in writing its inability to pay its debts generally
as they become due, file a petition to take advantage of any applicable
insolvency or reorganization statute, make an assignment for the benefit
of its
creditors or voluntarily suspend payment of its obligations; or
(viii) The
Master Servicer shall be dissolved, or shall dispose of all or substantially
all
of its assets, or consolidate with or merge into another entity or shall
permit
another entity to consolidate or merge into it, such that the resulting entity
does not meet the criteria for a successor servicer as specified in Section
9.27
hereof; or
(ix) If
a
representation or warranty set forth in Section 9.14 hereof shall prove to
be
incorrect as of the time made in any respect that materially and adversely
affects the interests of the Certificateholders, and the circumstance or
condition in respect of which such representation or warranty was incorrect
shall not have been eliminated or cured within 30 days after the date on
which
written notice of such incorrect representation or warranty shall have been
given to the Master Servicer by the Trustee, or to the Master Servicer and
the
Trustee by the Holders of more than 50% of the Aggregate Voting Interests
of the
Certificates or by any NIMS Insurer; or
(x) A
sale or
pledge of any of the rights of the Master Servicer hereunder or an assignment
of
this Agreement by the Master Servicer or a delegation of the rights or duties
of
the Master Servicer hereunder shall have occurred in any manner not otherwise
permitted hereunder and without the prior written consent of the Trustee,
any
NIMS Insurer and Certificateholders holding more than 50% of the Aggregate
Voting Interests of the Certificates; or
(xi) The
Master Servicer has notice or actual knowledge that the Servicer at any time
is
not either a Xxxxxx Xxx- or Xxxxxxx Mac- approved Seller/Servicer, and the
Master Servicer has not terminated the rights and obligations of the Servicer
under the Servicing Agreement and replaced the Servicer with a Xxxxxx Mae-
or
Xxxxxxx Mac -approved servicer within 60 days of the date the Master Servicer
receives such notice or acquires such actual knowledge; or
(xii) After
receipt of notice from the Trustee or any NIMS Insurer, any failure of the
Master Servicer to remit to the Trustee any payment required to be made to
the
Trustee for the benefit of Certificateholders under the terms of this Agreement,
including any Advance, on any Master Servicer Remittance Date which such
failure
continues unremedied for a period of one Business Day after the date upon
which
notice of such failure shall have been given to the Master Servicer by the
Trustee.
110
If
an
Event of Default described in clauses (i) through (xii) of this Section shall
occur, then, in each and every case, subject to applicable law, so long as
any
such Event of Default shall not have been remedied within any period of time
prescribed by this Section, the Trustee, by notice in writing to the Master
Servicer may, and shall, if so directed by Certificateholders evidencing
more
than 50% of the Class Principal Amount of each Class of Certificates, terminate
all of the rights and obligations of the Master Servicer hereunder and in
and to
the Mortgage Loans and the proceeds thereof. If an Event of Default described
in
clause (xii) of this Section shall occur, then, in each and every case, subject
to applicable law,
so long
as such Event of Default shall not have been remedied within the time period
prescribed by clause (xii) of this Section 6.14, the
Trustee, by notice in writing to the Master Servicer, shall promptly terminate
all of the rights and obligations of the Master Servicer hereunder and in
and to
the Mortgage Loans and the proceeds thereof. On or after the receipt by the
Master Servicer of such written notice, all authority and power of the Master
Servicer, and only in its capacity as Master Servicer under this Agreement,
whether with respect to the Mortgage Loans or otherwise, shall pass to and
be
vested in the Trustee; provided,
however,
the
parties acknowledge that notwithstanding the preceding sentence there may
be a
transition period, not to exceed 90 days, in order to effect the transfer
of the
Master Servicing obligations to the Trustee. The Trustee is hereby authorized
and empowered to execute and deliver, on behalf of the defaulting Master
Servicer as attorney-in-fact or otherwise, any and all documents and other
instruments, and to do or accomplish all other acts or things necessary or
appropriate to effect the purposes of such notice of termination, whether
to
complete the transfer and endorsement or assignment of the Mortgage Loans
and
related documents or otherwise. The defaulting Master Servicer agrees to
cooperate with the Trustee in effecting the termination of the defaulting
Master
Servicer’s responsibilities and rights hereunder as Master Servicer including,
without limitation, notifying the Servicer of the assignment of the master
servicing function and providing the Trustee or its designee all documents
and
records in electronic or other form reasonably requested by it to enable
the
Trustee or its designee to assume the defaulting Master Servicer’s functions
hereunder and the transfer to the Trustee or its designee for administration
by
it of all amounts which shall at the time be or should have been deposited
by
the defaulting Master Servicer in the Collection Account maintained by such
defaulting Master Servicer and any other account or fund maintained with
respect
to the Certificates or thereafter received with respect to the Mortgage Loans.
The Master Servicer being terminated (or the Trust Fund, if the Master Servicer
is unable to fulfill its obligations hereunder) as a result of an Event of
Default shall bear all costs of a master servicing transfer, including but
not
limited to those of the Trustee reasonably allocable to specific employees
and
overhead, legal fees and expenses, accounting and financial consulting fees
and
expenses, and costs of amending the Agreement, if necessary.
The
Trustee shall be entitled to be reimbursed from the Master Servicer (or by
the
Trust Fund, if the Master Servicer is unable to fulfill its obligations
hereunder) for all costs associated with the transfer of master servicing
from
the predecessor Master Servicer, including, without limitation, any costs
or
expenses associated with the complete transfer of all master servicing data
and
the completion, correction or manipulation of such servicing data as may
be
required by the Trustee to correct any errors or insufficiencies in the master
servicing data or otherwise to enable the Trustee to master service the Mortgage
Loans properly and effectively. If the terminated Master Servicer does not
pay
such reimbursement within thirty (30) days of its receipt of an invoice
therefore, such reimbursement shall be an expense of the Trust and the Trustee
shall be entitled to withdraw such reimbursement from amounts on deposit
in the
Certificate Account pursuant to Section 4.04(b); provided that the terminated
Master Servicer shall reimburse the Trust for any such expense incurred by
the
Trust; and provided,
further,
that
the Trustee shall decide whether and to what extent it is in the best interest
of the Certificateholders to pursue any remedy against any party obligated
to
make such reimbursement.
111
Notwithstanding
the termination of its activities as Master Servicer, each terminated Master
Servicer shall continue to be entitled to reimbursement to the extent provided
in Section 4.02 to the extent such reimbursement relates to the period prior
to
such Master Servicer’s termination.
If
any
Event of Default shall occur, the Trustee, upon a Responsible Officer of
the
Trustee becoming aware of the occurrence thereof, shall promptly notify any
NIMS
Insurer, the Swap Counterparty, the Cap Counterparty and each Rating Agency
of
the nature and extent of such Event of Default. The Trustee shall immediately
give written notice to the Master Servicer upon the Master Servicer’s failure to
remit funds on the Master Servicer Remittance Date.
(b) On
and
after the time the Master Servicer receives a notice of termination from
the
Trustee pursuant to Section 6.14(a) or the Trustee receives the resignation
of
the Master Servicer evidenced by an Opinion of Counsel pursuant to Section
9.28,
the Trustee, unless another master servicer shall have been appointed, shall
be
the successor in all respects to the Master Servicer in its capacity as such
under this Agreement and the transactions set forth or provided for herein
and
shall have all the rights and powers and be subject to all the responsibilities,
duties and liabilities relating thereto and arising thereafter placed on
the
Master Servicer hereunder, including the obligation to make Advances;
provided,
however,
that any
failure to perform such duties or responsibilities caused by the Master
Servicer’s or the Trustee’s failure to provide information required by this
Agreement shall not be considered a default by the Trustee hereunder. In
addition, the Trustee shall have no responsibility for any act or omission
of
the Master Servicer or for any breach of representation or warranty by the
Master Servicer. The Trustee shall have no liability relating to the
representations and warranties of the Master Servicer set forth in Section
9.14.
In the Trustee’s capacity as such successor, the Trustee shall have the same
limitations on liability herein granted to the Master Servicer. As compensation
therefor, the Trustee shall be entitled to receive all compensation payable
to
the Master Servicer under this Agreement, including the Master Servicing
Fee.
112
(c) Notwithstanding
the above, the Trustee may, if it shall be unwilling to continue to so act,
or
shall, if it is unable to so act, request the Trustee to appoint, petition
a
court of competent jurisdiction to appoint, or appoint on its own behalf
any
established housing and home finance institution servicer, master servicer,
servicing or mortgage servicing institution having a net worth of not less
than
$15,000,000 and meeting such other standards for a successor master servicer
as
are set forth in this Agreement, as the successor to such Master Servicer
in the
assumption of all of the responsibilities, duties or liabilities of the Master
Servicer hereunder. Any entity designated by the Trustee as a successor master
servicer may be an Affiliate of the Trustee; provided,
however,
that,
unless such Affiliate meets the net worth requirements and other standards
set
forth herein for a successor master servicer, or the Trustee, in its individual
capacity shall agree, at the time of such designation, to be and remain liable
to the Trust Fund for such Affiliate’s actions and omissions in performing its
duties hereunder. In connection with such appointment and assumption, the
Trustee may make such arrangements for the compensation of such successor
out of
payments on Mortgage Loans as it and such successor shall agree; provided,
however,
that no
such compensation shall be in excess of that permitted to the Master Servicer
hereunder. The Trustee and such successor shall take such actions, consistent
with this Agreement, as shall be necessary to effectuate any such succession
and
may make other arrangements with respect to the servicing to be conducted
hereunder which are not inconsistent herewith. The Master Servicer shall
cooperate with the Trustee and any successor master servicer in effecting
the
termination of the Master Servicer’s responsibilities and rights hereunder
including, without limitation, notifying Mortgagors of the assignment of
the
master servicing functions and providing the Trustee and successor master
servicer, as applicable, all documents and records in electronic or other
form
reasonably requested by it to enable it to assume the Master Servicer’s
functions hereunder and the transfer to the Trustee or such successor master
servicer, as applicable, all amounts which shall at the time be or should
have
been deposited by the Master Servicer in the Collection Account and any other
account or fund maintained with respect to the Certificates or the Lower
Tier
REMIC 1 Uncertificated Regular Interests or thereafter be received with
respect to the Mortgage Loans. Neither the Trustee nor any other successor
master servicer shall be deemed to be in default hereunder by reason of any
failure to make, or any delay in making, any distribution hereunder or any
portion thereof caused by (i) the failure of the Master Servicer to deliver,
or
any delay in delivering, cash, documents or records to it, (ii) the failure
of
the Master Servicer to cooperate as required by this Agreement, (iii) the
failure of the Master Servicer to deliver the Mortgage Loan data to the Trustee
as required by this Agreement or (iv) restrictions imposed by any regulatory
authority having jurisdiction over the Master Servicer.
Section
6.15 Additional
Remedies of Trustee Upon Event of Default.
During
the continuance of any Event of Default, so long as such Event of Default
shall
not have been remedied, the Trustee, in addition to the rights specified
in
Section 6.14, shall have the right, in its own name and as trustee of an
express
trust, to take all actions now or hereafter existing at law, in equity or
by
statute to enforce its rights and remedies and to protect the interests,
and
enforce the rights and remedies, of any NIMS Insurer and the Certificateholders
(including the institution and prosecution of all judicial, administrative
and
other proceedings and the filings of proofs of claim and debt in connection
therewith). Except as otherwise expressly provided in this Agreement, no
remedy
provided for by this Agreement shall be exclusive of any other remedy, and
each
and every remedy shall be cumulative and in addition to any other remedy,
and no
delay or omission to exercise any right or remedy shall impair any such right
or
remedy or shall be deemed to be a waiver of any Event of Default.
Section
6.16 Waiver
of Defaults.
More
than
50% of the Aggregate Voting Interests of Certificateholders (with the consent
of
any NIMS Insurer) may waive any default or Event of Default by the Master
Servicer in the performance of its obligations hereunder, except that a default
in the making of any required deposit to the Certificate Account that would
result in a failure of the Trustee to make any required payment of principal
of
or interest on the Certificates may only be waived with the consent of 100%
of
the affected Certificateholders and with the consent of any NIMS Insurer.
Upon
any such waiver of a past default, such default shall cease to exist, and
any
Event of Default arising therefrom shall be deemed to have been remedied
for
every purpose of this Agreement. No such waiver shall extend to any subsequent
or other default or impair any right consequent thereon except to the extent
expressly so waived.
113
Section
6.17 Notification
to Holders.
Upon
termination of the Master Servicer or appointment of a successor to the Master
Servicer, in each case as provided herein, the Trustee shall promptly mail
notice thereof by first class mail to the Certificateholders at their respective
addresses appearing on the Certificate Register, any NIMS Insurer, the Swap
Counterparty and the Cap Counterparty. The Trustee shall also, within 45
days
after the occurrence of any Event of Default known to a Responsible Officer
of
the Trustee, give written notice thereof to any NIMS Insurer and the
Certificateholders, unless such Event of Default shall have been cured or
waived
prior to the issuance of such notice and within such 45-day period.
Section
6.18 Directions
by Certificateholders and Duties of Trustee During Event of
Default.
Subject
to the provisions of Section 8.01 hereof, during the continuance of any Event
of
Default, Holders of Certificates evidencing not less than 25% of the Class
Principal Amount (or Percentage Interest) of each Class of Certificates affected
thereby may, with the consent of any NIMS Insurer, direct the time, method
and
place of conducting any proceeding for any remedy available to the Trustee,
or
exercising any trust or power conferred upon the Trustee, under this Agreement;
provided,
however,
that the
Trustee shall be under no obligation to pursue any such remedy, or to exercise
any of the trusts or powers vested in it by this Agreement (including, without
limitation, (i) the conducting or defending of any administrative action
or
litigation hereunder or in relation hereto and (ii) the terminating of the
Master Servicer or any successor master servicer from its rights and duties
as
master servicer hereunder) at the request, order or direction of any of the
Certificateholders or any NIMS Insurer, unless such Certificateholders or
any
NIMS Insurer shall have offered to the Trustee reasonable security or indemnity
against the cost, expenses and liabilities which may be incurred therein
or
thereby; and, provided further, that, subject to the provisions of Section
8.01,
the Trustee shall have the right to decline to follow any such direction
if the
Trustee, in accordance with an Opinion of Counsel acceptable to any NIMS
Insurer, determines that the action or proceeding so directed may not lawfully
be taken or if the Trustee in good faith determines that the action or
proceeding so directed would involve it in personal liability for which it
is
not indemnified to its satisfaction or be unjustly prejudicial to the
non-assenting Certificateholders.
Section
6.19 Action
Upon Certain Failures of the Master Servicer and Upon Event of
Default.
In
the
event that the Trustee shall have actual knowledge of any action or inaction
of
the Master Servicer that would become an Event of Default upon the Master
Servicer’s failure to remedy the same after notice, the Trustee shall give
notice thereof to the Master Servicer, any NIMS Insurer, the Trustee, the
Swap
Counterparty and the Cap Counterparty.
114
Section
6.20 Preparation
of Tax Returns and Other Reports.
(a) The
Trustee shall prepare or cause to be prepared on behalf of the Trust Fund,
based
upon information calculated in accordance with this Agreement pursuant to
instructions given by the Depositor, and the Trustee shall file federal tax
returns, all in accordance with Article X hereof. If the Trustee determines
that
a state tax return or other return is required, then, at its sole expense,
the
Trustee shall prepare and file such state income tax returns and such other
returns as may be required by applicable law relating to the Trust Fund,
and, if
required by state law, and shall file any other documents to the extent required
by applicable state tax law (to the extent such documents are in the Trustee’s
possession). The Trustee shall forward copies to the Depositor of all such
returns and supplemental tax information and such other information within
the
Trustee’s control as the Depositor may reasonably request in writing, and
furnish to each Certificateholder, such forms and such information within
the
control of the Trustee as are required by the Code and the REMIC Provisions
to
be furnished to them (other than any Form 1099s). The Master Servicer will
indemnify the Trustee for any liability of or assessment against the Trustee
resulting from any error in any of such tax or information returns directly
resulting from errors in the information provided by such Master
Servicer.
(b) The
Trustee shall prepare and file with the Internal Revenue Service (“IRS”), on
behalf of the Trust Fund and each of the REMICs specified in the Preliminary
Statement, an application for an employer identification number on IRS Form
SS-4
or by any other acceptable method. The Trustee shall also file a Form 8811
as
required. The Trustee, upon receipt from the IRS of the Notice of Taxpayer
Identification Number Assigned, shall upon request promptly forward a copy
of
such notice to the Trustee and the Depositor. The Trustee shall have no
obligation to verify the information in any Form 8811 or Form SS-4
filing.
(c) The
Depositor shall prepare or cause to be prepared the initial current report
on
Form 8-K. Thereafter, the Trustee shall, in accordance with industry standards
and the rules of the Commission as in effect from time to time (the “Rules”),
prepare and file with the Commission via the Electronic Data Gathering and
Retrieval System (“XXXXX”), the reports listed in subsections (d) through (f) of
this Section 6.20 in respect of the Trust Fund as and to the extent required
under the Exchange Act.
(d) Reports
Filed on Form 10-D.
(i) Within
15
days after each Distribution Date (subject to permitted extensions under
the
Exchange Act), the Trustee shall prepare and file on behalf of the Trust
Fund
any Form 10-D required by the Exchange Act, in form and substance as required
by
the Exchange Act. The Trustee shall file each Form 10-D with a copy of the
related Distribution Date Statement attached thereto. Any disclosure in addition
to the Distribution Date Statement that is required to be included on Form
10-D
(“Additional Form 10-D Disclosure”) shall be determined and prepared by and at
the direction of the Depositor pursuant to the following paragraph and the
Trustee will have no duty or liability for any failure hereunder to determine
or
prepare any Additional Form 10-D Disclosure, except as set forth in the next
paragraph.
115
(ii) As
set
forth on Exhibit Q-1 hereto, within five calendar days after the related
Distribution Date, (A) certain parties to the Structured Asset Securities
Corporation Mortgage Pass-Through Certificates Series 2006-S1 transaction
shall
be required to provide to the Trustee, to the extent known by a responsible
officer thereof, in XXXXX-compatible form (which may be Word or Excel documents
easily convertible to XXXXX format), or in such other form as otherwise agreed
upon by the Trustee and such party, the form and substance of any Additional
Form 10-D Disclosure, if applicable, and included with such Additional Form
10-D
Disclosure, an Additional Disclosure Notification in the form attached hereto
as
Exhibit Q-4, (B) the Trustee shall forward to the Depositor, the form and
substance of the Additional Form 10-D Disclosure, and (C) the Depositor will
approve, as to form and substance, or disapprove, as the case may be, the
inclusion of the Additional Form 10-D Disclosure on Form 10-D. The Sponsor
will
be responsible for any reasonable fees and expenses assessed or incurred
by the
Trustee in connection with including any Additional Form 10-D Disclosure
on Form
10-D pursuant to this paragraph.
(iii) After
preparing the Form 10-D, the Trustee shall forward electronically a draft
copy
of the Form 10-D to the Exchange Act Signing Party for review and approval.
If
the Master Servicer is the Exchange Act Signing Party and the Form 10-D includes
Additional Form 10-D Disclosure, then the Form 10-D shall also be electronically
distributed to the Depositor for review and approval. No later than two Business
Days prior to the 15th
calendar
day after the related Distribution Date, a senior officer of the Exchange
Act
Signing Party shall sign the Form 10-D and return an electronic or fax copy
of
such signed Form 10-D (with an original executed hard copy to follow by
overnight mail) to the Trustee. If a Form 10-D cannot be filed on time or
if a
previously filed Form 10-D needs to be amended, the Trustee will follow the
procedures set forth in subsection (g)(ii) of this Section 6.20. Promptly
(but
no later than one Business Day) after filing with the Commission, the Trustee
will make available on its internet website a final executed copy of each
Form
10-D. Each party to this Agreement acknowledges that the performance by the
Trustee of its duties under this Section 6.20(d) related to the timely
preparation and filing of Form 10-D is contingent upon such parties strictly
observing all applicable deadlines in the performance of their duties under
this
Section 6.20(d). The Trustee shall have no liability for any loss, expense,
damage, claim arising out of or with respect to any failure to properly prepare
and/or timely file such Form 10-D, where such failure results from the Trustee’s
inability or failure to obtain or receive, on a timely basis, any information
from any other party hereto needed to prepare, arrange for execution or file
such Form 10-D, not resulting from its own negligence, bad faith or willful
misconduct.
(e) Reports
Filed on Form 10-K.
116
(i) Unless
and until a Form 15 suspension notice shall have been filed, on or prior
to
March 31 after the end of each fiscal year of the Trust Fund or such earlier
date as may be required by the Exchange Act (the “10-K Filing Deadline”) (it
being understood that the fiscal year for the Trust Fund ends on December
31st
of each
year), commencing in March 2007, the Trustee shall prepare and file on behalf
of
the Trust Fund a Form 10-K, in form and substance as required by the Exchange
Act. Each such Form 10-K shall include the following items, in each case
to the
extent they have been delivered to the Trustee within the applicable time
frames
set forth in this Agreement and in the Servicing Agreement and the Custodial
Agreement, (A) an annual compliance statement for the Servicer, each Additional
Servicer and the Master Servicer, as described under Section 9.26 hereof
and in
the Servicing Agreement, (B)(I) the annual reports on assessment of compliance
with servicing criteria for the Servicer, the Custodian, each Additional
Servicer, the Master Servicer, the Credit Risk Manager, any Servicing Function
Participant, the Paying Agent (if other than the Trustee) and the Trustee
(each,
a “Reporting Servicer”), as described under Section 9.25(a) hereof and in the
Servicing Agreement and Custodial Agreement, and (II) if any Reporting
Servicer’s report on assessment of compliance with servicing criteria described
under Section 9.25(a) hereof or in the Servicing Agreement or Custodial
Agreement identifies any material instance of noncompliance, disclosure
identifying such instance of noncompliance, or if any Reporting Servicer’s
report on assessment of compliance with servicing criteria described under
Section 9.25(a) hereof or in the Servicing Agreement or Custodial Agreement
is
not included as an exhibit to such Form 10-K, disclosure that such report
is not
included and an explanation why such report is not included, (C)(I) the
registered public accounting firm attestation report for each Reporting
Servicer, as described under Section 9.25(b) hereof and in the Servicing
Agreement and Custodial Agreement and (II) if any registered public accounting
firm attestation report described under Section 9.25(b) hereof or in the
Servicing Agreement or Custodial Agreement identifies any material instance
of
noncompliance, disclosure identifying such instance of noncompliance, or
if any
such registered public accounting firm attestation report is not included
as an
exhibit to such Form 10-K, disclosure that such report is not included and
an
explanation why such report is not included, and (D) a Xxxxxxxx-Xxxxx
Certification. Any disclosure or information in addition to (A) through (D)
above that is required to be included on Form 10-K (“Additional Form 10-K
Disclosure”) shall be determined and prepared by and at the direction of the
Depositor pursuant to the following paragraph and the 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.
(ii) As
set
forth on Exhibit Q-2 hereto, no later than March 15 of each year that the
Trust
Fund is subject to the Exchange Act reporting requirements, commencing in
2007,
(A) certain parties to the Structured Asset Securities Corporation Mortgage
Pass-Through Certificates, Series 2006-S1 transaction shall be required to
provide to the Trustee, to the extent known by a responsible officer thereof,
in
XXXXX-compatible form (which may be Word or Excel documents easily convertible
to XXXXX format), or in such other form as otherwise agreed upon by the Trustee
and such party, the form and substance of any Additional Form 10-K Disclosure,
if applicable, and include with such Additional Form 10-K Disclosure, an
Additional Disclosure Notification in the form attached hereto as Exhibit
Q-4,
(B) the Trustee shall forward to the Depositor, the form and substance of
the
Additional Form 10-K Disclosure, and (C) the Depositor will approve, as to
form
and substance, or disapprove, as the case may be, the inclusion of the
Additional Form 10-K Disclosure on Form 10-K. The Trustee has no duty under
this
Agreement to monitor or enforce the performance by the parties listed on
Exhibit
Q-2 of their duties under this paragraph or proactively solicit or procure
from
such parties any Form 10-K Disclosure Information. The Sponsor will be
responsible for any reasonable fees and expenses assessed or incurred by
the
Trustee in connection with including any Additional Form 10-K Disclosure
on Form
10-K pursuant to this paragraph.
117
(iii) After
preparing the Form 10-K, the Trustee shall forward electronically a draft
copy
of the Form 10-K to the Exchange Act Signing Party for review and approval.
If
the Master Servicer is the Exchange Act Signing Party and the Form 10-K includes
Additional Form 10-K Disclosure, then the Form 10-K shall also be electronically
distributed to the Depositor for review and approval. No later than the close
of
business New York City time on the 4th Business Day prior to the 10-K Filing
Deadline, a senior officer of the Exchange Act Signing Party shall sign the
Form
10-K and return an electronic or fax copy of such signed Form 10-K (with
an
original executed hard copy to follow by overnight mail) to the Trustee.
If a
Form 10-K cannot be filed on time or if a previously filed Form 10-K needs
to be
amended, the Trustee will follow the procedures set forth in subsection (g)
of
this Section 6.20. Promptly (but no later than one Business Day) after filing
with the Commission, the Trustee will make available on its internet website
a
final executed copy of each Form 10-K. The parties to this Agreement acknowledge
that the performance by the Trustee of its duties under this Section 6.20(e)
related to the timely preparation and filing of Form 10-K is contingent upon
such parties (and any Additional Servicer or Servicing Function Participant)
strictly observing all applicable deadlines in the performance of their duties
under this Section 6.20(e), Section 9.25(a), Section 9.25(b) and Section
9.26.
The Trustee shall have no liability for any loss, expense, damage, claim
arising
out of or with respect to any failure to properly prepare and/or timely file
such Form 10-K, where such failure results from the Trustee’s inability or
failure to obtain or receive, on a timely basis, any information from any
other
party hereto needed to prepare, arrange for execution or file such Form 10-K,
not resulting from its own negligence, bad faith or willful
misconduct.
(iv) Each
Form
10-K shall include the Xxxxxxxx-Xxxxx Certification. The Trustee, the Paying
Agent and, if the Depositor is the Exchange Act Signing Party, the Master
Servicer, shall, and the Trustee, the Paying Agent and the Master Servicer
(if
applicable) shall cause any Servicing Function Participant engaged by it
to,
provide to the Person who signs the Xxxxxxxx-Xxxxx Certification (the
“Certifying Person”), by March 15 of each year in which the Trust Fund is
subject to the reporting requirements of the Exchange Act (each, a “Back-Up
Certification”), in the form attached hereto as Exhibit R (or, in the case of
the Trustee and the Paying Agent, such other form as agreed to between the
Trustee, the Paying Agent and the Exchange Act Signing Party), upon which
the
Certifying Person, the entity for which the Certifying Person acts as an
officer, and such entity’s officers, directors and Affiliates (collectively with
the Certifying Person, “Certification Parties”) can reasonably rely. The senior
officer of the Exchange Act Signing Party shall serve as the Certifying Person
on behalf of the Trust Fund. In the event the Master Servicer, the Trustee,
the
Paying Agent or any Servicing Function Participant engaged by such parties
is
terminated or resigns pursuant to the terms of this Agreement, such party
or
Servicing Function Participant shall provide a Back-Up Certification to the
Certifying Person pursuant to this Section 6.20(e)(iv) with respect to the
period of time it was subject to this Agreement.
118
(v) Each
person (including their officers or directors) that signs any Form 10-K
Certification shall be entitled to indemnification from the Trust Fund for
any
liability or expense incurred by it in connection with such certification,
other
than any liability or expense attributable to such Person’s own bad faith,
negligence or willful misconduct. The provisions of this subsection shall
survive any termination of this Agreement and the resignation or removal
of such
Person.
(f) Reports
Filed on Form 8-K.
(i) Within
four Business Days after the occurrence of an event requiring disclosure
on Form
8-K (each such event, a “Reportable Event”) or such later date as may be
required by the Commission, and if requested by the Depositor, the Trustee
shall
prepare and file on behalf of the Trust Fund any Form 8-K, as required by
the
Exchange Act; provided
that the
Depositor shall file the initial Form 8-K in connection with the issuance
of the
Certificates. Any disclosure or information related to a Reportable Event
or
that is otherwise required to be included on Form 8-K (“Form 8-K Disclosure
Information”) shall be determined and prepared by and at the direction of the
Depositor pursuant to the following paragraphs and the Trustee will have
no duty
or liability for any failure hereunder to determine or prepare any Form 8-K
Disclosure Information or any Form 8-K, except as set forth in the next
paragraph.
(ii) As
set
forth on Exhibit Q-3 hereto, for so long as the Trust Fund is subject to
the
Exchange Act reporting requirements, no later than Noon New York City time
on
the 2nd Business Day after the occurrence of a Reportable Event (A) certain
parties to the Structured Asset Securities Corporation Mortgage Pass-Through
Certificates, Series 2006-S1 transaction shall be required to provide to
the
Trustee, to the extent known by a responsible officer thereof, in
XXXXX-compatible form (which may be Word or Excel documents easily convertible
to XXXXX format), or in such other form as otherwise agreed upon by the Trustee
and such party, the form and substance of any Form 8-K Disclosure Information,
if applicable, and include with such Form 8-K Disclosure Information, an
Additional Disclosure Notification in the form attached hereto as Exhibit
Q-4,
(B) the Trustee shall forward to the Depositor, the form and substance of
the
Form 8-K Disclosure Information, and (C) the Depositor will approve, as to
form
and substance, or disapprove, as the case may be, the inclusion of the Form
8-K
Disclosure Information. The Trustee has no duty under this Agreement to monitor
or enforce the performance by the parties listed on Exhibit Q-3 of their
duties
under this paragraph or proactively solicit or procure from such parties
any
Form 8-K Disclosure Information. The Sponsor will be responsible for any
reasonable fees and expenses assessed or incurred by the Trustee in connection
with including any Form 8-K Disclosure Information on Form 8-K pursuant to
this
paragraph.
(iii) After
preparing the Form 8-K, the Trustee shall forward electronically, no later
than
Noon New York city time on the 3rd
Business
Day after the Reportable Event, a draft copy of the Form 8-K to the Exchange
Act
Signing Party for review and approval. If the Master Servicer is the Exchange
Act Signing Party, then the Form 8-K shall also be electronically distributed
to
the Depositor for review and approval. No later than Noon New York City time
on
the 4th
Business
Day after the Reportable Event, a senior officer of the Exchange Act Signing
Party shall sign the Form 8-K and return an electronic or fax copy of such
signed Form 8-K (with an original executed hard copy to follow by overnight
mail) to the Trustee. If a Form 8-K cannot be filed on time or if a previously
filed Form 8-K needs to be amended, the Trustee will follow the procedures
set
forth in subsection (g) of this Section 6.20. Promptly (but no later than
one
Business Day) after filing with the Commission, the Trustee will, make available
on its internet website a final executed copy of each Form 8-K. The parties
to
this Agreement acknowledge that the performance by the Trustee of its duties
under this Section 6.20(f) related to the timely preparation and filing of
Form
8-K is contingent upon such parties strictly observing all applicable deadlines
in the performance of their duties under this Section 6.20(f). The Trustee
shall
have no liability for any loss, expense, damage, claim arising out of or
with
respect to any failure to properly prepare and/or timely file such Form 8-K,
where such failure results from the Trustee’s inability or failure to obtain or
receive, on a timely basis, any information from any other party hereto needed
to prepare, arrange for execution or file such Form 8-K, not resulting from
its
own negligence, bad faith or willful misconduct.
119
(g) Delisting;
Amendments; Late Filings.
(i) Prior
to
January 30 in of the first year in which the Trustee is able to do so under
applicable law, unless otherwise directed by the Depositor, the Trustee shall
prepare and file a Form 15 relating to the automatic suspension of reporting
in
respect of the Trust Fund under the Exchange Act.
(ii) In
the
event that the Trustee becomes aware that it will be unable to timely file
with
the Commission all or any required portion of any Form 8-K, 10-D or 10-K
required to be filed by this Agreement because required disclosure information
was either not delivered to it or delivered to it after the delivery deadlines
set forth in this Agreement or for any other reason, the Trustee will
immediately notify the Depositor. In the case of Form 10-D and 10-K, the
parties
to this Agreement and the Servicer will cooperate to prepare and file a Form
12b-25 and a 10-D/A and 10-K/A as applicable, pursuant to Rule 12b-25 of
the
Exchange Act. In the case of Form 8-K, the Trustee will, upon receipt of
all
required Form 8-K Disclosure Information and upon the approval and direction
of
the Depositor, include such disclosure information on the next Form 10-D.
In the
event that any previously filed Form 8-K, 10-D or 10-K needs to be amended,
the
Trustee will notify the Depositor and the Servicer and such parties will
cooperate to prepare any necessary 8-K/A, 10-D/A or 10-K/A. Any Form 15,
Form
12b-25 or any amendment to Form 8-K, 10-D or 10-K shall be signed by a senior
officer of the Exchange Act Signing Party. The parties to this Agreement
acknowledge that the performance by the Trustee of its duties under this
Section
6.20(g) related to the timely preparation and filing of Form 15, a Form 12b-25
or any amendment to Form 8-K, 10-D or 10-K is contingent upon each such party
performing its duties under this Section. The Trustee shall have no liability
for any loss, expense, damage, claim arising out of or with respect to any
failure to properly prepare and/or timely file any such Form 15, Form 12b-25
or
any amendments to Forms 8-K, 10-D or 10-K, where such failure results from
the
Trustee’s inability or failure to obtain or receive, on a timely basis, any
information from any other party hereto needed to prepare, arrange for execution
or file such Form 15, Form 12b-25 or any amendments to Forms 8-K, 10-D or
10-K,
not resulting from its own negligence, bad faith or willful
misconduct.
120
(h) Any
party
that signs any Exchange Act report that the Trustee is required to file shall
provide to the Trustee prompt notice of the execution of such Exchange Act
report along with the name and contact information for the person signing
such
report and shall promptly deliver to the Trustee the original executed signature
page for such report. In addition, each of the parties agrees to provide
to the
Trustee such additional information related to such party as the Trustee
may
reasonably request, including evidence of the authorization of the person
signing any certification or statement, financial information and reports,
and
such other information related to such party or its performance hereunder.
(i) The
Depositor and the Master Servicer, by mutual agreement, shall determine which
of
the Depositor or the Master Servicer shall be the initial Exchange Act Signing
Party. Upon such determination, the Depositor shall timely notify the Trustee,
and such notice shall provide contact information for the Exchange Act Signing
Party. If the Depositor and Master Servicer, at any time, mutually agree
to
change the identity of the Exchange Act Signing Party, the Depositor shall
provide timely notice to the Trustee of any such change.
Section
6.21 Reporting
Requirements of the Commission.
Each
of
the parties hereto acknowledges and agrees that the purpose of Sections 6.01
and
6.20 of this Agreement is to facilitate compliance by the Sponsor and the
Depositor with the provisions of Regulation AB, as such may be amended or
clarified from time to time. Therefore, each of the parties agrees that (a)
the
obligations of the parties hereunder shall be interpreted in such a manner
as to
accomplish compliance with Regulation AB, (b) the parties’ obligations hereunder
will be supplemented and modified as necessary to be consistent with any
such
amendments, interpretive advice or guidance, convention or consensus among
active participants in the asset-backed securities markets, advice of counsel,
or otherwise in respect of the requirements of Regulation AB and (c) the
parties
shall comply with reasonable requests made by the Sponsor, the Depositor
or the
Trustee for delivery of additional or different information as the Sponsor,
the
Depositor or the Trustee may determine in good faith is necessary to comply
with
the provisions of Regulation AB.
Section
6.22 No
Merger.
The
Trustee shall not cause or otherwise knowingly permit the assets of the Trust
Fund to be merged or consolidated with any other entity, except as a result
of a
final judicial determination.
Section
6.23 Indemnification
by the Trustee.
The
Trustee agrees to indemnify the Sponsor, the Depositor and the Master Servicer,
and each of their respective directors, officers, employees and agents and
the
Trust Fund and hold each of them harmless from and against any losses, damages,
penalties, fines, forfeitures, legal fees and expenses and related costs,
judgments, and any other costs, fees and expenses that any of them may sustain
arising out of or based upon the engagement of any Subcontractor in violation
of
Section 6.01(l) or any failure by the Trustee to deliver any assessment of
compliance pursuant to Section 9.25(a).
121
ARTICLE
VII
PURCHASE
OF MORTGAGE LOANS AND
TERMINATION
OF THE TRUST FUND
| Section 7.01 |
Purchase
of Mortgage Loans; Termination of Trust Fund Upon Purchase or
Liquidation
of All Mortgage Loans; Purchase of Lower Tier REMIC 1 Uncertificated
Regular Interests.
|
(a) The
respective obligations and responsibilities of the Trustee and the Master
Servicer created hereby (other than the obligation of the Trustee to make
payments to Certificateholders and the Swap Counterparty as set forth in
Section
7.02, the obligation of the Master Servicer to make a final remittance to
the
Trustee pursuant to Section 4.01, and the obligations of the Master Servicer
to
the Trustee pursuant to Sections 9.10, 9.14 and 9.31) shall terminate on
the
earliest of (i) the final payment or other liquidation of the last Mortgage
Loan
remaining in the Trust Fund and the disposition of all REO Property, (ii)
the
sale of the property held by the Trust Fund in accordance with Section 7.01(b)
and (iii) the Latest Possible Maturity Date; (each, a “Trust Fund Termination
Event”); provided,
however,
that in
no event shall the Trust Fund created hereby continue beyond the expiration
of
21 years from the death of the last survivor of the descendants of Xxxxxx
X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. James’s,
living on the date hereof. Upon the occurrence of a Trust Fund Termination
Event, each REMIC shall be terminated in a manner that shall qualify as a
“qualified liquidation” under the REMIC Provisions.
(b) On
any
Distribution Date occurring on or after the Initial Optional Termination
Date,
the Master Servicer or LTURI-holder, as applicable, with the prior written
consent of any NIMS Insurer and the Seller, which consent shall not be
unreasonably withheld, has the option to cause the Trust Fund to adopt a
plan of
complete liquidation pursuant to Section 7.03(a)(i) hereof to sell all of
its
property. Upon exercise of such option, the property of the Trust Fund shall
be
sold to the Master Servicer at a price (the “Termination Price”) equal to the
sum of (i) 100% of the unpaid principal balance of each Mortgage Loan on
the day
of such purchase plus interest accrued thereon at the applicable Mortgage
Rate
with respect to any Mortgage Loan to the Due Date in the Collection Period
immediately preceding the related Distribution Date to the date of such
repurchase, (ii) the fair market value of any REO Property and any other
property held by any REMIC, such fair market value to be determined by an
independent appraiser or appraisers mutually agreed upon by the Master Servicer,
any NIMS Insurer and the Trustee (reduced, in the case of REO Property, by
(1)
reasonably anticipated disposition costs and (2) any amount by which the
fair
market value as so reduced exceeds the outstanding principal balance of the
related Mortgage Loan plus interest accrued thereon at the applicable Net
Mortgage Rate to the date of such purchase), (iii) any unreimbursed Servicing
Advances and (iv) any Swap Termination Payment payable to the Swap Counterparty
as a result of a termination pursuant to this Section 7.01; provided,
however,
if
there are any NIM Securities outstanding, the Master Servicer may only exercise
its option after receiving the prior written consent of the holders of such
NIM
Securities and, if such consent is given, the Termination Price shall also
include an amount equal to the sum of (1) any accrued interest on the NIM
Securities, (2) the unpaid principal balance of any such NIM Securities and
(3)
any other reimbursable expenses owed by the issuer of the NIM Securities
(the
“NIM Redemption Amount”). The Master Servicer, the Servicer, the Trustee and the
Custodian shall be reimbursed from the Termination Price for any Mortgage
Loan
or related REO Property for any Advances made or other amounts advanced with
respect to the Mortgage Loans that are reimbursable to any such entity under
this Agreement, the related Servicing Agreement or the related Custodial
Agreement, together with any accrued and unpaid compensation and any other
amounts due to the Master Servicer or the Trustee hereunder or the Servicers
or
the Custodians. If the NIMS Insurer directs the Master Servicer to exercise
its
right to cause the Trust Fund to adopt a plan of complete liquidation as
described above, then (i) the Master Servicer shall cause the Trust Fund
to
adopt a plan of complete liquidation as described above, (ii) the NIMS Insurer
shall remit the Termination Price in immediately available funds to the Master
Servicer at least three Business Days prior to the applicable Distribution
Date
and, upon receipt of such funds from the NIMS Insurer, the Master Servicer
shall
promptly deposit such funds in the Collection Account and (iii) upon termination
of the Trust Fund, the Trustee will transfer the property of the Trust Fund
to
the NIMS Insurer. The NIMS Insurer shall be obligated to reimburse the Master
Servicer and the Trustee for its reasonable out-of-pocket expenses incurred
in
connection with its termination of the Trust Fund at the direction of the
NIMS
Insurer and shall indemnify and hold harmless the Master Servicer and the
Trustee for any losses, liabilities or expenses resulting from any claims
directly resulting from or relating to the termination of the Trust Fund
at the
direction of the NIMS Insurer, except to the extent such losses, liabilities
or
expenses arise out of or result from the Master Servicer’s or Trustee’s, as
applicable, negligence, bad faith or willful misconduct.
122
(c) On
any
Distribution Date occurring on or after the Initial Optional Termination
Date
and provided there are no NIM Securities outstanding, the Master Servicer,
with
the prior written consent of the Seller, which consent shall not be unreasonably
withheld, has the option to purchase all of the Lower Tier REMIC 1
Uncertificated Regular Interests. Upon exercise of such option, the Lower
Tier
REMIC 1 Uncertificated Regular Interests shall be sold to the Master Servicer
at
a price (the “Lower Tier REMIC 1 Uncertificated Regular Interests Purchase
Price”) equal to the sum of (i) 100% of the unpaid principal balance of each
Mortgage Loan on the day of such purchase plus interest accrued thereon at
the
applicable Mortgage Rate with respect to any Mortgage Loan to the Due Date
in
the Collection Period immediately preceding the related Distribution Date
to the
date of such repurchase and (ii) the fair market value of any REO Property
and
any other property held by any REMIC, such fair market value to be determined
by
an independent appraiser or appraisers mutually agreed upon by the Master
Servicer, any NIMS Insurer and the Trustee (reduced, in the case of REO
Property, by (1) reasonably anticipated disposition costs and (2) any amount
by
which the fair market value as so reduced exceeds the outstanding principal
balance of the related Mortgage Loan plus interest accrued thereon at the
applicable Net Mortgage Rate to the date of such purchase). If the Master
Servicer elects to exercise such option, each REMIC created pursuant to this
Agreement (other than REMIC 1) shall be terminated in such a manner so that
the
termination of each such REMIC shall qualify as a “qualified liquidation” under
the REMIC Provisions and the Lower Tier REMIC 1 Uncertificated Regular Interests
and the Class LT-R Certificates will evidence the entire beneficial interest
in
the property of the Trust Fund. Following a purchase of the Lower Tier REMIC
1
Uncertificated Regular Interests pursuant to this subsection, the Trust Fund
(and REMIC 1) will remain outstanding and final payment on the Certificates
(other than the Class LT-R Certificates) will be made in accordance with
Sections 7.03(a)(iii) and 5.02. The Trust Fund will terminate upon the
occurrence of a Trust Fund Termination Event, in accordance with Section
7.01(a).
123
Section
7.02 Procedure
Upon Termination of Trust Fund or Purchase of Lower Tier REMIC 1 Uncertificated
Regular Interests.
(a) Notice
of
any Trust Fund Termination Event and notice of the purchase of the Lower
Tier
REMIC 1 Uncertificated Regular Interests, specifying the Distribution Date
upon
which the final distribution to the Certificates (other than the Class LT-R
Certificates, in the case of a purchase of the Lower Tier REMIC 1 Uncertificated
Regular Interests) shall be made, shall be given by the Trustee by first
class
mail to Certificateholders mailed promptly (and in no event later than five
Business Days) (x) after the Trustee has received notice from the Master
Servicer or the LTURI-holder, as applicable, of its election to cause (1)
the
sale of all of the property of the Trust Fund pursuant to Section 7.01(b)
or (2)
the purchase of the Lower Tier REMIC 1 Uncertificated Regular Interests pursuant
to Section 7.01(c), or (y) upon the final payment or other liquidation of
the
last Mortgage Loan or REO Property in the Trust Fund. In the case of a Trust
Fund Termination Event, the Trustee shall also give notice to the Master
Servicer, the Swap Counterparty, the Cap Counterparty and the Certificate
Registrar at the time notice is given to Holders.
In
the
case of a Trust Fund Termination Event, such notice shall specify (A) the
Distribution
Date
upon which final distribution on the Certificates or Lower Tier REMIC 1
Uncertificated Regular Interests of all amounts required to be distributed
to
Certificateholders pursuant to Section 5.02 will be made upon presentation
and
surrender of the Certificates at the Corporate Trust Office, and (B) that
the
Record Date otherwise applicable to such Distribution Date is not applicable,
distribution being made only upon presentation and surrender of the Certificates
at the office or agency of the Trustee therein specified. Upon any such Trust
Fund Termination Event, the duties of the Certificate Registrar with respect
to
the Certificates or Lower Tier REMIC 1 Uncertificated Regular Interests shall
terminate and the Trustee shall terminate or request the Master Servicer
to
terminate, the Collection Account it maintains, the Certificate Account and
any
other account or fund maintained with respect to the Certificates or Lower
Tier
REMIC 1 Uncertificated Regular Interests, subject to the Trustee’s obligation
hereunder to hold all amounts payable to Certificateholders in trust without
interest pending such payment.
In
the
case of a purchase of the Lower Tier REMIC 1 Uncertificated Regular Interests,
such notice shall specify (A) the Distribution Date upon which final
distribution on the Certificates (other than the Class LT-R Certificates)
of all
amounts required to be distributed to Certificateholders pursuant to Section
5.02 (other than any distributions to the Class LT-R Certificates in respect
of
REMIC 1) will be made upon presentation and surrender of the Certificates
(other
than the Class LT-R Certificates) at the Corporate Trust Office, and (B)
that
the Record Date otherwise applicable to such Distribution Date is not
applicable, distribution being made only upon presentation and surrender
of the
Certificates (other than the Class LT-R Certificates) at the office or agency
of
the Trustee therein specified. Upon any such purchase of the Lower Tier REMIC
1
Uncertificated Regular Interests, the duties of the Certificate Registrar
with
respect to the Certificates other than the Class LT-R Certificate shall
terminate but the Trustee shall not terminate or request the Master Servicer
to
terminate, the Collection Account it maintains, the Certificate Account and
any
other account or fund maintained with respect to the Certificates, subject
to
the Trustee’s obligation hereunder to hold all amounts payable to
Certificateholders in trust without interest pending such payment. For all
Distribution Dates following the Distribution Date on which the Master Servicer
purchases the Lower Tier REMIC 1 Uncertificated Regular Interests, all amounts
that would be distributed on the Certificates (other than the Class LT-R
Certificate and exclusive of amounts payable from any fund held outside of
REMIC
1) absent such purchase shall be payable to the LTURI-holder.
124
(b) In
the
event that all of the Holders do not surrender their Certificates for
cancellation within three months after the time specified in the above-mentioned
written notice, the Trustee shall give a second written notice to the remaining
Certificateholders to surrender their Certificates for cancellation and receive
the final distribution with respect thereto. If within one year after the
second
notice any Certificates shall not have been surrendered for cancellation,
the
Trustee may take appropriate steps to contact the remaining Certificateholders
concerning surrender of such Certificates, and the cost thereof shall be
paid
out of the amounts distributable to such Holders. If within two years after
the
second notice any Certificates shall not have been surrendered for cancellation,
the Trustee shall, subject to applicable state law relating to escheatment,
hold
all amounts distributable to such Holders for the benefit of such Holders.
No
interest shall accrue on any amount held by the Trustee and not distributed
to a
Certificateholder due to such Certificateholder’s failure to surrender its
Certificate(s) for payment of the final distribution thereon in accordance
with
this Section.
(c) Any
reasonable expenses incurred by the Trustee in connection with any Trust
Fund
Termination Event or any purchase of the Lower Tier REMIC 1 Uncertificated
Regular Interests shall be reimbursed from proceeds received from such
termination or purchase.
Section
7.03 Additional
Trust Fund Termination Event or Purchase of the Lower Tier REMIC 1
Uncertificated Regular Interests.
(a) Any
termination of the Trust Fund pursuant to Section 7.01(a) or any
termination of a REMIC pursuant to Section 7.01(c) shall be effected in
accordance with the following additional requirements, unless the Trustee
seeks
(at the request of the party exercising the option to purchase all of the
Mortgage Loans or Lower Tier REMIC 1 Uncertificated Regular Interests
pursuant to Section 7.01(b) or Section 7.01(c), respectively), and
subsequently receives, an Opinion of Counsel (at the expense of such requesting
party), addressed to the Trustee and any NIMS Insurer to the effect that
the
failure to comply with the requirements of this Section 7.03 will not result
in
an Adverse REMIC Event:
(i) Within
89
days prior to the time of the making of the final payment on the Certificates
(other than the Class LT-R Certificates, in the case of a purchase of the
Lower Tier REMIC 1 Uncertificated Regular Interests, upon notification by
the Master Servicer, any NIMS Insurer or an Affiliate of the Seller that
it
intends to exercise its option to cause the termination or purchase the Lower
Tier REMIC 1 Uncertificated Regular Interests, the Trustee shall adopt a
plan of complete liquidation of the Trust Fund on behalf of each REMIC (other
than REMIC 1, in the case of a purchase of the Lower Tier REMIC 1
Uncertificated Regular Interests), meeting the requirements of a qualified
liquidation under the REMIC Provisions;
125
(ii) Any
sale
of the assets of the Trust Fund or the Lower Tier REMIC 1 Uncertificated
Regular Interests pursuant to Section 7.02 shall be a sale for cash and shall
occur at or after the time of adoption of such a plan of complete liquidation
and prior to the time of making of the final payment on the Certificates
(other
than the Class LT-R Certificates, in the case of a purchase of the Lower
Tier REMIC 1 Uncertificated Regular Interests);
(iii) On
the
date specified for final payment of the Certificates (other than the Class
LT-R
Certificates, in the case of a purchase of the Lower
Tier REMIC 1 Uncertificated Regular Interests),
the
Trustee shall make final distributions of principal and interest on such
Certificates and shall pay, in the case of a Trust Fund Termination Event,
any
Swap Termination Payment owed to the Swap Counterparty on the related Swap
Payment Date (to the extent not paid on previous Swap Payment Dates) in
accordance with Section 5.02. In the case of a Trust Fund Termination Event,
and, after payment of, or provision for any outstanding expenses, the Trustee
shall distribute or credit, or cause to be distributed or credited, to the
Holders of the Residual Certificates all cash on hand after such final payment
(other than cash retained to meet claims), and the Trust Fund (and each REMIC)
shall terminate at that time; and
(iv) In
no
event may the final payment on the Certificates or the final distribution
or
credit to the Holders of the Residual Certificates in respect of the residual
interest in any liquidated REMIC be made after the 89th day from the date
on
which the plan of complete liquidation for such REMIC is adopted.
(b) By
its
acceptance of a Residual Certificate, each Holder thereof hereby agrees to
accept the plan of complete liquidation prepared by the Depositor and adopted
by
the Trustee under this Section and to take such other action in connection
therewith as may be reasonably requested by the Master Servicer or the
Servicer.
(c) In
connection with the termination of the Trust Fund or a Section 7.01(c) Purchase
Event, the Trustee may request an Opinion of Counsel addressed to the Trustee
(at the expense of the Depositor) to the effect that all the requirements
of a
qualified liquidation under the REMIC Provisions have been met.
Section
7.04 Optional
Repurchase Right.
The
NIMS
Insurer, if any, may repurchase any Distressed Mortgage Loan for a purchase
price equal to the outstanding principal balance of such Mortgage Loan, plus
accrued interest thereon to the date of repurchase plus any unreimbursed
Advances, Servicing Advances or Servicing Fees allocable to such Distressed
Mortgage Loan. Any such repurchase shall be accomplished by the NIMS Insurer’s
remittance of the purchase price for the Distressed Mortgage Loan to the
Master
Servicer for deposit into the Collection Account. The NIMS Insurer shall
not use
any procedure in selecting Distressed Mortgage Loans to be repurchased which
would be materially adverse to Certificateholders.
126
ARTICLE
VIII
RIGHTS
OF
CERTIFICATEHOLDERS
Section
8.01 Limitation
on Rights of Holders.
(a)
The
death
or incapacity of any Certificateholder shall not operate to terminate this
Agreement or this Trust Fund, nor entitle such Certificateholder’s legal
representatives or heirs to claim an accounting or take any action or proceeding
in any court for a partition or winding up of this Trust Fund, nor otherwise
affect the rights, obligations and liabilities of the parties hereto or any
of
them. Except as otherwise expressly provided herein, no Certificateholder,
solely by virtue of its status as a Certificateholder, shall have any right
to
vote or in any manner otherwise control the Master Servicer or the operation
and
management of the Trust Fund, or the obligations of the parties hereto, nor
shall anything herein set forth, or contained in the terms of the Certificates,
be construed so as to constitute the Certificateholders from time to time
as
partners or members of an association, nor shall any Certificateholder be
under
any liability to any third person by reason of any action taken by the parties
to this Agreement pursuant to any provision hereof.
(b) No
Certificateholder, solely by virtue of its status as Certificateholder, shall
have any right by virtue or by availing of any provision of this Agreement
to
institute any suit, action or proceeding in equity or at law upon or under
or
with respect to this Agreement, unless such Holder previously shall have
given
to the Trustee a written notice of an Event of Default and of the continuance
thereof, as hereinbefore provided, and unless also the Holders of Certificates
evidencing not less than 25% of the Class Principal Amount (or Percentage
Interest) of Certificates of each Class affected thereby shall, with the
prior
written consent of any NIMS Insurer, have made written request upon the Trustee
to institute such action, suit or proceeding in its own name as Trustee
hereunder and shall have offered to the Trustee such reasonable indemnity
as it
may require against the cost, expenses and liabilities to be incurred therein
or
thereby, and the Trustee, for sixty days after its receipt of such notice,
request and offer of indemnity, shall have neglected or refused to institute
any
such action, suit or proceeding and no direction inconsistent with such written
request has been given the Trustee during such sixty-day period by such
Certificateholders or any NIMS Insurer; it being understood and intended,
and
being expressly covenanted by each Certificateholder with every other
Certificateholder, any NIMS Insurer and the Trustee, that no one or more
Holders
of Certificates shall have any right in any manner whatever by virtue or
by
availing of any provision of this Agreement to affect, disturb or prejudice
the
rights of the Holders of any other of such Certificates or the rights of
any
NIMS Insurer, or to obtain or seek to obtain priority over or preference
to any
other such Holder or any NIMS Insurer, or to enforce any right under this
Agreement, except in the manner herein provided and for the benefit of all
Certificateholders. For the protection and enforcement of the provisions
of this
Section, each and every Certificateholder, the NIMS Insurer and the Trustee
shall be entitled to such relief as can be given either at law or in
equity.
Section
8.02 Access
to List of Holders.
(a) If
the
Trustee is not acting as Certificate Registrar, the Certificate Registrar
will
furnish or cause to be furnished to the Trustee and any NIMS Insurer, within
fifteen days after receipt by the Certificate Registrar of a request by the
Trustee or any NIMS Insurer in writing, a list, in such form as the Trustee
may
reasonably require, of the names and addresses of the Certificateholders
of each
Class as of the most recent Record Date.
127
(b) If
any
NIMS Insurer or three or more Holders or Certificate Owners (hereinafter
referred to as “Applicants”) apply in writing to the Trustee, and such
application states that the Applicants desire to communicate with other Holders
with respect to their rights under this Agreement or under the Certificates
and
is accompanied by a copy of the communication which such Applicants propose
to
transmit, then the Trustee shall, within five Business Days after the receipt
of
such application, afford such Applicants reasonable access during the normal
business hours of the Trustee to the most recent list of Certificateholders
held
by the Trustee or shall, as an alternative, send, at the Applicants’ expense,
the written communication proffered by the Applicants to all Certificateholders
at their addresses as they appear in the Certificate Register.
(c) Every
Holder or Certificate Owner, if the Holder is a Clearing Agency, by receiving
and holding a Certificate, agrees with the Depositor, the Master Servicer,
any
NIMS Insurer, the Certificate Registrar and the Trustee that neither the
Depositor, the Master Servicer, any NIMS Insurer, the Certificate Registrar
nor
the Trustee shall be held accountable by reason of the disclosure of any
such
information as to the names and addresses of the Certificateholders hereunder,
regardless of the source from which such information was derived.
Section
8.03 Acts
of Holders of Certificates.
(a) Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Agreement to be given or taken by Holders or Certificate
Owner, if the Holder is a Clearing Agency, may be embodied in and evidenced
by
one or more instruments of substantially similar tenor signed by such Holders
in
person or by agent duly appointed in writing; and, except as herein otherwise
expressly provided, such action shall become effective when such instrument
or
instruments are delivered to the Trustee and, where expressly required herein,
to the Master Servicer. Such instrument or instruments (as the action embodies
therein and evidenced thereby) are herein sometimes referred to as an “Act” of
the Holders signing such instrument or instruments. Proof of execution of
any
such instrument or of a writing appointing any such agents shall be sufficient
for any purpose of this Agreement and conclusive in favor of the Trustee
and the
Master Servicer, if made in the manner provided in this Section. Each of
the
Trustee and the Master Servicer shall promptly notify the others of receipt
of
any such instrument by it, and shall promptly forward a copy of such instrument
to the others.
(b) The
fact
and date of the execution by any Person of any such instrument or writing
may be
proved by the affidavit of a witness of such execution or by the certificate
of
any notary public or other officer authorized by law to take acknowledgments
or
deeds, certifying that the individual signing such instrument or writing
acknowledged to him the execution thereof. Whenever such execution is by
an
officer of a corporation or a member of a partnership on behalf of such
corporation or partnership, such certificate or affidavit shall also constitute
sufficient proof of his authority. The fact and date of the execution of
any
such instrument or writing, or the authority of the individual executing
the
same, may also be proved in any other manner which the Trustee deems
sufficient.
128
(c) The
ownership of Certificates or Lower Tier REMIC 1 Uncertificated Regular Interests
(whether or not such Certificates or Lower Tier REMIC 1 Uncertificated Regular
Interests shall be overdue and notwithstanding any notation of ownership
or
other writing thereon made by anyone other than the Trustee) shall be proved
by
the Certificate Register, and none of the Trustee, the Master Servicer, any
NIMS
Insurer, or the Depositor shall be affected by any notice to the
contrary.
(d) Any
request, demand, authorization, direction, notice, consent, waiver or other
action by the Holder of any Certificate or Lower Tier REMIC 1 Uncertificated
Regular Interest shall bind every future Holder of the same Certificate or
Lower
Tier REMIC 1 Uncertificated Regular Interest and the Holder of every Certificate
or Lower Tier REMIC 1 Uncertificated Regular Interest issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof,
in
respect of anything done, omitted or suffered to be done by the Trustee or
the
Master Servicer in reliance thereon, whether or not notation of such action
is
made upon such Certificate or Lower Tier REMIC 1 Uncertificated Regular
Interest.
ARTICLE
IX
ADMINISTRATION
AND SERVICING OF MORTGAGE LOANS
BY
THE
MASTER SERVICER; CREDIT RISK MANAGER
Section
9.01 Duties
of the Master Servicer.
The
Certificateholders, by their purchase and acceptance of the Certificates
or
Lower Tier REMIC 1 Uncertificated Regular Interests, appoint Aurora Loan
Services LLC, as Master Servicer. For and on behalf of the Depositor, the
Trustee and the Certificateholders, the Master Servicer shall master service
the
Mortgage Loans in accordance with the provisions of this Agreement and the
provisions of each Servicing Agreement. Notwithstanding anything in this
Agreement, any Servicing Agreement or any Credit Risk Management Agreement
to
the contrary, the Master Servicer shall have no duty or obligation to enforce
any Credit Risk Management Agreement or to supervise, monitor or oversee
the
activities of any Servicer under its Credit Risk Management Agreement with
respect to any action taken or not taken by a Servicer at the direction of
the
Seller or pursuant to a recommendation of the Credit Risk Manager.
Section
9.02 Master
Servicer Fidelity Bond and Master Servicer Errors and Omissions Insurance
Policy.
(a) The
Master Servicer, at its expense, shall maintain in effect a Master Servicer
Fidelity Bond and a Master Servicer Errors and Omissions Insurance Policy,
affording coverage with respect to all directors, officers, employees and
other
Persons acting on such Master Servicer’s behalf, and covering errors and
omissions in the performance of the Master Servicer’s obligations hereunder. The
Master Servicer Errors and Omissions Insurance Policy and the Master Servicer
Fidelity Bond shall be in such form and amount that would be consistent with
coverage customarily maintained by master servicers of mortgage loans similar
to
the Mortgage Loans and the Master Servicer shall provide the Trustee and
any
NIMS Insurer upon request, with a copy of such policy and fidelity bond.
The
Master Servicer shall (i) require each Servicer to maintain an Errors and
Omissions Insurance Policy and a Servicer Fidelity Bond in accordance with
the
provisions of the applicable Servicing Agreement, (ii) cause each Servicer
to
provide to the Master Servicer certificates evidencing that such policy and
bond
is in effect and to furnish to the Master Servicer any notice of cancellation,
non-renewal or modification of the policy or bond received by it, as and
to the
extent provided in the applicable Servicing Agreement, and (iii) furnish
copies
of such policies and of the certificates and notices referred to in clause
(ii)
to the Trustee upon request.
129
(b) The
Master Servicer shall promptly report to the Trustee and any NIMS Insurer
any
material changes that may occur in the Master Servicer Fidelity Bond or the
Master Servicer Errors and Omissions Insurance Policy and shall furnish to
the
Trustee and any NIMS Insurer, on request, certificates evidencing that such
bond
and insurance policy are in full force and effect. The Master Servicer shall
promptly report to the Trustee and any NIMS Insurer all cases of embezzlement
or
fraud, if such events involve funds relating to the Mortgage Loans. The total
losses, regardless of whether claims are filed with the applicable insurer
or
surety, shall be disclosed in such reports together with the amount of such
losses covered by insurance. If a bond or insurance claim report is filed
with
any of such bonding companies or insurers, the Master Servicer shall promptly
furnish a copy of such report to the Trustee and any NIMS Insurer. Any amounts
relating to the Mortgage Loans collected by the Master Servicer under any
such
bond or policy shall be promptly remitted by the Master Servicer to the Trustee
for deposit into the Certificate Account. Any amounts relating to the Mortgage
Loans collected by the Servicer under any such bond or policy shall be remitted
to the Master Servicer to the extent provided in the Servicing
Agreement.
Section
9.03 Master
Servicer’s Financial Statements and Related Information.
For
each
year this Agreement is in effect, the Master Servicer shall submit to the
Trustee, any NIMS Insurer, each Rating Agency and the Depositor a copy of
its
annual unaudited financial statements on or prior to March 15 of each year,
beginning March 15, 2007. Such financial statements shall include a balance
sheet, income statement, statement of retained earnings, statement of additional
paid-in capital, statement of changes in financial position and all related
notes and schedules and shall be in comparative form, certified by a nationally
recognized firm of Independent Accountants to the effect that such statements
were examined and prepared in accordance with generally accepted accounting
principles applied on a basis consistent with that of the preceding
year.
Section
9.04 Power
to Act; Procedures.
130
(a) The
Master Servicer shall master service the Mortgage Loans and shall have full
power and authority, subject to the REMIC Provisions and the provisions of
Article X hereof, and each Servicer shall have full power and authority (to
the
extent provided in the applicable Servicing Agreement) to do any and all
things
that it may deem necessary or desirable in connection with the servicing
and
administration of the Mortgage Loans, including but not limited to the power
and
authority (i) to execute and deliver, on behalf of the Certificateholders
and
the Trustee, customary consents or waivers and other instruments and documents,
(ii) to consent to transfers of any Mortgaged Property and assumptions of
the
Mortgage Notes and related Mortgages, (iii) to collect any Insurance Proceeds
and Liquidation Proceeds, and (iv) to effectuate foreclosure or other conversion
of the ownership of the Mortgaged Property securing any Mortgage Loan, in
each
case, in accordance with the provisions of this Agreement and the applicable
Servicing Agreement, as applicable; provided that the Master Servicer shall
not
take, or knowingly permit any Servicer to take, any action that is inconsistent
with or prejudices the interests of the Trust Fund or the Certificateholders
in
any Mortgage Loan or the rights and interests of the Depositor, the Trustee,
the
Certificateholders under this Agreement. The Master Servicer shall represent
and
protect the interests of the Trust Fund in the same manner as it protects
its
own interests in mortgage loans in its own portfolio in any claim, proceeding
or
litigation regarding a Mortgage Loan and shall not make or knowingly permit
any
Servicer to make any modification, waiver or amendment of any term of any
Mortgage Loan that would cause an Adverse REMIC Event. Without limiting the
generality of the foregoing, the Master Servicer in its own name or in the
name
of a Servicer, and each Servicer, to the extent such authority is delegated
to
such Servicer under the applicable Servicing Agreement, is hereby authorized
and
empowered by the Trustee when the Master Servicer or such Servicer, as the
case
may be, believes it appropriate in its best judgment and in accordance with
Accepted Servicing Practices and the applicable Servicing Agreement, to execute
and deliver, on behalf of itself and the Certificateholders, the Trustee
or any
of them, any and all instruments of satisfaction or cancellation, or of partial
or full release or discharge and all other comparable instruments, with respect
to the Mortgage Loans and with respect to the Mortgaged Properties. The Trustee
shall furnish to the Master Servicer, upon request, with any powers of attorney
empowering the Master Servicer or the Servicer to execute and deliver
instruments of satisfaction or cancellation, or of partial or full release
or
discharge, and to foreclose upon or otherwise liquidate Mortgaged Property,
and
to appeal, prosecute or defend in any court action relating to the Mortgage
Loans or the Mortgaged Property, in accordance with the applicable Servicing
Agreement and this Agreement, and the Trustee shall execute and deliver such
other documents, as the Master Servicer may request, necessary or appropriate
to
enable the Master Servicer to master service the Mortgage Loans and carry
out
its duties hereunder and to allow such Servicer to service the Mortgage Loans,
in each case in accordance with Accepted Servicing Practices (and the Trustee
shall have no liability for misuse of any such powers of attorney by the
Master
Servicer or any Servicer). If the Master Servicer or the Trustee has been
advised that it is likely that the laws of the state in which action is to
be
taken prohibit such action if taken in the name of the Trustee or that the
Trustee would be adversely affected under the “doing business” or tax laws of
such state if such action is taken in its name, then upon request of the
Trustee
the Master Servicer shall join with the Trustee in the appointment of a
co-trustee pursuant to Section 6.09 hereof. In no event shall the Master
Servicer, without the Trustee’s written consent: (i) initiate any action, suit
or proceeding solely under the Trustee’s name without indicating the Master
Servicer in its applicable, representative capacity, so long as the
jurisdictional and procedural rules will allow for this insertion to occur,
(ii)
initiate any action, suit or proceeding not directly relating to the servicing
of a Mortgage Loan (including but not limited to actions, suits or proceedings
against Certificateholders, or against the Depositor, the Seller or the
Transferor for breaches of representations and warranties) solely under the
Trustee’s name, (iii) engage counsel to represent the Trustee in any action,
suit or proceeding not directly relating to the servicing of a Mortgage Loan
(including but not limited to actions, suits or proceedings against
Certificateholders, or against the Depositor, the Seller or the Transferor
for
breaches of representations and warranties), or (iv) prepare, execute or
deliver
any government filings, forms, permits, registrations or other documents
or take
any action with the intent to cause, and that actually causes, the Trustee
to be
registered to do business in any state. The Master Servicer shall indemnify
the
Trustee for any and all costs, liabilities and expenses incurred by the Trustee
in connection with the negligent or willful misuse of such powers of attorney
by
the Master Servicer. In the performance of its duties hereunder, the Master
Servicer shall be an independent contractor and shall not, except in those
instances where it is taking action in the name of the Trustee on behalf
of the
Trust Fund, be deemed to be the agent of the Trustee.
131
(b) In
master
servicing and administering the Mortgage Loans, the Master Servicer shall
employ
procedures and exercise the same care that it customarily employs and exercises
in master servicing and administering loans for its own account, giving due
consideration to Accepted Servicing Practices where such practices do not
conflict with this Agreement. Consistent with the foregoing, the Master Servicer
may, and may permit any Servicer to, in its discretion (i) waive any late
payment charge (but not any Prepayment Premium, except as set forth below)
and
(ii) extend the due dates for payments due on a Mortgage Note for a period
not
greater than 120 days; provided, however, that the maturity of any Mortgage
Loan
shall not be extended past the date on which the final payment is due on
the
latest maturing Mortgage Loan as of the Cut-off Date. In the event of any
extension described in clause (ii) above, the Master Servicer shall make
or
cause such Servicer (if required by the applicable Servicing Agreement) to
make
Advances on the related Mortgage Loan in accordance with the provisions of
Section 5.04 on the basis of the amortization schedule of such Mortgage Loan
without modification thereof by reason of such extension. Notwithstanding
anything to the contrary in this Agreement, the Master Servicer shall not
make
or knowingly permit any modification, waiver or amendment of any material
term
of any Mortgage Loan, unless: (1) such Mortgage Loan is in default or default
by
the related Mortgagor is, in the reasonable judgment of the Master Servicer
or
the applicable Servicer, reasonably foreseeable, (2) in the case of a waiver
of
a Prepayment Premium, (a) such Mortgage Loan is in default or default by
the
related Mortgagor is, in the reasonable judgment of the Master Servicer or
the
applicable Servicer, reasonably foreseeable and such waiver would maximize
recovery of total proceeds taking into account the value of such Prepayment
Premium and the related Mortgage Loan or (b) if the prepayment is not the
result
of a refinance by the Servicer or any of its affiliates and (i) such Mortgage
Loan is in default or default by the related Mortgagor is, in the reasonable
judgment of the Master Servicer or the applicable Servicer, reasonably
foreseeable and such waiver would maximize recovery of total proceeds taking
into account the value of such Prepayment Premium and the related Mortgage
Loan
or (ii) the collection of the Prepayment Premium would be in violation of
applicable law or (iii) the collection of such Prepayment Premium would be
considered “predatory” pursuant to written guidance published or issued by any
applicable federal, state or local regulatory authority acting in its official
capacity and having jurisdiction over such matters and (3) the Master Servicer
shall have provided or caused to be provided to the Trustee an Opinion of
Counsel addressed to the Trustee (which opinion shall, if provided by the
Master
Servicer, be an expense reimbursed from the Collection Account pursuant to
Section 4.02(v)) to the effect that such modification, waiver or amendment
would
not result in an Adverse REMIC Event; provided, in no event shall an Opinion
of
Counsel be required for the waiver of a Prepayment Premium under clause (2)
above.
Section
9.05 Enforcement
of Servicer’s and Master Servicer’s Obligations.
132
(a) Each
Servicing Agreement requires the applicable Servicer, respectively, to service
the Mortgage Loans in accordance with the provisions thereof. References
in this
Agreement to actions taken or to be taken by the Master Servicer include
actions
taken or to be taken by a Servicer on behalf of the Master Servicer. Any
fees
and other amounts payable to a Servicer shall be deducted from amounts remitted
to the Master Servicer by such Servicer (to the extent permitted by the
applicable Servicing Agreement) and shall not be an obligation of the Trust
Fund, the Trustee or the Master Servicer.
(b) The
Master Servicer shall not be required to (i) take any action with respect
to the
servicing of any Mortgage Loan that the related Servicer is not required
to take
under the related Servicing Agreement and (ii) cause a Servicer to take any
action or refrain from taking any action if the related Servicing Agreement
does
not require the Servicer to take such action or refrain from taking such
action;
in both cases notwithstanding any provision of this Agreement that requires
the
Master Servicer to take such action or cause the Servicer to take such
action.
(c) The
Master Servicer, for the benefit of the Trustee, any NIMS Insurer and the
Certificateholders, shall enforce the obligations of each Servicer under
the
related Servicing Agreement, and shall, in the event that a Servicer fails
to
perform its obligations in accordance therewith, terminate the rights and
obligations of such Servicer thereunder and either act as servicer of the
related Mortgage Loans or cause the other parties hereto to enter into a
Servicing Agreement (and such parties hereby agree to execute and deliver
any
such successor Servicing Agreement), with a successor Servicer. Such
enforcement, including, without limitation, the legal prosecution of claims,
termination of the Servicing Agreements and the pursuit of other appropriate
remedies, shall be in such form and carried out to such an extent and at
such
time as the Master Servicer, in its good faith business judgment, would require
were it the owner of the related Mortgage Loans. The Master Servicer shall
pay
the costs of such enforcement at its own expense, and shall be reimbursed
therefor initially (i) from a general recovery resulting from such enforcement
only to the extent, if any, that such recovery exceeds all amounts due in
respect of the related Mortgage Loans, (ii) from a specific recovery of costs,
expenses or attorneys’ fees against the party against whom such enforcement is
directed, and then, (iii) to the extent that such amounts are insufficient
to
reimburse the Master Servicer for the costs of such enforcement, from the
Collection Account.
(d) The
Master Servicer shall be entitled to conclusively rely on any certifications
or
other information provided by the Servicers under the terms of the applicable
Servicing Agreement, in its preparation of any certifications, filings or
reports, in accordance with the terms hereof or as may be required by applicable
law or regulation.
Section
9.06 Collection
of Taxes, Assessments and Similar Items.
(a) To
the
extent provided in the applicable Servicing Agreement, the Master Servicer
shall
cause each Servicer to establish and maintain one or more custodial accounts
at
a depository institution (which may be a depository institution with which
the
Master Servicer or any Servicer establishes accounts in the ordinary course
of
its servicing activities), the accounts of which are insured to the maximum
extent permitted by the FDIC (each, an “Escrow Account”) and to deposit therein
any collections of amounts received with respect to amounts due for taxes,
assessments, water rates, standard hazard insurance policy premiums, Payaheads,
if applicable, or any comparable items for the account of the Mortgagors.
Withdrawals from any Escrow Account may be made (to the extent amounts have
been
escrowed for such purpose) only in accordance with the applicable Servicing
Agreement. Each Servicer shall be entitled to all investment income not required
to be paid to Mortgagors on any Escrow Account maintained by such Servicer.
The
Master Servicer shall make (or cause to be made) to the extent provided in
the
applicable Servicing Agreement advances to the extent necessary in order
to
effect timely payment of taxes, water rates, assessments, standard hazard
insurance policy premiums or comparable items in connection with the related
Mortgage Loan (to the extent that the Mortgagor is required, but fails, to
pay
such items), provided that it or the applicable Servicer has determined that
the
funds so advanced are recoverable from escrow payments, reimbursement pursuant
to Section 4.02 or otherwise.
133
(b) Costs
incurred by the Master Servicer or by any Servicer in effecting the timely
payment of taxes and assessments on the properties subject to the Mortgage
Loans
may be added to the amount owing under the related Mortgage Note where the
terms
of the Mortgage Note so permit; provided, however, that the addition of any
such
cost shall not be taken into account for purposes of calculating the
distributions to be made to Certificateholders. Such costs, to the extent
that
they are unanticipated, extraordinary costs, and not ordinary or routine
costs
shall be recoverable as a Servicing Advance by the Master Servicer pursuant
to
Section 4.02.
Section
9.07 Termination
of Servicing Agreements; Successor Servicers.
(a) The
Master Servicer shall be entitled to terminate the rights and obligations
of any
Servicer under the applicable Servicing Agreement in accordance with the
terms
and conditions of such Servicing Agreement and without any limitation by
virtue
of this Agreement; provided,
however,
that in
the event of termination of any Servicing Agreement by the Master Servicer,
the
Master Servicer shall provide for the servicing of the Mortgage Loans by
a
successor Servicer to be appointed as provided in the applicable Servicing
Agreement.
The
parties acknowledge that notwithstanding the preceding sentence, there may
be a
transition period, not to exceed 90 days, in order to effect the transfer
of
servicing to a successor Servicer. The Master Servicer shall be entitled
to be
reimbursed from each Servicer (or by the Trust Fund, if the Servicer is unable
to fulfill its obligations hereunder) for all costs associated with the transfer
of servicing from the predecessor servicer, including without limitation,
any
costs or expenses associated with the complete transfer of all servicing
data
and the completion, correction or manipulation of such servicing data, as
may be
required by the Master Servicer to correct any errors or insufficiencies
in the
servicing data or otherwise to enable the Master Servicer to service the
Mortgage Loans properly and effectively.
(b) If
the
Master Servicer acts as a successor Servicer, it will not assume liability
for
the representations and warranties of the Servicer, if any, that it replaces.
The Master Servicer shall use reasonable efforts to have the successor Servicer
assume liability for the representations and warranties made by the terminated
Servicer in the related Servicing Agreement, and in the event of any such
assumption by the successor Servicer, the Trustee or the Master Servicer,
as
applicable, may, in the exercise of its business judgment, release the
terminated Servicer from liability for such representations and
warranties.
134
(c) If
the
Master Servicer acts as a successor Servicer, it will have the same obligations
to make Advances as the Servicer under the applicable Servicing Agreement
and to
reimburse the successor Servicer for unreimbursed Advances if required by
the
Servicing Agreement but will have no obligation to make an Advance if it
determines in its reasonable judgment that such Advance is non-recoverable.
To
the extent that the Master Servicer is unable to find a successor Servicer
that
is willing to service the Mortgage Loans for the Servicing Fee because of
the
obligation of the Servicer to make Advances regardless of whether such Advance
is recoverable, the applicable Servicing Agreement may be amended to provide
that the successor Servicer shall have no obligation to make an Advance if
it
determines in its reasonable judgment that such Advance is non-recoverable
and
provides an Officer’s Certificate to such effect to the Master Servicer, the
Trustee and the NIMS Insurer.
Section
9.08 Master
Servicer Liable for Enforcement.
Notwithstanding
any Servicing Agreement, the Master Servicer shall remain obligated and liable
to the Trustee, any NIMS Insurer and the Certificateholders in accordance
with
the provisions of this Agreement, to the extent of its obligations hereunder,
without diminution of such obligation or liability by virtue of the Servicing
Agreements. The Master Servicer shall use commercially reasonable efforts
to
ensure that the Mortgage Loans are serviced in accordance with the provisions
of
this Agreement and shall use commercially reasonable efforts to enforce the
provisions of eahc Servicing Agreement for the benefit of the Certificateholders
and any NIMS Insurer. The Master Servicer shall be entitled to enter into
any
agreement with the Servicer for indemnification of the Master Servicer and
nothing contained in this Agreement shall be deemed to limit or modify such
indemnification. Except as expressly set forth herein, the Master Servicer
shall
have no liability for the acts or omissions of any Servicer in the performance
by such Servicer of its obligations under the related Servicing
Agreement.
Section
9.09 No
Contractual Relationship Between Any Servicer and Trustee or
Depositor.
Any
Servicing Agreement that may be entered into and any other transactions or
services relating to the Mortgage Loans involving any Servicer in its capacity
as such and not as an originator shall be deemed to be between such Servicer,
the Seller and the Master Servicer, and the Trustee, any NIMS Insurer and
the
Depositor shall not be deemed parties thereto and shall have no obligations,
duties or liabilities with respect to such Servicer except as set forth in
Section 9.10 hereof, but shall have rights thereunder as third party
beneficiaries. It is furthermore understood and agreed by the parties hereto
that the obligations of any Servicer are set forth in their entirety in such
Servicer’s related Servicing Agreement and such Servicer has no obligations
under and is not otherwise bound by the terms of this Agreement.
Section
9.10 Assumption
of Servicing Agreement by Trustee.
(a) In
the
event the Master Servicer shall for any reason no longer be the Master Servicer
(including by reason of any Event of Default under this Agreement), after
a
period not to exceed ninety days after the issuance of any notice of termination
pursuant to Section 6.14 or Section 9.28, as applicable, the Trustee shall
thereupon assume all of the rights and obligations of such Master Servicer
hereunder and under each Servicing Agreement entered into with respect to
the
Mortgage Loans. The Trustee, its designee or any successor master servicer
appointed by the Trustee shall be deemed to have assumed all of the Master
Servicer’s interest herein and therein to the same extent as if such Servicing
Agreement had been assigned to the assuming party, except that the Master
Servicer shall not thereby be relieved of any liability or obligations of
the
Master Servicer under such Servicing Agreement accruing prior to its replacement
as Master Servicer, and shall be liable to the Trustee and any NIMS Insurer,
and
hereby agrees to indemnify and hold harmless the Trustee and any NIMS Insurer
from and against all costs, damages, expenses and liabilities (including
reasonable attorneys’ fees) incurred by the Trustee or any NIMS Insurer as a
result of such liability or obligations of the Master Servicer and in connection
with the Trustee’s assumption (but not its performance, except to the extent
that costs or liability of the Trustee are created or increased as a result
of
negligent or wrongful acts or omissions of the Master Servicer prior to its
replacement as Master Servicer) of the Master Servicer’s obligations, duties or
responsibilities thereunder.
135
(b) The
Master Servicer that has been terminated shall, upon request of the Trustee
but
at the expense of such Master Servicer, deliver to the assuming party all
documents and records relating to each Servicing Agreement and the related
Mortgage Loans and an accounting of amounts collected and held by it and
otherwise use its best efforts to effect the orderly and efficient transfer
of
each Servicing Agreement to the assuming party.
Section
9.11 Due-on-Sale
Clauses; Assumption Agreements.
To
the
extent provided in the applicable Servicing Agreement, to the extent Mortgage
Loans contain enforceable due-on-sale clauses, the Master Servicer shall
cause
the Servicer to enforce such clauses in accordance with the applicable Servicing
Agreement. If applicable law prohibits the enforcement of a due-on-sale clause
or such clause is otherwise not enforced in accordance with the applicable
Servicing Agreement, and, as a consequence, a Mortgage Loan is assumed, the
original Mortgagor may be released from liability in accordance with the
applicable Servicing Agreement.
Section
9.12 Release
of Mortgage Files.
(a) Upon
(i)
becoming aware of the payment in full of any Mortgage Loan or (ii) the receipt
by the Master Servicer of a notification that payment in full has been or
will
be escrowed in a manner customary for such purposes, the Master Servicer
will,
or will cause the applicable Servicer to, promptly notify the Trustee (or
the
applicable Custodian) by a certification (which certification shall include
a
statement to the effect that all amounts received in connection with such
payment that are required to be deposited in the Collection Account maintained
by the Master Servicer pursuant to Section 4.01 have been or will be so
deposited) of a Servicing Officer and shall request (on the form attached
hereto
as Exhibit C or on the form attached to the related Custodial Agreement)
the
Trustee or the applicable Custodian, to deliver to the applicable Servicer
the
related Mortgage File. Upon receipt of such certification and request, the
Trustee or the applicable Custodian (with the consent, and at the direction
of
the Trustee), shall promptly release the related Mortgage File to the applicable
Servicer and neither the Trustee nor the applicable Custodian shall have
any
further responsibility with regard to such Mortgage File. Upon any such payment
in full, the Master Servicer is authorized, and each Servicer, to the extent
such authority is provided for under the applicable Servicing Agreement,
is
authorized, to give, as agent for the Trustee, as the mortgagee under the
Mortgage that secured the Mortgage Loan, an instrument of satisfaction (or
assignment of mortgage without recourse) regarding the Mortgaged Property
subject to the Mortgage, which instrument of satisfaction or assignment,
as the
case may be, shall be delivered to the Person or Persons entitled thereto
against receipt therefor of such payment, it being understood and agreed
that no
expenses incurred in connection with such instrument of satisfaction or
assignment, as the case may be, shall be chargeable to the Collection
Account.
136
(b) From
time
to time and as appropriate for the servicing or foreclosure of any Mortgage
Loan
and in accordance with Accepted Servicing Practices and the applicable Servicing
Agreement, the Trustee shall execute such documents as shall be prepared
and
furnished to the Trustee by the Master Servicer, or by a Servicer (in form
reasonably acceptable to the Trustee) and as are necessary to the prosecution
of
any such proceedings. The Trustee or the Custodian, shall, upon request of
the
Master Servicer, or of a Servicer, and delivery to the Trustee or the applicable
Custodian, of a request for release of documents and a receipt signed by
a
Servicing Officer substantially in the form of Exhibit C, release the related
Mortgage File held in its possession or control to the Master Servicer (or
the
applicable Servicer). Such receipt shall obligate the Master Servicer or
Servicer to return the Mortgage File to the Trustee or the applicable Custodian,
as applicable, when the need therefor by the Master Servicer or Servicer
no
longer exists unless the Mortgage Loan shall be liquidated, in which case,
upon
receipt of a certificate of a Servicing Officer similar to that hereinabove
specified, the receipt shall be released by the Trustee or the applicable
Custodian, as applicable, to the Master Servicer (or the applicable
Servicer).
Section
9.13 Documents,
Records and Funds in Possession of Master Servicer to be Held for
Trustee.
(a) The
Master Servicer shall transmit, or cause the applicable Servicer to transmit,
to
the Trustee such documents and instruments coming into the possession of
the
Master Servicer or such Servicer from time to time as are required by the
terms
hereof or of the applicable Servicing Agreement to be delivered to the Trustee
or the applicable Custodian. Any funds received by the Master Servicer or
by a
Servicer in respect of any Mortgage Loan or which otherwise are collected
by the
Master Servicer or a Servicer as Liquidation Proceeds or Insurance Proceeds
in
respect of any Mortgage Loan shall be held for the benefit of the Trustee
and
the Certificateholders subject to the Master Servicer’s right to retain or
withdraw from the Collection Account the Master Servicing Fee and other amounts
provided in this Agreement and to the right of each Servicer to retain its
Servicing Fee and other amounts as provided in the related Servicing Agreement.
The Master Servicer shall, and shall (to the extent provided in the applicable
Servicing Agreement) cause each Servicer to, provide access to information
and
documentation regarding the Mortgage Loans to the Trustee, any NIMS Insurer,
their respective agents and accountants at any time upon reasonable request
and
during normal business hours, and to Certificateholders that are savings
and
loan associations, banks or insurance companies, the Office of Thrift
Supervision, the FDIC and the supervisory agents and examiners of such Office
and Corporation or examiners of any other federal or state banking or insurance
regulatory authority if so required by applicable regulations of the Office
of
Thrift Supervision or other regulatory authority, such access to be afforded
without charge but only upon reasonable request in writing and during normal
business hours at the offices of the Master Servicer designated by it. In
fulfilling such a request the Master Servicer shall not be responsible for
determining the sufficiency of such information.
137
(b) All
Mortgage Files and funds collected or held by, or under the control of, the
Master Servicer, or any Servicer, in respect of any Mortgage Loans, whether
from
the collection of principal and interest payments or from Liquidation Proceeds
or Insurance Proceeds, shall be held by the Master Servicer, or by any Servicer,
for and on behalf of the Trustee and the Certificateholders and shall be
and
remain the sole and exclusive property of the Trustee; provided,
however,
that
the Master Servicer and each Servicer shall be entitled to setoff against,
and
deduct from, any such funds any amounts that are properly due and payable
to the
Master Servicer or such Servicer under this Agreement or the applicable
Servicing Agreement and shall be authorized to remit such funds to the Trustee
in accordance with this Agreement.
(c) The
Master Servicer hereby acknowledges that concurrently with the execution
of this
Agreement, the Trustee shall own or, to the extent that a court of competent
jurisdiction shall deem the conveyance of the Mortgage Loans from the Seller
to
the Depositor not to constitute a sale, the Trustee shall have a security
interest in the Mortgage Loans and in all Mortgage Files representing such
Mortgage Loans and in all funds and investment property now or hereafter
held
by, or under the control of, a Servicer or the Master Servicer that are
collected by any Servicer or the Master Servicer in connection with the Mortgage
Loans, whether as scheduled installments of principal and interest or as
full or
partial prepayments of principal or interest or as Liquidation Proceeds or
Insurance Proceeds or otherwise, and in all proceeds of the foregoing and
proceeds of proceeds (but excluding any fee or other amounts to which a Servicer
is entitled under the applicable Servicing Agreement, or the Master Servicer
or
the Depositor is entitled to hereunder); and the Master Servicer agrees that
so
long as the Mortgage Loans are assigned to and held by the Trustee or any
Custodian, all documents or instruments constituting part of the Mortgage
Files,
and such funds relating to the Mortgage Loans which come into the possession
or
custody of, or which are subject to the control of, the Master Servicer or
any
Servicer shall be held by the Master Servicer or such Servicer for and on
behalf
of the Trustee as the Trustee’s agent and bailee for purposes of perfecting the
Trustee’s security interest therein as provided by the applicable Uniform
Commercial Code or other applicable laws.
(d) The
Master Servicer agrees that it shall not, and shall not authorize any Servicer
to, create, incur or subject any Mortgage Loans, or any funds that are deposited
in any Custodial Account, Escrow Account or the Collection Account, or any
funds
that otherwise are or may become due or payable to the Trustee, to any claim,
lien, security interest, judgment, levy, writ of attachment or other
encumbrance, nor assert by legal action or otherwise any claim or right of
setoff against any Mortgage Loan or any funds collected on, or in connection
with, a Mortgage Loan.
Section
9.14 Representations
and Warranties of the Master Servicer.
(a) The
Master Servicer hereby represents and warrants to the Depositor, any NIMS
Insurer and the Trustee, for the benefit of the Certificateholders, as of
the
Closing Date that:
138
(i) it
is
validly existing and in good standing under the laws of the state of its
incorporation, and as Master Servicer has full power and authority to transact
any and all business contemplated by this Agreement and to execute, deliver
and
comply with its obligations under the terms of this Agreement, the execution,
delivery and performance of which have been duly authorized by all necessary
corporate action on the part of the Master Servicer;
(ii) the
execution and delivery of this Agreement by the Master Servicer and its
performance and compliance with the terms of this Agreement will not (A)
violate
the Master Servicer’s charter or bylaws, (B) violate any law or regulation or
any administrative decree or order to which it is subject or (C) constitute
a
default (or an event which, with notice or lapse of time, or both, would
constitute a default) under, or result in the breach of, any material contract,
agreement or other instrument to which the Master Servicer is a party or
by
which it is bound or to which any of its assets are subject, which violation,
default or breach would materially and adversely affect the Master Servicer’s
ability to perform its obligations under this Agreement;
(iii) this
Agreement constitutes, assuming due authorization, execution and delivery
hereof
by the other respective parties hereto, a legal, valid and binding obligation
of
the Master Servicer, enforceable against it in accordance with the terms
hereof,
except as such enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium and other laws affecting the enforcement of
creditors’ rights in general, and by general equity principles (regardless of
whether such enforcement is considered in a proceeding in equity or at
law);
(iv) the
Master Servicer is not in default with respect to any order or decree of
any
court or any order or regulation of any federal, state, municipal or
governmental agency to the extent that any such default would materially
and
adversely affect its performance hereunder;
(v) the
Master Servicer is not a party to or bound by any agreement or instrument
or
subject to any charter provision, bylaw or any other corporate restriction
or
any judgment, order, writ, injunction, decree, law or regulation that may
materially and adversely affect its ability as Master Servicer to perform
its
obligations under this Agreement or that requires the consent of any third
person to the execution of this Agreement or the performance by the Master
Servicer of its obligations under this Agreement;
(vi) no
litigation is pending or, to the best of the Master Servicer’s knowledge,
threatened against the Master Servicer which would prohibit its entering
into
this Agreement or performing its obligations under this Agreement;
(vii) the
Master Servicer, or an affiliate thereof the primary business of which is
the
servicing of conventional residential mortgage loans, is a Xxxxxx Xxx- or
Xxxxxxx Mac-approved seller/servicer;
139
(viii) no
consent, approval, authorization or order of any court or governmental agency
or
body is required for the execution, delivery and performance by the Master
Servicer of or compliance by the Master Servicer with this Agreement or the
consummation of the transactions contemplated by this Agreement, except for
such
consents, approvals, authorizations and orders (if any) as have been
obtained;
(ix) the
consummation of the transactions contemplated by this Agreement are in the
ordinary course of business of the Master Servicer;
(x) the
Master Servicer has obtained an Errors and Omissions Insurance Policy and
a
Fidelity Bond in accordance with Section 9.02 each of which is in full force
and
effect, and each of which provides at least such coverage as is required
hereunder; and
(xi) the
information about the Master Servicer under the heading “The Master Servicer” in
the Prospectus relating to the Master Servicer does not include an untrue
statement of a material fact and does not omit to state a material fact,
with
respect to the statements made, necessary in order to make the statements
in
light of the circumstances under which they were made not
misleading.
(b) It
is
understood and agreed that the representations and warranties set forth in
this
Section 9.14 shall survive the execution and delivery of this Agreement.
The
Master Servicer shall indemnify the Depositor, the Trustee and any NIMS Insurer
and hold them harmless against any loss, damages, penalties, fines, forfeitures,
legal fees and related costs, judgments, and other costs and expenses resulting
from any claim, demand, defense or assertion based on or grounded upon, or
resulting from, a breach of the Master Servicer’s representations and warranties
contained in Section 9.14(a). It is understood and agreed that the enforcement
of the obligation of the Master Servicer set forth in this Section to indemnify
the Depositor, the Trustee and any NIMS Insurer as provided in this Section
constitutes the sole remedy (other than as set forth in Section 6.14) of
the
Depositor, the Trustee and any NIMS Insurer, respecting a breach of the
foregoing representations and warranties. Such indemnification shall survive
any
termination of the Master Servicer as Master Servicer hereunder, and any
termination of this Agreement.
Any
cause
of action against the Master Servicer relating to or arising out of the breach
of any representations and warranties made in this Section shall accrue upon
discovery of such breach by any of the Depositor, the Master Servicer, the
Trustee or any NIMS Insurer or notice thereof by any one of such parties
to the
other parties.
(c) It
is
understood and agreed that the representations and warranties of the Depositor
set forth in Sections 2.03(a)(i) through (vi) shall survive the execution
and
delivery of this Agreement. The Depositor shall indemnify the Master Servicer
and hold each harmless against any loss, damages, penalties, fines, forfeitures,
legal fees and related costs, judgments, and other costs and expenses resulting
from any claim, demand, defense or assertion based on or grounded upon, or
resulting from, a breach of the Depositor’s representations and warranties
contained in Sections 2.03(a)(i) through (vi) hereof. It is understood and
agreed that the enforcement of the obligation of the Depositor set forth
in this
Section to indemnify the Master Servicer as provided in this Section constitutes
the sole remedy hereunder of the Master Servicer respecting a breach by the
Depositor of the representations and warranties in Sections 2.03(a)(i) through
(vi) hereof.
140
(d)
Any
cause of action against the Master Servicer relating to or arising out of
the
breach of any representations and warranties made in this Section shall accrue
upon discovery of such breach by either the Depositor, the Master Servicer,
the
Trustee or any NIMS Insurer or notice thereof by any one of such parties
to the
other parties. Notwithstanding anything in this Agreement to the contrary,
the
Master Servicer shall not be liable for special, indirect or consequential
losses or damages of any kind whatsoever (including, but not limited to,
lost
profits); provided,
however,
that
this Subsection 9.14(d) shall not apply in connection with any failure by
the
Master Servicer to comply with the provisions of Sections 9.25 and 9.26
hereof.
Section
9.15 Opinion.
On
or
before the Closing Date, the Master Servicer shall cause to be delivered
to the
Depositor, the Seller, the Trustee and any NIMS Insurer one or more Opinions
of
Counsel, dated the Closing Date, in form and substance reasonably satisfactory
to the Depositor and Xxxxxx Brothers Inc., as to the due authorization,
execution and delivery of this Agreement by the Master Servicer and the
enforceability thereof.
Section
9.16 Standard
Hazard and Flood Insurance Policies.
For
each
Mortgage Loan, the Master Servicer shall maintain, or cause to be maintained
by
each Servicer, standard fire and casualty insurance and, where applicable,
flood
insurance, all in accordance with the provisions of this Agreement and the
related Servicing Agreement, as applicable. It is understood and agreed that
such insurance shall be with insurers meeting the eligibility requirements
set
forth in the applicable Servicing Agreement and that no earthquake or other
additional insurance is to be required of any Mortgagor or to be maintained
on
property acquired in respect of a defaulted loan, other than pursuant to
such
applicable laws and regulations as shall at any time be in force and as shall
require such additional insurance.
Pursuant
to Section 4.01, any amounts collected by the Master Servicer, or by any
Servicer, under any insurance policies maintained pursuant to this Section
9.16
or any Servicing Agreement (other than amounts to be applied to the restoration
or repair of the property subject to the related Mortgage or released to
the
Mortgagor in accordance with the applicable Servicing Agreement) shall be
deposited into the Collection Account, subject to withdrawal pursuant to
Section
4.02. Any cost incurred by the Master Servicer or any Servicer in maintaining
any such insurance if the Mortgagor defaults in its obligation to do so shall
be
added to the amount owing under the Mortgage Loan where the terms of the
Mortgage Loan so permit; provided,
however,
that the
addition of any such cost shall not be taken into account for purposes of
calculating the distributions to be made to Certificateholders and shall
be
recoverable by the Master Servicer or such Servicer pursuant to Section
4.02.
Section
9.17 Presentment
of Claims and Collection of Proceeds.
141
The
Master Servicer shall cause each Servicer (to the extent provided in the
applicable Servicing Agreement) to, prepare and present on behalf of the
Trustee
and the Certificateholders all claims under the Insurance Policies with respect
to the Mortgage Loans, and take such actions (including the negotiation,
settlement, compromise or enforcement of the insured’s claim) as shall be
necessary to realize recovery under such policies. Any proceeds disbursed
to the
Master Servicer (or disbursed to a Servicer and remitted to the Master Servicer)
in respect of such policies or bonds shall be promptly deposited in the
Collection Account or the Custodial Account upon receipt, except that any
amounts realized that are to be applied to the repair or restoration of the
related Mortgaged Property as a condition requisite to the presentation of
claims on the related Mortgage Loan to the insurer under any applicable
Insurance Policy need not be so deposited (or remitted).
Section
9.18 [Reserved]
Section
9.19 [Reserved]
Section
9.20 [Reserved]
Section
9.21 Compensation
to the Master Servicer.
The
Master Servicer shall be entitled to withdraw from the Collection Account,
subject to Section 5.05, the Master Servicing Fee to the extent permitted
by
Section 4.02. Servicing compensation in the form of assumption fees, if any,
late payment charges, as collected, if any, or otherwise (but not including
any
Prepayment Premium) shall be retained by the Master Servicer (or the Servicer)
and shall not be deposited in the Collection Account. If the Master Servicer
does not retain or withdraw the Master Servicing Fee from the Collection
Account
as provided herein, the Master Servicer shall be entitled to direct the Trustee
to pay the Master Servicing Fee to such Master Servicer by withdrawal from
the
Certificate Account to the extent that payments have been received with respect
to the applicable Mortgage Loan. The Master Servicer shall be required to
pay
all expenses incurred by it in connection with its activities hereunder and
shall not be entitled to reimbursement therefor except as provided in this
Agreement. Pursuant to Section 4.01(e), all income and gain realized from
any
investment of funds in the Collection Account shall be for the benefit of
the
Master Servicer as additional compensation. The provisions of this Section
9.21
are subject to the provisions of Section 6.14.
Section
9.22 REO
Property.
(a) In
the
event the Trust Fund acquires ownership of any REO Property in respect of
any
Mortgage Loan, the deed or certificate of sale shall be issued to the Trustee,
or to its nominee, on behalf of the Certificateholders. The Master Servicer
shall use its reasonable best efforts to sell, or cause the applicable Servicer,
to the extent provided in the applicable Servicing Agreement any REO Property
as
expeditiously as possible and in accordance with the provisions of this
Agreement and the related Servicing Agreement, as applicable, but in all
events
within the time period, and subject to the conditions set forth in Article
X
hereof. Pursuant to its efforts to sell such REO Property, the Master Servicer
shall protect and conserve, or cause the applicable Servicer to protect and
conserve, such REO Property in the manner and to such extent required by
the
applicable Servicing Agreement, subject to Article X hereof.
142
(b) The
Master Servicer shall deposit or cause to be deposited all funds collected
and
received by it, or recovered from any Servicer, in connection with the operation
of any REO Property in the Collection Account.
(c) The
Master Servicer and each Servicer, upon the final disposition of any REO
Property, shall be entitled to reimbursement for any related unreimbursed
Advances and other unreimbursed advances as well as any unpaid Master Servicing
Fees or Servicing Fees from Liquidation Proceeds received in connection with
the
final disposition of such REO Property; provided, that (without limitation
of
any other right of reimbursement that the Master Servicer or any Servicer
shall
have hereunder) any such unreimbursed Advances as well as any unpaid Net
Master
Servicing Fees or Servicing Fees may be reimbursed or paid, as the case may
be,
prior to final disposition, out of any net rental income or other net amounts
derived from such REO Property.
(d) The
Liquidation Proceeds from the final disposition of the REO Property, net
of any
payment to the Master Servicer and the applicable Servicer as provided above,
shall be deposited in the Collection Account on or prior to the Determination
Date in the month following receipt thereof and be remitted by wire transfer
in
immediately available funds on the next succeeding Master Servicer Remittance
Date to the Trustee for deposit into the Certificate Account.
Section
9.23 Notice
to
the Sponsor, the Depositor and the Trustee.
(a) The
Master Servicer shall promptly notify the Trustee, the Sponsor and the Depositor
(i) of any legal proceedings pending against the Master Servicer of the type
described in Item 1117 (§ 229.1117) of Regulation AB and (ii) if the Master
Servicer shall become (but only to the extent not previously disclosed to
the
Master Servicer and the Depositor) at any time an affiliate of any of the
parties listed on Exhibit V hereto or any of their affiliates. On or before
March 1st
of each
year, the Depositor shall distribute the information in Exhibit V to the
Master
Servicer.
(b) Not
later
than four Business Days prior to the Distribution Date of each month, the
Master
Servicer shall provide to the Trustee, the Sponsor and the Depositor notice
of
the occurrence of any material modifications, extensions or waivers of terms,
fees, penalties or payments relating to the Mortgage Loans during the related
Collection Period or that have cumulatively become material over time (Item
1121(a)(11) of Regulation AB) along with all information, data, and materials
related thereto as may be required to be included in the related Distribution
Report on Form 10-D. The parties to this Agreement acknowledge that the
performance by the Master Servicer of its duties under this Section 9.23(b)
related to the timely preparation and delivery of such information is contingent
upon each applicable Servicer strictly observing all requirements and deadlines
in the performance of their duties under their related Servicing Agreements.
The
Master Servicer shall have no liability for any loss, expense, damage or
claim
arising out of or with respect to any failure to properly prepare and/or
timely
deliver all such information where such failure results from the Master
Servicer’s inability or failure to obtain or receive, on a timely basis, any
information from any Servicer needed to prepare or deliver such information,
which failure does not result from the Master Servicer’s own negligence, bad
faith or willful misconduct.
143
Section
9.24 Reports
to the Trustee.
(a) Not
later
than 30 days after each Distribution Date, the Master Servicer shall, upon
request, forward to the Trustee a statement, deemed to have been certified
by a
Servicing Officer, setting forth the status of the Collection Account maintained
by the Master Servicer as of the close of business on the related Distribution
Date, indicating that all distributions required by this Agreement to be
made by
the Master Servicer have been made (or if any required distribution has not
been
made by the Master Servicer, specifying the nature and status thereof) and
showing, for the period covered by such statement, the aggregate of deposits
into and withdrawals from the Collection Account maintained by the Master
Servicer. Copies of such statement shall be provided by the Master Servicer,
upon request, to the Depositor, Attention: Contract Finance, any NIMS Insurer
and any Certificateholders (or by the Trustee at the Master Servicer’s expense
if the Master Servicer shall fail to provide such copies to the
Certificateholders (unless (i) the Master Servicer shall have failed to provide
the Trustee with such statement or (ii) the Trustee shall be unaware of the
Master Servicer’s failure to provide such statement)).
(b) Not
later
than two Business Days following each Distribution Date, the Master Servicer
shall deliver to one Person designated by the Depositor, in a format consistent
with other electronic loan level reporting supplied by the Master Servicer
in
connection with similar transactions, “loan level” information with respect to
the Mortgage Loans as of the related Determination Date, to the extent that
such
information has been provided to the Master Servicer by the Servicesr or
by the
Depositor.
(c) All
information, reports and statements prepared by the Master Servicer under
this
Agreement shall be based on information supplied to the Master Servicer by
the
Servicer without independent verification thereof and the Master Servicer
shall
be entitled to rely on such information.
Section
9.25 Assessment
of Compliance and Attestation Reports.
(a) Assessment
of Compliance
(i) By
March
15 of each year, commencing in March 2007, the Master Servicer, the Credit
Risk
Manager, the Paying Agent (if other than the Trustee) and the Trustee, each
at
its own expense, shall furnish, and each such party shall cause any Servicing
Function Participant engaged by it to furnish, each at its own expense, to
the
Sponsor, the Depositor, the Master Servicer and the Trustee, a report on
an
assessment of compliance with the Relevant Servicing Criteria that contains
(A)
a statement by such party of its responsibility for assessing compliance
with
the Relevant Servicing Criteria, (B) a statement that such party used the
Servicing Criteria to assess compliance with the Relevant Servicing Criteria,
(C) such party’s assessment of compliance with the Relevant Servicing Criteria
as of and for the fiscal year covered by the Form 10-K required to be filed
pursuant to Section 6.20(e), including, if there has been any material instance
of noncompliance with the Relevant Servicing Criteria, a discussion of each
such
failure and the nature and status thereof, and (D) a statement that a registered
public accounting firm has issued an attestation report on such party’s
assessment of compliance with the Relevant Servicing Criteria as of and for
such
period.
144
(ii) When
the
Master Servicer, the Credit Risk Manager, the Paying Agent (if other than
the
Trustee) and the Trustee (or any Servicing Function Participant engaged by
it)
submit their assessments to the Trustee and the Master Servicer, such parties
will also at such time include the assessment (and attestation pursuant to
subsection (b) of this Section 9.25) of each Servicing Function Participant
engaged by it and shall indicate to the Trustee what Relevant Servicing Criteria
will be addressed in any such reports prepared by any such Servicing Function
Participant.
(iii) Promptly
after receipt of each report on assessment of compliance, the Trustee shall
confirm that the assessments, taken as a whole, address all applicable Servicing
Criteria and taken individually address the Relevant Servicing Criteria (and
disclose the inapplicability of the Servicing Criteria not determined to
be
Relevant Criteria) for each party as set forth on Exhibit T and on any similar
exhibit set forth in the applicable Servicing Agreement in respect of any
Servicer, and the applicable Custodial Agreement in respect of any Custodian,
and shall notify the Depositor of any exceptions.
(b) Attestation
Reports
(i) By
March
15 of each year, commencing in March 2007, the Master Servicer, the Credit
Risk
Manager, the Paying Agent (if other than the Trustee) and the Trustee, each
at
its own expense, shall cause, and each such party shall cause any Servicing
Function Participant engaged by it to cause, each at its own expense, a
registered public accounting firm (which may also render other services to
the
Master Servicer, the Credit Risk Manager, the Paying Agent and the Trustee,
as
the case may be) that is a member of the American Institute of Certified
Public
Accountants to furnish a report to the Sponsor, the Depositor, the Master
Servicer and the Trustee, to the effect that (A) it has obtained a
representation regarding certain matters from the management of such party,
which includes an assertion that such party has complied with the Relevant
Servicing Criteria, and (B) on the basis of an examination conducted by such
firm in accordance with standards for attestation engagements issued or adopted
by the PCAOB, it is expressing an opinion as to whether such party’s compliance
with the Relevant Servicing Criteria was fairly stated in all material respects,
or it cannot express an overall opinion regarding such party’s assessment of
compliance with the Relevant Servicing Criteria. In the event that an overall
opinion cannot be expressed, such registered public accounting firm shall
state
in such report why it was unable to express such an opinion. Such report
must be
available for general use and not contain restricted use language.
(ii) Promptly
after receipt of such report from the Master Servicer, the Credit Risk Manager,
the Paying Agent, the Trustee or any Servicing Function Participant engaged
by
such parties, the Trustee shall confirm that each assessment submitted pursuant
subsection (a) of this Section 9.25 is coupled with an attestation meeting
the
requirements of this Section and notify the Depositor of any
exceptions.
145
(c) The
Trustee’s and the Paying Agent’s obligation to provide assessments of compliance
and attestations under this Section 9.25 shall terminate upon the filing
of a
Form 15 suspension notice on behalf of the Trust Fund. After the occurrence
of
such event, and provided the Depositor is not otherwise provided with such
reports or copies of such reports, the Trustee and the Paying Agent shall
be
obligated to provide a copy of such reports, by March 15 of each year, to
the
Depositor.
Section
9.26 Annual
Statement of Compliance with Applicable Servicing Criteria.
The
Master Servicer shall deliver (and the Master Servicer shall cause any
Additional Servicer engaged by it to deliver) to the Sponsor, the Depositor
and
the Trustee on or before March 15 of each year, commencing in March 2007,
an
Officer’s Certificate stating, as to the signer thereof, that (A) a review of
such party’s activities during the preceding calendar year or portion thereof
and of such party’s performance under this Agreement, or such other applicable
agreement in the case of an Additional Servicer, has been made under such
officer’s supervision and (B) to the best of such officer’s knowledge, based on
such review, such party has fulfilled all its obligations under this Agreement,
or such other applicable agreement in the case of an Additional Servicer,
in all
material respects throughout such year or portion thereof, or, if there has
been
a failure to fulfill any such obligation in any material respect, specifying
each such failure known to such officer and the nature and status
thereof.
Section
9.27 Merger
or Consolidation.
Any
Person into which the Master Servicer may be merged or consolidated, or any
Person resulting from any merger, conversion, other change in form or
consolidation to which the Master Servicer shall be a party, or any Person
succeeding to the business of the Master Servicer, shall be the successor
to the
Master Servicer hereunder, without the execution or filing of any paper or
any
further act on the part of any of the parties hereto, anything herein to
the
contrary notwithstanding; provided,
however,
that the
successor or resulting Person to the Master Servicer shall be a Person that
shall be qualified and approved to service mortgage loans for Xxxxxx Xxx
or
Xxxxxxx Mac and shall have a net worth of not less than
$15,000,000.
Section
9.28 Resignation
of Master Servicer.
Except
as
otherwise provided in Sections 9.27 and 9.29 hereof, the Master Servicer
shall
not resign from the obligations and duties hereby imposed on it unless it
determines that the Master Servicer’s duties hereunder are no longer permissible
under applicable law or are in material conflict by reason of applicable
law
with any other activities carried on by it and cannot be cured. Any such
determination permitting the resignation of the Master Servicer shall be
evidenced by an Opinion of Counsel that shall be Independent to such effect
delivered to the Trustee and any NIMS Insurer. No such resignation shall
become
effective until the Trustee shall have assumed, or a successor master servicer
acceptable to any NIMS Insurer and the Trustee shall have been appointed
by the
Trustee and until such successor shall have assumed, the Master Servicer’s
responsibilities and obligations under this Agreement. Notice of such
resignation shall be given promptly by the Master Servicer and the Depositor
to
the Trustee and any NIMS Insurer.
146
Section
9.29 Assignment
or Delegation of Duties by the Master Servicer.
(a) Except
as
expressly provided herein, the Master Servicer shall not assign or transfer
any
of its rights, benefits or privileges hereunder to any other Person, or delegate
to or subcontract with, or authorize or appoint any Subservicer, Subcontractor
or other Person to perform any of the duties, covenants or obligations to
be
performed by the Master Servicer hereunder; provided,
however,
that the
Master Servicer shall have the right without the prior written consent of
the
Trustee, any NIMS Insurer or the Depositor to delegate or assign to or
subcontract with or authorize or appoint an Affiliate of the Master Servicer
to
perform and carry out any duties, covenants or obligations to be performed
and
carried out by the Master Servicer hereunder. In no case, however, shall
any
such delegation, subcontracting or assignment to an Affiliate of the Master
Servicer relieve the Master Servicer of any liability hereunder. Notice of
such
permitted assignment, and the name of any such affiliated Subcontractor or
Subservicer shall be given promptly by the Master Servicer to the Depositor,
the
Trustee and any NIMS Insurer. If, pursuant to any provision hereof, the duties
of the Master Servicer are transferred to a successor master servicer, the
entire amount of the Master Servicing Fees and other compensation payable
to the
Master Servicer pursuant hereto, including amounts payable to or permitted
to be
retained or withdrawn by the Master Servicer pursuant to Section 9.21 hereof,
shall thereafter be payable to such successor master servicer.
(b) Notwithstanding
the foregoing, for so long as reports are required to be filed with the
Commission under the Exchange Act with respect to the Trust, the Master Servicer
shall not utilize any Subcontractor for the performance of its duties hereunder
if such Subcontractor would be “participating in the servicing function” within
the meaning of Item 1122 of Regulation AB without (a) giving notice to the
Trustee and the Depositor and (b) requiring any such Subcontractor to provide
to
the Master Servicer an attestation report as provided for in Section 9.25
and an
assessment report as provided in Section 9.26, which reports the Master Servicer
shall include in its attestation and assessment reports.
Section
9.30 Limitation
on Liability of the Master Servicer and Others.
(a) The
Master Servicer undertakes to perform such duties and only such duties as
are
specifically set forth in this Agreement.
(b) No
provision of this Agreement shall be construed to relieve the Master Servicer
from liability for its own negligent action, its own negligent failure to
act or
its own willful misconduct; provided,
however,
that
the duties and obligations of the Master Servicer shall be determined solely
by
the express provisions of this Agreement, the Master Servicer shall not be
liable except for the performance of such duties and obligations as are
specifically set forth in this Agreement; no implied covenants or obligations
shall be read into this Agreement against the Master Servicer and, in absence
of
bad faith on the part of the Master Servicer, the Master Servicer may
conclusively rely, as to the truth of the statements and the correctness
of the
opinions expressed therein, upon any certificates or opinions furnished to
the
Master Servicer and conforming to the requirements of this
Agreement.
147
(c) None
of
the Master Servicer, the Seller or the Depositor or any of the directors,
officers, employees or agents of any of them shall be under any liability
to the
Trustee or the Certificateholders for any action taken or for refraining
from
the taking of any action in good faith pursuant to this Agreement, or for
errors
in judgment; provided,
however,
that
this provision shall not protect the Master Servicer, the Seller or the
Depositor or any such person against any liability that would otherwise be
imposed by reason of willful misfeasance, bad faith or negligence in its
performance of its duties or by reason of reckless disregard for its obligations
and duties under this Agreement. The Master Servicer and any director, officer,
employee or agent of any of them shall be entitled to indemnification by
the
Trust Fund and will be held harmless against any loss, liability or expense
incurred in connection with any legal action relating to this Agreement or
the
Certificates other than any loss, liability or expense incurred by reason
of
willful misfeasance, bad faith or negligence in the performance of its duties
hereunder or by reason of reckless disregard of his or its obligations and
duties hereunder. The Master Servicer, the Seller and the Depositor and any
director, officer, employee or agent of any of them may rely in good faith
on
any document of any kind prima facie properly executed and submitted by any
Person respecting any matters arising hereunder. The Master Servicer, the
Seller
and the Depositor shall be under no obligation to appear in, prosecute or
defend
any legal action that is not incidental to its duties to master service the
Mortgage Loans in accordance with this Agreement and that in its opinion
may
involve it in any expenses or liability; provided,
however,
that
the Master Servicer may in its sole discretion undertake any such action
that it
may deem necessary or desirable in respect to this Agreement and the rights
and
duties of the parties hereto and the interests of the Certificateholders
hereunder. In such event, the legal expenses and costs of such action and
any
liability resulting therefrom shall be expenses, costs and liabilities of
the
Trust Fund and the Master Servicer shall be entitled to be reimbursed therefor
out of the Collection Account it maintains as provided by Section
4.02.
The
Master Servicer shall not be liable for any acts or omissions of any Servicer.
In particular, the Master Servicer shall not be liable for any course of
action
taken by the Servicers with respect to loss mitigation of defaulted Mortgage
Loans at the direction of the Credit Risk Manager or the Seller pursuant
to any
Credit Risk Management Agreement. Further, the Master Servicer shall not
be
liable for performance by any Servicer under any Credit Risk Management
Agreement.
Section
9.31 Indemnification;
Third-Party Claims.
The
Master Servicer agrees to indemnify the Depositor, the Sponsor, the Trustee
and
any NIMS Insurer and their respective officers, directors, agents, employees
and
affiliates, and hold each of them harmless against any and all claims, losses,
penalties, fines, forfeitures, reasonable legal fees and related costs,
judgments, and any other costs, liability, fees and expenses that the Depositor,
the Sponsor, the Trustee or any NIMS Insurer may sustain as a result of (a)
any
material breach by the Master Servicer of any if its obligations hereunder,
including particularly its obligations to provide any reports under Section
9.25(a), Section 9.25(b) or Section 9.26 or any information, data or materials
required to be included in any Exchange Act report, (b) any material
misstatement or omission in any information, data or materials provided by
the
Master Servicer, or (c) the negligence, bad faith or willful misconduct of
the
Master Servicer in connection with its performance hereunder. The Depositor,
the
Sponsor, the Trustee and any NIMS Insurer shall immediately notify the Master
Servicer if a claim is made by a third party with respect to this Agreement
or
the Mortgage Loans entitling the Depositor, the Sponsor, the Trustee or any
NIMS
Insurer to indemnification hereunder, whereupon the Master Servicer shall
assume
the defense of any such claim and pay all expenses in connection therewith,
including counsel fees, and promptly pay, discharge and satisfy any judgment
or
decree which may be entered against it or them in respect of such claim.
This
indemnification shall survive the termination of this Agreement or the
termination of the Master Servicer as a party to this Agreement.
148
Section
9.32 Special
Servicing of Delinquent Mortgage Loans.
If
permitted under the terms of the Servicing Agreement, the Seller may appoint,
pursuant to the terms of the Servicing Agreement and with the written consent
of
the Depositor, the Master Servicer, the Trustee and any NIMS Insurer, a Special
Servicer to special service any Distressed Mortgage Loans. Any applicable
Termination Fee related to the termination of the Servicer and the appointment
of any Special Servicer shall be paid by the Seller from its own funds, without
right of reimbursement from the Trust Fund. Any fees paid to any such Special
Servicer shall not exceed the Servicing Fee Rate.
Section
9.33 Alternative
Index.
In
the
event that the Index for any Mortgage Loan, as specified in the related Mortgage
Note, becomes unavailable for any reason, the Master Servicer shall select
an
alternative index, which in all cases shall be an index that constitutes
a
qualified rate on a regular interest under the REMIC Provisions, in accordance
with the terms of such Mortgage Note or, if such Mortgage Note does not make
provision for the selection of an alternative index in such event, the Master
Servicer shall, subject to applicable law, select an alternative index based
on
information comparable to that used in connection with the original Index
and,
in either case, such alternative index shall thereafter be the Index for
such
Mortgage Loan.
Section
9.34 Duties
of the Credit Risk Manager.
(a) The
Certificateholders, by their purchase and acceptance of the Certificates,
appoint Xxxxxxx Fixed Income Services Inc. as Credit Risk Manager. For and
on
behalf of the Depositor, the Credit Risk Manager will provide reports and
recommendations concerning certain delinquent and defaulted Mortgage Loans,
and
as to the collection of any Prepayment Premiums with respect to the Mortgage
Loans. Such reports and recommendations will be based upon information provided
pursuant to the Credit Risk Management Agreements to the Credit Risk Manager
by
the Servicers. The Credit Risk Manager shall look solely to the Servicers
and/or
the Master Servicer for all information and data (including loss and delinquency
information and data) and loan level information and data relating to the
servicing of the Mortgage Loans and the Trustee shall not have any obligation
to
provide any such information to the Credit Risk Manager and shall not otherwise
have any responsibility under the Credit Risk Management
Agreements.
(b) On
or
about the 15th
calendar
day of each month, the Credit Risk Manager shall have prepared and shall
make
available to any NIMS Insurer, the Trustee, the Swap Counterparty and each
Certificateholder, the following reports (each such report to be made in
a
format compatible with XXXXX filing requirements):
149
(i) Watch
List Report:
A
listing of individual Mortgage Loans that are of concern to the Credit Risk
Manager. Each Watchlist Report shall contain a listing of Mortgga eloans
in any
delinquency status, including current and paid-off loans, and may contain
the
comments of the Credit Risk Manager in its sole discretion. The Watch List
Report shall be presented in substantially the same format attached hereto
as
Exhibit S-1;
(ii) Loss
Severity Report:
A
compliation and summary of all losses, indicating the loan loss severity
for the
Mortgage Loans. Each Loss Severity Report shall include detail of all losses
reported by a Servicer or the Master Servicer as Realized Losses, except
those
for which a Servicer or the Master Servicer has not provided detail adequate
for
reporting purposes. The Loss Severity Report shall be presented in substantially
the same format attached hereto as Exhibit S-2;
(iii) Prepayment
Premiums Report:
A
summary of Prepayment Premiums assessed or waived by each Servicer. The
Prepayment Premiums Report shall be presented in substantially the same format
attached hereto as Exhibit S-3; and
(iv)
Analytics
Report:
Analytics Reports shall include statistical and/or graphical portrayals
of:
(1)
Delinquency
Trend:
The
delinquency trend, over time, of the Mortgage Loans;
(2)
Prepayment
Analysis:
The
constant prepayment rate “CPR” experience of the Mortgage Loans;
and
(3)
Standard
Default Assumption:
The
Standard Default Assumption experience of the Mortgage Loans.
The
Analytics Report shall be presented in substantially the same format attached
hereto as Exhibit S-4.
The
Credit Risk Manager shall make such reports and any additional information
reasonably requested by the Depositor available each month to
Certificateholders, the Trustee, any NIMS Insurer and the Rating Agencies
via
the Credit Risk Manager’s internet website. The Credit Risk Manager’s internet
website shall initially be located at xxxx://xxxxxxx.xxxxxxx.xxx.
The
user name for access to the website shall be the Certificateholder’s email
address and the password shall be “20602”. The Trustee shall not have any
obligation to review such reports or otherwise monitor or supervise the
activities of the Credit Risk Manager.
(c) [Reserved].
(d) The
Credit Risk Manager shall reasonably cooperate with the Depositor and the
Trustee in connection with the Trust Fund’s satisfying the reporting
requirements under the Exchange Act with respect to reports prepared by the
Credit Risk Manager.
150
(e) The
Credit Risk Manager has not and shall not engage any Subcontractor without
(a)
giving notice to the Sponsor, the Trustee, the Master Servicer and the Depositor
and (b) requiring any such Subcontractor to provide to the Credit Risk Manager
an assessment report as provided for in Section 9.25(a) above and an attestation
report as provided in Section 9.25(b) above, which reports the Credit Risk
Manager shall include in its assessment and attestation reports.
(f) By
March
15 of each year (or if such day is not a Business Day, the immediately preceding
Business Day), the Credit Risk Manager shall deliver a signed certification,
in
the form attached hereto as Exhibit U (the “Credit Risk Manager Certification”),
for the benefit of the Depositor, the Sponsor, the Master Servicer and the
Trustee and for the benefit of the Person(s) signing the Form 10-K
Certification; provided
(i) that
the Credit Risk Manager Certification shall be so provided by March 15 of
such
year only to the extent that the Depositor delivers a draft (without exhibits)
of the applicable Annual Report on Form 10-K to the Credit Risk Manager by
the
5th Business Day in March of such year and (ii) in the event that the Depositor
delivers the draft Form 10-K referred to in clause (i) after the 5th Business
Day in March of such year, the Credit Risk Manager shall deliver the Credit
Risk
Manager Certification as soon as practicable but no later than five calendar
days of delivery to the Credit Risk Manager of such draft Form
10-K.
(g) In
the
event that prior to the filing date of the Form 10-K in March of each year,
the
Credit Risk Manager has knowledge or information material to the Credit Risk
Manager Certification, the Credit Risk Manager shall promptly notify the
Depositor and the Trustee, in writing.
Section
9.35 Limitation
Upon Liability of the Credit Risk Manager.
Except
as
provided pursuant to Section 9.36 of this Agreement, neither the Credit Risk
Manager, nor any of the directors, officers, employees or agents of the Credit
Risk Manager, shall be under any liability to the Trustee, the
Certificateholders or the Depositor for any action taken or for refraining
from
the taking of any action in good faith pursuant to this Agreement, in reliance
upon information provided by the Servicers under the Credit Risk Management
Agreements or for errors in judgment; provided, however,
that
this provision shall not protect the Credit Risk Manager or any such person
against liability that would otherwise be imposed by reason of willful
malfeasance, bad faith or gross negligence in its performance of its duties
or
by reason of reckless disregard for its obligations and duties under this
Agreement or the Credit Risk Management Agreements. The Credit Risk Manager
and
any director, officer, employee or agent of the Credit Risk Manager may rely
in
good faith on any document of any kind prima facie properly executed and
submitted by any Person respecting any matters arising hereunder, and may
rely
in good faith upon the accuracy of information furnished by the Servicers
pursuant to the Credit Risk Management Agreements in the performance of its
duties thereunder and hereunder.
Section
9.36 Indemnification
by the Credit Risk Manager.
The
Credit Risk Manager agrees to indemnify the Depositor, the Master Servicer
and
the Trustee, and each of their respective directors, officers, employees
and
agents and the Trust Fund and hold each of them harmless from and against
any
losses, damages, penalties, fines, forfeitures, legal fees and expenses and
related costs, judgments, and any other costs, fees and expenses that any
of
them may sustain arising out of or based upon the engagement of any
Subcontractor in violation of Section 9.34(f) or any failure by the Credit
Risk
Manager to deliver any information, report, certification, accountants’ letter
or other material when and as required under this Agreement, including any
report under Sections 9.25(a) or (b).
151
Section
9.37 Removal
of Credit Risk Manager.
The
Credit Risk Manager may be removed as Credit Risk Manager by Certificateholders
holding not less than a 66-2/3% Voting Interests in the Trust, in the exercise
of its or their sole discretion, at any time, without cause, upon ten (10)
days
prior written notice. The Certificateholders shall provide such written notice
to the Trustee and upon receipt of such notice, the Trustee shall provide
written notice to the Credit Risk Manager of its removal, effective upon
receipt
of such notice.
ARTICLE
X
REMIC
ADMINISTRATION
Section
10.01 REMIC
Administration.
(a) REMIC
elections as set forth in the Preliminary Statement shall be made on Forms
1066
or other appropriate federal tax or information return for the taxable year
ending on the last day of the calendar year in which the Certificates are
issued. The regular interests and residual interest in each REMIC shall be
as
designated in the Preliminary Statement. For purposes of such designations,
the
interest rate of any regular interest that is computed by taking into account
the weighted average of the Net Mortgage Rates of the Mortgage Loans in any
Pool
shall be reduced by the amount of any expense paid by the Trust and allocable
to
such Pool to the extent that (i) such expense was not taken into account
in
computing the Net Mortgage Rate of any Mortgage Loan, (ii) such expense does
not
constitute an “unanticipated expense” of a REMIC within the meaning of Treasury
Regulation Section 1.860G-1(b)(3)(ii) and (iii) the amount of such expense
was
not taken into account in computing the interest rate of a more junior class
of
regular interests.
(b) The
Closing Date is hereby designated as the “Startup Day” of each REMIC within the
meaning of section 860G(a)(9) of the Code. The latest possible maturity date
for
purposes of Treasury Regulation 1.860G-1(a)(4) will be the Latest Possible
Maturity Date.
(c) The
Trustee shall represent the Trust Fund in any administrative or judicial
proceeding relating to an examination or audit by any governmental taxing
authority with respect thereto. The Trustee shall pay any and all tax related
expenses (not including taxes) of each REMIC, including but not limited to
any
professional fees or expenses related to audits or any administrative or
judicial proceedings with respect to such REMIC that involve the Internal
Revenue Service or state tax authorities, but only to the extent that (i)
such
expenses are ordinary or routine expenses, including expenses of a routine
audit
but not expenses of litigation (except as described in (ii)); or (ii) such
expenses or liabilities (including taxes and penalties) are attributable
to the
negligence or willful misconduct of the Trustee in fulfilling its duties
hereunder (including its duties as tax return preparer). The Trustee shall
be
entitled to reimbursement of expenses to the extent provided in clause (i)
above
from the Certificate Account, provided, however, the Trustee shall not be
entitled to reimbursement for expenses incurred in connection with the
preparation of tax returns and other reports as required by Section 6.20
and
this Section.
152
(d) The
Trustee shall prepare, sign and file, all of each REMIC’s federal and
appropriate state tax and information returns as such REMIC’s direct
representative. The expenses of preparing and filing such returns shall be
borne
by the Trustee.
(e) The
Trustee or its designee shall perform on behalf of each REMIC all reporting
and
other tax compliance duties that are the responsibility of such REMIC under
the
Code, the REMIC Provisions, or other compliance guidance issued by the Internal
Revenue Service or any state or local taxing authority. Among its other duties,
if required by the Code, the REMIC Provisions, or other such guidance, the
Trustee shall provide (i) to the Treasury or other governmental authority
such
information as is necessary for the application of any tax relating to the
transfer of a Residual Certificate to any disqualified person or organization
pursuant to Treasury Regulation 1.860E-2(a)(5) and any person designated
in
Section 860E(e)(3) of the Code and (ii) to the Trustee such information as
is
necessary for the Trustee to provide to the Certificateholders such information
or reports as are required by the Code or REMIC Provisions.
The
Trustee shall be entitled to receive reasonable compensation from the Trust
for
the performance of its duties under this subsection (e); provided,
however,
that
such compensation shall not exceed $5,000 per year.
(f) The
Trustee, the Master Servicer and the Holders of Certificates shall take any
action or cause any REMIC to take any action necessary to create or maintain
the
status of any REMIC as a REMIC under the REMIC Provisions and shall assist
each
other as necessary to create or maintain such status. Neither the Trustee,
the
Master Servicer nor the Holder of any Residual Certificate shall knowingly
take
any action, cause any REMIC to take any action or fail to take (or fail to
cause
to be taken) any action that, under the REMIC Provisions, if taken or not
taken,
as the case may be, could result in an Adverse REMIC Event unless the Trustee,
any NIMS Insurer and the Master Servicer have received an Opinion of Counsel
addressed to the Trustee (at the expense of the party seeking to take such
action) to the effect that the contemplated action will not result in an
Adverse
REMIC Event. In addition, prior to taking any action with respect to any
REMIC
or the assets therein, or causing any REMIC to take any action, which is
not
expressly permitted under the terms of this Agreement, any Holder of a Residual
Certificate will consult with the Trustee, the Master Servicer, any NIMS
Insurer
or their respective designees, in writing, with respect to whether such action
could cause an Adverse REMIC Event to occur with respect to any REMIC, and
no
such Person shall take any such action or cause any REMIC to take any such
action as to which the Trustee, the Master Servicer or any NIMS Insurer has
advised it in writing that an Adverse REMIC Event could occur.
(g) Each
Holder of a Residual Certificate shall pay when due any and all taxes imposed
on
the related REMIC by federal or state governmental authorities. To the extent
that such taxes are not paid by a Residual Certificateholder, the Trustee
shall
pay any remaining REMIC taxes out of current or future amounts otherwise
distributable to the Holder of the Residual Certificate in any such REMIC
or, if
no such amounts are available, out of other amounts held in the Collection
Account, and shall reduce amounts otherwise payable to holders of regular
interests in any such REMIC, as the case may be.
153
(h) The
Trustee shall, for federal income tax purposes, maintain books and records
with
respect to each REMIC on a calendar year and on an accrual basis.
(i) No
additional contributions of assets shall be made to any REMIC, except as
expressly provided in this Agreement.
(j) Neither
the Trustee nor the Master Servicer shall enter into any arrangement by which
any REMIC will receive a fee or other compensation for services.
(k) On
or
before September 15 of each calendar year beginning in 2005, the Trustee
shall
deliver to any NIMS Insurer an Officer’s Certificate stating, without regard to
any actions taken by any party other than the Trustee, the Trustee’s compliance
with provisions of this Section 10.01.
(l) The
Trustee shall treat each of the Basis Risk Reserve Fund and the Swap Account
as
an outside reserve fund within the meaning of Treasury Regulation Section
1.860G-2(h) that is owned by the Holders of the Class X Certificates and
that is
not an asset of any REMIC and all amounts deposited into the Basis Risk Reserve
Fund or the Swap Account shall be treated as amounts distributed to the Class
X
Certificateholders.
(m) For
federal income tax purposes, upon any sale of the property held by the Trust
Fund pursuant to Section 7.01(b), any NIM Redemption Amount paid by the Master
Servicer shall not be treated as a portion of the purchase price paid for
such
property but shall instead be treated as an amount paid by the Master Servicer
to the Holder of the Class X Certificates in exchange for an interest in
the
Class X Certificates immediately before the purchase of the property held
by the
Trust Fund.
(n) The
Trustee shall treat the beneficial owners of Certificates (other than the
Class
P, Class X, Class LT-R and Class R Certificates) as having entered into a
notional principal contract with respect to the beneficial owners of the
Class X
Certificates. Pursuant to each such notional principal contract, all beneficial
owners of Offered Certificates and the Class M8 Certificates shall be treated
as
having agreed to pay, on each Distribution Date, to the beneficial owners
of the
Class X Certificates an aggregate amount equal to the excess, if any, of
(i) the
amount payable on such Distribution Date on the interest in the Upper Tier
REMIC
corresponding to such Class of Certificates over (ii) the amount payable
on such
Class of Certificates on such Distribution Date (such excess, a “Class I
Shortfall”). A Class I Shortfall payable from interest collections shall be
allocated to each Class of Certificates to the extent that interest accrued
on
such Class for the related Accrual Period at the Certificate Interest Rate
for a
Class, computed by substituting “REMIC 3 Net Funds Cap” for “Net Funds Cap” in
the definition thereof, exceeds the amount of interest accrued for the related
Accrual Period based on the Net Funds Cap, and a Class I Shortfall payable
from
principal collections shall be allocated to the most subordinate Class of
Certificates with an outstanding principal balance to the extent of such
balance. In addition, pursuant to such notional principal contract, the
beneficial owner of the Class X Certificates shall be treated as having agreed
to pay Basis Risk Shortfalls and Unpaid Basis Risk Shortfalls to the Owners
of
the LIBOR Offered Certificates and the Class M8 Certificates in accordance
with
the terms of this Agreement. Any payments to the Certificates in light of
the
foregoing shall not be payments with respect to a “regular interest” in a REMIC
within the meaning of Code Section 860G(a)(1). However, any payment from
the
Certificates of a Class I Shortfall shall be treated for tax purposes as
having
been received by the beneficial owners of such Certificates in respect of
their
interests in the Upper Tier REMIC and as having been paid by such beneficial
owners to the Supplemental Interest Trust pursuant to the notional principal
contract. Thus, each Certificate (other than a Class P, Class R and Class
LT-R Certificate) shall be treated as representing not only ownership of
regular
interests in the Upper Tier REMIC, but also ownership of an interest in (and
obligations with respect to) a notional principal contract. For tax purposes,
the notional principal contract shall be deemed to have a value in favor
of the
Certificates entitled to receive Basis Risk Shortfalls and Unpaid Basis Risk
Shortfalls of $22,082.13 as of the Closing Date.
154
(o) Notwithstanding
the priority and sources of payments set forth in Article V hereof or otherwise,
the Trustee shall account for all distributions on the Certificates as set
forth
in this Section 10.01. In no event shall any payments of Basis Risk Shortfalls
or Unpaid Basis Risk Shortfalls provided for in this Section 10.01 be treated
as
payments with respect to a “regular interest” in a REMIC within the meaning of
Code Section 860G(a)(1).
Section
10.02 Prohibited
Transactions and Activities.
Neither
the Depositor, the Master Servicer nor the Trustee shall sell, dispose of,
or
substitute for any of the Mortgage Loans, except in a disposition pursuant
to
(i) the foreclosure of a Mortgage Loan, (ii) the bankruptcy of the Trust
Fund,
(iii) the termination of each REMIC pursuant to Article VII of this Agreement,
(iv) a substitution pursuant to Article II of this Agreement or (v) a repurchase
of Mortgage Loans pursuant to Article II of this Agreement, nor acquire any
assets for any REMIC, nor sell or dispose of any investments in the Certificate
Account for gain, nor accept any contributions to any REMIC after the Closing
Date, unless the Trustee and any NIMS Insurer has received an Opinion of
Counsel
addressed to the Trustee (at the expense of the party causing such sale,
disposition, or substitution) that such disposition, acquisition, substitution,
or acceptance will not (a) result in an Adverse REMIC Event, (b) affect the
distribution of interest or principal on the Certificates or (c) result in
the
encumbrance of the assets transferred or assigned to the Trust Fund (except
pursuant to the provisions of this Agreement).
Section
10.03 Indemnification
with Respect to Certain Taxes and Loss of REMIC Status.
Upon
the
occurrence of an Adverse REMIC Event due to the negligent performance by
the
Trustee of its duties and obligations set forth herein, the Trustee shall
indemnify any NIMS Insurer, the Holder of the related Residual Certificate
or
the Trust Fund, as applicable, against any and all losses, claims, damages,
liabilities or expenses (“Losses”) resulting from such negligence; provided,
however,
that the
Trustee shall not be liable for any such Losses attributable to the action
or
inaction of the Master Servicer, the Depositor, the Class X Certificateholders,
or the Holder of such Residual Certificate, as applicable, nor for any such
Losses resulting from misinformation provided by the Holder of such Residual
Certificate on which the Trustee has relied. The foregoing shall not be deemed
to limit or restrict the rights and remedies of the Holder of such Residual
Certificate now or hereafter existing at law or in equity. Notwithstanding
the
foregoing, however, in no event shall the Trustee have any liability (1)
for any
action or omission that is taken in accordance with and in compliance with
the
express terms of, or which is expressly permitted by the terms of, this
Agreement or the Servicing Agreement, (2) for any Losses other than 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). In addition, the Trustee shall not have any liability for
the
actions or failure to act of any other party hereto.
155
Section
10.04 REO
Property.
(a) Notwithstanding
any other provision of this Agreement, the Master Servicer, acting on behalf
of
the Trustee hereunder, shall not, except to the extent provided in the
applicable Servicing Agreement, knowingly permit any Servicer to, rent, lease,
or otherwise earn income on behalf of any REMIC with respect to any REO Property
which might cause an Adverse REMIC Event unless the Master Servicer has advised,
or has caused the applicable Servicer to advise, the Trustee and any NIMS
Insurer in writing to the effect that, under the REMIC Provisions, such action
would not result in an Adverse REMIC Event.
(b) The
Master Servicer shall cause the applicable Servicer (to the extent provided
in
its Servicing Agreement) to make reasonable efforts to sell any REO Property
for
its fair market value. In any event, however, the Master Servicer shall,
or
shall cause the applicable Servicer (to the extent provided in its Servicing
Agreement) to, dispose of any REO Property within three years of its acquisition
by the Trust Fund unless the Master Servicer has received a grant of extension
from the Internal Revenue Service to the effect that, under the REMIC
Provisions, the REMIC may hold REO Property for a longer period without causing
an Adverse REMIC Event. If the Master Servicer has received such an extension,
then the Trustee, or the Master Servicer, acting on its behalf hereunder,
shall,
or shall cause the applicable Servicer to, continue to attempt to sell the
REO
Property for its fair market value for such period longer than three years
as
such extension permits (the “Extended Period”). If the Trustee has not received
such an extension and the Master Servicer or the applicable Servicer, acting
on
behalf of the Trustee hereunder, is unable to sell the REO Property within
33
months after its acquisition by the Trust Fund or if the Master Servicer
has
received such an extension, and the Master Servicer or the applicable Servicer
is unable to sell the REO Property within the period ending three months
before
the close of the Extended Period, the Master Servicer shall cause the applicable
Servicer, before the end of the three year period or the Extended Period,
as
applicable, to (i) purchase such REO Property at a price equal to the REO
Property’s fair market value or (ii) auction the REO Property to the highest
bidder (which may be the applicable Servicer) in an auction reasonably designed
to produce a fair price prior to the expiration of the three-year period
or the
Extended Period, as the case may be.
156
ARTICLE
XI
MISCELLANEOUS
PROVISIONS
Section
11.01 Binding
Nature of Agreement; Assignment.
This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and permitted assigns.
Section
11.02 Entire
Agreement.
This
Agreement contains the entire agreement and understanding among the parties
hereto with respect to the subject matter hereof, and supersedes all prior
and
contemporaneous agreements, understandings, inducements and conditions, express
or implied, oral or written, of any nature whatsoever with respect to the
subject matter hereof. The express terms hereof control and supersede any
course
of performance and/or usage of the trade inconsistent with any of the terms
hereof.
Section
11.03 Amendment.
(a) On
or
prior to a Section 7.01(c) Purchase Event, this Agreement may be amended
from
time to time by the Depositor, the Master Servicer, and the Trustee, with
the
consent of any NIMS Insurer, but without the consent of the Credit Risk Manager
or the Swap Counterparty (except to the extent that the rights or obligations
of
(1) the Credit Risk Manager or the Swap Counterparty hereunder or (2) the
Swap
Counterparty under the Swap Agreement are affected thereby, and except to
the
extent the ability of the Trustee on behalf of the Supplemental Interest
Trust
and the Trust Fund to perform fully and timely its obligations under the
Swap
Agreement is adversely affected, in which case prior written consent of the
Swap
Counterparty is required), and without notice to or the consent of any of
the
Holders, (i) to cure any ambiguity, (ii) to cause the provisions herein to
conform to or be consistent with or in furtherance of the statements made
with
respect to the Certificates, the Trust Fund or this Agreement in any Offering
Document, or to correct or supplement any provision herein which may be
inconsistent with any other provisions herein or with the provisions of any
Servicing Agreement, (iii) to make any other provisions with respect to matters
or questions arising under this Agreement or (iv) to add, delete, or amend
any
provisions to the extent necessary or desirable to comply with any requirements
imposed by the Code and the REMIC Provisions as evidenced by an Opinion of
Counsel. No such amendment effected pursuant to the preceding sentence shall,
as
evidenced by an Opinion of Counsel, result in an Adverse REMIC Event, nor
shall
such amendment effected pursuant to clause (iii) of such sentence adversely
affect in any material respect the interests of any Holder. Prior to entering
into any amendment without the consent of Holders pursuant to this paragraph,
the Trustee, any NIMS Insurer and the Swap Counterparty shall be provided
with
an Opinion of Counsel addressed to the Trustee, any NIMS Insurer and the
Swap
Counterparty (at the expense of the party requesting such amendment) to the
effect that such amendment is permitted under this Section. Any such amendment
shall be deemed not to adversely affect in any material respect any Holder,
if
the Trustee receives prior written confirmation from each Rating Agency that
such amendment will not cause such Rating Agency to reduce the then current
rating assigned to the Certificates.
157
(b) On
or
prior to a Section 7.01(c) Purchase Event, this Agreement may also be
amended from time to time by the Depositor, the Master Servicer and the Trustee,
with the consent of any NIMS Insurer, but without the consent of the Credit
Risk
Manager or the Swap Counterparty (except to the extent that the rights or
obligations of (1) the Credit Risk Manager or the Swap Counterparty hereunder
or
(2) the Swap Counterparty under the Swap Agreement are affected thereby or
the
ability of the Trustee on behalf of the Supplemental Interest Trust and the
Trust Fund to perform fully and timely its obligations under the Swap Agreement
is adversely affected, in which case prior written consent of the Swap
Counterparty is required) and with the consent of the Holders of not less
than
66-2/3% of the Class Principal Amount (or Percentage Interest) of each Class
of
Certificates affected thereby for the purpose of adding any provisions to
or
changing in any manner or eliminating any of the provisions of this Agreement
or
of modifying in any manner the rights of the Holders; provided,
however,
that no
such amendment shall be made unless the Trustee and any NIMS Insurer receives
an
Opinion of Counsel addressed to the Trustee and the NIMS Insurer, at the
expense
of the party requesting the change, that such change will not cause an Adverse
REMIC Event; and provided further, that no such amendment may (i) reduce
in any
manner the amount of, or delay the timing of, payments received on Mortgage
Loans which are required to be distributed on any Certificate, without the
consent of the Holder of such Certificate or (ii) reduce the aforesaid
percentages of Class Principal Amount (or Percentage Interest) of Certificates
of each Class, the Holders of which are required to consent to any such
amendment without the consent of the Holders of 100% of the Class Principal
Amount (or Percentage Interest) of each Class of Certificates affected thereby.
For purposes of this paragraph, references to “Holder” or “Holders” shall be
deemed to include, in the case of any Class of Book-Entry Certificates, the
related Certificate Owners.
(c) After
a
Section 7.01(c) Purchase Event but on or prior to a Trust Fund Termination
Event, this Agreement may be amended from time to time by the Depositor,
the
Master Servicer, the LTURI-holder and the Trustee, but without the consent
of
the Credit Risk Manager or the Swap Counterparty (except to the extent that
the
rights or obligations of (1) the Credit Risk Manager or the Swap Counterparty
hereunder or (2) the Swap Counterparty under the Swap Agreement, or the ability
of the Trustee on behalf of the Supplemental Interest Trust and the Trust
Fund
to perform fully and timely its obligations under the Swap Agreement is
adversely affected, in which case prior written consent of the Credit Risk
Manager or the Swap Counterparty, as applicable, is required). Prior to entering
into any amendment without the consent of Holders pursuant to this paragraph,
the Trustee and the Swap Counterparty shall be provided with an Opinion of
Counsel addressed to the Trustee, any NIMS Insurer and the Swap Counterparty
(at
the expense of the party requesting such amendment) to the effect that such
amendment is permitted under this Section and will not result in an Adverse
REMIC Event.
(d) Promptly
after the execution of any such amendment, the Trustee shall furnish written
notification of the substance of such amendment to each Holder, the Depositor,
the Swap Counterparty, any NIMS Insurer and to the Rating Agencies.
(e) It
shall
not be necessary for the consent of Holders under this Section 11.03 to approve
the particular form of any proposed amendment, but it shall be sufficient
if
such consent shall approve the substance thereof. The manner of obtaining
such
consents and of evidencing the authorization of the execution thereof by
Holders
shall be subject to such reasonable regulations as the Trustee may
prescribe.
158
(f) Notwithstanding
anything to the contrary in any Servicing Agreement, the Trustee shall not
consent to any amendment of any Servicing Agreement unless (i) such amendment
is
effected pursuant to the standards provided in Section 11.03(a) or Section
11.03(b) with respect to amendment of this Agreement and (ii) except for
a
Permitted Servicing Amendment, any such amendment pursuant to Section
11.03(a)(iii) shall not be materially inconsistent with the provisions of
such
Servicing Agreement.
(g) Notwithstanding
anything to the contrary in this Section 11.03, this Agreement may be amended
from time to time by the Depositor, the Master Servicer and the Trustee to
the
extent necessary, in the judgment of the Depositor and its counsel, to comply
with the Rules.
Section
11.04 Voting
Rights.
Except
to
the extent that the consent of all affected Certificateholders is required
pursuant to this Agreement, with respect to any provision of this Agreement
requiring the consent of Certificateholders representing specified percentages
of aggregate outstanding Certificate Principal Amount (or Percentage Interest),
Certificates owned by the Depositor, the Master Servicer, the Trustee, any
Servicer, the Credit Risk Manager or Affiliates thereof are not to be counted
so
long as such Certificates are owned by the Depositor, the Master Servicer,
the
Trustee, any Servicer, the Credit Risk Manager or any Affiliate
thereof.
Section
11.05 Provision
of Information.
(a) For
so
long as any of the Certificates of any Series or Class are “restricted
securities” within the meaning of Rule 144(a)(3) under the Act, each of the
Depositor, the Master Servicer and the Trustee agree to cooperate with each
other to provide to any Certificateholders, any NIM Security holder and to
any
prospective purchaser of Certificates designated by such holder, upon the
request of such holder or prospective purchaser, any information required
to be
provided to such holder or prospective purchaser to satisfy the condition
set
forth in Rule 144A(d)(4) under the Act. Any reasonable, out-of-pocket expenses
incurred by the Master Servicer or the Trustee in providing such information
shall be reimbursed by the Depositor.
(b) The
Trustee shall provide to any person to whom a Prospectus was delivered, upon
the
request of such person specifying the document or documents requested, (i)
a
copy (excluding exhibits) of any report on Form 8-K or Form 10-K filed with
the
Securities and Exchange Commission pursuant to Section 6.20(c) and (ii) a
copy
of any other document incorporated by reference in the Prospectus (to the
extent
that the Trustee has such documents in its possession or such documents are
reasonably obtainable by the Trustee). Any reasonable out-of-pocket expenses
incurred by the Trustee in providing copies of such documents shall be
reimbursed by the Depositor.
(c) On
each
Distribution Date, the Trustee shall deliver or cause to be delivered by
first
class mail or make available on its website to the Depositor, Attention:
Contract Finance, a copy of the report delivered to Certificateholders pursuant
to Section 4.03.
159
Section
11.06 Governing
Law.
THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE
STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS (OTHER
THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW), AND THE OBLIGATIONS,
RIGHTS
AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH
SUCH LAWS.
Section
11.07 Notices.
All
demands, notices and communications hereunder shall be in writing and shall
be
deemed to have been duly given when received by (a) in the case of the
Depositor, Structured Asset Securities Corporation, 000 Xxxxxxx Xxxxxx, 0xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Mortgage Finance SASCO 2006-S1,
(b) in the case of the Seller, Xxxxxx Brothers Holdings Inc., 000 Xxxxxxx
Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Mortgage Finance
SASCO
2006-S1, (c) in the case of the Trustee, U.S. Bank National Association, to
the Corporate Trust Office, (d) in the case of the Master Servicer, Aurora
Loan Services LLC, 000 Xxxxxxxxx Xxxxx Xxxxx, Mail Stop 3195, Xxxxxxxxx,
XX
00000; Attention: Master Servicing, SASCO 2006-S1, (e) in the case of the
Credit
Risk Manager, Xxxxxxx Fixed Income Services Inc., 0000 Xxxxxxx Xxxxxx, Xxxxx
0000, Xxxxxx, Xxxxxxxx 00000, Attention: General Counsel, and (f) in the
case of
the Swap Counterparty, HSBC Bank USA, National Association, 000 Xxxxx Xxxxxx,
Xxx Xxxx, XX 00000, Attn: Legal Department, Facsimile No.: (000) 000-0000,
or,
as to each party such other address as may hereafter be furnished by such
party
to the other parties in writing. All demands, notices and communications
to a
party hereunder shall be in writing and shall be deemed to have been duly
given
when delivered to such party at the relevant address, facsimile number or
electronic mail address set forth above or at such other address, facsimile
number or electronic mail address as such party may designate from time to
time
by written notice in accordance with this Section 11.07.
Section
11.08 Severability
of Provisions.
If
any
one or more of the covenants, agreements, provisions or terms of this Agreement
shall be for any reason whatsoever held invalid, then such covenants,
agreements, provisions or terms shall be deemed severable from the remaining
covenants, agreements, provisions or terms of this Agreement and shall in
no way
affect the validity or enforceability of the other provisions of this Agreement
or of the Certificates or the rights of the Holders thereof.
Section
11.09 Indulgences;
No Waivers.
Neither
the failure nor any delay on the part of a party to exercise any right, remedy,
power or privilege under this Agreement shall operate as a waiver thereof,
nor
shall any single or partial exercise of any right, remedy, power or privilege
preclude any other or further exercise of the same or of any other right,
remedy, power or privilege, nor shall any waiver of any right, remedy, power
or
privilege with respect to any occurrence be construed as a waiver of such
right,
remedy, power or privilege with respect to any other occurrence. No waiver
shall
be effective unless it is in writing and is signed by the party asserted
to have
granted such waiver.
160
Section
11.10 Headings
Not To Affect Interpretation.
The
headings contained in this Agreement are for convenience of reference only,
and
they shall not be used in the interpretation hereof.
Section
11.11 [Reserved].
Section
11.12 Special
Notices to the Rating Agencies.
(a) The
Depositor shall give prompt notice to the Rating Agencies of the occurrence
of
any of the following events of which it has notice:
(i) any
amendment to this Agreement pursuant to Section 11.03;
(ii) any
Assignment by the Master Servicer of its rights hereunder or delegation of
its
duties hereunder;
(iii) the
occurrence of any Event of Default described in Section 6.14;
(iv) any
notice of termination given to the Master Servicer pursuant to Section 6.14
and
any resignation of the Master Servicer hereunder;
(v) the
appointment of any successor to any Master Servicer pursuant to Section 6.14;
(vi) the
making of a final payment pursuant to Section 7.02; and
(vii) any
termination of the rights and obligations of any Servicer under the applicable
Servicing Agreement.
(b) All
notices to the Rating Agencies provided for this Section shall be in writing
and
sent by first class mail, telecopy or overnight courier, as
follows:
If
to
S&P, to:
Standard
& Poor’s Ratings Services,
a
division of The XxXxxx-Xxxx Companies, Inc.
00
Xxxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Residential Mortgages
If
to
Moody’s, to:
Xxxxx’x
Investors Service, Inc.
00
Xxxxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Residential Mortgages
161
If
to
Fitch, to:
Fitch
Ratings
Xxx
Xxxxx
Xxxxxx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Residential Mortgages
(c) The
Trustee shall provide or make available to the Rating Agencies reports prepared
pursuant to Section 4.03. In addition, the Trustee shall, at the expense
of the
Trust Fund, make available to each Rating Agency such information as such
Rating
Agency may reasonably request regarding the Certificates or the Trust Fund,
to
the extent that such information is reasonably available to the
Trustee.
Section
11.13 Conflicts.
To
the
extent that the terms of this Agreement conflict with the terms of any Servicing
Agreement, the related Servicing Agreement shall govern unless such provisions
shall adversely affect the Trustee or the Trust Fund.
Section
11.14 Counterparts.
This
Agreement may be executed in one or more counterparts, each of which shall
be
deemed to be an original, and all of which together shall constitute one
and the
same instrument.
Section
11.15 Transfer
of Servicing.
The
Seller agrees that it shall provide written notice to the Master Servicer,
any
NIMS Insurer, the Swap Counterparty and the Trustee thirty days prior to
any
proposed transfer or assignment by such Seller of its rights under any Servicing
Agreement or of the servicing thereunder or delegation of its rights or duties
thereunder or any portion thereof to any other Person other than the initial
Servicer under such Servicing Agreement; provided
that the
Seller shall not be required to provide prior notice of (i) any transfer of
servicing that occurs within three months following the Closing Date to an
entity that is a Servicer on the Closing Date or (ii) any assignment of any
Servicing rights from one Seller to the other Seller. In addition, the ability
of the Seller to transfer or assign its rights and delegate its duties under
the
applicable Servicing Agreement or to transfer the servicing thereunder to
a
successor servicer shall be subject to the following conditions:
(i) Satisfaction
of the conditions to such transfer as set forth in the applicable Servicing
Agreement including, without limitation, receipt of written consent of any
NIMS
Insurer and the Master Servicer to such transfer;
(ii)
Such
successor servicer must be qualified to service loans for Xxxxxxx Mac, and
must
be a member in good standing of MERS;
(iii)
Such
successor servicer must satisfy the seller/servicer eligibility standards
in the
applicable Servicing Agreement, exclusive of any experience in mortgage loan
origination;
162
(iv)
Such
successor servicer must execute and deliver to the Trustee and the Master
Servicer an agreement, in form and substance reasonably satisfactory to the
Trustee and the Master Servicer, that contains an assumption by such successor
servicer of the due and punctual performance and observance of each covenant
and
condition to be performed and observed by the applicable Servicer under the
applicable Servicing Agreement;
(v)
Delivery
to the Trustee and the Master Servicer of a letter from each Rating Agency
to
the effect that such transfer of servicing will not result in a qualification,
withdrawal or downgrade of the then-current rating of any of the Certificates;
and
(vi)
The
Seller shall, at its cost and expense, take such steps, or cause the terminated
Servicer to take such steps, as may be necessary or appropriate to effectuate
and evidence the transfer of the servicing of the Mortgage Loans to such
successor servicer, including, but not limited to, the following: (A) to
the
extent required by the terms of the Mortgage Loans and by applicable federal
and
state laws and regulations, the Seller shall cause the prior Servicer to
timely
mail to each obligor under a Mortgage Loan any required notices or disclosures
describing the transfer of servicing of the Mortgage Loans to the successor
servicer; (B) prior to the effective date of such transfer of servicing,
the
Seller shall cause the prior Servicer to transmit to any related insurer
notification of such transfer of servicing; (C) on or prior to the effective
date of such transfer of servicing, the Seller shall cause the prior Servicer
to
deliver to the successor servicer all Mortgage Loan Documents and any related
records or materials; (D) on or prior to the effective date of such transfer
of
servicing, the Seller shall cause the prior Servicer to transfer to the
successor servicer, or, if such transfer occurs after the Servicer Remittance
Date but before the next succeeding Master Servicer Remittance Date, to the
Trustee, all funds held by the prior Servicer in respect of the Mortgage
Loans;
(E) on or prior to the effective date of such transfer of servicing, the
Seller
shall cause the prior Servicer to, after the effective date of the transfer
of
servicing to the successor servicer, continue to forward to such successor
servicer, within one Business Day of receipt, the amount of any payments
or
other recoveries received by the prior Servicer, and to notify the successor
servicer of the source and proper application of each such payment or recovery;
and (F) the Seller shall cause the prior Servicer to, after the effective
date
of transfer of servicing to the successor servicer, continue to cooperate
with
the successor servicer to facilitate such transfer in such manner and to
such
extent as the successor servicer may reasonably request. Notwithstanding
the
foregoing, the prior Servicer shall be obligated to perform the items listed
above to the extent provided in the applicable Servicing Agreement.
163
[Signature
page to follow]
IN
WITNESS WHEREOF, the parties hereto have caused their names to be signed hereto
by their respective officers hereunto duly authorized as of the day and year
first above written.
|
STRUCTURED
ASSET
SECURITIES CORPORATION,
as Depositor |
||
| |
|
|
| By: | /s/ Xxxxx X. Xxxxxxx | |
|
Name:
Xxxxx X. Xxxxxxx
Title:
Senior Vice President
|
||
|
AURORA
LOAN
SERVICES LLC,
as Master Servicer |
||
| |
|
|
| By: | /s/ Xxxxxx X. Xxxxxx | |
|
Name:
Xxxxxx X. Xxxxxx
Title:
Executive Vice President
|
||
|
U.S.
BANK NATIONAL
ASSOCIATION,
as Trustee |
||
| |
|
|
| By: | /s/ Xxxxx Xxxxxx | |
|
Name:
Xxxxx Xxxxxx
Title:
Vice President
|
||
|
XXXXXXX
FIXED INCOME SERVICES INC.,
as
Credit Risk Manager
|
||
| |
|
|
| By: | /s/ Xxxxx X. Xxxxxxx | |
|
Name:
Xxxxx X. Xxxxxxx
Title:
President and General Counsel
|
||
Solely
for purposes of Sections 6.11 and 11.15,
accepted
and agreed to by:
| XXXXXX BROTHERS HOLDINGS INC. | ||||
| By: | /s/ Xxxxxx X. Xxxxx | |||
|
Name:
Xxxxxx X. Xxxxx
Title:
Authorized Signatory
|
||||
EXHIBIT
A
FORMS
OF
CERTIFICATES
[
See Tab
No. 17 ]
X-0
XXXXXXX
X-0
FORM
OF
INITIAL CERTIFICATION
|
Date
|
U.S.
Bank
National Association
Xxx
Xxxxxxx Xxxxxx
Xxxxxx,
XX 00000
Attention:
Corporate Trust Group – SASCO
2006-S1
Aurora
Loan Services, as Master Servicer
000
Xxxxxxxxx Xxxxx Xxxxx, Mail Stop 3195
Xxxxxxxxx,
XX 00000
Structured
Asset Securities Corporation,
as
Depositor
000
Xxxxxxx Xxxxxx
0xx
Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
|
Re:
|
Trust
Agreement dated as of February 1, 2006 (the “Trust Agreement”),
|
|
|
by
and among Structured Asset Securities Corporation, as Depositor,
|
||
|
Aurora
Loan Services LLC, as Master Servicer, U.S. Bank National Association,
|
||
|
as
Trustee and Xxxxxxx Fixed Income Services Inc., as Credit Risk
Manager
|
||
|
with
respect to Structured Asset Securities Corporation
|
||
|
Mortgage
Pass-Through Certificates, Series
2006-S1
|
Ladies
and Gentlemen:
In
accordance with Section 2.02(a) of the Trust Agreement, subject to review of
the
contents thereof, the undersigned, as Custodian, hereby certifies that it has
received the documents listed in Section 2.01(b) of the Trust Agreement for
each
Mortgage File pertaining to each Mortgage Loan listed on Schedule A, to the
Trust Agreement, subject to any exceptions noted on Schedule I
hereto.
Capitalized
words and phrases used herein and not otherwise defined herein shall have the
respective meanings assigned to them in the Trust Agreement. This Certificate
is
subject in all respects to the terms of Section 2.02 of the Trust Agreement
and
the Trust Agreement sections cross-referenced therein.
| [Custodian] | ||
| |
|
|
| By: | ||
|
Name:
Title:
|
||
X-0-0
XXXXXXX
X-0
FORM
OF
INTERIM CERTIFICATION
|
Date
|
U.S.
Bank
National Association
Xxx
Xxxxxxx Xxxxxx
Xxxxxx,
XX 00000
Attention:
Corporate Trust Group – SASCO 2006-S1
Aurora
Loan Services, as Master Servicer
000
Xxxxxxxxx Xxxxx Xxxxx, Mail Stop 3195
Xxxxxxxxx,
XX 00000
Structured
Asset Securities Corporation,
as
Depositor
000
Xxxxxxx Xxxxxx
0xx
Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
|
Re:
|
Trust
Agreement dated as of February 1, 2006 (the “Trust Agreement”),
|
|
|
by
and among Structured Asset Securities Corporation, as Depositor,
|
||
|
Aurora
Loan Services LLC, as Master Servicer, U.S. Bank National Association,
|
||
|
as
Trustee and Xxxxxxx Fixed Income Services Inc., as Credit Risk
Manager
|
||
|
with
respect to Structured Asset Securities Corporation
|
||
|
Mortgage
Pass-Through Certificates, Series
2006-S1
|
Ladies
and Gentlemen:
In
accordance with Section 2.02(b) of the Trust Agreement, the undersigned, as
Custodian, hereby certifies that as to each Mortgage Loan listed in the Mortgage
Loan Schedule (other than any Mortgage Loan paid in full or listed on Schedule
I
hereto) it (or its custodian) has received the applicable documents listed
in
Section 2.01(b) of the Trust Agreement.
The
undersigned hereby certifies that as to each Mortgage Loan identified on the
Mortgage Loan Schedule, other than any Mortgage Loan listed on Schedule I
hereto, it has reviewed the documents listed in Section 2.01(b) of the Trust
Agreement and has determined that each such document appears regular on its
face
and appears to relate to the Mortgage Loan identified in such
document.
Capitalized
words and phrases used herein shall have the respective meanings assigned to
them in the Trust Agreement. This Certificate is qualified in all respects
by
the terms of said Trust Agreement including, but not limited to, Section
2.02(b).
B-2-1
| [Custodian] | ||
| |
|
|
| By: | ||
|
Name:
Title:
|
||
X-0-0
XXXXXXX
X-0
FORM
OF
FINAL CERTIFICATION
|
Date
|
U.S.
Bank
National Association
Xxx
Xxxxxxx Xxxxxx
Xxxxxx,
XX 00000
Attention:
Corporate Trust Group - SASCO 2006-S1
Aurora
Loan Services, as Master Servicer
000
Xxxxxxxxx Xxxxx Xxxxx, Mail Stop 3195
Xxxxxxxxx,
XX 00000
Structured
Asset Securities Corporation,
as
Depositor
000
Xxxxxxx Xxxxxx
0xx
Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
|
Re:
|
Trust
Agreement dated as of February 1, 2006 (the “Trust Agreement”),
|
|
|
by
and among Structured Asset Securities Corporation, as Depositor,
|
||
|
Aurora
Loan Services LLC, as Master Servicer, U.S. Bank National Association,
|
||
|
as
Trustee and Xxxxxxx Fixed Income Services Inc., as Credit Risk
Manager
|
||
|
with
respect to Structured Asset Securities Corporation
|
||
|
Mortgage
Pass-Through Certificates, Series
2006-S1
|
Ladies
and Gentlemen:
In
accordance with Section 2.02(d) of the Trust Agreement, the undersigned, as
Custodian on behalf of the Trustee, hereby certifies that as to each Mortgage
Loan listed in the Mortgage Loan Schedule (other than any Mortgage Loan paid
in
full or listed on Schedule I hereto) it (or its custodian) has received the
applicable documents listed in Section 2.01(b) of the Trust
Agreement.
The
undersigned hereby certifies that as to each Mortgage Loan identified in the
Mortgage Loan Schedule, other than any Mortgage Loan listed on Schedule I
hereto, it has reviewed the documents listed in Section 2.01(b) of the Trust
Agreement and has determined that each such document appears to be complete
and,
based on an examination of such documents, the information set forth in items
(i) through (vi) of the Mortgage Loan Schedule is correct.
Capitalized
words and phrases used herein shall have the respective meanings assigned to
them in the Trust Agreement. This Certificate is qualified in all respects
by
the terms of said Trust Agreement.
B-3-1
| [Custodian] | ||
| |
|
|
| By: | ||
|
Name:
Title:
|
||
X-0-0
XXXXXXX
X-0
FORM
OF
ENDORSEMENT
Pay
to
the order of U.S. Bank National Association, as Trustee (the “Trustee”), under a
Trust Agreement dated as of February 1, 2006, among Structured Asset Securities
Corporation, as depositor, Aurora Loan Services LLC, as master servicer, Xxxxxxx
Fixed Income Services Inc., as credit risk manager, and the Trustee, relating
to
Structured Asset Securities Corporation Mortgage Pass-Through Certificates,
Series 2006-S1, without recourse.
| [current signatory on note] | ||
| |
|
|
| By: | ||
|
Name:
Title:
|
||
B-4-1
EXHIBIT
C
REQUEST
FOR RELEASE OF DOCUMENTS AND RECEIPT
|
Date
|
[Addressed
to Trustee
or,
if
applicable, Custodian]
In
connection with the administration of the mortgages held by you as Trustee
under
a certain Trust Agreement dated as of February 1, 2006, by and among Structured
Asset Securities Corporation, as Depositor, U.S. Bank National Association,
as
Trustee, Aurora Loan Services LLC, as Master Servicer and Xxxxxxx Fixed Income
Services Inc., as Credit Risk Manager (the “Trust Agreement”), the undersigned
Servicer hereby requests a release of the Mortgage File held by you as Trustee
with respect to the following described Mortgage Loan for the reason indicated
below.
Mortgagor’s
Name:
Address:
Loan
No.:
Reason
for requesting file:
1. Mortgage
Loan paid in full. (The Servicer hereby certifies that all amounts received
in
connection with the loan have been or will be credited to the Certificate
Account pursuant to the Trust Agreement.)
2. The
Mortgage Loan is being foreclosed.
3. Mortgage
Loan substituted. (The Servicer hereby certifies that a Qualifying Substitute
Mortgage Loan has been assigned and delivered to you along with the related
Mortgage File pursuant to the Trust Agreement.)
4. Mortgage
Loan repurchased. (The Servicer hereby certifies that the Purchase Price has
been credited to the Certificate Account pursuant to the Trust
Agreement.)
5. Other.
(Describe)
The
undersigned acknowledges that the above Mortgage File will be held by the
undersigned in accordance with the provisions of the Trust Agreement and will
be
returned to you within ten (10) days of our receipt of the Mortgage File, except
if the Mortgage Loan has been paid in full, or repurchased or substituted for
a
Qualifying Substitute Mortgage Loan (in which case the Mortgage File will be
retained by us permanently) and except if the Mortgage Loan is being foreclosed
(in which case the Mortgage File will be returned when no longer required by
us
for such purpose).
C-1
Capitalized
terms used herein shall have the meanings ascribed to them in the Trust
Agreement.
| [Name of Servicer] | ||
| |
|
|
| By: | ||
|
Name:
Title:
Servicing Officer
|
||
C-2
EXHIBIT
D-1
FORM
OF
RESIDUAL CERTIFICATE TRANSFER AFFIDAVIT (TRANSFEREE)
|
STATE
OF
|
)
|
|
)
ss.:
|
|
|
COUNTY
OF
|
)
|
[NAME
OF
OFFICER], _________________ being first duly sworn, deposes and
says:
|
1.
|
That
he [she] is [title of officer] ________________________ of [name
of
Purchaser] ______________________________________ (the “Purchaser”), a
_______________________ [description of type of entity] duly organized
and
existing under the laws of the [State of __________] [United States],
on
behalf of which he [she] makes this
affidavit.
|
|
2.
|
That
the Purchaser’s Taxpayer Identification Number is
[ ].
|
|
3.
|
That
the Purchaser is not a “disqualified organization” within the meaning of
Section 860E(e)(5) of the Internal Revenue Code of 1986, as amended
(the
“Code”) and will not be a “disqualified organization” as of [date of
transfer], and that the Purchaser is not acquiring a Residual Certificate
(as defined in the Agreement) for the account of, or as agent (including
a
broker, nominee, or other middleman) for, any person or entity from
which
it has not received an affidavit substantially in the form of this
affidavit. For these purposes, a “disqualified organization” means the
United States, any state or political subdivision thereof, any foreign
government, any international organization, any agency or instrumentality
of any of the foregoing (other than an instrumentality if all of
its
activities are subject to tax and a majority of its board of directors
is
not selected by such governmental entity), any cooperative organization
furnishing electric energy or providing telephone service to persons
in
rural areas as described in Code Section 1381(a)(2)(C), any “electing
large partnership” within the meaning of Section 775 of the Code, or any
organization (other than a farmers’ cooperative described in Code Section
521) that is exempt from federal income tax unless such organization
is
subject to the tax on unrelated business income imposed by Code Section
511.
|
|
4.
|
That
the Purchaser (x) is not, and on __________________ [date of transfer]
will not be, an employee benefit plan or other retirement arrangement
subject to Section 406 of the Employee Retirement Income Security
Act of
1974, as amended (“ERISA”), or Section 4975 of the Code (collectively, a
“Plan”) or a person acting on behalf of any such Plan or investing the
assets of any such Plan to acquire a Residual Certificate; (y) if
the
Certificate has been the subject of an ERISA-Qualifying Underwriting,
is
an insurance company that is purchasing the Certificate with funds
contained in an “insurance company general account” as defined in Section
V(e) of Prohibited Transaction Class Exemption (“PTCE”) 95-60 and the
purchase and holding of the Certificate are covered under Sections
I and
III of PTCE 95-60; or (z) herewith delivers to the Trustee an opinion
of
counsel (a “Benefit Plan Opinion”) satisfactory to the Trustee, and upon
which the Trustee, the Master Servicer and the Depositor shall be
entitled
to rely, to the effect that the purchase or holding of such Residual
Certificate by the Investor will not result in any non-exempt prohibited
transactions under Title I of ERISA or Section 4975 of the Code and
will
not subject the Trustee, the Master Servicer or the Depositor to
any
obligation in addition to those undertaken by such entities in the
Trust
Agreement, which opinion of counsel shall not be an expense of the
Trust
Fund or any of the above parties.
|
D-1-1
|
5.
|
That
the Purchaser hereby acknowledges that under the terms of the Trust
Agreement (the “Agreement”) by and among Structured Asset Securities
Corporation, as Depositor, Aurora Loan Services LLC, as Master Servicer,
Xxxxxxx Fixed Income Services Inc., as Credit Risk Manager, and U.S.
Bank
National Association, as Trustee, dated as of February 1, 2006, relating
to Structured Asset Securities Corporation Mortgage Pass-Through
Certificates, Series 2006-S1, no transfer of the Residual Certificates
shall be permitted to be made to any person unless the Depositor
and
Trustee have received a certificate from such transferee containing
the
representations in paragraphs 3 and 4
hereof.
|
|
6.
|
That
the Purchaser does not hold REMIC residual securities as nominee
to
facilitate the clearance and settlement of such securities through
electronic book-entry changes in accounts of participating organizations
(such entity, a “Book-Entry
Nominee”).
|
|
7.
|
That
the Purchaser does not have the intention to impede the assessment
or
collection of any federal, state or local taxes legally required
to be
paid with respect to such Residual
Certificate.
|
|
8.
|
That
the Purchaser will not transfer a Residual Certificate to any person
or
entity (i) as to which the Purchaser has actual knowledge that the
requirements set forth in paragraph 3, paragraph 6 or paragraph 10
hereof
are not satisfied or that the Purchaser has reason to believe does
not
satisfy the requirements set forth in paragraph 7 hereof, and (ii)
without
obtaining from the prospective Purchaser an affidavit substantially
in
this form and providing to the Trustee a written statement substantially
in the form of Exhibit D-2 to the
Agreement.
|
|
9.
|
That
the Purchaser understands that, as the holder of a Residual Certificate,
the Purchaser may incur tax liabilities in excess of any cash flows
generated by the interest and that it intends to pay taxes associated
with
holding such Residual Certificate as they become
due.
|
D-1-2
|
10.
|
That
the Purchaser (i) is not a Non-U.S. Person or (ii) is a Non-U.S.
Person
that holds a Residual Certificate in connection with the conduct
of a
trade or business within the United States and has furnished the
transferor and the Trustee with an effective Internal Revenue Service
Form
W-8ECI (Certificate of Foreign Person’s Claim for Exemption From
Withholding on Income Effectively Connected With the Conduct of a
Trade or
Business in the United States) or successor form at the time and
in the
manner required by the Code or (iii) is a Non-U.S. Person that has
delivered to both the transferor and the Trustee an opinion of a
nationally recognized tax counsel to the effect that the transfer
of such
Residual Certificate to it is in accordance with the requirements
of the
Code and the regulations promulgated thereunder and that such transfer
of
a Residual Certificate will not be disregarded for federal income
tax
purposes. “Non-U.S. Person” means an individual, corporation, partnership
or other person other than (i) a citizen or resident of the United
States;
(ii) a corporation, partnership or other entity created or organized
in or
under the laws of the United States or any state thereof, including
for
this purpose, the District of Columbia; (iii) an estate that is subject
to
U.S. federal income tax regardless of the source of its income; (iv)
a
trust if a court within the United States is able to exercise primary
supervision over the administration of the trust and one or more
United
States trustees have authority to control all substantial decisions
of the
trust; and, (v) to the extent provided in Treasury regulations, certain
trusts in existence on August 20, 1996 that are treated as United
States
persons prior to such date and elect to continue to be treated as
United
States persons.
|
|
11.
|
That
the Purchaser agrees to such amendments of the Trust Agreement as
may be
required to further effectuate the restrictions on transfer of any
Residual Certificate to such a “disqualified organization,” an agent
thereof, a Book-Entry Nominee, or a person that does not satisfy
the
requirements of paragraph 7 and paragraph 10
hereof.
|
|
12.
|
That
the Purchaser consents to the designation of the Trustee as its agent
to
act as “tax matters person” of the Trust Fund pursuant to the Trust
Agreement.
|
IN
WITNESS WHEREOF, the Purchaser has caused this instrument to be executed on
its
behalf, pursuant to authority of its Board of Directors, by its [title of
officer] this _____ day of __________, 20__.
| [name of Purchaser] | ||
| |
|
|
| By: | ||
|
Name:
Title:
|
||
Personally
appeared before me the above-named [name of officer] ________________, known
or
proved to me to be the same person who executed the foregoing instrument and
to
be the [title of officer] _________________ of the Purchaser, and acknowledged
to me that he [she] executed the same as his [her] free act and deed and the
free act and deed of the Purchaser.
D-1-3
Subscribed
and sworn before me this _____ day of __________, 20__.
NOTARY
PUBLIC
______________________________
COUNTY
OF_____________________
STATE
OF______________________
My
commission expires the _____ day of __________, 20__.
X-0-0
XXXXXXX
X-0
FORM
OF
RESIDUAL CERTIFICATE TRANSFER AFFIDAVIT (TRANSFEROR)
|
Date
|
|
Re:
|
Structured
Asset Securities Corporation
|
|
|
Mortgage
Pass-Through Certificates, Series
2006-S1
|
_______________________
(the “Transferor”) has reviewed the attached affidavit of
_____________________________ (the “Transferee”), and has no actual knowledge
that such affidavit is not true and has no reason to believe that the
information contained in paragraph 7 thereof is not true, and has no reason
to
believe that the Transferee has the intention to impede the assessment or
collection of any federal, state or local taxes legally required to be paid
with
respect to a Residual Certificate. In addition, the Transferor has conducted
a
reasonable investigation at the time of the transfer and found that the
Transferee had historically paid its debts as they came due and found no
significant evidence to indicate that the Transferee will not continue to pay
its debts as they become due.
| Very truly yours, | |||
|
Name: Title: |
|||
D-2-1
EXHIBIT
E
SERVICING
AGREEMENTS
LIST
OF
SERVICING AGREEMENTS
|
1.
|
Servicing
Agreement dated as of February 1, 2006, among Aurora Loan Services
LLC, as
servicer and as master servicer (in such capacity, the “Master Servicer”)
and Xxxxxx Brothers Holdings Inc., as seller (the
“Seller”).
|
|
2.
|
Securitization
Subservicing Agreement dated
as of February 1, 2006, among GMAC Mortgage Corporation, as servicer,
the
Seller and the Master Servicer.
|
E-1
EXHIBIT
F
FORM
OF
RULE 144A TRANSFER CERTIFICATE
|
Re:
|
Structured
Asset Securities Corporation
|
|
|
Mortgage
Pass-Through Certificates
|
||
|
Series
2006-S1
|
Reference
is hereby made to the Trust Agreement dated as of February 1, 2006 (the “Trust
Agreement”), by and among Structured Asset Securities Corporation, as Depositor,
Aurora Loan Services LLC, as Master Servicer, Xxxxxxx Fixed Income Services
Inc., as Credit Risk Manager, and U.S. Bank National Association, as Trustee.
Capitalized terms used but not defined herein shall have the meanings given
to
them in the Trust Agreement.
This
letter relates to $__________ initial Certificate Balance of Class
Certificates
which are held in the form of Definitive Certificates registered in the name
of
(the
“Transferor”). The Transferor has requested a transfer of such Definitive
Certificates for Definitive Certificates of such Class registered in the name
of
[insert name of transferee].
In
connection with such request, and in respect of such Certificates, the
Transferor hereby certifies that such Certificates are being transferred in
accordance with (i) the transfer restrictions set forth in the Trust Agreement
and the Certificates and (ii) Rule 144A under the Securities Act to a purchaser
that the Transferor reasonably believes is a “qualified institutional buyer”
within the meaning of Rule 144A purchasing for its own account or for the
account of a “qualified institutional buyer,” which purchaser is aware that the
sale to it is being made in reliance upon Rule 144A, in a transaction meeting
the requirements of Rule 144A and in accordance with any applicable securities
laws of any state of the United States or any other applicable
jurisdiction.
This
certificate and the statements contained herein are made for your benefit and
the benefit of the Depositor.
| [Name of Transferor] | ||
| |
|
|
| By: | ||
|
Name:
Title:
|
||
Dated:
___________, ____
F-1
EXHIBIT
G
FORM
OF
PURCHASER’S LETTER FOR
INSTITUTIONAL
ACCREDITED INVESTOR
|
Date
|
U.S.
Bank
National Association
Xxx
Xxxxxxx Xxxxxx
Xxxxxx,
XX 00000
Attention:
Corporate Trust Group - SASCO 2006-S1
Structured
Asset Securities Corporation,
as
Depositor
000
Xxxxxxx Xxxxxx
0xx
Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Re:
Structured Asset Securities Corporation Mortgage Pass-Through Certificates,
Series 2006-S1
Dear
Sirs:
In
connection with our proposed purchase of $______________ principal amount of
Structured Asset Securities Corporation Mortgage Pass-Through Certificates,
Series 2006-S1 (the “Privately Offered Certificates”) of the Structured Asset
Securities Corporation (the “Depositor”), we confirm that:
|
(1)
|
We
understand that the Privately Offered Certificates have not been,
and will
not be, registered under the Securities Act of 1933, as amended (the
“Securities Act”), and may not be sold except as permitted in the
following sentence. We agree, on our own behalf and on behalf of
any
accounts for which we are acting as hereinafter stated, that if we
should
sell any Privately Offered Certificates within two years of the later
of
the date of original issuance of the Privately Offered Certificates
or the
last day on which such Privately Offered Certificates are owned by
the
Depositor or any affiliate of the Depositor we will do so only (A)
to the
Depositor, (B) to “qualified institutional buyers” (within the meaning of
Rule 144A under the Securities Act) in accordance with Rule 144A
under the
Securities Act (“QIBs”), (C) pursuant to the exemption from registration
provided by Rule 144 under the Securities Act, or (D) to an institutional
“accredited investor” within the meaning of Rule 501(a)(1), (2), (3) or
(7) of Regulation D under the Securities Act that is not a QIB (an
“Institutional Accredited Investor”) which, prior to such transfer,
delivers to the Trustee under the Trust Agreement dated as of February
1,
2006, by and among the Depositor, Aurora Loan Services LLC, as Master
Servicer, Xxxxxxx Fixed Income Services Inc., as Credit Risk Manager,
and
U.S. Bank National Association, as Trustee (the “Trustee”), a signed
letter in the form of this letter; and we further agree, in the capacities
stated above, to provide to any person purchasing any of the Privately
Offered Certificates from us a notice advising such purchaser that
resales
of the Privately Offered Certificates are restricted as stated
herein.
|
G-1
|
(2)
|
We
understand that, in connection with any proposed resale of any Privately
Offered Certificates to an Institutional Accredited Investor, we
will be
required to furnish to the Trustee and the Depositor a certification
from
such transferee in the form hereof to confirm that the proposed sale
is
being made pursuant to an exemption from, or in a transaction not
subject
to, the registration requirements of the Securities Act. We further
understand that the Privately Offered Certificates purchased by us
will
bear a legend to the foregoing
effect.
|
|
(3)
|
We
are acquiring the Privately Offered Certificates for investment purposes
and not with a view to, or for offer or sale in connection with,
any
distribution in violation of the Securities Act. We have such knowledge
and experience in financial and business matters as to be capable
of
evaluating the merits and risks of our investment in the Privately
Offered
Certificates, and we and any account for which we are acting are
each able
to bear the economic risk of such
investment.
|
|
(4)
|
We
are an Institutional Accredited Investor and we are acquiring the
Privately Offered Certificates purchased by us for our own account
or for
one or more accounts (each of which is an Institutional Accredited
Investor) as to each of which we exercise sole investment
discretion.
|
| (5) |
We
have received such information as we deem necessary in order to
make our
investment decision.
|
| (6) |
If
we are acquiring ERISA-Restricted Certificates, we understand that
in
accordance with ERISA, the Code and the Exemption, no Plan and no
person
acting on behalf of such a Plan may acquire such Certificate except
in
accordance with Section 3.03(d) of the Trust
Agreement.
|
Terms
used in this letter which are not otherwise defined herein have the respective
meanings assigned thereto in the Trust Agreement.
G-2
You
and
the Depositor are entitled to rely upon this letter and are irrevocably
authorized to produce this letter or a copy hereof to any interested party
in
any administrative or legal proceeding or official inquiry with respect to
the
matters covered hereby.
| Very truly yours, | ||
| [Purchaser] | ||
| |
|
|
| By: | ||
|
Name:
Title:
|
||
G-3
EXHIBIT
H
FORM
OF
ERISA TRANSFER AFFIDAVIT
|
STATE
OF NEW YORK
|
)
|
|
)
ss.:
|
|
|
COUNTY
OF NEW YORK
|
)
|
The
undersigned, being first duly sworn, deposes and says as follows:
1. The
undersigned is the ______________________ of (the “Investor”), a [corporation
duly organized] and existing under the laws of __________, on behalf of which
he
makes this affidavit.
2. The
Investor (x) is not, and on ___________ [date of transfer] will not be, an
employee benefit plan or other retirement arrangement subject to Section 406
of
the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or
Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”)
(collectively, a “Plan”) or a person acting on behalf of any such Plan or
investing the assets of any such Plan; (y) if the Certificate has been the
subject of an ERISA-Qualifying Underwriting, is an insurance company that is
purchasing the Certificate with funds contained in an “insurance company general
account” as defined in Section V(e) of Prohibited Transaction Class Exemption
(“PTCE”) 95-60 and the purchase and holding of the Certificate are covered under
Sections I and III of PTCE 95-60; or (z) herewith delivers to the Trustee an
opinion of counsel (a “Benefit Plan Opinion”) satisfactory to the Trustee, and
upon which the Trustee, the Master Servicer and the Depositor shall be entitled
to rely, to the effect that the purchase or holding of such Certificate by
the
Investor will not result in any non-exempt prohibited transactions under Title
I
of ERISA or Section 4975 of the Code and will not subject the Trustee, the
Master Servicer or the Depositor to any obligation in addition to those
undertaken by such entities in the Trust Agreement, which opinion of counsel
shall not be an expense of the Trust Fund or the above parties.
3. The
Investor hereby acknowledges that under the terms of the Trust Agreement (the
“Agreement”) by and among Structured Asset Securities Corporation, as Depositor,
Aurora Loan Services LLC, as Master Servicer, Xxxxxxx Fixed Income Services
Inc., as Credit Risk Manager, and U.S. Bank National Association, as Trustee,
dated as of February 1, 2006, regarding Structured Asset Securities Corporation
Mortgage Pass-Through Certificates, Series 2006-S1, no transfer of the
ERISA-Restricted Certificates shall be permitted to be made to any person unless
the Depositor and Trustee have received a certificate from such transferee
in
the form hereof.
H-1
IN
WITNESS WHEREOF, the Investor has caused this instrument to be executed on
its
behalf, pursuant to proper authority, by its duly authorized officer, duly
attested, this ____ day of _______________, 20___.
| [Investor] | ||
| |
|
|
| By: | ||
|
Name:
Title:
|
||
ATTEST:
|
STATE
OF
|
)
|
|
)
ss:
|
|
|
COUNTY
OF
|
)
|
Personally
appeared before me the above-named ________________, known or proved to me
to be
the same person who executed the foregoing instrument and to be the
____________________ of the Investor, and acknowledged that he executed the
same
as his free act and deed and the free act and deed of the Investor.
Subscribed
and sworn before me this _____ day of _________ 20___.
| NOTARY PUBLIC | ||
| My
commission expires the
_____
day of __________, 20___.
|
||
|
|
||
H-2
EXHIBIT
I
MONTHLY
REMITTANCE ADVICE
I-1
EXHIBIT
J
MONTHLY
ELECTRONIC DATA TRANSMISSION
J-1
EXHIBIT
K
LIST
OF
CUSTODIAL AGREEMENTS
|
1.
|
Custodial
Agreement dated as of February 1, 2006, between LaSalle Bank National
Association, as Custodian and the
Trustee.
|
|
2.
|
Custodial
Agreement dated as of February 1, 2006, between U.S. Bank National
Association, as Custodian and the
Trustee.
|
K-1
EXHIBIT
L
LIST
OF
CREDIT RISK MANAGEMENT AGREEMENTS
|
1.
|
Credit
Risk Management Agreement dated February 28, 2006, between Xxxxxxx
Fixed
Income Services Inc., as credit risk manager (the “Credit Risk Manager”)
and Aurora Loan Services LLC, as
servicer.
|
| 2. |
Credit
Risk Management Agreement dated February 28, 2006, between the Credit
Risk
Manager and GMAC Mortgage Corporation, as servicer.
|
L-1
EXHIBIT
M
[Reserved]
M-1
EXHIBIT
N-1
FORM
OF
TRANSFER CERTIFICATE
FOR
TRANSFER FROM RESTRICTED GLOBAL SECURITY
TO
REGULATION S GLOBAL SECURITY
(Transfers
pursuant to § 3.03(h)(B)
of
the
Agreement)
|
Re:
|
Structured
Asset Securities Corporation
|
|
|
Mortgage
Pass-Through Certificates Series
2006-S1
|
Reference
is hereby made to the Trust Agreement (the “Agreement”) by and among Structured
Asset Securities Corporation, as Depositor, Aurora Loan Services LLC, as Master
Servicer, Xxxxxxx Fixed Income Services Inc., as Credit Risk Manager and U.S.
Bank National Association, as Trustee, dated as of February 1, 2006. Capitalized
terms used but not defined herein shall have the meanings given to them in
the
Agreement.
This
letter relates to U.S. $
aggregate
principal amount of Securities which are held in the form of a Restricted Global
Security with DTC in the name of [name of transferor]
(the
“Transferor”) to effect the transfer of the Securities in exchange for an
equivalent beneficial interest in a Regulation S Global Security.
In
connection with such request, the Transferor does hereby certify that such
transfer has been effected in accordance with the transfer restrictions set
forth in the Agreement and the Securities and in accordance with Rule 904 of
Regulation S, and that:
a. the
offer
of the Securities was not made to a person in the United States;
b. at
the
time the buy order was originated, the transferee was outside the United States
or the Transferor and any person acting on its behalf reasonably believed that
the transferee was outside the United States;
c. no
directed selling efforts have been made in contravention of the requirements
of
Rule 903 or 904 of Regulation S, as applicable;
d. the
transaction is not part of a plan or scheme to evade the registration
requirements of the United States Securities Act of 1933, as amended;
and
e.
the
transferee is not a U.S. person (as defined in Regulation
S).
N-1-1
You
are
entitled to rely upon this letter and are irrevocably authorized to produce
this
letter or a copy hereof to any interested party in any administrative or legal
proceedings or official inquiry with respect to the matters covered hereby.
Terms used in this certificate have the meanings set forth in Regulation
S.
| [Name of Transferor] | ||
| |
|
|
| By: | ||
|
Name:
Title:
|
||
Date:
,
N-1-2
EXHIBIT
N-2
FORM
OF
TRANSFER CERTIFICATE FOR TRANSFER
FROM
REGULATION S GLOBAL SECURITY
TO
RESTRICTED GLOBAL SECURITY
(Transfers
pursuant to § 3.03(h)(C)
of
the
Agreement)
|
Re:
|
Structured
Asset Securities Corporation
|
|
|
Mortgage
Pass-Through Certificates Series
2006-S1
|
Reference
is hereby made to the Trust Agreement (the “Agreement”) by and among Structured
Asset Securities Corporation, as Depositor, Aurora Loan Services LLC, as Master
Servicer, Xxxxxxx Fixed Income Services Inc., as Credit Risk Manager, U.S.
Bank
National Association, as Trustee, dated as of February 1, 2006. Capitalized
terms used but not defined herein shall have the meanings given to them in
the
Agreement.
This
letter relates to U.S. $
aggregate
principal amount of Securities which are held in the form of a Regulations
S
Global Security in the name of [name of transferor]
(the
“Transferor”) to effect the transfer of the Securities in exchange for an
equivalent beneficial interest in a Restricted Global Security.
In
connection with such request, and in respect of such Securities, the Transferor
does hereby certify that such Securities are being transferred in accordance
with (i) the transfer restrictions set forth in the Agreement and the Securities
and (ii) Rule 144A under the United States Securities Act of 1933, as amended,
to a transferee that the Transferor reasonably believes is purchasing the
Securities for its own account or an account with respect to which the
transferee exercises sole investment discretion, the transferee and any such
account is a qualified institutional buyer within the meaning of Rule 144A,
in a
transaction meeting the requirements of Rule 144A and in accordance with any
applicable securities laws of any state of the United States or any other
jurisdiction.
| [Name of Transferor] | ||
| |
|
|
| By: | ||
|
Name:
Title:
|
||
Date:
,
N-2-1
EXHIBIT
O
Interest
Rate Cap Agreement
O-1
EXHIBIT
P
SWAP
AGREEMENT
P-1
EXHIBIT
Q-1
ADDITIONAL
FORM 10-D DISCLOSURE
|
Item
on Form 10-D
|
Party
Responsible
|
|
Item
1: Distribution and Pool Performance Information
Any
information required by 1121 which is NOT included on the Distribution
Date Statement
|
Master
Servicer (as to any Servicer, to the extent provided by such
Servicer),
Trustee
(if Paying Agent) and Paying Agent
|
|
Item
2: Legal Proceedings
per
Item 1117 of Reg AB
|
(i)
All parties to the Trust Agreement (as to themselves), (ii) the Trustee
as
to the issuing entity, (iii) the Depositor as to the sponsor, any
1110(b)
originator, any 1100(d)(1) party and (iv) the Master Servicer, as
to any
Servicer, to the extent provided by such Servicer
|
|
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 Holders
|
Trustee
|
|
Item
6: Significant Obligors of Pool Assets
|
Depositor
|
|
Item
7: Significant Enhancement Provider Information
|
Depositor
|
|
Item
8: Other Information
|
Any
party responsible for disclosure items on Form 8-K
|
|
Item
9: Exhibits
|
Depositor
and Master Servicer (on behalf of any Servicer or on its own behalf
if
acting as a Servicer)
|
Q-1-1
EXHIBIT
Q-2
ADDITIONAL
FORM 10-K DISCLOSURE
|
Item
on Form 10-K
|
Party
Responsible
|
|
Item
1B: Unresolved Staff Comments
|
Depositor
|
|
Item
9B: Other Information
|
Any
party responsible for disclosure items on Form 8-K
|
|
Item
15: Exhibits, Financial Statement Schedules
|
Depositor,
Servicer, Master Servicer, Subservicer
|
|
Additional
Item:
Disclosure
per Item 1117 of Reg AB
|
(i)
All parties to the Trust Agreement (as to themselves), (ii) the Trustee
as
to the issuing entity, (iii) the Depositor as to the sponsor, any
1110(b)
originator, any 1100(d)(1) party and (iv) the Master Servicer, as
to any
Servicer, to the extent provided by such Servicer
|
|
Additional
Item:
Disclosure
per Item 1119 of Reg AB
|
(i)
All parties to the Trust Agreement as to themselves, (ii) the Depositor
as
to he sponsor, originator, significant obligor, enhancement or support
provider and (iii) the Master Servicer, as to any Servicer, to the
extent
provided by such Servicer
|
|
Additional
Item:
Disclosure
per Item 1112(b) of Reg AB
|
Depositor
|
|
Additional
Item:
Disclosure
per Items 1114(b) and 1115(b) of Reg AB
|
Depositor
|
Q-2-1
EXHIBIT
Q-3
ADDITIONAL
FORM 8-K DISCLOSURE
|
Item
on Form 8-K
|
Party
Responsible
|
|
Item
1.01- Entry into a Material Definitive Agreement
|
Any
party to the Trust Agreement which is a party to such
agreement
|
|
Item
1.02- Termination of a Material Definitive Agreement
|
Any
party to the Trust Agreement which is a party to such
agreement
|
|
Item
1.03- Bankruptcy or Receivership
|
Depositor
|
|
Item
2.04- Triggering Events that Accelerate or Increase a Direct Financial
Obligation or an Obligation under an Off-Balance Sheet
Arrangement
|
Depositor
|
|
Item
3.03- Material Modification to Rights of Security Holders
|
Trustee
and Depositor
|
|
Item
5.03- Amendments of Articles of Incorporation or Bylaws; Change of
Fiscal
Year
|
Depositor
|
|
Item
6.01- ABS Informational and Computational Material
|
Depositor
|
|
Item
6.02- Change of Servicer or Trustee
|
Master
Servicer (as to itself and as to any Servicer, to the extent provided
by
such Servicer), Trustee, Seller
|
|
Item
6.03- Change in Credit Enhancement or External Support
|
Depositor
|
|
Item
6.04- Failure to Make a Required Distribution
|
Trustee
|
|
Item
6.05- Securities Act Updating Disclosure
|
Depositor
|
|
Item
7.01- Reg FD Disclosure
|
Depositor
|
|
Item
8.01
|
Depositor
|
|
Item
9.01
|
Depositor
|
Q-3-1
EXHIBIT
Q-4
ADDITIONAL
DISCLOSURE NOTIFICATION
U.S.
Bank
National Association,
as
Trustee to Structured Asset Securities Corporation
Mortgage
Pass-Through Certificates 2006-S1
Xxx
Xxxxxxx Xxxxxx
0xx
Xxxxx
Xxxxxx,
Xxxxxxxxxxxxx 00000
RE:
**Additional Form [10-D][10-K][8-K] Disclosure** Required
Ladies
and Gentlemen:
In
accordance with Section [ ] of the Trust
Agreement, dated as of February 1, 2006, by and among Structured Asset
Securities Corporation, as Depositor, Aurora Loan Services LLC, as Master
Servicer, Xxxxxxx Fixed Income Services Inc., as Credit Risk Manager, and U.S.
Bank National Association, as Trustee, the undersigned, as
[ ], hereby notifies you that certain events have come
to our attention that [will] [may] need to be disclosed on Form
[10-D][10-K][8-K].
Description
of Additional Form [10-D][10-K][8-K] Disclosure:
List
of any Attachments hereto to be included in the Additional Form
[10-D][10-K][8-K] Disclosure:
Any
inquiries related to this notification should be directed to
[ ], phone
number:
[
]; email address:
[
].
|
[NAME
OF PARTY],
as
[role]
|
||
| |
|
|
| By: | ||
|
Name:
Title:
|
||
Q-4-1
EXHIBIT
R
FORM
OF
BACK-UP XXXXXXXX-XXXXX CERTIFICATION
[ ]
[ ]
[ ]
Re: Structured
Asset Securities Corporation Mortgage Pass-Through Certificates
2006-S1
[_______],
the [_______] of [_______] (the “Company”) hereby certifies to the Depositor,
the Master Servicer and the Trustee, and each of their officers, directors
and
affiliates that:
(1) I
have
reviewed [the servicer compliance statement of the Company provided in
accordance with Item 1123 of Regulation AB (the “Compliance Statement”),] the
report on assessment of the Company’s compliance with the Servicing Criteria set
forth in Item 1122(d) of Regulation AB (the “Servicing Criteria”), provided in
accordance with Rules 13a-18 and 15d-18 under the Securities Exchange Act of
1934, as amended (the “Exchange Act”) and Item 1122 of Regulation AB (the
“Servicing Assessment”), the registered public accounting firm’s attestation
report provided in accordance with Rules 13a-18 and 15d-18 under the Exchange
Act and Section 1122(b) of Regulation AB (the “Attestation Report”), and all
servicing reports, officer’s certificates and other information relating to the
servicing of the Mortgage Loans by the Company during 200[ ] that were delivered
by the Company to any of the Depositor, the Master Servicer and the Trustee
pursuant to the Agreement (collectively, the “Company Servicing
Information”);
(2) Based
on
my knowledge, the Company Servicing Information, taken as a whole, does not
contain any untrue statement of a material fact or omit to state a material
fact
necessary to make the statements made, in the light of the circumstances under
which such statements were made, not misleading with respect to the period
of
time covered by the Company Servicing Information;
(3) Based
on
my knowledge, all of the Company Servicing Information required to be provided
by the Company under the Agreement has been provided to the Depositor, the
Master Servicer and the Trustee;
(4) I
am
responsible for reviewing the activities performed by [_______] as [_______]
under the [_______] (the “Agreement”), and based on my knowledge [and the
compliance review conducted in preparing the Compliance Statement] and except
as
disclosed in [the Compliance Statement,] the Servicing Assessment or the
Attestation Report, the Company has fulfilled its obligations under the
Agreement in all material respects; and
R-1
(5) [The
Compliance Statement required to be delivered by the Company pursuant to the
Agreement, and] [The] [the] Servicing Assessment and Attestation Report required
to be provided by the Company and [by any Subservicer or Subcontractor] pursuant
to the Agreement, have been provided to the Depositor, the Master Servicer
and
the Trustee. Any material instances of noncompliance described in such reports
have been disclosed to the Depositor, the Master Servicer and the Trustee.
Any
material instance of noncompliance with the Servicing Criteria has been
disclosed in such reports.
Capitalized
terms used but not defined herein have the meanings ascribed to them in the
Trust Agreement, dated as of February 1, 2006 (the “Trust Agreement”) by and
among Structured Asset Securities Corporation, as Depositor, Aurora Loan
Services LLC, as Master Servicer, Xxxxxxx Fixed Income Services Inc., as Credit
Risk Manager, and U.S. Bank National Association, as Trustee. Capitalized terms
used but not defined herein shall have the meanings given to them in the Trust
Agreement.
|
[_______]
as
[_______]
|
||
| |
|
|
| By: | ||
|
Name:
Title:
Date:
|
||
X-0
XXXXXXX
X-0
FORM
OF
WATCHLIST REPORT
S-1-1
EXHIBIT
S-2
FORM
OF
LOSS SEVERITY REPORT
S-2-1
EXHIBIT
S-3
FORM
OF
PREPAYMENT PREMIUMS REPORT
S-3-1
EXHIBIT
S-4
FORM
OF
ANALYTICS REPORT
S-4-1
EXHIBIT
T
SERVICING
CRITERIA TO BE ADDRESSED IN
REPORT
ON
ASSESSMENT OF COMPLIANCE
Where
there are multiple checks for criteria the attesting party will identify in
their management assertion that they are attesting only to the portion of the
distribution chain they are responsible for in the related transaction
agreements. Capitalized terms used herein but not defined herein shall have
the
meanings assigned to them in the Trust Agreement dated as of February 1, 2006
(the “Trust Agreement”), by and among Structured Asset Securities Corporation,
as depositor (the “Depositor”), U.S. Bank National Association, (the “Trustee”),
Aurora Loan Services LLC, as master servicer (the “Master Servicer”), and
Xxxxxxx Fixed Income Services Inc., as credit risk manager (the “Credit Risk
Manager”).
|
Reg
AB Reference
|
Servicing
Criteria
|
Paying
Agent (including the Trustee if acting as Paying
Agent)
|
Credit
Risk Manager
|
Trustee
|
Master
Servicer
|
|
General Servicing
Considerations
|
|||||
|
1122(d)(1)(i)
|
Policies
and procedures are instituted to monitor any performance or other
triggers
and events of default in accordance with the transaction
agreements.
|
X
|
|||
|
1122(d)(1)(ii)
|
If
any material servicing activities are outsourced to third parties,
policies and procedures are instituted to monitor the third party’s
performance and compliance with such servicing activities.
|
||||
|
1122(d)(1)(iii)
|
Any
requirements in the transaction agreements to maintain a back-up
servicer
for the pool assets are maintained.
|
|
|
X
|
|
|
1122(d)(1)(iv)
|
A
fidelity bond and errors and omissions policy is in effect on the
party
participating in the servicing function throughout the reporting
period in
the amount of coverage required by and otherwise in accordance with
the
terms of the transaction agreements.
|
X
|
|||
|
Cash Collection and Administration
|
|||||
|
1122(d)(2)(i)
|
Payments
on pool assets are deposited into the appropriate custodial bank
accounts
and related bank clearing accounts no more than two business days
following receipt, or such other number of days specified in the
transaction agreements.
|
X
|
T-1
|
Reg
AB Reference
|
Servicing
Criteria
|
Paying
Agent (including the Trustee if acting as Paying
Agent)
|
Credit
Risk Manager
|
Trustee
|
Master
Servicer
|
|
1122(d)(2)(ii)
|
Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made
only by authorized personnel.
|
X
|
X
|
||
|
1122(d)(2)(iii)
|
Advances
of funds or guarantees regarding collections, cash flows or distributions,
and any interest or other fees charged for such advances, are made,
reviewed and approved as specified in the transaction agreements.
|
X
|
|||
|
1122(d)(2)(iv)
|
The
related accounts for the transaction, such as cash reserve accounts
or
accounts established as a form of over collateralization, are separately
maintained (e.g., with respect to commingling of cash) as set forth
in the
transaction agreements.
|
X
|
X
|
X
|
|
|
1122(d)(2)(v)
|
Each
custodial account is maintained at a federally insured depository
institution as set forth in the transaction agreements. For purposes
of
this criterion, “federally insured depository institution” with respect to
a foreign financial institution means a foreign financial institution
that
meets the requirements of Rule 13k-1(b)(1) of the Securities Exchange
Act.
|
X
|
|||
|
1122(d)(2)(vi)
|
Unissued
checks are safeguarded so as to prevent unauthorized access.
|
X
|
X
|
||
|
1122(d)(2)(vii)
|
Reconciliations
are prepared on a monthly basis for all asset-backed securities related
bank accounts, including custodial accounts and related bank clearing
accounts. These reconciliations are (A) mathematically accurate;
(B)
prepared within 30 calendar days after the bank statement cutoff
date, or
such other number of days specified in the transaction agreements;
(C)
reviewed and approved by someone other than the person who prepared
the
reconciliation; and (D) contain explanations for reconciling items.
These
reconciling items are resolved within 90 calendar days of their original
identification, or such other number of days specified in the transaction
agreements.
|
X
|
X
|
T-2
|
Reg
AB Reference
|
Servicing
Criteria
|
Paying
Agent (including the Trustee if acting as Paying
Agent)
|
Credit
Risk Manager
|
Trustee
|
Master
Servicer
|
|
Investor
Remittances and Reporting
|
|||||
|
1122(d)(3)(i)
|
Reports
to investors, including those to be filed with the Commission, are
maintained in accordance with the transaction agreements and applicable
Commission requirements. Specifically, such reports (A) are prepared
in
accordance with timeframes and other terms set forth in the transaction
agreements; (B) provide information calculated in accordance with
the
terms specified in the transaction agreements; (C) are filed with
the
Commission as required by its rules and regulations; and (D) agree
with
investors’ or the trustee’s records as to the total unpaid principal
balance and number of pool assets serviced by the Servicer.
|
X
|
X
|
X
|
|
|
1122(d)(3)(ii)
|
Amounts
due to investors are allocated and remitted in accordance with timeframes,
distribution priority and other terms set forth in the transaction
agreements.
|
X
|
X
|
||
|
1122(d)(3)(iii)
|
Disbursements
made to an investor are posted within two business days to the Servicer’s
investor records, or such other number of days specified in the
transaction agreements.
|
X
|
X
|
||
|
1122(d)(3)(iv)
|
Amounts
remitted to investors per the investor reports agree with cancelled
checks, or other form of payment, or custodial bank statements.
|
X
|
X
|
||
|
Pool
Asset Administration
|
|||||
|
1122(d)(4)(i)
|
Collateral
or security on pool assets is maintained as required by the transaction
agreements or related pool asset documents.
|
|
|||
|
1122(d)(4)(ii)
|
Pool
assets and related documents are safeguarded as required by the
transaction agreements
|
|
T-3
|
Reg
AB Reference
|
Servicing
Criteria
|
Paying
Agent (including the Trustee if acting as Paying
Agent)
|
Credit
Risk Manager
|
Trustee
|
Master
Servicer
|
|
1122(d)(4)(iii)
|
Any
additions, removals or substitutions to the asset pool are made,
reviewed
and approved in accordance with any conditions or requirements in
the
transaction agreements.
|
|
X
|
||
|
1122(d)(4)(iv)
|
Payments
on pool assets, including any payoffs, made in accordance with the
related
pool asset documents are posted to the Servicer’s obligor records
maintained no more than two business days after receipt, or such
other
number of days specified in the transaction agreements, and allocated
to
principal, interest or other items (e.g., escrow) in accordance with
the
related pool asset documents.
|
||||
|
1122(d)(4)(v)
|
The
Servicer’s records regarding the pool assets agree with the Servicer’s
records with respect to an obligor’s unpaid principal balance.
|
||||
|
1122(d)(4)(vi)
|
Changes
with respect to the terms or status of an obligor's pool assets (e.g.,
loan modifications or re-agings) are made, reviewed and approved
by
authorized personnel in accordance with the transaction agreements
and
related pool asset documents.
|
X
|
|||
|
1122(d)(4)(vii)
|
Loss
mitigation or recovery actions (e.g., forbearance plans, modifications
and
deeds in lieu of foreclosure, foreclosures and repossessions, as
applicable) are initiated, conducted and concluded in accordance
with the
timeframes or other requirements established by the transaction
agreements.
|
X
|
T-4
|
Reg
AB Reference
|
Servicing
Criteria
|
Paying
Agent (including the Trustee if acting as Paying
Agent)
|
Credit
Risk Manager
|
Trustee
|
Master
Servicer
|
|
1122(d)(4)(viii)
|
Records
documenting collection efforts are maintained during the period a
pool
asset is delinquent in accordance with the transaction agreements.
Such
records are maintained on at least a monthly basis, or such other
period
specified in the transaction agreements, and describe the entity’s
activities in monitoring delinquent pool assets including, for example,
phone calls, letters and payment rescheduling plans in cases where
delinquency is deemed temporary (e.g., illness or unemployment).
|
||||
|
1122(d)(4)(ix)
|
Adjustments
to interest rates or rates of return for pool assets with variable
rates
are computed based on the related pool asset documents.
|
||||
|
1122(d)(4)(x)
|
Regarding
any funds held in trust for an obligor (such as escrow accounts):
(A) such
funds are analyzed, in accordance with the obligor’s pool asset documents,
on at least an annual basis, or such other period specified in the
transaction agreements; (B) interest on such funds is paid, or credited,
to obligors in accordance with applicable pool asset documents and
state
laws; and (C) such funds are returned to the obligor within 30 calendar
days of full repayment of the related pool assets, or such other
number of
days specified in the transaction agreements.
|
||||
|
1122(d)(4)(xi)
|
Payments
made on behalf of an obligor (such as tax or insurance payments)
are made
on or before the related penalty or expiration dates, as indicated
on the
appropriate bills or notices for such payments, provided that such
support
has been received by the servicer at least 30 calendar days prior
to these
dates, or such other number of days specified in the transaction
agreements.
|
|
|||
|
1122(d)(4)(xii)
|
Any
late payment penalties in connection with any payment to be made
on behalf
of an obligor are paid from the Servicer’s funds and not charged to the
obligor, unless the late payment was due to the obligor’s error or
omission.
|
|
|||
|
1122(d)(4)(xiii)
|
Disbursements
made on behalf of an obligor are posted within two business days
to the
obligor’s records maintained by the servicer, or such other number of days
specified in the transaction agreements.
|
|
T-5
|
Reg
AB Reference
|
Servicing
Criteria
|
Paying
Agent (including the Trustee if acting as Paying
Agent)
|
Credit
Risk Manager
|
Trustee
|
Master
Servicer
|
|
1122(d)(4)(xiv)
|
Delinquencies,
charge-offs and uncollectible accounts are recognized and recorded
in
accordance with the transaction agreements.
|
X
|
|||
|
1122(d)(4)(xv)
|
Any
external enhancement or other support, identified in Item 1114(a)(1)
through (3) or Item 1115 of Regulation AB, is maintained as set forth
in
the transaction agreements.
|
X
|
T-6
EXHIBIT
U
FORM
OF
CERTIFICATION TO BE PROVIDED
BY
THE
CREDIT RISK MANAGER
Re:
Structured Asset Securities Corporation Mortgage Pass-Through Certificates,
Series 2006-S1 issued pursuant to the Trust Agreement dated as of February
1,
2006, among Structured Asset Securities Corporation as the Depositor (the
“Depositor”) Aurora Loan Services LLC as Master Servicer, Xxxxxxx Fixed Income
Services Inc. as Credit Risk Manager, and U.S. Bank National Association, as
Trustee (the “Trustee”).
XXXXXXX
FIXED INCOME SERVICES INC. (the “Credit Risk Manager”) certifies to the
Depositor, the Trustee, and [10-K Signatory Entity] its officers, directors
and
affiliates, and with the knowledge and intent that they will rely upon this
certification, that:
|
1.
|
Based
on the knowledge of the Credit Risk Manager taken as a whole, the
information in the reports provided during the calendar year immediately
preceding the date of this certificate (the “Relevant Year”) by the Credit
Risk Manager pursuant to the Master Consulting Agreement dated as
of
January 28, 2004 (the “Master Consulting Agreement”), by and between the
Credit Risk Manager and Xxxxxx Brothers Holdings, Inc. and pursuant
to
Transaction Addendum #58 (the “Transaction Addendum Number 58”), does not
contain any untrue statement of a material fact or omit to state
a
material fact necessary to make the statements made, in light of
the
circumstances under which such statements were made, not misleading
as of
the date that each of such reports was provided; and
|
|
2.
|
The
Credit Risk Manager has fulfilled its obligations under the Master
Consulting Agreement and the Transaction Addendum Number 58 throughout
the
Relevant Year.
|
| XXXXXXX FIXED INCOME SERVICES INC. | ||||
| By: | ||||
| Name: | ||||
| Title: | ||||
U-1
EXHIBIT
V
TRANSACTION
PARTIES
Sponsor
and Seller: Xxxxxx Brothers Holdings Inc.
Depositor:
Structured Asset Securities Corporation
Trustee:
U.S. Bank National Association
Master
Servicer: Aurora Loan Services LLC
Credit
Risk Manager: Xxxxxxx Fixed Income Services Inc.
Swap
Counterparty: HSBC Bank USA, National Association
Cap
Counterparty: HSBC Bank USA, National Association
Servicer(s):
Aurora Loan Services LLC and GMAC Mortgage Corporation.
Originator(s):
Xxxxxx Brothers Bank FSB.
Custodian(s):
LaSalle Bank National Association and U.S. Bank National
Association.
V-1
SCHEDULE
A
MORTGAGE
LOAN SCHEDULE
[To
be
retained in a separate closing binder entitled “SASCO 2006-S1 Mortgage Loan
Schedules” at the Washington DC offices of XxXxx Xxxxxx LLP]
Sch.
A-1
SCHEDULE
B
FIRST
PAYMENT DEFAULT LOANS
[To
be
maintained in a separate closing binder entitled “SASCO 2006-S1 First Payment
Default Loans” at the Washington DC offices of XxXxx Xxxxxx LLP]
Sch.
B-1
