STRUCTURED ASSET SECURITIES CORPORATION, as Depositor, AURORA LOAN SERVICES LLC, as Master Servicer, and LASALLE BANK NATIONAL ASSOCIATION, as Trustee TRUST AGREEMENT Dated as of April 1, 2007 LEHMAN XS TRUST MORTGAGE PASS-THROUGH CERTIFICATES, SERIES...
EXECUTION
STRUCTURED
ASSET SECURITIES CORPORATION,
as
Depositor,
AURORA
LOAN SERVICES LLC,
as
Master
Servicer,
and
LASALLE
BANK NATIONAL ASSOCIATION,
as
Trustee
___________________________
Dated
as
of April 1, 2007
___________________________
XXXXXX
XS
TRUST
MORTGAGE
PASS-THROUGH CERTIFICATES,
SERIES
2007-5H
TABLE
OF
CONTENTS
Page
|
ARTICLE
I DEFINITIONS
|
13
|
|
|
Section
1.01.
|
Definitions.
|
13
|
|
Section
1.02.
|
Calculations
Respecting Mortgage Loans.
|
57
|
|
Section
1.03.
|
Calculations
Respecting Accrued Interest.
|
58
|
|
|
||
|
ARTICLE
II DECLARATION OF TRUST; ISSUANCE OF CERTIFICATES
|
58
|
|
|
|
||
|
Section
2.01.
|
Creation
and Declaration of Trust Fund; Conveyance of Mortgage
Loans.
|
58
|
|
Section
2.02.
|
Acceptance
of Trust Fund by Trustee: Review of Documentation for Trust
Fund.
|
62
|
|
Section
2.03.
|
Representations
and Warranties of the Depositor.
|
63
|
|
Section
2.04.
|
Discovery
of Breach.
|
65
|
|
Section
2.05.
|
Repurchase,
Purchase or Substitution of Mortgage Loans.
|
66
|
|
Section
2.06.
|
Grant
Clause.
|
67
|
|
|
||
|
ARTICLE
III THE CERTIFICATES
|
68
|
|
|
|
||
|
Section
3.01.
|
The
Certificates.
|
68
|
|
Section
3.02.
|
Registration.
|
69
|
|
Section
3.03.
|
Transfer
and Exchange of Certificates.
|
70
|
|
Section
3.04.
|
Cancellation
of Certificates.
|
73
|
|
Section
3.05.
|
Replacement
of Certificates.
|
73
|
|
Section
3.06.
|
Persons
Deemed Owners.
|
73
|
|
Section
3.07.
|
Temporary
Certificates.
|
74
|
|
Section
3.08.
|
Appointment
of Paying Agent.
|
74
|
|
Section
3.09.
|
Book-Entry
Certificates.
|
75
|
|
Section
3.10.
|
Deposit
of Underlying REMIC Certificates under the Exchange Trust
Agreement.
|
76
|
|
|
||
|
ARTICLE
IV ADMINISTRATION OF THE TRUST FUND
|
77
|
|
|
|
||
|
Section
4.01.
|
Collection
Account.
|
77
|
|
Section
4.02.
|
Application
of Funds in the Collection Account.
|
79
|
|
Section
4.03.
|
Reports
to Certificateholders.
|
81
|
|
Section
4.04.
|
Certificate
Account.
|
85
|
|
|
||
|
ARTICLE
V DISTRIBUTIONS TO HOLDERS OF CERTIFICATES
|
86
|
|
|
|
||
|
Section
5.01.
|
Distributions
Generally.
|
86
|
|
Section
5.02.
|
Distributions
from the Certificate Account.
|
87
|
|
Section
5.03.
|
Allocation
of Losses.
|
87
|
|
Section
5.04.
|
Advances
by Master Servicer, Servicer and Trustee.
|
89
|
|
Section
5.05.
|
Compensating
Interest Payments.
|
90
|
|
Section
5.06.
|
Basis
Risk Reserve Fund.
|
90
|
|
Section
5.07.
|
Class
II-P Reserve Fund.
|
91
|
i
|
ARTICLE
VI CONCERNING THE TRUSTEE EVENTS OF DEFAULT
|
91
|
|
|
|
||
|
Section
6.01.
|
Duties
of Trustee and the Paying Agent.
|
91
|
|
Section
6.02.
|
Certain
Matters Affecting the Trustee.
|
95
|
|
Section
6.03.
|
Trustee
Not Liable for Certificates.
|
96
|
|
Section
6.04.
|
Trustee
May Own Certificates.
|
97
|
|
Section
6.05.
|
Eligibility
Requirements for Trustee.
|
97
|
|
Section
6.06.
|
Resignation
and Removal of Trustee.
|
97
|
|
Section
6.07.
|
Successor
Trustee.
|
98
|
|
Section
6.08.
|
Merger
or Consolidation of Trustee.
|
99
|
|
Section
6.09.
|
Appointment
of Co-Trustee, Separate Trustee or Custodian.
|
100
|
|
Section
6.10.
|
Authenticating
Agents.
|
102
|
|
Section
6.11.
|
Indemnification
of Trustee.
|
102
|
|
Section
6.12.
|
Fees
and Expenses of Trustee and Custodians.
|
103
|
|
Section
6.13.
|
Collection
of Monies.
|
104
|
|
Section
6.14.
|
Events
of Default; Trustee To Act; Appointment of Successor.
|
104
|
|
Section
6.15.
|
Additional
Remedies of Trustee Upon Event of Default.
|
108
|
|
Section
6.16.
|
Waiver
of Defaults.
|
109
|
|
Section
6.17.
|
Notification
to Holders.
|
109
|
|
Section
6.18.
|
Directions
by Certificateholders and Duties of Trustee During Event of
Default.
|
109
|
|
Section
6.19.
|
Action
Upon Certain Failures of the Master Servicer and Upon Event of
Default.
|
110
|
|
Section
6.20.
|
Preparation
of Tax Returns and Reports.
|
110
|
|
Section
6.21.
|
Compliance
with Regulation AB.
|
119
|
|
Section
6.22.
|
No
Merger.
|
119
|
|
Section
6.23.
|
Reporting
Requirements of the Commission.
|
119
|
|
|
||
|
ARTICLE
VII PURCHASE OF MORTGAGE LOANS AND TERMINATION OF THE TRUST
FUND
|
120
|
|
|
|
||
|
Section
7.01.
|
Purchase
of Mortgage Loans; Termination of a Mortgage Pool or the Trust
Fund Upon
Purchase or Liquidation of Mortgage Loans; Purchase of the Pooling
REMIC 1
Regular Interests or the Pooling REMIC 2 Regular
Interests.
|
120
|
|
Section
7.02.
|
Procedure
Upon Termination of Trust Fund or Purchase of Pooling REMIC 1 Regular
Interests or the Pooling REMIC 2 Regular Interests.
|
123
|
|
Section
7.03.
|
Additional
Requirements for any Trust Fund Termination Event or Purchase of
either
the Pooling REMIC 1 Regular Interests or Pooling REMIC 2 Regular
Interests.
|
124
|
|
Section
7.04.
|
Optional
Purchase Right of NIMS Insurer.
|
126
|
|
|
||
|
ARTICLE
VIII RIGHTS OF CERTIFICATEHOLDERS
|
126
|
|
|
|
||
|
Section
8.01.
|
Limitation
on Rights of Holders.
|
126
|
|
Section
8.02.
|
Access
to List of Holders.
|
127
|
|
Section
8.03.
|
Acts
of Holders of Certificates.
|
127
|
ii
|
ARTICLE
IX ADMINISTRATION AND SERVICING OF MORTGAGE LOANS BY THE MASTER
SERVICER
|
128
|
|
|
Section
9.01.
|
Duties
of the Master Servicer.
|
128
|
|
Section
9.02.
|
Master
Servicer Fidelity Bond and Master Servicer Errors and Omissions Insurance
Policy.
|
128
|
|
Section
9.03.
|
Master
Servicer’s Financial Statements and Related Information.
|
129
|
|
Section
9.04.
|
Power
to Act; Procedures.
|
129
|
|
Section
9.05.
|
Enforcement
of Servicer’s and Master Servicer’s Obligations.
|
132
|
|
Section
9.06.
|
Collection
of Taxes, Assessments and Similar Items.
|
132
|
|
Section
9.07.
|
Termination
of Servicing Agreement; Successor Servicers.
|
133
|
|
Section
9.08.
|
Master
Servicer Liable for Enforcement.
|
134
|
|
Section
9.09.
|
No
Contractual Relationship Between the Servicer and Trustee or
Depositor.
|
134
|
|
Section
9.10.
|
Assumption
of Servicing Agreement by Trustee.
|
135
|
|
Section
9.11.
|
Due-on-Sale
Clauses; Assumption Agreements; Easements.
|
135
|
|
Section
9.12.
|
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.
|
140
|
|
Section
9.16.
|
Standard
Hazard and Flood Insurance Policies.
|
140
|
|
Section
9.17.
|
Presentment
of Claims and Collection of Proceeds.
|
141
|
|
Section
9.18.
|
Maintenance
of the Primary Mortgage Insurance Policies.
|
141
|
|
Section
9.19.
|
Trustee
To Retain Possession of Certain Insurance Policies and
Documents.
|
142
|
|
Section
9.20.
|
Realization
Upon Defaulted Mortgage Loans.
|
142
|
|
Section
9.21.
|
Compensation
to the Master Servicer.
|
143
|
|
Section
9.22.
|
REO
Property.
|
143
|
|
Section
9.23.
|
Notice
to the Sponsor, the Depositor and the Trustee.
|
144
|
|
Section
9.24.
|
Reports
to the Trustee.
|
144
|
|
Section
9.25.
|
Assessment
of Compliance and Attestation Reports .
|
145
|
|
Section
9.26.
|
Annual
Statement of Compliance with Applicable Servicing Criteria
.
|
146
|
|
Section
9.27.
|
Merger
or Consolidation.
|
147
|
|
Section
9.28.
|
Resignation
of Master Servicer.
|
147
|
|
Section
9.29.
|
Assignment
or Delegation of Duties by the Master Servicer.
|
148
|
|
Section
9.30.
|
Limitation
on Liability of the Master Servicer and Others.
|
148
|
|
Section
9.31.
|
Indemnification;
Third-Party Claims.
|
149
|
|
ARTICLE
X REMIC ADMINISTRATION
|
150
|
|
|
Section
10.01.
|
REMIC
Administration.
|
150
|
|
Section
10.02.
|
Prohibited
Transactions and Activities.
|
152
|
|
Section
10.03.
|
Indemnification
with Respect to Certain Taxes and Loss of REMIC Status.
|
153
|
|
Section
10.04.
|
REO
Property.
|
153
|
|
ARTICLE
XI MISCELLANEOUS PROVISIONS
|
154
|
|
|
Section
11.01.
|
Binding
Nature of Agreement; Assignment.
|
154
|
iii
|
Section
11.02.
|
Entire
Agreement.
|
154
|
|
Section
11.03.
|
Amendment.
|
154
|
|
Section
11.04.
|
Voting
Rights.
|
156
|
|
Section
11.05.
|
Provision
of Information.
|
156
|
|
Section
11.06.
|
Governing
Law.
|
156
|
|
Section
11.07.
|
Notices.
|
156
|
|
Section
11.08.
|
Severability
of Provisions.
|
157
|
|
Section
11.09.
|
Indulgences;
No Waivers.
|
157
|
|
Section
11.10.
|
Headings
Not To Affect Interpretation.
|
157
|
|
Section
11.11.
|
Benefits
of Agreement.
|
157
|
|
Section
11.12.
|
Special
Notices to the Rating Agencies and any NIMS Insurer.
|
158
|
|
Section
11.13.
|
Conflicts.
|
159
|
|
Section
11.14.
|
Counterparts.
|
159
|
|
Section
11.15.
|
Transfer
of Servicing.
|
159
|
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 Agreement
|
|
Exhibit
F
|
Form
of Rule 144A Transfer Certificate
|
|
Exhibit
G
|
Form
of Purchaser’s Letter for Institutional Accredited
Investors
|
|
Exhibit
H
|
Form
of ERISA Transfer Affidavit
|
|
Exhibit
I
|
Form
of Exchange Trust Agreement (including Available Combination
Schedule)
|
|
Exhibit
J
|
Class
Table
|
|
Exhibit
K
|
List
of Custodial Agreements
|
|
Exhibit
L
|
[Reserved]
|
|
Exhibit
M
|
Form
of Back-up Certification to be Provided by the Trustee to the Depositor
|
|
Exhibit
N-1
|
[Reserved]
|
|
Exhibit
N-2
|
[Reserved]
|
|
Exhibit
N-3
|
[Reserved]
|
|
Exhibit
N-4
|
[Reserved]
|
|
Exhibit
O
|
Servicing
Criteria to be Addressed in Report on Assessment of
Compliance
|
|
Exhibit
P
|
Transaction
Parties
|
|
Exhibit
Q
|
Additional
Form 10-D Disclosure
|
|
Exhibit
R
|
Additional
Form 10-K Disclosure
|
|
Exhibit
S
|
Additional
Form 8-K Disclosure
|
|
Schedule
A
|
Mortgage
Loan Schedule (by Mortgage Pool)
|
|
Annex
5A.02
|
Distributions
from the Certificate Account to the Group I
Certificates
|
|
Annex
5B.02
|
Distributions
from the Certificate Account to the Group II
Certificates
|
v
This
TRUST AGREEMENT (“Trust Agreement”), dated as of April 1, 2007 (the
“Agreement”), is by and among STRUCTURED ASSET SECURITIES CORPORATION, a
Delaware corporation, as depositor (the “Depositor”), AURORA LOAN SERVICES LLC,
as master servicer (the “Master Servicer”), and LASALLE BANK NATIONAL
ASSOCIATION, a national banking association, as trustee (the
“Trustee”).
PRELIMINARY
STATEMENT
The
Depositor has acquired the Mortgage Loans from the Seller, and at the Closing
Date is the owner of the Mortgage Loans and the other 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
the
Certificate Insurer. The Depositor, the Trustee and the Master Servicer are
entering into this Agreement, and the Trustee is accepting the Trust Fund
created hereby, for good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged.
As
provided herein, the Trustee shall elect that the Trust Fund (exclusive of
(i)
the Pool 1-2 Basis Risk Reserve Fund, and (ii) the rights to receive (and the
obligation to pay) Basis Risk Shortfalls and Unpaid Basis Risk Shortfalls
(collectively, the “Excluded Trust Assets”) be treated for federal income tax
purposes as comprising seven real estate mortgage investment conduits (each,
a
“REMIC”) in two tiered structures. Specifically, Pooling REMIC 1, Lower-Tier
REMIC 1, Middle-Tier REMIC 1, and Upper-Tier REMIC 1 shall relate to Pool 1
and
Pool 2; and Pooling REMIC 2, Lower-Tier REMIC 2, and Upper-Tier REMIC 2 shall
relate to Pool 3.
Pooling
REMIC 1 shall hold the assets of the Trust Fund related to Pool 1 and Pool
2,
other than any Excluded Trust Assets, and shall issue several uncertificated
interests and shall also issue the Class I-LT-R Certificate, which is hereby
designated as the sole residual interest in Pooling REMIC 1. Each uncertificated
interest in Pooling REMIC 1 is hereby designated as a REMIC regular interest.
Lower-Tier
REMIC 1 shall hold the uncertificated interests issued by Pooling REMIC 1 and
shall issue several uncertificated interests. Each such interest, other than
the
LT1-R Interest, is hereby designated as a REMIC regular interest. The LT1-R
Interest is hereby designated as the sole residual interest in Lower-Tier REMIC
1.
Middle-Tier
REMIC 1 shall hold the uncertificated interests issued by Lower-Tier REMIC
1,
other than the LT1-R Interest, and shall issue several uncertificated interests.
Each such interest, other than the Class MT1-R Interest, is hereby designated
as
a REMIC regular interest. The Class MT1-R Interest is hereby designated as
the
sole residual interest in Middle-Tier REMIC 1.
Upper-Tier
REMIC 1 shall hold the uncertificated interests issued by Middle-Tier REMIC
1,
other than the Class MT1-R Interest. Each of the Offered Certificates related
to
Pool 1 and Pool 2 represent ownership of regular interests in Upper-Tier REMIC
1. Each of the Class 1-AIO, Class 2-A1, Class 2-A2, and Group I Subordinate
Certificates also represents the right to receive Basis Risk Shortfalls or
Unpaid Basis Risk Shortfalls. For federal income tax purposes, the Class I-X
Certificates represents ownership of regular interests in Upper-Tier REMIC
1 and
also represent the obligation to make payments in respect of Basis Risk
Shortfalls or Unpaid Basis Risk Shortfalls to the Class 1-AIO, Class 2-A1,
Class
2-A2, and Group I Subordinate Certificates to the extent payable from Pool
1-2
Monthly Excess Cashflow. The Class I-P Certificates represent ownership of
regular interests in Upper-Tier REMIC 1. The Class I-R Certificate represents
ownership of the sole class of residual interest in Upper-Tier REMIC 1 as well
as ownership of the LT1-R and Class MT1-R Interests.
Pooling
REMIC 2 shall hold the assets of the Trust Fund related to Pool 3, other than
any Excluded Trust Assets, and shall issue several uncertificated interests
and
shall also issue the Class II-LT-R Certificate, which is hereby designated
as
the sole residual interest in Pooling REMIC 2. Each uncertificated interest
in
Pooling REMIC 2 is hereby designated as a REMIC regular interest.
Lower-Tier
REMIC 2 shall hold the uncertificated interests issued by Pooling REMIC 2 and
shall issue several uncertificated interests. Each such interest, other than
the
LT2-R Interest, is hereby designated as a REMIC regular interest. The LT2-R
Interest is hereby designated as the sole residual interest in Lower-Tier REMIC
2.
Upper-Tier
REMIC 2 shall hold the uncertificated interests issued by Lower-Tier REMIC
2,
other than the Class LT2-R Interest. Each of the Offered Certificates related
to
Pool 3 (other than the Exchangeable Certificates) represent ownership of regular
interests in Upper-Tier REMIC 2. The Class II-P Certificates represent ownership
of regular interests in Upper-Tier REMIC 2. The Class 2-R Certificate represents
ownership of the sole class of residual interest in Upper-Tier REMIC 2 as well
as ownership of the LT2-R Interest.
Pooling
REMIC 1
Pooling
REMIC 1 shall issue one uncertificated interest in respect of each Pool 1 and
Pool 2 Mortgage Loan held by the Trust on the Closing Date, each of which is
hereby designated as a regular interest in Pooling REMIC 1 (the “Pooling REMIC 1
Regular Interests”). Pooling REMIC 1 shall also issue the Class I-LT-R
Certificate, which shall represent the sole class of residual interest in
Pooling REMIC 1. Each Pooling 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 Mortgage Loan shall be
distributed on such Pooling 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
Pooling REMIC 1 all expenses of the Trust Fund related to Pool 1 and Pool 2
that
are deducted in computing the Interest Remittance Amount for such Distribution
Date.
2
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 Pooling REMIC 1 based on the above-described
interest rates.
On
each
Distribution Date, the Trustee shall distribute the aggregate Principal
Remittance Amount among the Pooling REMIC 1 Regular Interests in accordance
with
the amount of the Principal Remittance Amount attributable to the Mortgage
Loan
corresponding to each such Pooling REMIC 1 Regular Interest. All losses on
the
Mortgage Loans shall be allocated among the Pooling REMIC 1 Regular Interest
in
the same manner that principal distributions are allocated.
On
each
Distribution Date, the Trustee shall distribute the Prepayment Premiums related
to Pool 1 and Pool 2 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 Pooling REMIC 1 Regular
Interest corresponding to the Mortgage Loan with respect to which such amounts
were received.
Lower-Tier
REMIC 1
The
following table sets forth (or describes) the designation, interest rate, and
initial principal balance for each interest in Lower-Tier REMIC 1, each of
which, other than the LT1-R Lower-Tier Interest) is hereby designated as a
regular interest in Lower-Tier REMIC 1 (the “Lower-Tier REMIC 1 Regular
Interests”):
|
Designation
|
Interest
Rate
|
Initial
Class
Principal
Amount
|
Corresponding
Classes of Certificates
|
|||
|
Class
LT1-1A
|
(1)
|
(5)
|
1-A1,
1-A2, 1-APO
|
|||
|
Class
LT1-2A1
|
(2)
|
(5)
|
2-A1
|
|||
|
Class
LT1-2A2
|
(2)
|
(5)
|
2-A2
|
|||
|
Class
LT1-M1
|
(3)
|
(5)
|
I-M1
|
|||
|
Class
LT1-M2
|
(3)
|
(5)
|
I-M2
|
|||
|
Class
LT1-M3
|
(3)
|
(5)
|
I-M3
|
|||
|
Class
LT1-M4
|
(3)
|
(5)
|
I-M4
|
|||
|
Class
LT1-M5
|
(3)
|
(5)
|
I-M5
|
|||
|
Class
LT1-M6
|
(3)
|
(5)
|
I-M6
|
|||
|
Class
LT1-M7
|
(3)
|
(5)
|
I-M7
|
|||
|
Class
LT1-Pool 1 PSA
|
(1)
|
(6)
|
N/A
|
|||
|
Class
LT1-Pool 1
|
(1)
|
(7)
|
N/A
|
|||
|
Class
LT1-Pool 2 PSA
|
(2)
|
(8)
|
N/A
|
|||
|
Class
LT1-Pool 2
|
(2)
|
(9)
|
N/A
|
|||
|
Class
LT1-Q
|
(3)
|
(10)
|
N/A
|
|||
|
Class
LT1-R
|
(4)
|
(4)
|
N/A
|
________________
|
(1)
|
The
interest rate with respect
to any Distribution Date (and the related Accrual Period) for each
of
these Lower-Tier REMIC 1 Regular Interests is a per annum rate equal
to
the Pool 1 Net Funds Cap.
|
3
|
(2)
|
The
interest rate with respect to any Distribution Date (and the related
Accrual Period) for each of these Lower-Tier REMIC 1 Regular Interests
is
a per annum rate equal to the Pool 2 Net Funds
Cap.
|
|
(3)
|
The
interest rate with respect to any Distribution Date (and the related
Accrual Period) for each of these Lower-Tier REMIC 1 Regular Interests
is
a per annum rate equal to the weighted average of the Net Mortgage
Rates
of the Pool 1-2 Mortgage Loans as of the first day of the related
Collection Period (adjusted for any prepayment received after such
first
day and distributed on a prior Distribution
Date).
|
|
(4)
|
The
Class LT1-R Interest
is the sole Class of residual interest in Lower-Tier REMIC 1. It
does not
have an interest rate or a principal
balance.
|
|
(5)
|
This
interest shall have an initial principal balance equal to one-quarter
of
the aggregate initial Class Principal Amount of each of its Corresponding
Class of Certificates (other than any interest-only
Certificates).
|
|
(6)
|
This
interest shall have an initial principal balance equal to one percent
of
the Pool Subordinate Amount for Pool
1.
|
|
(7)
|
This
interest shall have an initial principal balance equal to the excess
of
(i) one-half of the Pool Balance for the Mortgage Loans in Pool 1
over
(ii) the aggregate Class Principal Balance of the Class LT1-Pool
1 PSA,
Class LT1-1A1, Class LT1-1A2, and Class LT1-APO
Interests.
|
|
(8)
|
This
interest shall have an initial principal balance equal to one percent
of
the Pool Subordinate Amount for Pool
2.
|
|
(9)
|
This
interest shall have an initial principal balance equal to the excess
of
(i) one-half of the Pool Balance for the Mortgage Loans in Pool 2
over
(ii) the aggregate Class Principal Balance of the Class LT1-Pool
2 PSA,
Class LT1-2A1, and Class LT1-2A2
Interests.
|
|
(10)
|
This
interest shall have an initial principal balance equal to the excess
of
(i) one-half of the Pool 1-2 Aggregate Loan Balance over (ii) the
aggregate Class Principal Balance of each remaining Lower Tier REMIC
1
Regular Interest.
|
On
each
Distribution Date, the Trustee shall distribute the remaining Interest
Remittance Amount for Pool 1 and Pool 2 to the Lower Tier Interests in
Lower-Tier REMIC 1 at the rates described above, pro rata, based on the amount
of interest accrued on each such Lower Tier Interest for the related Accrual
Period, provided
however,
that
interest that accrues on the Class LT1-Q Interest shall be deferred in an amount
necessary to make the principal distributions described below for such
Distribution Date. Any interest so deferred shall itself bear interest at the
interest rate for the Class LT1-Q Interest.
On
each
Distribution Date, the Trustee shall distribute the Principal Remittance Amount
for Pool 1 and Pool 2 to the Lower Tier Interests in Lower-Tier REMIC 1 in
the
following order of priority:
|
(a)
|
First,
to the Class LT1-Pool 1 PSA Interest until its Class Principal Amount
equals one percent of the Pool Subordinate Amount for Pool 1 immediately
after such Distribution Date;
|
|
(b)
|
Second,
to the Class LT1-Pool 2 PSA Interest until its Class Principal Amount
equals one percent
of the Pool Subordinate Amount for Pool 2 immediately after such
Distribution Date;
|
4
|
(c)
|
Third,
to the Class LT1-Pool 1 PSA and Class LT1-Pool 2 PSA Interests the
minimum
amount necessary to cause the ratio of the Class Principal Amounts
of each
such Lower-Tier REMIC 1 Regular Interest to the other Lower-Tier
REMIC 1
Regular Interest to equal the ratio of the Pool Subordinate Amounts
of the
Pool related to such Lower-Tier REMIC 1 Regular Interest to the Pool
Subordinate Amount related to the other Lower-Tier REMIC 1 Regular
Interest;
|
|
(d)
|
Fourth,
to the Class LT1-Pool 1 Interest until the aggregate Class Principal
Amount of the Class LT1-Pool 1, the Class LT1-Pool 1 PSA, the Class
LT1-1A1, the Class LT1-1A2, and the Class LT1-1APO Interests equals
one-half of the Aggregate Loan Balance of the Mortgage Loans in Pool
1
immediately after such Distribution
Date;
|
|
(e)
|
Fifth,
to the Class LT1-Pool 2 Interest until the aggregate Class Principal
Amount of the Class LT1-Pool 2, the Class LT1-Pool 2 PSA, the Class
LT1-2A1, and Class LT1-2A2 Interests equals one-half of the Aggregate
Loan
Balance of the Mortgage Loans in Pool 2 immediately after such
Distribution Date;
|
|
(f)
|
Sixth,
to each Lower Tier Interest having the letter “A” in its designation until
the Class Principal Amount of each such Lower Tier Interest equals
one-quarter of the aggregate Class Principal Amount of each Corresponding
Class of Certificates for such Interest immediately after such
Distribution Date;
|
|
(g)
|
Seventh,
to the Class LT1-M1 Interest until its Class Principal Amount equals
one-quarter of the Class Principal Amount of the Class I-M1 Certificates
immediately after such Distribution Date;
|
|
(h)
|
Eighth,
to the Class LT1-M2 Interest until its Class Principal Amount equals
one-quarter of the Class Principal Amount of the Class I-M2 Certificates
immediately after such Distribution Date;
|
|
(i)
|
Ninth,
to the Class LT1-M3 Interest until its Class Principal Amount equals
one-quarter of the Class Principal Amount of the Class I-M3 Certificates
immediately after such Distribution Date;
|
|
(j)
|
Tenth,
to the Class LT1-M4 Interest until its Class Principal Amount equals
one-quarter of the Class Principal Amount of the Class I-M4 Certificates
immediately after such Distribution Date;
|
|
(k)
|
Eleventh,
to the Class LT1-M5 Interest until its Class Principal Amount equals
one-quarter of the Class Principal Amount of the Class I-M5 Certificates
immediately after such Distribution Date;
|
|
(l)
|
Twelfth,
to the Class LT1-M6 Interest until its Class Principal Amount equals
one-quarter of the Class Principal Amount of the Class I-M6 Certificates
immediately after such Distribution Date;
|
5
|
(m)
|
Thirteenth,
to the Class LT1-M7 Interest until its Class Principal Amount equals
one-quarter of the Class Principal Amount of the Class I-M7 Certificates
immediately after such Distribution Date;
and
|
| (n) |
Finally,
to the Class LT1-Q Interest, any remaining
amounts.
|
On
each
Distribution Date, the Trustee shall distribute the Prepayment Premiums with
respect to Pools 1 and 2 collected during the preceding Prepayment Period to
the
LT1-Q Interest.
All
losses on the Pool 1-2 Mortgage Loans shall be allocated among the Lower Tier
REMIC 1 Regular Interests in the same manner that principal distributions are
allocated.
Middle-Tier
REMIC 1
The
following table sets forth (or describes) the designation, interest rate, and
initial principal balance for each interest in Middle-Tier REMIC 1, each of
which, other than the MT1-R Lower-Tier Interest) is hereby designated as a
regular interest in Middle-Tier REMIC 1 (the “Middle-Tier REMIC 1 Regular
Interests”):
|
Designation
|
Interest
Rate
|
Initial
Class
Principal
Amount
|
Corresponding
Class of Certificates
|
|||
|
Class
MT1-1A
|
(1)
|
(4)
|
1-A1,
1-AIO,
1-A2,
1-APO
|
|||
|
Class
MT1-2A1
|
(2)
|
(4)
|
2-A1
|
|||
|
Class
MT1-2A2
|
(2)
|
(4)
|
2-A2
|
|||
|
Class
MT1-M1
|
(2)
|
(4)
|
I-M1
|
|||
|
Class
MT1-M2
|
(2)
|
(4)
|
I-M2
|
|||
|
Class
MT1-M3
|
(2)
|
(4)
|
I-M3
|
|||
|
Class
MT1-M4
|
(2)
|
(4)
|
I-M4
|
|||
|
Class
MT1-M5
|
(2)
|
(4)
|
I-M5
|
|||
|
Class
MT1-M6
|
(2)
|
(4)
|
I-M6
|
|||
|
Class
MT1-M7
|
(2)
|
(4)
|
I-M7
|
|||
|
Class
MT1-X
|
(2)
|
(5)
|
N/A
|
|||
|
Class
MT1-R
|
(3)
|
(3)
|
N/A
|
________________
|
(1)
|
The
interest rate with respect to any Distribution Date (and the related
Accrual Period) for each of these Middle-Tier REMIC 1 Regular Interests
is
a per annum rate equal to the Pool 1 Net Funds Cap subject to a maximum
rate of 7.00%.
|
|
(2)
|
The
interest rate with respect to any Distribution Date (and the related
Accrual Period) for each of these Middle-Tier REMIC 1 Lower Tier
Interests
is a per annum rate equal to the interest rate of their Corresponding
Class of Certificates.
|
|
(3)
|
The
Class MT1-R Interest is the sole Class of residual interest in Middle-Tier
REMIC 1. It does not have an interest rate or a principal
balance.
|
|
(4)
|
This
interest shall have an initial principal balance equal to the aggregate
initial Class Principal Amount of each of its Corresponding Class
of
Certificates.
|
6
|
(5)
|
The
Class MT1-X Interest shall have an initial principal balance equal
to the
excess of (i) the Pool 1-2 Aggregate Loan Balance over (ii) the aggregate
Class Principal Balance of each remaining Middle-Tier REMIC 1 Regular
Interest, 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 in Middle-Tier REMIC 1, the Class MT1-X
Interest also comprises a notional component, which is also a regular
interest in Middle-Tier REMIC 1. The notional component has a notional
balance that will at all times equal the aggregate of the aggregate
of the
principal balances of the Lower-Tier Interests in Lower-Tier REMIC
1 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 weighted average of the interest rates on the Lower-Tier
Interests in Lower-Tier REMIC 1, over (ii) the Adjusted Lower-Tier
REMIC 1
WAC.
|
On
each
Distribution Date, interest shall be distributed on the Middle-Tier REMIC 1
Regular Interests based on the above-described interest rates, provided,
however, that interest that accrues on the Class MT1-Q Interest shall be
deferred to the extent such interest is used to make principal distributions
to
other Middle-Tier REMIC 1 Interests such Distribution Date. Any interest so
deferred shall not itself bear interest. An amount equal to the interest so
deferred shall be distributed as additional principal on the other interests
in
Middle-Tier REMIC 1 having a principal balance in the manner described under
priority (a) below.
On
each
Distribution Date principal shall be distributed, and Realized Losses shall
be
allocated, among the interests in Middle-Tier REMIC 1 in the following order
of
priority:
(a) First,
to
the Class MT1-1A, Class MT1-2A1, Class MT1-2A2, Class MT1-M1, Class MT1-M2,
Class MT1-M3, Class MT1-M4, Class MT1-M5, Class MT1-M6, and Class MT1-M7
Interests until the principal balance of each such interest equals the Class
Principal Amount of the Corresponding Class of Certificates immediately after
such Distribution Date; and
(b) Second,
to the Class MT1-X Interest, any remaining amounts.
On
each
Distribution Date, the Trustee shall be deemed to have distributed the
Prepayment Premiums passed through with respect to the LT1-Q Interests in
Lower-Tier REMIC 1 on such Distribution Date to the Class MT1-X
Interest.
Pooling
REMIC 2
Pooling
REMIC 2 shall issue one uncertificated interest in respect of each Pool 3
Mortgage Loan held by the Trust on the Closing Date, each of which is hereby
designated as a regular interest in Pooling REMIC 2 (the “Pooling REMIC 2
Regular Interests”). Pooling REMIC 2 shall also issue the Class II-LT-R
Certificate, which shall represent the sole class of residual interest in
Pooling REMIC 2. Each Pooling REMIC 2 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 Mortgage Loan shall be
distributed on such Pooling REMIC 2 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
Pooling REMIC 2 all expenses of the Trust Fund related to Pool 3 that are
deducted in computing the Interest Remittance Amount for such Distribution
Date.
7
On
each
Distribution Date the Trustee shall distribute the Interest Remittance Amount
for Pool 3 with respect to each of the Lower-Tier Interests in Pooling REMIC
2
based on the above-described interest rates.
On
each
Distribution Date, the Trustee shall distribute the Principal Remittance Amount
for Pool 3 among the Pooling REMIC 2 Regular Interests in accordance with the
amount of the Principal Remittance Amount attributable to the Mortgage Loan
corresponding to each such Pooling REMIC 2 Regular Interest. All losses on
the
Mortgage Loans shall be allocated among the Pooling REMIC 2 Regular Interest
in
the same manner that principal distributions are allocated.
On
each
Distribution Date, the Trustee shall distribute the Prepayment Premiums related
to Pool 2 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 Pooling REMIC 2 Regular Interest
corresponding to the Mortgage Loan with respect to which such amounts were
received.
Lower-Tier
REMIC 2
The
following table sets forth (or describes) the designation, interest rate, and
initial principal balance for each interest in Lower-Tier REMIC 2, each of
which, other than the LT2-R Lower-Tier Interest) is hereby designated as a
regular interest in Lower-Tier REMIC 2 (the “Lower-Tier REMIC 2 Regular
Interests”):
|
Designation
|
Interest
Rate
|
Initial
Class
Principal
Amount
|
Corresponding
Class of Certificates
|
|||
|
Class
MT2-3A1
|
(1)
|
(3)
|
3-A1,
3-AIO1, 3-AIO2
|
|||
|
Class
MT2-3A2
|
(1)
|
(3)
|
3-A2,
3-AIO1, 3-AIO2
|
|||
|
Class
MT2-M1
|
(1)
|
(3)
|
II-M1
|
|||
|
Class
MT2-M2
|
(1)
|
(3)
|
II-M2
|
|||
|
Class
MT2-M3
|
(1)
|
(3)
|
II-M3
|
|||
|
Class
MT2-M4
|
(1)
|
(3)
|
II-M4
|
|||
|
Class
MT2-M5
|
(1)
|
(3)
|
II-M5
|
|||
|
Class
MT2-M6
|
(1)
|
(3)
|
II-M6
|
|||
|
Class
MT2-M7
|
(1)
|
(3)
|
II-M7
|
|||
|
Class
MT2-R
|
(2)
|
(2)
|
N/A
|
_________________
|
(1)
|
The
interest rate with respect to any Distribution Date (and the related
Accrual Period) for each of these Middle-Tier REMIC 1 Regular Interests
is
a per annum rate equal to the Net WAC of Pool
3.
|
|
(2)
|
The
Class MT2-R Interest is the sole Class of residual interest in Middle-Tier
REMIC 2. It does not have an interest rate or a principal
balance.
|
|
(3)
|
This
interest shall have an initial principal balance equal to the initial
Class Principal Amount of its Corresponding Class of Certificates
(other
than any interest-only
Certificate).
|
8
On
each
Distribution Date, interest shall be distributed on the Lower-Tier REMIC 2
Regular Interests based on the above-described interest rates.
On
each
Distribution Date principal shall be distributed, and Realized Losses shall
be
allocated, among the interests in Lower-Tier REMIC 2 in the following order
of
priority:
(a) First,
to each Lower Tier Interest having the letter “A” in its designation until the
Class Principal Amount of each such Lower Tier Interest equals the Class
Principal Amount of the Corresponding Class of Certificates (other than any
interest-only Certificates) for such Interest immediately after such
Distribution Date;
(b) Second,
to the Class LT2-M1 Interest until its Class Principal Amount equals the Class
Principal Amount of the Class II-M1 Certificates immediately after such
Distribution Date;
(c) Third,
to the Class LT2-M2 Interest until its Class Principal Amount equals the Class
Principal Amount of the Class II-M2 Certificates immediately after such
Distribution Date;
(d) Fourth,
to the Class LT2-M3 Interest until its Class Principal Amount equals the Class
Principal Amount of the Class II-M3 Certificates immediately after such
Distribution Date;
(e) Fifth,
to the Class LT2-M4 Interest until its Class Principal Amount equals the Class
Principal Amount of the Class II-M4 Certificates immediately after such
Distribution Date;
(f) Sixth,
to the Class LT2-M5 Interest until its Class Principal Amount equals the Class
Principal Amount of the Class II-M5 Certificates immediately after such
Distribution Date;
(g) Seventh,
to the Class LT2-M6 Interest until its Class Principal Amount equals the Class
Principal Amount of the Class II-M6 Certificates immediately after such
Distribution Date; and
(h)
Finally,
to the Class LT2-M7 Interest until its Class Principal Amount equals the Class
Principal Amount of the Class II-M7 Certificates immediately after such
Distribution Date.
On
each
Distribution Date, the Trustee shall distribute the Prepayment Premiums with
respect to Pool 3 collected during the preceding Prepayment Period to the LT2-M7
Interest.
The
Certificates
The
following table sets forth (or describes) the Class designation, Certificate
Interest Rate, initial Class Principal Amount or Class Notional Amount and
minimum denomination for each Class of Certificates comprising interests in
the
Trust Fund created hereunder.
9
|
Class
Designation
|
Interest
Rate
|
Initial
Class
Principal
Amount or Class Notional Amount ($)
|
Minimum
Denominations
|
Related
Upper-Tier REMIC
|
||||
|
|
|
|
|
|||||
|
Class
1-A1
|
(1)
|
$168,351,000.00
|
$25,000
|
1
|
||||
|
Class
1-A2
|
(2)
|
$18,706,000.00
|
$25,000
|
1
|
||||
|
Class
1-AIO
|
(3)
|
(4)
|
$1,000,000
|
1
|
||||
|
Class
1-APO
|
(5)
|
$7,483,000.00
|
$1,000,000
|
1
|
||||
|
Class
2-A1
|
(6)
|
$227,227,000.00
|
$25,000
|
2
|
||||
|
Class
2-A2
|
(7)
|
$38,108,000.00
|
$25,000
|
2
|
||||
|
Class
3-A1
|
(8)
|
$337,690,000.00
|
$25,000
|
3
|
||||
|
Class
3-A2
|
(9)
|
$37,521,000.00
|
$25,000
|
3
|
||||
|
Class
3-A3
|
(10)
|
$337,690,000.00
|
$25,000
|
3
|
||||
|
Class
3-A4
|
(11)
|
$337,690,000.00
|
$25,000
|
3
|
||||
|
Class
3-A5
|
(12)
|
$337,690,000.00
|
$25,000
|
3
|
||||
|
Class
3-AIO1
|
(13)
|
(13)
|
$1,000,000
|
3
|
||||
|
Class
3-AIO2
|
(14)
|
(14)
|
$1,000,000
|
3
|
||||
|
Class
I-M1
|
(15)
|
$12,323,000.00
|
$100,000
|
1
|
||||
|
Class
I-M2
|
(16)
|
$6,900,000.00
|
$100,000
|
1
|
||||
|
Class
I-M3
|
(17)
|
$1,972,000.00
|
$100,000
|
1
|
||||
|
Class
I-M4
|
(18)
|
$3,450,000.00
|
$100,000
|
1
|
||||
|
Class
I-M5
|
(19)
|
$1,479,000.00
|
$100,000
|
1
|
||||
|
Class
I-M6
|
(20)
|
$1,232,000.00
|
$100,000
|
1
|
||||
|
Class
I-M7
|
(21)
|
$1,232,000.00
|
$100,000
|
1
|
||||
|
Class
II-M1
|
(22)
|
$11,090,000.00
|
$100,000
|
3
|
||||
|
Class
II-M2
|
(22)
|
$10,063,000.00
|
$100,000
|
3
|
||||
|
Class
II-M3
|
(22)
|
$4,929,000.00
|
$100,000
|
3
|
||||
|
Class
II-M4
|
(22)
|
$3,491,000.00
|
$100,000
|
3
|
||||
|
Class
II-M5
|
(22)
|
$2,465,000.00
|
$100,000
|
3
|
||||
|
Class
II-M6
|
(22)
|
$1,848,000.00
|
$100,000
|
3
|
||||
|
Class
II-M7
|
(22)
|
$1,642,941.00
|
$100,000
|
3
|
||||
|
Class
I-P
|
(23)
|
(23)
|
(30)
|
1
|
||||
|
Class
II-P
|
(24)
|
(24)
|
(30)
|
3
|
||||
|
Class
I-X
|
(25)
|
(25)
|
(30)
|
1
|
||||
|
Class
I-R
|
(26)
|
(26)
|
(30)
|
1
|
||||
|
Class
II-R
|
(27)
|
(27)
|
(30)
|
3
|
||||
|
Class
I-LT-R
|
(28)
|
(28)
|
(30)
|
N/A
|
||||
|
Class
II-LT-R
|
(29)
|
(29)
|
(30)
|
N/A
|
_________________
|
(1)
|
The
Certificate Interest Rate with respect to any Distribution Date (and
the
related Accrual Period) for the Class 1-A1 Certificates is the per
annum
rate equal to 6.50%.
|
|
(2)
|
The
Certificate Interest Rate with respect to any Distribution Date (and
the
related Accrual Period) for the Class 1-A2 Certificates is the per
annum
rate equal to 6.50%.
|
10
|
(3)
|
The
Certificate Interest Rate with respect to any Distribution Date (and
the
related Accrual Period) for the Class 1-AIO Certificates is the per
annum
rate equal to the lesser of (1) 0.75% per annum and (2) the excess,
if
any, of (x) the Pool 1 Net Funds Cap over and (y) 6.25% per annum,
subject
to a minimum Certificate Interest Rate of 0.00% per annum.
|
|
(4)
|
For
any Distribution Date, the Class 1-AIO Certificates have a Class
Notional
Amount equal to the aggregate Class Principal Amount of the Class
1-A1,
Class 1-A2 and Class 1-APO Certificates immediately preceding the
related
Distribution Date. The initial Class Notional Amount of the Class
1-AIO
Certificates on the Closing Date is equal to $194,540,000.00.
|
|
(5)
|
The
Class 1-APO Certificates will be issued without an interest
rate.
|
|
(6)
|
The
Certificate Interest Rate with respect to any Distribution Date (and
the
related Accrual Period) for the Class 2-A1 Certificates is the per
annum
rate equal to the lesser of (i) 6.50% and (ii) the Pool 2 Net Funds
Cap
for such Distribution Date.
|
|
(7)
|
The
Certificate Interest Rate with respect to any Distribution Date (and
the
related Accrual Period) for the Class 2-A2 Certificates is the per
annum
rate equal to the lesser of (i) 6.50% and (ii) the Pool 2 Net Funds
Cap
for such Distribution Date.
|
|
(8)
|
The
Certificate Interest Rate with respect to any Distribution Date (and
the
related Accrual Period) for the Class 3-A1 Certificates is the per
annum
rate equal to the lesser of (1) 5.65% per annum and (2) the Net WAC
for
Pool 3 for each Distribution Date on or prior to the Distribution
Date in
February 2012. Beginning with the Distribution Date in March 2012
and for
each Distribution Date thereafter, the Class 3-A1 Certificates will
bear
interest based on an interest rate equal to the Net WAC for Pool
3.
|
|
(9)
|
The
Certificate Interest Rate with respect to any Distribution Date (and
the
related Accrual Period) for the Class 3-A2 Certificates is the per
annum
rate equal to the Net WAC for Pool
3.
|
|
(10)
|
The
Certificate Interest Rate with respect to any Distribution Date (and
the
related Accrual Period) for the Class 3-A3 Certificates is the per
annum
rate equal to the least of (1) 6.05% per annum, (2) the sum of (x)
5.65%
per annum and (y) the product of 0.32 and the annual Certificate
Interest
Rate for the Class 3-AIO2 Certificates for the related Distribution
Date
and (3) the Net WAC for Pool 3 for each Distribution Date on or prior
to
the Distribution Date in February 2012. Beginning with the Distribution
Date in March 2012 and for each Distribution Date thereafter, the
Class
3-A3 Certificates will bear interest based on an interest rate equal
to
the Net WAC for Pool 3.
|
|
(11)
|
The
Certificate Interest Rate with respect to any Distribution Date (and
the
related Accrual Period) for the Class 3-A4 Certificates is the per
annum
rate equal to the least of (1) 6.45% per annum, (2) the sum of (x)
5.65%
per annum and (y) the product of 0.64 and the annual Certificate
Interest
Rate for the Class 3-AIO2 Certificates for the related Distribution
Date
and (3) the Net WAC for Pool 3 for each Distribution Date on or prior
to
the Distribution Date in February 2012. Beginning with the Distribution
Date in March 2012 and for each Distribution Date thereafter, the
Class
3-A4 Certificates will bear interest based on an interest rate equal
to
the Net WAC for Pool 3.
|
|
(12)
|
The
Certificate Interest Rate with respect to any Distribution Date (and
the
related Accrual Period) for the Class 3-A5 Certificates is the per
annum
rate equal to the least of (1) 6.90% per annum, (2) the sum of (x)
5.65%
per annum and (y) the interest rate for the Class 3-AIO2 Certificates
for
the related Distribution Date and (3) the Net WAC for Pool 3 for
each
Distribution Date on or prior to the Distribution Date in February
2012.
Beginning with the Distribution Date in March 2012 and for each
Distribution Date thereafter, the Class 3-A5 Certificates will bear
interest based on an interest rate equal to the Net WAC for Pool
3.
|
|
(13)
|
For
any Distribution Date on or prior to the Distribution Date in February
2012, the Class 3-AIO1 Certificates have a Class Notional Amount
equal to
the aggregate Class Principal Amount of the Class 3-A1 Certificates
immediately preceding the related Distribution Date. The initial
Class
Notional Amount of the Class 3-AIO1 Certificates on the Closing Date
is
equal to $337,690,000.00. After the Distribution Date in February
2012,
the Class Notional Amount of the Class 3-AIO1 Certificates will be
zero.
The Certificate Interest Rate with respect to any Distribution Date
(and
the related Accrual Period) for the Class 3-AIO1 Certificates is
the per
annum rate equal to the excess, if any, of (x) the Net WAC of Pool
3 over
(y) 6.90% per annum for each Distribution Date on or prior to the
Distribution Date in February 2012, subject to a minimum Certificate
Interest Rate of 0.00% per annum. After the Distribution Date in
February
2012, the Class 3-AIO1 Certificates will not longer be entitled to
receive
distributions of any kind.
|
11
|
(14)
|
For
any Distribution Date on or prior to the Distribution Date in February
2012, the Class 3-AIO2 Certificates have a Class Notional Amount
equal to
the aggregate Class Principal Amount of the Class 3-A1 Certificates
immediately preceding the related Distribution Date. The initial
Class
Notional Amount of the Class 3-AIO2 Certificates on the Closing Date
is
equal to $337,690,000.00. After the Distribution Date in February
2012,
the Class Notional Amount of the Class 3-AIO2 Certificates will be
zero.
The Certificate Interest Rate with respect to any Distribution Date
(and
the related Accrual Period) for the Class 3-AIO2 Certificates is
the per
annum rate equal to the lesser of (1) 1.25% per annum and (2) the
excess,
if any, of (x) the Net WAC of Pool 3 and (y) 5.65% per annum for
each
Distribution Date on or prior to the Distribution Date in February
2012,
subject to a minimum Certificate Interest Rate of 0.00% per annum.
After
the Distribution Date in February 2012, the Class 3-AIO2 Certificates
will
not longer be entitled to receive distributions of any
kind
|
|
(15)
|
The
Certificate Interest Rate with respect to any Distribution Date (and
the
related Accrual Period) for the Class I-M1 Certificates is the per
annum
rate equal to the lesser of (i) 6.12% and (ii) the Pool 1-2 Subordinate
Net Funds Cap for such Distribution Date.
|
|
(16)
|
The
Certificate Interest Rate with respect to any Distribution Date (and
the
related Accrual Period) for the Class I-M2 Certificates is the per
annum
rate equal to the lesser of (i) 6.17% and (ii) the Pool 1-2 Subordinate
Net Funds Cap for such Distribution Date.
|
|
(17)
|
The
Certificate Interest Rate with respect to any Distribution Date (and
the
related Accrual Period) for the Class I-M3 Certificates is the per
annum
rate equal to the lesser of (i) 6.27% and (ii) the Pool 1-2 Subordinate
Net Funds Cap for such Distribution Date.
|
|
(18)
|
The
Certificate Interest Rate with respect to any Distribution Date (and
the
related Accrual Period) for the Class I-M4 Certificates is the per
annum
rate equal to the lesser of (i) 6.52% and (ii) the Pool 1-2 Subordinate
Net Funds Cap for such Distribution Date.
|
|
(19)
|
The
Certificate Interest Rate with respect to any Distribution Date (and
the
related Accrual Period) for the Class I-M5 Certificates is the per
annum
rate equal to the lesser of (i) 6.76% and (ii) the Pool 1-2 Subordinate
Net Funds Cap for such Distribution Date.
|
|
(20)
|
The
Certificate Interest Rate with respect to any Distribution Date (and
the
related Accrual Period) for the Class I-M6 Certificates is the per
annum
rate equal to the lesser of (i) 7.10% and (ii) the Pool 1-2 Subordinate
Net Funds Cap for such Distribution Date.
|
|
(21)
|
The
Certificate Interest Rate with respect to any Distribution Date (and
the
related Accrual Period) for the Class I-M7 Certificates is the per
annum
rate equal to the lesser of (i) 7.10% and (ii) the Pool 1-2 Subordinate
Net Funds Cap for such Distribution Date.
|
|
(22)
|
The
Certificate Interest Rate with respect to any Distribution Date (and
the
related Accrual Period) for the Class II-M1, Class II-M2, Class II-M3,
Class II-M4, Class II-M5, Class II-M6 and Class II-M7 Certificates
is the
per annum rate equal to the Net WAC of Pool 3.
|
|
(23)
|
The
Class I-P Certificates will not bear interest at a stated rate. The
Class
I-P Certificates shall have a Class I-P Principal Amount equal to
$100 and
shall be entitled to receive all Prepayment Premiums paid with respect
to
the Mortgage Loans in Pool 1 and Pool 2 for which the Seller has
retained
the servicing rights.
|
12
|
(24)
|
The
Class II-P Certificates will not bear interest at a stated rate.
The Class
II-P Certificates shall have a Class II-P Principal Amount equal
to $100
and shall be entitled to receive all Prepayment Premiums paid with
respect
to the Mortgage Loans in Pool 3 for which the Seller has retained
the
servicing rights.
|
|
(25)
|
For
purposes of the REMIC Provisions, the Class I-X Certificates shall
have an
initial principal balance of $4,436,366.27, but shall not accrue
interest
on that balance. The Class I-X Certificates shall be entitled to
all
amounts distributable with respect to the Class MT1-X Interest in
Middle-Tier REMIC 1. For purposes of the REMIC provisions, the Class
I-X
Certificates shall represent beneficial ownership of the Pool 1-2
Basis
Risk Reserve Fund and an interest in the notional principal contracts
described in Section 10.01(n)
hereof.
|
|
(26)
|
The
Class I-R Certificate will be issued without a Certificate Principal
Amount and will not bear interest at a stated rate. The Class I-R
Certificate represents ownership of the residual interest in the
Upper-Tier REMIC 1, as well as ownership of the Class LT1-R and Class
MT1-R Interests.
|
|
(27)
|
The
Class II-R Certificate will be issued without a Certificate Principal
Amount and will not bear interest at a stated rate. The Class II-R
Certificate represents ownership of the residual interest in the
Upper-Tier REMIC 2, as well as ownership of the Class LT2-R
Interests.
|
|
(28)
|
The
Class I-LT-R Certificate will be issued without a Certificate Principal
Amount and will not bear interest at a stated rate. The Class I-LT-R
Certificate represents ownership of the residual interest in the
Pooling
REMIC 1.
|
|
(29)
|
The
Class II-LT-R Certificate will be issued without a Certificate Principal
Amount and will not bear interest at a stated rate. The Class II-LT-R
Certificate represents ownership of the residual interest in the
Pooling
REMIC 2.
|
|
(30)
|
The
Class I-X, Class I-P and Class II-P Certificates will each be issued
in
minimum Percentage Interests of 10%. The Class I-R, Class II-R, Class
I-LT-R and Class II-LT-R Certificates will be issued as a single
Certificate evidencing the entire Percentage Interest in each such
Class.
|
As
of the
Cut-off Date, the Mortgage Loans had an aggregate Scheduled Principal Balance
of
$903,639,407.34.
In
consideration of the mutual agreements herein contained, the Depositor, the
Seller, 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).
I-M1
Principal Distribution Amount:
With
respect to any Distribution Date on or after the Pool 1-2 Stepdown Date and
as
long as a Pool 1-2 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 Amount of the Group 1 Senior Certificates (other than the Class
1-AIO Certificates) and Group 2 Senior Certificates, after giving effect to
distributions on such Distribution Date and (ii) the Class Principal Amount
of
the Class I-M1 Certificates immediately prior to such Distribution Date exceeds
(y) the I-M1 Target Amount.
13
1-M1
Target Amount:
With
respect to any Distribution Date an amount equal to the lesser of (a) the
product of (i) 91.60%
and (ii) the Pool 1-2 Aggregate Loan Balance for such Distribution Date
determined as of the last day of the related Collection Period (after giving
effect to any prepayments received during the related Prepayment Period)
immediately prior to such Distribution Date and (b) the amount, if any, by
which
(1) the Pool 1-2 Aggregate Loan Balance for such Distribution Date determined
as
of the last day of the related Collection Period exceeds (2) the Pool 1-2
Overcollateralization Floor.
I-M2
Principal Distribution Amount:
With
respect to any Distribution Date on or after the Pool 1-2 Stepdown Date and
as
long as a Pool 1-2 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 Amount of the Group 1 Senior Certificates (other than the Class
1-AIO Certificates), Group 2 Senior Certificates and the Class I-M1 Certificates
in each case, after giving effect to distributions on such Distribution Date
and
(ii) the Class Principal Amount of the Class I-M2 Certificates immediately
prior
to such Distribution Date exceeds (y) the I-M2 Target Amount.
I-M2
Target Amount:
With
respect to any Distribution Date an amount equal to the lesser of (a) the
product of (i) 94.40% and (ii) the Pool 1-2 Aggregate Loan Balance for such
Distribution Date determined as of the last day of the related Collection
Period
(after giving effect to any prepayments received during the related Prepayment
Period) immediately prior to such Distribution Date and (b) the amount, if
any,
by which (1) the Pool 1-2 Aggregate Loan Balance for such Distribution Date
determined as of the last day of the related Collection Period exceeds (2)
the
Pool 1-2 Overcollateralization Floor.
I-M3
Principal Distribution Amount:
With
respect to any Distribution Date on or after the Pool 1-2 Stepdown Date and
as
long as a Pool 1-2 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 Amount of the Group 1 Senior Certificates (other than the Class
1-AIO Certificates), Group 2 Senior Certificates and the Class I-M1 and Class
I-M2 Certificates, in each case after giving effect to distributions on such
Distribution Date and (ii) the Class Principal Amount of the Class I-M3
Certificates immediately prior to such Distribution Date exceeds (y) the I-M3
Target Amount.
I-M3
Target Amount:
With
respect to any Distribution Date an amount equal to the lesser of (a) the
product of (i) 95.20% and (ii) the Pool 1-2 Aggregate Loan Balance for such
Distribution Date determined as of the last day of the related Collection
Period
(after giving effect to any prepayments received during the related Prepayment
Period) immediately prior to such Distribution Date and (b) the amount, if any,
by which (1) the Pool 1-2 Aggregate Loan Balance for such Distribution Date
determined as of the last day of the Collection Period exceeds (2) the Pool
1-2
Overcollateralization Floor.
I-M4
Principal Distribution Amount:
With
respect to any Distribution Date on or after the Pool 1-2 Stepdown Date and
as
long as a Pool 1-2 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 Amount of the Group 1 Senior Certificates (other than the Class
1-AIO Certificates), Group 2 Senior Certificates and the Class I-M1, Class
I-M2
and Class I-M3 Certificates, in each case after giving effect to distributions
on such Distribution Date and (ii) the Class Principal Amount of the Class
I-M4
Certificates immediately prior to such Distribution Date exceeds (y) the I-M4
Target Amount.
14
I-M4
Target Amount:
With
respect to any Distribution Date an amount equal to the lesser of (a) the
product of (i) 96.60% and (ii) the Pool 1-2 Aggregate Loan Balance for such
Distribution Date determined as of the last day of the related Collection Period
(after giving effect to any prepayments received during the related Prepayment
Period) immediately prior to such Distribution Date and (b) the amount, if
any,
by which (1) the Pool 1-2 Aggregate Loan Balance for such Distribution Date
determined as of the last day of the Collection Period exceeds (2) the Pool
1-2
Overcollateralization Floor.
I-M5
Principal Distribution Amount:
With
respect to any Distribution Date on or after the Pool 1-2 Stepdown Date and
as
long as a Pool 1-2 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 Amount of the Group 1 Senior Certificates (other than the Class
1-AIO Certificates), Group 2 Senior Certificates and the Class I-M1, Class
I-M2,
Class I-M3 and Class I-M4 Certificates, in each case after giving effect to
distributions on such Distribution Date and (ii) the Class Principal Amount
of
the Class I-M5 Certificates immediately prior to such Distribution Date exceeds
(y) the I-M5 Target Amount.
I-M5
Target Amount:
With
respect to any Distribution Date an amount equal to the lesser of (a) the
product of (i) 97.20% and (ii) the Pool 1-2 Aggregate Loan Balance for such
Distribution Date determined as of the last day of the related Collection
Period
(after giving effect to any prepayments received during the related Prepayment
Period) immediately prior to such Distribution Date and (b) the amount, if
any,
by which (1) the Pool 1-2 Aggregate Loan Balance for such Distribution Date
determined as of the last day of the Collection Period exceeds (2) the Pool
1-2
Overcollateralization Floor.
I-M6
Principal Distribution Amount:
With
respect to any Distribution Date on or after the Pool 1-2 Stepdown Date and
as
long as a Pool 1-2 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 Amount of the Group 1 Senior Certificates (other than the Class
1-AIO Certificates), Group 2 Senior Certificates and the Class I-M1, Class
I-M2,
Class I-M3, Class I-M4 and Class I-M5 Certificates, in each case after giving
effect to distributions on such Distribution Date and (ii) the Class Principal
Amount of the Class I-M6 Certificates immediately prior to such Distribution
Date exceeds (y) the I-M6 Target Amount.
I-M6
Target Amount:
With
respect to any Distribution Date an amount equal to the lesser of (a) the
product of (i) 97.70% and (ii) the Pool 1-2 Aggregate Loan Balance for such
Distribution Date determined as of the last day of the related Collection
Period
(after giving effect to any prepayments received during the related Prepayment
Period) immediately prior to such Distribution Date and (b) the amount, if
any,
by which (1) the Pool 1-2 Aggregate Loan Balance for such Distribution Date
determined as of the last day of the Collection Period exceeds (2) the Pool
1-2
Overcollateralization Floor.
I-M7
Principal Distribution Amount:
With
respect to any Distribution Date on or after the Pool 1-2 Stepdown Date and
as
long as a Pool 1-2 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 Amount of the Group 1 Senior Certificates (other than the Class
1-AIO Certificates), Group 2 Senior Certificates and the Class I-M1, Class
I-M2,
Class I-M3, Class I-M4, Class I-M5 and Class I-M6 Certificates, in each case
after giving effect to distributions on such Distribution Date and (ii) the
Class Principal Amount of the Class I-M7 Certificates immediately prior to
such
Distribution Date exceeds (y) the I-M7 Target Amount.
15
I-M7
Target Amount:
With
respect to any Distribution Date an amount equal to the lesser of (a) the
product of (i) 98.20% and (ii) the Pool 1-2 Aggregate Loan Balance for such
Distribution Date determined as of the last day of the related Collection Period
(after giving effect to any prepayments received during the related Prepayment
Period) immediately prior to such Distribution Date and (b) the amount, if
any,
by which (1) the Pool 1-2 Aggregate Loan Balance for such Distribution Date
determined as of the last day of the Collection Period exceeds (2) the Pool
1-2
Overcollateralization Floor.
Accepted
Servicing Practices:
With
respect to any Mortgage Loan, as applicable, either (x) those customary mortgage
servicing practices of prudent mortgage servicing institutions that service
or
master service mortgage loans of the same type and quality as such Mortgage
Loan
in the jurisdiction where the related Mortgaged Property is located, to the
extent applicable to the Trustee (as successor master servicer) or the Master
Servicer or (y) as provided in the Servicing Agreement, to the extent applicable
to the Servicer.
Accountant:
A
person engaged in the practice of accounting who (except when this Agreement
provides that an Accountant must be Independent) may be employed by or
affiliated with the Depositor or an Affiliate of the Depositor.
Accrual
Period:
With
respect to any Distribution Date and the Group I Certificates (other than the
Class 1-APO Certificates) and the Group II Certificates, the calendar month
preceding the month of such Distribution Date. With respect to any Distribution
Date and the Class I-X Certificates and each Lower-Tier or Middle-Tier Interest,
the calendar month preceding the month of such Distribution Date. The Class
1-APO, Class I-P and Class II-P Certificates will not accrue
interest.
Accrued
Certificate Interest:
As to
any Class of Group II Certificates and any Distribution Date, the amount of
interest accrued at its Certificate Interest Rate during the related Accrual
Period on (in the case of each Class other than the Class 3-AIO1 and Class
3-AIO2 Certificates) the related Class Principal Amount immediately prior to
such Distribution Date or, in the case of the Class 3-AIO1 and Class 3-AIO2
Certificates, the Class Notional Amount for such Distribution Date, as reduced
by such Class’s share of the interest portion of any Relief Act Reduction for
the related Mortgage Pool for such Distribution Date, allocable among the Group
II Senior Certificates and the Group II Subordinate Certificates proportionately
based on the Accrued Certificate Interest otherwise distributable thereon.
All
calculations of interest on each Class of Group II Certificates shall be
calculated on the basis of a 360-day year consisting of twelve 30-day months.
The interest shall accrue during the related Accrual Period.
Act:
As
defined in Section 8.03(a).
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).
16
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.
Adjustable
Rate Mortgage Loan:
Any
Mortgage Loan as to which the related Mortgage Note provides for the adjustment
of the Mortgage Rate applicable thereto.
Adjusted
Lower-Tier REMIC 1 WAC:
For any
Distribution Date (and the related Accrual Period), an amount equal to the
product of (i) four, multiplied by (ii) the weighted average of the interest
rates for such Distribution Date for each Lower-Tier Interest in Middle-Tier
REMIC 1 (other than the Class LT1-R Interest and any interest-only regular
interest), weighted in proportion to their principal balances as of the
beginning of the related Accrual Period and computed by subjecting the rate
on
the Class LT1-Q Interest to a cap of 0.00%, by subjecting the rate on the Class
LT1-1A to a maximum rate of 7.00% and by subjecting the rate on each remaining
Lower-Tier Interest in Lower-Tier REMIC 1 to a cap that corresponds to the
Certificate Interest Rate for the Corresponding Class of
Certificates.
Advance:
An
advance of the aggregate of payments (other than Balloon Payments) of principal
and interest (net of the Servicing Fee) on one or more Mortgage Loans that
were
due on 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
Servicer or by the Master Servicer on behalf of the Servicer (or by the Trustee
as successor master servicer) pursuant to Section 5.04, but only to the extent
that such amount is expected, in the reasonable judgment of the Master Servicer
or the Servicer (or by the Trustee as successor to the Master Servicer), to
be
recoverable from collections or recoveries in respect of such Mortgage Loans.
Adverse
REMIC Event:
Either
(i) 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) imposition of any tax, including the tax imposed under
Section 860F(a)(1) on prohibited transactions, and the tax imposed under Section
860G(d) 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.
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
Expense Rate:
With
respect to any Mortgage Loan, the sum of the related Servicing Fee Rate and
the
applicable Insurance Fee Rate, in the case of any Mortgage Loan covered by
a
LPMI Policy.
Aggregate
Loan Balance:
As of
any date of determination, the aggregate of the Scheduled Principal Balances
of
all Mortgage Loans in Pool 1, Pool 2 and Pool 3.
Aggregate
Voting Interests:
The
aggregate of the Voting Interests of all the Certificates under this
Agreement.
17
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.
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 or its successors in interest.
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.
Back-Up
Certification:
As
defined in Section 6.20(e)(iii).
Balloon
Mortgage Loan:
Any
Mortgage Loan having an original term to maturity that is shorter than its
amortization schedule, and a final Scheduled Payment that is disproportionately
large in comparison to other Scheduled Payments.
Balloon
Payment:
The
final Scheduled Payment in respect of a Balloon Mortgage Loan
Bankruptcy:
As to
any Person, the making of an assignment for the benefit of creditors, the filing
of a voluntary petition in bankruptcy, adjudication as a bankrupt or insolvent,
the entry of an order for relief in a bankruptcy or insolvency proceeding,
the
seeking of reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar relief, or seeking, consenting to or acquiescing in
the
appointment of a trustee, receiver or liquidator, dissolution, or termination,
as the case may be, of such Person pursuant to the provisions of either the
Bankruptcy Code, or any other similar state laws.
Bankruptcy
Code:
The
United States Bankruptcy Code of 1986, as amended.
Basis
Risk Payment:
With
respect to any Distribution Date and the Group I Certificates (other than the
Class 1-APO, Class 1-A1 and Class 1-A2 Certificates), an amount equal to (A)
the
sum of (i) any Basis Risk Shortfall for such Distribution Date, (ii) any Unpaid
Basis Risk Shortfall for such Distribution Date, and (iii) any Pool 1-2 Required
Reserve Fund Amount for such Distribution Date. The amount of the Basis Risk
Payment for any Distribution Date cannot exceed the amount of Pool 1-2 Monthly
Excess Cashflow otherwise available for distribution pursuant to Section
5A.02(e) of this Agreement.
18
Basis
Risk Shortfall:
With
respect to any Distribution Date and the Group I Certificates (other than the
Class 1-APO, Class 1-A1 and Class 1-A2 Certificates), the amount by which the
amount of interest calculated at the Certificate Interest Rate applicable to
such Class for such date exceeds the amount of interest calculated at the
applicable 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
Offered Certificates constitutes Book-Entry Certificates.
Bulk
PMI Policy:
Not
applicable.
Business
Day:
Any day
other than (i) a Saturday or a Sunday, (ii) a day on which banking institutions
in the States of Colorado, Illinois or New York or the city in which the
Corporate Trust Office of the Trustee is located are closed, or (iii) with
respect to any Servicer Remittance Date or any Servicer reporting date, a day
on
which banking institutions in the States specified in the definition of
“Business Day” in the Servicing Agreement, are authorized or obligated by law or
executive order to be closed.
Carryforward
Interest:
With
respect to any Distribution Date and any Class of Group I Certificates (other
than the Class 1-APO Certificates), 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 (other than the Class 1-APO, Class I-X,
Class I-P, Class II-P, Class I-LT-R, Class II-LT-R, Class I-R and Class II-R
Certificates) and any Distribution Date, the applicable per annum rate set
forth
or described under the heading “The Certificates” in the Preliminary Statement
hereto.
19
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 Group I Certificate (other than the Class 1-AIO Certificates)
as
of any Distribution Date, its initial Certificate Principal Amount as of the
Closing Date, as reduced by all amounts previously distributed on that
Certificate in respect of principal prior to such Distribution Date, as reduced
by any Pool 1-2 Applied Loss Amount; provided,
however,
that on
each Distribution Date on which a Subsequent Recovery is distributed, the
Certificate Principal Amount of any Class of Group I Certificates (other than
the Class 1-AIO Certificates) whose Certificate Principal Amount has previously
been reduced by application of a Pool 1-2 Applied Loss Amount 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
such
Certificateholders, after application (for this purpose) to any more senior
Classes of such Certificates.
With
respect to any Group II Certificate (other than the Class 3-AIO1 and Class
3-AIO2 Certificates) as of any Distribution Date, such Certificate’s Certificate
Principal Balance as of the Closing Date as reduced by the amount of all
principal distributions previously made with respect to such Certificate, and
the principal portion of Realized Losses allocated to such Certificate and,
in
the case of a Group II Subordinate Certificate, any Group II Subordinate
Certificate Writedown Amount allocated to such Group II Subordinate Certificate;
provided,
however,
that on
any Distribution Date on which a Subsequent Recovery for Group II is
distributed, the Certificate Principal Amount of any Class of related
Certificates then outstanding for which any Realized Loss or any Group II
Subordinate Certificate Writedown Amount has been applied will be increased,
in
order of seniority, by an amount equal to the lesser of (i) the amount the
Class
of Certificates has been reduced by any Realized Losses or any Group II
Subordinate Certificate Writedown Amount which has not been previously offset
by
any Subsequent Recovery pursuant to this proviso and (ii) the total amount
of
any Subsequent Recovery for such Mortgage Pool distributed on such date to
Certificateholders (as reduced (x) by increases in the Certificate Principal
Amount of more senior Classes of Certificates related to such Mortgage Pool
on
such Distribution Date and (y) to reflect a proportionate amount of what would
(but for this clause (y) have been the increases in the Certificate Principal
Amount of Classes of Certificates related to such Mortgage Pool of equal
seniority on such Distribution Date). The Class I-X, Class I-LT-R, Class
II-LT-R, Class I-R and Class II-R Certificates are issued without Certificate
Principal Amounts. The Class I-P Certificates are issued with an initial Class
I-P Principal Amount of $100. The Class II-P Certificates are issued with an
initial Class II-P Principal Amount of $100.
Certificate
Register
and
Certificate
Registrar:
The
register maintained and the registrar appointed pursuant to Section
3.02.
20
Certificateholder:
The
meaning provided in the definition of “Holder.”
Certifying
Party:
As
defined in Section 6.20(e)(iii).
Class:
All
Certificates and, in the case of each of REMIC 1 formed hereby, all Lower-Tier
Interests therein bearing the same Class designation.
Class
I-LT-R Certificates:
Each
Class I-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 ownership of the residual interest in Pooling REMIC
1.
Class
I-P Principal Amount:
As of
the Closing Date, $100.
Class
I-R Certificate:
The
Class I-R Certificate executed by the Trustee and authenticated and delivered
by
the Certificate Registrar, substantively in the form annexed hereto as Exhibit
A
and evidencing ownership of the LT1-R and MT1-R interests and the residual
interest in Upper-Tier REMIC 1.
Class
I-X Distributable Amount:
With
respect to any Distribution Date, the amount of interest that has accrued on
the
Class I-X Notional Balance (as described in the Preliminary Statement in
footnote (25) under the caption “The Certificates”) but that has not been
distributed prior to such date. In addition, such amount shall include the
initial Class I-X Principal Amount to the extent such amount has not been
distributed on an earlier Distribution Date as part of the Pool 1-2 Aggregate
Overcollateralization Release Amount.
Class
I-X Notional Balance:
With
respect to any Distribution Date (and the related Accrual Period) the aggregate
of the principal balances of the Middle-Tier Interests in Middle-Tier REMIC
1,
as described in the Preliminary Statement.
Class
I-X Principal Amount:
As of
the Closing Date, $4,436,366.27.
Class
II-LT-R Certificates:
Each
Class II-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 ownership of the residual interest in Pooling REMIC
2.
Class
II-P Principal Amount:
As of
the Closing Date, $100.
Class
II-P Reserve Fund:
The
account established and maintained by the Trustee pursuant to Section
5.07.
Class
II-R Certificate:
The
Class II-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 sole Class of residual interest
in
Upper-Tier REMIC 2 as well as ownership of the LT2-R and Class MT2-R
Interests.
Class
Notional Amount:
With
respect to the Class 1-AIO Certificates and any Distribution Date, the Class
Notional Amount of the Class 1-AIO Certificates will be equal to aggregate
Class
Principal Amounts of the Class 1-A1, Class 1-A2 and Class 1-APO Certificates
immediately preceding such Distribution Date. The initial Class Notional Amount
of the Class 1-AIO Certificates is $194,540,000.00. With respect to each of
the
Class 3-AIO1 and Class 3-AIO2 Certificates and any Distribution Date on or
prior
to the Distribution Date in February 2012, the Class Notional Amount of the
Class 3-AIO1 and Class 3-AIO2 Certificates will be equal to aggregate Class
Principal Amount of the Class 3-A1 Certificates immediately preceding the
related Distribution Date. With respect to each of the Class 3-AIO1 and Class
3-AIO2 Certificates and any Distribution Date after the Distribution Date in
February 2012, zero. The initial Class Notional Amounts of the Class 3-AIO1
and
Class 3-AIO2 Certificates is $337,690,000.00.
21
Class
Principal Amount:
With
respect to each Class of Offered Certificates (other than the Notional
Certificates) and any date of determination, the aggregate of the Certificate
Principal Amounts (or related Percentage Interest therein aggregating to 100%)
of all Certificates of such Class on such date of determination. With respect
to
the Class I-P Certificate, the Class I-P Principal Amount. With respect to
the
Class II-P Certificate, the Class II-P Principal Amount. With
respect to the Class I-LT-R, Class II-LT-R, Class I-R and Class II-R
Certificates, zero. With respect to the Class I-X Certificates, the Class I-X
Principal Amount.
Class
Table:
The
table, attached as Exhibit J hereto, setting forth the characteristics of each
Class of Certificates (and the Exchange and Exchangeable Classes)
Clearing
Agency:
An
organization registered as a “clearing agency” pursuant to Section 17A of the
Exchange Act. As of the Closing Date, the Clearing Agency shall be The
Depository Trust Company.
Clearing
Agency Participant:
A
broker, dealer, bank, other financial institution or other Person for whom
from
time to time a Clearing Agency effects book-entry transfers and pledges of
securities deposited with the Clearing Agency.
Clearstream:
Clearstream Banking, S.A., Luxembourg, and any successor thereto.
Closing
Date:
April
30, 2007.
Code:
The
Internal Revenue Code of 1986, as amended, and as it may be further amended
from
time to time, any successor statutes thereto, and applicable U.S. Department
of
Treasury regulations issued pursuant thereto in temporary or final
form.
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
month immediately preceding the month in which such Distribution Date occurs
and
ending on the first day of the month in which such Distribution Date
occurs.
Commission:
The
United States Securities and Exchange Commission.
Compensating
Interest Payment:
With
respect to any Distribution Date and prepayments in full or in part, an amount
equal to the aggregate amount of any Prepayment Interest Shortfalls required
to
be paid by the Servicer with respect to such Distribution Date. The Master
Servicer (solely in its capacity as master servicer) shall not be responsible
for making any Compensating Interest Payment.
Component:
Not
applicable.
22
Component
Interest Rate:
Not
applicable.
Component
Principal Amount:
Not
applicable.
Conventional
Loan:
A
Mortgage Loan that is not insured by the United States Federal Housing
Administration or guaranteed by the United States Department of Veterans
Affairs.
Cooperative
Corporation:
The
entity that holds title (fee or an acceptable leasehold estate) to the real
property and improvements constituting the Cooperative Property and which
governs the Cooperative Property, which Cooperative Corporation must qualify
as
a Cooperative Housing Corporation under Section 216 of the Code.
Cooperative
Loan:
Any
Mortgage Loan secured by Cooperative Shares and a Proprietary
Lease.
Cooperative
Loan Documents:
As to
any Cooperative Loan, (i) the Cooperative Shares, together with a stock power
in
blank; (ii) the original executed Security Agreement and the assignment of
the
Security Agreement endorsed in blank; (iii) the original executed Proprietary
Lease and the assignment of the Proprietary Lease endorsed in blank; (iv) the
original executed Recognition Agreement and the assignment of the Recognition
Agreement (or a blanket assignment of all Recognition Agreements) endorsed
in
blank; (v) the executed UCC-1 financing statement with evidence of recording
thereon, which has been filed in all places required to perfect the security
interest in the Cooperative Shares and the Proprietary Lease; and (vi) executed
UCC-3 financing statements (or copies thereof) or other appropriate UCC
financing statements required by state law, evidencing a complete and unbroken
line from the mortgagee to the Trustee with evidence of recording thereon (or
in
a form suitable for recordation).
Cooperative
Property:
The
real property and improvements owned by the Cooperative Corporation, that
includes the allocation of individual dwelling units to the holders of the
Cooperative Shares of the Cooperative Corporation.
Cooperative
Shares:
Shares
issued by a Cooperative Corporation.
Cooperative
Unit:
A
single-family dwelling located in a Cooperative Property.
Corporate
Trust Office:
The
office of the Trustee at which at any particular time its corporate trust
business with respect to this Agreement shall be administered, which office
at
the date of execution of this Agreement shall be in the case of Certificate
transfers and for purposes of presentment and surrender of the Certificates
for
final distribution thereon, 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx,
Xxxxxxxx, 00000, Attention: Global Securities and Trust Services - LXS 2007-5H
or any such other address as the Trustee may designate from time to time by
notice to the Certificateholders, the Depositor and the Master
Servicer.
Corresponding
Class:
The
Class of Certificates that corresponds to a class of Lower-Tier Interests or
Middle-Tier Interests in as described in the Preliminary Statement.
Credit
Support Percentage: With
respect to any Group II Subordinate Certificate and any Distribution Date,
the
sum of the Group II Class Percentages of each Class of lower priority (without
giving effect to distributions on such date).
23
Current
Interest:
With
respect to any Group I Certificate (other than the Class 1-APO 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 (or Class Notional Amount) thereof immediately prior
to
such Distribution Date.
Custodial
Account:
Any
custodial account (other than an Escrow Account) established and maintained
by
the Servicer pursuant to the Servicing Agreement.
Custodial
Agreement:
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 Deutsche Bank National Trust
Company, LaSalle Bank National Association and U.S. Bank National
Association.
Cut-off
Date:
April
1, 2007.
Cut-off
Date Balance:
With
respect to the Mortgage Loans in the Trust Fund on the Closing Date, the
aggregate Scheduled Principal Balance of such Mortgage Loan 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.
Deferred
Amount:
With
respect to any Distribution Date and the Group 1 Senior Certificates, the Group
2 Senior Certificates and the Group I Subordinate Certificates, the aggregate
of
Pool 1-2 Applied Loss Amounts previously applied in reduction of the Certificate
Principal Amount of such Group 1 Senior Certificate (other than the Class 1-AIO
Certificates), the Group 2 Senior Certificate and the Group I Subordinate
Certificate, less (i) any amounts previously reimbursed in respect thereto
and
(ii) the amount by which the Certificate Principal Amount of such Group 1 Senior
Certificate, the Group 2 Senior Certificate and the Group I Subordinate
Certificate has been increased due to any Subsequent Recovery.
Deficient
Valuation:
With
respect to any Mortgage Loan, a valuation by a court of competent jurisdiction
of the Mortgaged Property in an amount less than the then outstanding
indebtedness under such Mortgage Loan, which valuation results from a proceeding
under Bankruptcy law or any similar proceeding.
Definitive
Certificate:
A
Certificate of any Class issued in definitive, fully registered, certificated
form.
Deleted
Mortgage Loan:
A
Mortgage Loan that is repurchased from the Trust Fund pursuant to the terms
hereof or as to which one or more Qualifying Substitute Mortgage Loans are
substituted therefor.
24
Delinquent:
For
reporting purposes, a Mortgage Loan is considered “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 Servicer on behalf of the Trustee
has
accepted a deed in lieu of foreclosure.
Distribution
Date:
The
25th day of each month or, if such 25th day is not a Business Day, the next
succeeding Business Day, commencing in May 2007.
Distribution
Date Statement:
As
defined in Section 4.03(a) hereof.
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:
25
(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
Xxxxxx Xxx, Xxxxxx Xxx or Xxxxxxx Mac with any registered broker/dealer subject
to Securities Investors’ Protection Corporation jurisdiction or any commercial
bank insured by the FDIC, if such broker/dealer or bank has an uninsured,
unsecured and unguaranteed obligation rated by each Rating Agency in its highest
short-term rating category;
(iv) securities
bearing interest or sold at a discount issued by any corporation incorporated
under the laws of the United States of America or any state thereof which have
a
credit rating from each Rating Agency, at the time of investment or the
contractual commitment providing for such investment, at least equal to one
of
the two highest long-term credit rating categories of each Rating Agency;
provided,
however,
that
securities issued by any particular corporation will not be Eligible Investments
to the extent that investment therein will cause the then outstanding principal
amount of securities issued by such corporation and held as part of the Trust
Fund to exceed 20% of the sum of the Aggregate Loan 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
26
(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 or (B) that would not adversely affect
the
then current rating assigned by each Rating Agency of any of the Certificates
or
the related 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 LaSalle Bank National Association, 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) LaSalle Bank National
Association, 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) LaSalle Bank National Association, 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. LaSalle Bank National Association or an Affiliate thereof
is hereby authorized 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);
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 II-M5, Class II-M6, Class II-M7, Class I-P, Class II-P, Class I-LT-R,
Class II-LT-R, Class I-R, Class II-R and Class I-X Certificate and any
Certificate with a rating below the lowest applicable rating permitted under
the
Underwriter’s Exemption.
ERISA-Restricted
Trust Certificate:
Not
applicable.
Errors
and Omission Insurance Policy:
The
errors or omission insurance policy required to be obtained by the Servicer
satisfying the requirements of the Servicing Agreement.
27
Escrow
Account:
Any
account established and maintained by the Servicer pursuant to the Servicing
Agreement.
Euroclear:
Euroclear Bank, S.A./N.V., as operator of the Euroclear System.
Event
of Default:
Any one
of the conditions or circumstances enumerated in Section 6.14(a).
Exchange
Act:
The
Securities and Exchange Act of 1934, as amended, and the rules and regulations
thereunder.
Exchange
Act Signing Party:
Either
the Depositor or the Master Servicer, to be determined by mutual agreement
between such parties.
Exchange
Class
or Exchange
Certificates:
The Classes of Certificates identified as such, and issued under, the Exchange
Trust Agreement.
Exchangeable
Classes
or Exchangeable
Certificates:
The
Classes of Certificates identified as such, and issued under, the Exchange
Trust
Agreement.
Exchange
Trust Agreement:
The
Exchange Trust Agreement dated as of April 1, 2007, entered into by and between
the Depositor and the Trustee for the issuance of the Exchange and Exchangeable
Certificates.
Exchange
Trustee:
LaSalle
Bank National Association, in its capacity as trustee under the Exchange Trust
Agreement.
Excluded
Trust Assets:
As
described in the Preliminary Statement.
Xxxxxx
Xxx:
Xxxxxx
Xxx, f/k/a the Federal National Mortgage Association, a federally chartered
and
privately owned corporation organized and existing under the Federal National
Mortgage Association Charter Act, or any successor thereto.
FDIC:
The
Federal Deposit Insurance Corporation or any successor thereto.
Fidelity
Bond:
The
fidelity bond required to be obtained by the Servicer satisfying the
requirements of the Servicing Agreement.
Final
Scheduled Distribution Date:
With
respect to each Class of Certificates, the Distribution Date in May
2037.
Financial
Intermediary:
A
broker, dealer, bank or other financial institution or other Person that clears
through or maintains a custodial relationship with a Clearing Agency
Participant.
First
Payment Default Mortgage Loan:
Not
applicable.
Fitch:
Fitch
Ratings, Inc., or any successor in interest.
28
Form
10-K Certification:
The
certification required pursuant to Rule 13a-14 under the Exchange
Act.
FPD
Premium:
Not
applicable.
FPD
Purchase Price:
Not
applicable.
Xxxxxxx
Mac:
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.
Xxxxxx
Mae:
Xxxxxx
Xxx, f/k/a the Government National Mortgage Association, a wholly owned
corporate instrumentality of the United States within HUD.
Global
Securities:
The
global certificates representing the Book-Entry Certificates.
Gross
Margin:
The
interest rate specified in the related Mortgage Note.
Group
I:
All of
the Group I Certificates.
Group
I Certificates:
Collectively, the Group 1 Senior Certificates, the Group 2 Senior Certificates
and the Group I Subordinate Certificates.
Group
I Interest Remittance Amount:
With
respect to each of Pool 1 and Pool 2 and any Distribution Date, an amount equal
to (a) the sum of (1) all interest collected (other than in connection with
Payaheads and Prepayment Premiums) or advanced in respect of Scheduled Payments
on the Mortgage Loans in Pool 1 and Pool 2 during the related Collection Period
by the Servicer, the Master Servicer or the Trustee (solely acting in its
capacity as successor master servicer), minus
(x) the
Servicing Fee with respect to such Mortgage Loans in such Mortgage Pool, (y)
premiums on lender-paid LPMI Policies, if applicable, and (z) previously
unreimbursed Advances and other amounts due to the Servicer, the Master Servicer
or the Trustee (solely acting 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 to the
extent allocable to interest, (2) any amounts actually paid by the Servicer
with
respect to Prepayment Interest Shortfalls and any Compensating Interest Payments
with respect to the Mortgage Loans in such Mortgage Pool with respect to the
related Prepayment Period (or in the case of Mortgage Loans serviced by Aurora,
the relevant Collection Period), (3) the portion of any Purchase Price (or
FPD
Purchase Price (excluding any FPD Premiums) payable with respect to any First
Payment Default Mortgage Loan) or Substitution Amount paid with respect the
Mortgage Loans in such Mortgage Pool during the related Prepayment Period (or
in
the case of Mortgage Loans serviced by Aurora, the relevant Collection Period)
allocable to interest, and (4) all Net Liquidation Proceeds, any Subsequent
Recovery, Insurance Proceeds and any other recoveries collected with respect
to
such Mortgage Loans during the related Collection Period, to the extent
allocable to interest, for each Mortgage Pool, as reduced by (b) the product
of
(i) the related Pool Percentage for such Distribution Date and (ii) any other
costs, expenses or liabilities reimbursable to the Trustee, the Master Servicer
or the Servicer to the extent provided in this Agreement and the Servicing
Agreement, and each Custodian pursuant to the related Custodial Agreement;
provided,
however,
that in
the case of the Trustee, such reimbursable amounts to the Trustee payable from
the Interest Remittance Amount and the Principal Remittance Amount may not
exceed $500,000 during any Anniversary Year up to and including the Anniversary
Year in which the Pool 1-2 Stepdown Date occurs and $200,000 during any
Anniversary Year thereafter (the “Applicable Maximum Reimbursement Amount”). In
the event that the Trustee incurs reimbursable amounts in excess of the
Applicable Maximum Reimbursement Amount in any Anniversary Year, it may obtain
reimbursement for such amounts in subsequent Anniversary Years, but in no event
shall more than the Applicable Maximum Reimbursement Amount in aggregate 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 in determining
the
Applicable Maximum Reimbursement Amount limitation on reimbursable amounts
per
Anniversary Year.
29
Group
I NIM Redemption Amount:
As
defined in Section 7.01(b).
Group
I NIM Securities:
Any net
interest margin notes (other than any related NIM Residual Securities) issued
by
a trust or other special purpose entity, the principal assets of such trust
or
other special purpose entity are Certificates related to the Mortgage Loans
in
Pool 1 and Pool 2, which principal assets back such notes.
Group
I Principal Distribution Amount:
With
respect to any Distribution Date and for each of Pool 1 and Pool 2, an amount
equal to the Group I Principal Remittance Amount for such date for such Mortgage
Pool minus
the
Pool
1-2 Aggregate Overcollateralization Release Amount attributable to such Mortgage
Pool based on the Senior Proportionate Percentage for such Mortgage Pool, if
any, for such Distribution Date.
Group
I Principal Remittance Amount:
With
respect to any Distribution Date and Pool 1 and Pool 2, an amount equal to
(a)
the sum of (i) all principal collected (other than in connection with Payaheads
and Prepayment Premiums) or advanced in respect of Scheduled Payments on the
Mortgage Loans in such Mortgage Pool during the related Collection Period
whether by the Servicer, the Master Servicer or the Trustee (solely in its
capacity as successor master servicer) (less unreimbursed Advances due to the
Master Servicer, the Servicer, or the Trustee, in its capacity as successor
master servicer, with respect to the related Mortgage Loans) to the extent
allocable to principal, (ii) all Principal Prepayments in full or in part
received during the related Collection Period, (iii) the outstanding principal
balance of each Mortgage Loan (excluding any FPD Premium) in such Mortgage
Pool
that was purchased from the Trust Fund by the Seller or the related Transferor
during the related Collection Period, or the NIMS Insurer (in the case of
certain Mortgage Loans 90 days or more delinquent) from such Mortgage Pool,
(iv)
the portion of the Purchase Price (or FPD Purchase Price (excluding any FPD
Premium) payable with respect to any First Payment Default Mortgage Loan) or
the
portion of any Substitution Amount paid with respect to any Deleted Mortgage
Loan in such Mortgage Pool during the related Collection Period allocable to
principal, and (v) all Net Liquidation Proceeds, Insurance Proceeds, any
Subsequent Recovery and other recoveries collected with respect to the Mortgage
Loans in such Mortgage Pool during the related related Collection Period, to
the
extent allocable to principal, as reduced by (b) to the extent not reimbursed
from the Group I Interest Remittance Amount, other costs, expenses or
liabilities reimbursable to the Trustee, the Master Servicer and the Servicer
to
the extent provided in this Agreement and the Servicing Agreement, and to the
Custodian pursuant to the Custodial Agreement; provided,
however,
in the
case of the Trustee such reimbursement may not exceed the Applicable Maximum
Reimbursement Amount. In the event the Trustee incurs reimbursable amounts
in
excess of the Applicable Maximum Reimbursement Amount, it may seek reimbursement
for such amounts in subsequent Anniversary Years, but in no event shall more
than the Applicable Maximum Reimbursement Amount 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 in determining the Applicable Maximum Reimbursement
Amount limitation on reimbursable amounts 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 in
determining the Applicable Maximum Reimbursement Amount limitation on
reimbursable amounts per Anniversary Year.
30
Group
I Subordinate Certificates:
Collectively, the Class I-M1, Class I-M2, Class I-M3, Class I-M4, Class I-M5,
Class I-M6 and Class I-M7 Certificates.
Group
I Subordinate Priority:
To the
Class I-M1, Class I-M2, Class I-M3, Class I-M4, Class I-M5, Class I-M6 and
Class
I-M7 Certificates, sequentially, in that order.
Group
II:
All of
the Group II Certificates.
Group
II Available Distribution Amount:
As to
Pool 3 related to the Group II Certificates and on any Distribution Date, the
sum of the following amounts:
(i) the
total
amount of all cash received by the Master Servicer through the Servicer
Remittance Date applicable to the Servicer and deposited with the Trustee by
the
Master Servicer by the Deposit Date for such Distribution Date on the Mortgage
Loans of such Mortgage Pool (including proceeds of any Insurance Policy and
any
other credit support relating to such Mortgage Loans and including any
Subsequent Recovery), which includes (a) Scheduled Payments due on the related
Mortgage Loans during the Due Period and collected prior to the Servicer
Remittance Date or advanced by the Master Servicer or the Servicer (or the
Trustee solely in its capacity as successor Master Servicer), (b) Principal
Prepayments, together with accrued interest thereon, if any, identified as
having been received on the related Mortgage Loans during the applicable
Prepayment Period, plus any amounts paid by the Servicer in respect of
Prepayment Interest Shortfalls on the related Mortgage Loans, in each case
for
such Distribution Date, (c) the proceeds of any repurchase of a related Mortgage
Loan required to be repurchased by the Seller, the Depositor or any other party
as a result of a breach of a representation or warranty or document defect,
and
(d) recoveries through liquidation of any REO Property with respect to the
related Mortgage Loans, including Insurance Proceeds, Subsequent Recoveries
and
Liquidation Proceeds, but not including:
(a) all
amounts distributed pursuant to Section 5.02 on prior Distribution
Dates;
(b) all
Scheduled Payments of principal and interest collected but due on a date
subsequent to the related Due Period;
(c) all
Principal Prepayments received or identified by the Servicer after the
applicable Prepayment Period (together with any interest payments received
with
such prepayments to the extent that they represent the payment of interest
accrued on the related Mortgage Loans for the period subsequent to the
applicable Prepayment Period);
31
(d) any
other
unscheduled collection, including Net Liquidation Proceeds, Subsequent
Recoveries and Insurance Proceeds, received by the Master Servicer after the
applicable Prepayment Period;
(e) all
fees
and amounts due or reimbursable to the Master Servicer, the Trustee (or its
custodian), the Custodian or the Servicer pursuant to the terms of this
Agreement, the applicable Custodial Agreement or the Servicing Agreement related
specifically to such Mortgage Pool;
(f) premiums
on lender-paid LPMI Policies;
(g) Prepayment
Interest Excess, to the extent not offset by Prepayment Interest Shortfalls;
and
(ii) any
other
payment made by the Master Servicer, the Servicer, the Trustee, (solely as
successor master servicer) the Seller, the Depositor, or any other Person with
respect to such Distribution Date (including the Purchase Price for Pool 3
with
respect to any Mortgage Loan purchased by the Seller, the Depositor or any
other
Person).
Group
II Certificates:
The
Group II Senior Certificates and the Group II Subordinate Certificates
Certificates.
Group
II Class Percentage:
With
respect to each Class of Group II Subordinate Certificates and any Distribution
Date, the percentage obtained by dividing the Class Principal Balance of such
Class immediately prior to such Distribution Date by the aggregate Class
Principal Amount of all Classes of Certificates related to Pool 3 immediately
prior to such date.
Group
II Interest Shortfall:
With
respect to any Class of Group II Certificates and any Distribution Date, any
Accrued Certificate Interest not distributed (or added to principal) with
respect to any previous Distribution Date, other than any Net Prepayment
Interest Shortfalls.
Group
II Senior Certificates:
The
Class 3-A1, Class 3-A2, Class 3-A3, Class 3-A4, Class 3-A5, Class 3-AIO1 and
Class 3-AIO2 Certificates (including any Exchangeable or Exchange
Certificate).
Group
II Senior Enhancement Percentage:
With
respect to the Group II Certificates and on any Distribution Date, the
percentage equivalent of a fraction, the numerator of which is the Group II
Subordinate Amount and the denominator of which is the Pool Balance for Pool
3
for the immediately preceding Distribution Date.
Group
II Senior Percentage:
With
respect to the Group II Certificates and on any Distribution Date, the
percentage equivalent of the fraction, the numerator of which is the sum of
the
Certificate Principal Amounts of the Group II Senior Certificates (other than
the Class 3-A3, Class 3-A4, Class 3-A5, Class 3-AIO1 and Class 3-AIO2
Certificates) and the denominator of which is the Pool Balance for Pool 3 for
the immediately preceding Distribution Date.
32
Group
II Senior Prepayment Percentage:
With
respect to Pool 3 for any Distribution Date occurring during the seven years
beginning on the first Distribution Date, 100%, except as described herein
below.
With
respect to Pool 3 for any Distribution Date occurring on or after the seventh
anniversary of the first Distribution Date, the related Group II Senior
Percentage plus the following percentage of the related Group II Subordinate
Percentage for such Distribution Date: for any Distribution Date in the first
year thereafter, 70%; for any Distribution Date in the second year thereafter,
60%; for any Distribution Date in the third year thereafter, 40%; for any
Distribution Date in the fourth year thereafter, 20%; and for any subsequent
Distribution Date, the related Group II Senior Percentage; provided,
however,
(i) if
on any of the foregoing Distribution Dates the related Senior Enhancement
Percentage is less than the related Initial Senior Enhancement Percentage,
the
related Group II Senior Prepayment Percentage for Pool 3 on such Distribution
Date shall once again equal 100%, (ii) unless the condition described in clause
(i) has occurred, if on any Distribution Date before the Distribution Date
in
May 2010, prior to giving effect to any distributions on such Distribution
Date,
the related Senior Enhancement Percentage for such Distribution Date is greater
than or equal to twice the related Initial Senior Enhancement Percentage, then
the related Group II Senior Prepayment Percentage for Pool 3 for such
Distribution Date will equal the related Group II Senior Percentage plus 50%
of
the related Group II Subordinate Percentage and (iii) unless the condition
described in clause (i) has occurred, if on any Distribution Date on or after
the Distribution Date in May 2010, prior to giving effect to any distributions
on such Distribution Date, the related Senior Enhancement Percentage for such
Distribution Date is greater than or equal to twice the related Initial Senior
Enhancement Percentage, then the related Group II Senior Prepayment Percentage
on such Distribution Date will equal the related Group II Senior
Percentage.
Notwithstanding
the foregoing, no decrease in the related Group II Senior Prepayment Percentage
below the respective levels in effect for the most recent prior period set
forth
in the paragraph above (calculated without regard to clause (ii) or clause
(iii)
of the paragraph above) shall be effective on any Distribution Date if, as
of
the first Distribution Date as to which any such decrease applies, (i) the
average outstanding principal balance on such Distribution Date and for the
preceding five Distribution Dates of all Mortgage Loans in Pool 3 that were
delinquent 60 days or more (including for this purpose any Mortgage Loans in
foreclosure and the Scheduled Payments that would have been due on Mortgage
Loans with respect to which the related Mortgaged Property has been acquired
by
the Trust Fund if the related Mortgage Loan had remained in existence) is
greater than or equal to 50% of the Group II Subordinate Amount immediately
prior to such Distribution Date or (ii) cumulative Realized Losses with respect
to the Mortgage Loans in Pool 3 exceed (a) with respect to each Distribution
Date prior to the third anniversary of the first Distribution Date, 20% of
the
related Original Group Subordinate Amount, (b) with respect to each Distribution
Date on or after the third anniversary and prior to the eighth anniversary
of
the first Distribution Date, 30% of the related Original Group Subordinate
Amount, (c) with respect to each Distribution Date on or after the eighth
anniversary and prior to the ninth anniversary of the first Distribution Date,
35% of the related Original Group Subordinate Amount, (d) with respect to each
Distribution Date on or after the ninth anniversary and prior to the tenth
anniversary of the first Distribution Date, 40% of the related Original Group
Subordinate Amount, (e) with respect to each Distribution Date on or after
the
tenth anniversary and prior to the eleventh anniversary of the first
Distribution Date, 45% of the related Original Group Subordinate Amount, and
(f)
with respect to each Distribution Date on or after the eleventh anniversary
of
the first Distribution Date or thereafter, 50% of the related Original Group
Subordinate Amount. After the related Class Principal Amount of each related
Class of Senior Certificates in any Certificate Group has been reduced to zero,
the Group II Senior Prepayment Percentage shall be 0%.
33
Group
II Senior Principal Distribution Amount:
With
respect to any Distribution Date and Pool 3, the sum of the following
amounts:
(i)
the
product of (a) the Group II Senior Percentage for such date and (b) the
principal portion of each Scheduled Payment, on each Mortgage Loan in Pool
3 due
during the related Due Period;
(ii)
the
product of (a) the Group II Senior Prepayment Percentage for such date and
(b)
each of the following amounts: (1) each Principal Prepayment on the Mortgage
Loans in the Pool 3 collected during the related Prepayment Period, (2) each
other unscheduled collection, including any Subsequent Recovery, Insurance
Proceeds and Net Liquidation Proceeds (other than with respect to any Mortgage
Loan in the Pool 3 that was finally liquidated during the related Prepayment
Period) representing or allocable to recoveries of principal in Pool 3 received
during the related Prepayment Period, and (3) the principal portion of all
proceeds of the purchase of any Mortgage Loan in Pool 3 (or, in the case of
a
permitted substitution, amounts representing a principal adjustment) actually
received by the Trustee with respect to the related Prepayment
Period;
(iii)
with respect to unscheduled recoveries allocable to principal of any Mortgage
Loan in Pool 3 that was finally liquidated during the related Prepayment Period,
the lesser of (a) the related Net Liquidation Proceeds allocable to principal
and (b) the product of the related Group II Senior Prepayment Percentage for
such date and the Scheduled Principal Balance of such related Mortgage Loan
at
the time of liquidation; and
(iv)
any
amounts described in clauses (i) through (iii) for any previous Distribution
Date that remain unpaid.
Group
II Subordinate Certificates:
Collectively, the Class II-M1, Class II-M2, Class II-M3, Class II-M4, Class
II-M5, Class II-M6 and Class II-M7 Certificates.
Group
II Subordinate Percentage:
With
respect to any Distribution Date and Pool 3, the difference between 100% and
the
Group II Senior Percentage for such date.
Group
II Subordinate Prepayment Percentage:
With
respect to any Distribution Date and Pool 3, the difference between 100% and
the
Group II Senior Prepayment Percentage for such date.
Group
II Subordinate Principal Distribution Amount:
With
respect to any Distribution Date and Pool 3, an amount equal to the sum of:
(1)
the product of (a) the Group II Subordinate Percentage and (b) the principal
portion of each Scheduled Payment on each Mortgage Loan in the related Mortgage
Pool or Pools due during the related Due Period; (2) the product of (a) the
Group II Subordinate Prepayment Percentage and (b) each of the following
amounts: (i) the principal portion of each full and partial principal prepayment
made by a borrower on a Mortgage Loan in the related Mortgage Pool or Pools
during the related Prepayment Period, (ii) each other unscheduled collection,
including Insurance Proceeds, Subsequent Recoveries and Net Liquidation Proceeds
(other than with respect to any related Mortgage Loan that was finally
liquidated during the related Prepayment Period), representing or allocable
to
recoveries of principal of related Mortgage Loans received during the related
Prepayment Period and (iii) the principal portion of all proceeds of the
purchase (or, in the case of a permitted substitution, amounts representing
a
principal adjustment) of any Mortgage Loan in the related Mortgage Pool or
Pools
actually received by the Trustee with respect to the related Prepayment Period;
(3) with respect to unscheduled recoveries allocable to principal of any
Mortgage Loan in the related Mortgage Pool or Pools that was finally liquidated
during the related Prepayment Period, the related Net Liquidation Proceeds
allocable to principal, to the extent not distributed pursuant to the definition
of Group II Senior Principal Distribution Amount; and (4) any amounts described
in clauses (1) through (3) for any previous Distribution Date that remain
unpaid.
34
Group
II Subordinate Certificate Writedown Amount:
With
respect to the Group II Certificates, the amount, if any, by which the total
Certificate Principal Amount of all the Certificates related to the related
Mortgage Pool or Pools on any Distribution Date (after giving effect to
distributions of principal and allocation of Realized Losses on that date)
exceeds the total Scheduled Principal Balance of the Mortgage Loans in the
related Mortgage Pool or Pools for the related Distribution Date.
Group
1 Senior Certificates:
Any
Class 1-A1, Class 1-A2, Class 1-AIO and Class 1-APO Certificates.
Group
1 Senior Priority:
The
priority set forth in Section 5A.02(d)(i)(A)(1).
Group
2 Senior Certificates:
Any
Class 2-A1 and Class 2-A2 Certificates.
Group
2 Senior Priority:
The
priority set forth in Section 5A.02(d)(i)(B)(1).
Group
Subordinate Amount:
With
respect to any Pool 3 Mortgage Loans and any Distribution Date, the excess
of
the Pool Balance for the immediately preceding Distribution Date for that
Mortgage Pool (or in the case of the first Distribution Date, the aggregate
Scheduled Principal Balance of the Mortgage Loans in such Mortgage Pool as
of
the Cut-off Date) over the total Certificate Principal Amount of the Group
II
Senior Certificates (other than the Class 3-A3, Class 3-A4, Class 3-A5, Class
3-AIO1 and Class 3-AIO2 Certificates) related to such Mortgage Pool immediately
prior to that Distribution Date.
Holder
or
Certificateholder:
The
registered owner of any Certificate as recorded on the books of the Certificate
Registrar except that, solely for the purposes of taking any action or giving
any consent pursuant to this Agreement, any Certificate registered in the name
of the Depositor, the Trustee, the Master Servicer, the Servicer or any
Affiliate thereof shall be deemed not to be outstanding in determining whether
the requisite percentage necessary to effect any such consent has been obtained,
except that, in determining whether the Trustee shall be protected in relying
upon any such consent, only Certificates which a Responsible Officer of the
Trustee knows to be so owned shall be disregarded. The Trustee and any NIMS
Insurer may request and conclusively rely on certifications by the Depositor,
the Master Servicer or the Servicer, in determining whether any Certificates
are
registered to an Affiliate of the Depositor, the Master Servicer or the
Servicer, respectively. After a Section 7.01(d) Purchase Event, other than
in
Sections 5A.02(a) through (f) and Sections 5B.02(a) through (c) and 11.03(a)
and
(b) and, except in the case of the Class I-LT-R and Class II-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 Pooling REMIC 1 Regular Interests (in the case of a Section
7.01(d) Purchase Event with respect to the Pooling REMIC 1 Regular Interests)
and the Pooling REMIC 2 Regular Interests (in the case of a Section 7.01(d)
Purchase Event with respect to the Pooling REMIC 2 Regular
Interests).
35
HUD:
The
United States Department of Housing and Urban Development, or any successor
thereto.
Independent:
When
used with respect to any Accountants, a Person who is “independent” within the
meaning of Rule 2-01(b) of the Commission’s Regulation S-X. When used with
respect to any other Person, a Person who (a) is in fact independent of another
specified Person and any Affiliate of such other Person, (b) does not have
any
material direct financial interest in such other Person or any Affiliate of
such
other Person, (c) is not connected with such other Person or any Affiliate
of
such other Person as an officer, employee, promoter, underwriter, trustee,
partner, director or Person performing similar functions and (d) is not a member
of the immediate family of a Person defined in clause (b) or (c)
above.
Interest-Only
Certificates:
The
Class 1-AIO, Class 3-AIO1 and Class 3-AIO2 Certificates.
Insurance
Fee Rate:
Not
applicable.
Insurance
Policy:
Any
Primary Mortgage Insurance Policy, any standard hazard insurance policy, flood
insurance policy, earthquake insurance policy or title insurance policy relating
to the Mortgage Loans or the Mortgaged Properties, to be in effect as of the
Closing Date or thereafter during the term of this Agreement.
Insurance
Proceeds:
Amounts
paid by the insurer under any Insurance Policy, other than amounts (i) to cover
expenses incurred by or on behalf of the Servicer or 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.
Intervening
Assignments:
The
original intervening assignments of the Mortgage, notices of transfer or
equivalent instrument.
Item
1122 Responsible Party:
With
respect to the criteria to be addressed under Item 1122 of Regulation AB, the
attesting party as indicated in the table attached hereto at Exhibit
O.
36
Latest
Possible Maturity Date:
The
Distribution Date occurring in May 2042.
LBH:
Xxxxxx
Brothers Holdings Inc., or any successor in interest.
Liquidated
Mortgage Loan:
Any
defaulted Mortgage Loan as to which the Master Servicer or the Servicer has
determined that all amounts that it expects to recover on behalf of the Trust
Fund from or on account of such Mortgage Loan have been recovered.
Liquidation
Expenses:
Expenses that are incurred by the Master Servicer or the Servicer in connection
with the liquidation of any defaulted Mortgage Loan and are not recoverable
under the applicable Primary Mortgage Insurance Policy, if any, including,
without limitation, foreclosure and rehabilitation expenses, legal expenses
and
unreimbursed amounts, if any, expended pursuant to Sections 9.06, 9.16 or
9.22.
Liquidation
Proceeds:
Cash
received in connection with the liquidation of a defaulted Mortgage Loan,
whether through the sale or assignment of such Mortgage Loan, trustee’s sale,
foreclosure sale, payment in full, discounted payoff, condemnation proceeds,
Insurance Proceeds, or otherwise, or the sale of the related Mortgaged Property
if the Mortgaged Property is acquired in satisfaction of the Mortgage Loan
by
foreclosure or deed in lieu of foreclosure, including any amounts remaining
in
the related Escrow Account.
Loan-to-Value
Ratio:
With
respect to any Mortgage Loan, the ratio of the principal balance of such
Mortgage Loan at origination, or such other date as is specified, to the
Original Value of the related Mortgaged Property.
Lower-Tier
Interest:
As
described in the Preliminary Statement.
Lower-Tier
REMIC:
Any of
Pooling REMIC 1, Pooling REMIC 2, Lower-Tier REMIC 1 or Lower-Tier REMIC
2.
LPMI
Policy:
A
Primary Mortgage Insurance Policy issued by a Qualified Insurer pursuant to
which the related premium is to be paid from payments by the
mortgagee.
LTURI-holder:
The
holder of the Pooling REMIC 1 Regular Interests and/or the Pooling REMIC 2
Regular Interests, as the case may be, which upon the occurrence of a Section
7.01(d) Purchase Event, shall be the Master Servicer or its designee, including
any trustee in its capacity as a trustee in any privately placed
securitization.
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, the Business Day 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.
37
Master
Servicing Fee Rate:
0.00%
per annum.
Material
Defect:
As
defined in Section 2.02(c) hereof.
Maximum
Rate:
For any
Mortgage Loan, the per annum rate specified in the related mortgage note which
the related Mortgage Rate will never exceed.
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.
Middle-Tier
Interest:
As
described in the Preliminary Statement.
Middle-Tier
REMIC:
Any of
Middle-Tier REMIC 1 or Middle-Tier REMIC 2, as applicable.
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.
Mortgage
Loan Sale Agreement:
The
mortgage loan sale and assignment agreement dated as of April 1, 2007, for
the
sale of the Mortgage Loans by the Seller to the Depositor.
Mortgage
Loan Schedule:
The
schedule attached hereto as Schedule A, which shall identify each Mortgage
Loan,
as such schedule may be amended from time to time to reflect the addition of
Mortgage Loans to, or the deletion of Mortgage Loans from, the Trust Fund.
Such
schedule shall set forth, among other things, the following information with
respect to each Mortgage Loan: (i) the Mortgage Loan identifying number; (ii)
the city, state and zip code of the Mortgaged Property; (iii) the original
principal amount of the Mortgage Loan; (iv) the Mortgage Rate at origination;
(v) the monthly payment of principal and interest at origination; (vi) the
Mortgage Pool in which such Mortgage Loan is included; (vii) the Servicer
servicing such Mortgage Loan and the applicable Servicing Fee Rate; (viii)
the
applicable Custodian with respect to the Mortgage File related to such Mortgage
Loan; (ix) where applicable, whether such Mortgage Loan is covered by any LPMI
Policy and the applicable Insurance Fee Rate; and (x) 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 methods
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.
38
Mortgage
Note:
The
note or other evidence of the indebtedness of a Mortgagor secured by a Mortgage
under a Mortgage Loan.
Mortgage
Pool:
Any of
Pool 1, Pool 2 or Pool 3.
Mortgage
Rate:
With
respect to any Mortgage Loan, the per annum rate at which interest accrues
on
such Mortgage Loan, as determined under the related Mortgage Note as reduced
by
any Relief Act Reductions.
Mortgaged
Property:
Either
of (x) the fee simple interest in real property, together with improvements
thereto including any exterior improvements to be completed within 120 days
of
disbursement of the related Mortgage Loan proceeds, or (y) in the case of a
Cooperative Loan, the related Cooperative Shares and Proprietary Lease, securing
the indebtedness of the Mortgagor under the related Mortgage Loan.
Mortgagor:
The
obligor on a Mortgage Note.
Net
Funds Cap:
Any of
the Pool 1 Net Funds Cap, the Pool 2 Net Funds Cap or the Pool 1-2 Subordinate
Net Funds Cap, as the context requires.
Net
Liquidation Proceeds:
With
respect to any Liquidated Mortgage Loan, the related Liquidation Proceeds net
of
(i) unreimbursed expenses and (ii) any unreimbursed Advances, if any, received
and retained in connection with the liquidation of such Mortgage
Loan.
Net
Mortgage Rate:
With
respect to any Mortgage Loan, the Mortgage Rate thereof reduced by the sum
of
(i) the Servicing Fee Rate for such Mortgage Loan and (ii) the Insurance Fee
Rate, if applicable.
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 the sum of (i) any Prepayment Interest Excess with respect to the
Mortgage Loans for such date and (ii) any amounts paid with respect to such
shortfalls by the Servicer pursuant to the Servicing Agreement.
Net
WAC:
With
respect to each Mortgage Pool or portion thereof and any Distribution Date,
the
weighted average of Net Mortgage Rates of the Mortgage Loans in the related
Mortgage Pool or portion thereof as of the first day of the related Collection
Period, weighted on the basis of their Scheduled Principal Balances at the
beginning of the related Collection Period, provided
that,
solely
for the first Distribution Date, Mortgage Loans that did not provide for an
interest payment due during May 2007 shall be treated as bearing an interest
rate of 0.00% for the related Accrual Period.
NIM
Redemption Amount:
Any of
the Group I NIM Redemption Amount.
NIM
Residual Securities:
Any
preference shares, ownership certificate or other residual certificates issued
in connection with any Group I NIM Securities.
39
NIMS
Agreement:
With
respect to the Group I Certificates, any agreement pursuant to which any NIM
Securities are issued.
NIMS
Insurer:
With
respect to the Group I Certificates, 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.
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.
Notional
Amount:
With
respect to any Notional Certificate and any Distribution Date, such
Certificate’s Percentage Interest of the Class Notional Amount of such Class of
Certificates for such Distribution Date.
Notional
Certificate:
Any of
the Class I-X, Class 1-AIO, Class 3-AIO1 and Class 3-AIO2
Certificates.
Offered
Certificates:
Collectively, the Group I Certificates and the Group II Certificates (other
than
the Class II-M5, Class II-M6 and Class II-M7 Certificates).
Offered
Subordinate Certificates:
The
Class I-M1, Class I-M2, Class I-M3, Class I-M4, Class I-M5, Class I-M6, Class
I-M7, Class II-M1, Class II-M2, Class II-M3 and Class II-M4
Certificates.
Offering
Document:
The
Prospectus.
Officer’s
Certificate:
A
certificate signed by the Chairman of the Board, any Vice Chairman, the
President, any Vice President or any Assistant Vice President of a Person,
and
in each case delivered to the Trustee.
Opinion
of Counsel:
A
written opinion of counsel, reasonably acceptable in form and substance to
the
Trustee, and which may be in-house or outside counsel to the Depositor, the
Master Servicer or the Trustee but which must be Independent outside counsel
with respect to any such opinion of counsel concerning the transfer of any
Residual Certificate or concerning certain matters with respect to ERISA, or
the
taxation, or the federal income tax status, of each REMIC.
Original
Credit Support Percentage:
With
respect to any Class of Group II Subordinate Certificates, the Credit Support
Percentage for such Class of Subordinate Certificates on the Closing
Date.
Original
Group Subordinate Amount:
With
respect to any Mortgage Pool, the Group Subordinate Amount for such Mortgage
Pool as of the first Distribution Date.
40
Original
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 Mortgage Property.
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.
Payahead:
With
respect to any Mortgage Loan and any Due Date therefor, any Scheduled Payment
received by the Servicer during any Collection Period in addition to the
Scheduled Payment due on such Due Date, intended by the related Mortgagor to
be
applied on a subsequent Due Date or Due Dates.
Paying
Agent:
Any
paying agent appointed pursuant to Section 3.08.
PCAOB:
The
Public Company Accounting Oversight Board.
Percentage
Interest:
With
respect to any Certificate, its percentage interest in the undivided beneficial
ownership interest in the Trust Fund evidenced by all Certificates of the same
Class as such Certificate. With respect to any Offered Certificate other than
the Class I-X, Class I-P, Class II-P, Class I-LT-R, Class II-LT-R, Class I-R
and
Class II-R Certificates, 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 I-X, Class
I-P,
Class II-P, Class I-LT-R, Class II-LT-R, Class I-R and Class II-R Certificates,
the Percentage Interest evidenced thereby shall be as specified on the face
thereof, or otherwise be equal to 100%.
Permitted
Servicing Amendment:
Any
amendment to the Servicing Agreement pursuant to Section 11.03(a)(ii) 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.
PMI
Insurance Premium:
Not
applicable.
PMI
Insurer:
Not
applicable.
Pool
1
or
Pool
1
Mortgage Loans:
The
aggregate of the Mortgage Loans identified on the Mortgage Loan Schedule as
being included in Pool 1.
41
Pool
1
Monthly Excess Cashflow:
With
respect to any Distribution Date, an amount equal to the sum of (i) the Pool
1
Monthly Excess Interest for such Distribution Date, (ii) the product of (x)
the
Senior Proportionate Percentage for Pool 1 and (y) the Pool 1-2 Aggregate
Overcollateralization Release Amount for such Distribution Date and (iii) any
remaining Group I Principal Distribution Amount for such Distribution Date,
with
respect to Pool 1, after applying the principal payment priority set forth
in
Section 5A.02(d)(i)(C)(1).
Pool
1
Monthly Excess Cashflow Percentage:
With
respect to any Distribution Date, a fraction (expressed as a percentage) the
numerator of which is Pool 1 Monthly Excess Cashflow for that Distribution
Date
and the denominator of which is Pool 1-2 Monthly Excess Cashflow for such
Distribution Date.
Pool
1
Monthly Excess Interest:
With
respect to any Distribution Date, the amount of any Group I Interest Remittance
Amount for Pool 1 remaining after application of clause (i) of Section 5A.02(b)
on such date.
Pool
1
Net Funds Cap:
For
each
Distribution Date and the Class 1-AIO Certificates, an annual rate equal to
the
weighted average of the Net Mortgage Rates for the Pool 1 Mortgage Loans as
of
the first day of the related Collection Period.
Pool
1-2 Aggregate Loan Balance:
As of
any date of determination, an amount equal to the aggregate of the Pool Balances
of Pool 1 and Pool 2 as of such date.
Pool
1-2 Aggregate Overcollateralization Release Amount:
With
respect to any Distribution Date, an amount equal to the lesser of (x) the
Group
I Principal Remittance Amount related to the Mortgage Loans in Pool 1 and Pool
2
for such Distribution Date and (y) the amount, if any, by which (1) the Pool
1-2
Overcollateralization Amount for such date (calculated for this purpose on
the
basis of the assumption that 100% of the Group I Principal Remittance Amount
for
Pool 1 and Pool 2 for such date is applied in reduction of the Certificate
Principal Amounts of the Group 1 Senior Certificates (other than the Class
1-AIO
Certificates), the Group 2 Senior Certificates and the Group I Subordinate
Certificates) exceeds (2) the Pool 1-2 Targeted Overcollateralization
Amount.
Pool
1-2 Applied Loss Amount:
With
respect to any Distribution Date, after giving effect to all Realized Losses
incurred with respect to the Mortgage Loans in Pool 1 and Pool 2 (in the
aggregate) during the related Collection Period and distributions of principal
on such Distribution Date, the amount by which the aggregate Class Principal
Amount of the Group 1 Senior Certificates (other than the Class 1-AIO
Certificates), the Group 2 Senior Certificates and the Group I Subordinate
Certificates exceeds the Pool 1-2 Aggregate Loan Balance for such Distribution
Date.
Pool
1-2 Basis Risk Reserve Fund:
A fund
created as part of the Trust Fund pursuant to Section 5.06(a) of this Agreement
but which is not an asset of any of the REMICs.
Pool
1-2 Cumulative Loss Trigger Event:
With
respect to any Distribution Date, a Pool 1-2 Cumulative Loss Trigger Event
shall
occur if the fraction, expressed as a percentage, obtained by dividing (x)
the
aggregate amount of cumulative Realized Losses incurred on the Mortgage Loans
in
Pool 1 and Pool 2 from the Cut-off Date through the last day of the related
Collection Period by (y) the Pool 1-2 Cut-off Date Balance, exceeds the
applicable percentages described below with respect to such Distribution
Date:
42
|
Distribution
Date
|
Loss
Percentage
|
|
May
2009 through April 2010
|
0.40%
for the first month plus an additional 1/12th
of
0.10% for each month thereafter
|
|
May
2010 through April 2011
|
0.50%
for the first month plus an additional 1/12th
of
0.25% for each month thereafter
|
|
May
2011 through April 2012
|
0.75%
for the first month plus an additional 1/12th
of
0.25% for each month thereafter
|
|
May
2012 and thereafter
|
1.00%
|
Pool
1-2 Cut-off Date Balance:
With
respect to the Mortgage Loans in Pool 1 and Pool 2 on the Closing Date, the
Pool
1-2 Aggregate Loan Balance as of the Cut-off Date.
Pool
1-2 Delinquency Event:
With
respect to any Distribution Date, a Pool 1-2 Delinquency Event shall occur
if
the Pool 1-2 Rolling Three Month Delinquency Rate as of the last day of the
immediately preceding month equals or exceeds 50.00% of the Pool 1-2 Senior
Enhancement Percentage for such Distribution Date.
Pool
1-2 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 in Pool 1 and Pool 2 which are 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
1-2 Aggregate Loan Balance as of the close of business on the last day of such
month.
Pool
1-2 Initial Optional Termination Date:
The
Distribution Date occurring in the month following the month in which the Pool
1-2 Aggregate Loan Balance initially declines to less than 10.00% of the
aggregate Pool 1-2 Cut-off Date Balance.
Pool
1-2 Monthly Excess Cashflow:
With
respect to any Distribution Date, the sum of the Pool 1 Monthly Excess Cashflow
and Pool 2 Monthly Excess Cashflow for such date.
Pool
1-2 Monthly Excess Interest:
With
respect to any Distribution Date, the sum of Pool 1 Monthly Excess Interest
and
Pool 2 Monthly Excess Interest.
Pool
1-2 Net Excess Spread:
With
respect to any Distribution Date, the fraction, expressed as a percentage,
the
numerator of which is equal to the product of (i) the amount, if any, by which
(a) the aggregate of the Group I Interest Remittance Amount for Pool 1 and
Pool
2 for such Distribution Date exceeds (b) the Current Interest payable with
respect to the Group 1 Senior Certificates (other than the Class 1-AIO
Certificates), Group 2 Senior Certificates and the Group I Subordinate
Certificates for such Date and (ii) twelve, and the denominator of which is
the
Pool 1-2 Aggregate Loan Balance for such Distribution Date.
43
Pool
1-2 Overcollateralization Amount:
With
respect to any Distribution Date, the amount, if any, by which (x) the Pool
1-2
Aggregate Loan Balance for such Distribution Date determined as of the last
day
of the related Collection Period exceeds (y) the aggregate Class Principal
Amount of the Group 1 Senior Certificates (other than the Class 1-AIO
Certificates), the Group 2 Senior Certificates and the Group I Subordinate
Certificates after giving effect to distributions on such Distribution
Date.
Pool
1-2 Overcollateralization Deficiency:
With
respect to any Distribution Date, the amount, if any, by which (x) the Pool
1-2
Targeted Overcollateralization Amount for such Distribution Date exceeds (y)
the
Pool 1-2 Overcollateralization Amount for such Distribution Date, calculated
for
this purpose after giving effect to the reduction on such Distribution Date
of
the aggregate Certificate Principal Amount of the Group 1 Senior Certificates
(other than the Class 1-AIO Certificates), the Group 2 Senior Certificates
and
the Group I Subordinate Certificates resulting from the distribution of the
Group I Principal Distribution Amount for Pool 1 and Pool 2 on such Distribution
Date, but prior to allocation of any Pool 1-2 Applied Loss Amount on such
Distribution Date to the Group I Certificates.
Pool
1-2 Overcollateralization Floor:
With
respect to any Distribution Date after the Pool 1-2 Stepdown Date, 0.35% of
the
Pool 1-2 Aggregate Loan Balance as of the Cut-off Date.
Pool
1-2 Percentage:
With
respect to either Pool 1 or Pool 2 and any Distribution Date, the amount equal
to a fraction, expressed as a percentage, the numerator of which is the Pool
Balance for such Mortgage Pool for such date and the denominator of which is
the
Pool 1-2 Aggregate Loan Balance for such date.
Pool
1-2 Purchase Price:
A price
equal to the sum of (i) 100% of the unpaid principal balance of each Mortgage
Loan in Pool 1 and Pool 2 on the day of such purchase plus
interest
accrued thereon at the applicable Mortgage Rate to the Due Date in the Due
Period immediately preceding the related Distribution Date, (ii) 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, (iii) the
amount of any unreimbursed Servicing Advances and amounts owed to the Trustee
hereunder with respect to such Mortgage Loans, and (iv) the fair market value
of
any REO Property and any other property held by the Trust Fund with respect
to
such Mortgage Loans, such fair market value to be determined by an appraiser
or
appraisers mutually agreed upon by the Master Servicer and the Trustee (reduced,
in the case of REO Property, by (1) reasonably anticipated disposition costs
and
(2) any amount by which the fair market value as so reduced exceeds the
outstanding principal balance of the related Mortgage Loan) plus interest
accrued thereon at the applicable Net Mortgage Rate to the date of such
purchase.
Pool
1-2 Required Reserve Fund Amount:
With
respect to any Distribution Date on which the Pool 1-2 Net Excess Spread is
less
than 0.25%, the amount, if any by which (a) the product of 1.00% and the
aggregate Class Principal Amount of the Group 1 Senior Certificates, the Group
2
Senior Certificates and the Group I Subordinate Certificates immediately prior
to such Distribution Date exceeds (b) the amount on deposit in the Pool 1-2
Basis Risk Reserve Fund immediately prior to such date. With respect to any
Distribution Date on which the Pool 1-2 Net Excess Spread is equal to or greater
than 0.25%, the amount, if any, by which $1,000 exceeds the amount on deposit
in
the Pool 1-2 Basis Risk Reserve Fund immediately prior to such date;
provided,
however,
that on
any Distribution Date on which the Class Principal Amounts of each of the Group
1 Senior Certificates, the Group 2 Senior Certificates and the Group I
Subordinate Certificates has been reduced to zero, the Pool 1-2 Required Reserve
Fund Amount shall be zero.
44
Pool
1-2 Rolling Three Month Delinquency Rate:
With
respect to any Distribution Date, the fraction, expressed as a percentage,
equal
to the average of the Pool 1-2 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.
Pool
1-2 Senior Enhancement Percentage:
With
respect to any Distribution Date, the fraction, expressed as a percentage,
the
numerator of which is the sum of (x) the aggregate Class Principal Amount of
the
Group I Subordinate Certificates and (y) the Pool 1-2 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 for Pool 1 and Pool 2 has been distributed on such
Distribution Date and no Pool 1-2 Trigger Event has occurred) and the
denominator of which is the Pool 1-2 Aggregate Loan Balance for such
Distribution Date, in each case after giving effect to distributions on such
Distribution Date.
Pool
1-2 Senior Principal Distribution Amount:
With
respect to any Distribution Date (a) prior to the Pool 1-2 Stepdown Date or
if a Pool 1-2 Trigger Event is in effect with respect to such Distribution
Date,
an amount equal to 100% of the Group I Principal Distribution Amount for both
Pool 1 and Pool 2 and (b) on or after the Pool 1-2 Stepdown Date and as
long as a Pool 1-2 Trigger Event is not in effect with respect to such
Distribution Date, the amount, if any, by which (x) the aggregate Class
Principal Amount of the Group 1 Senior Certificates (other than the Class 1-AIO
Certificates) and the Group 2 Senior Certificates immediately prior to such
Distribution Date exceeds (y) the Pool 1-2 Senior Target Amount.
Pool
1-2 Senior Target Amount:
With
respect to each of Pool 1 and Pool 2 and any Distribution Date an amount equal
to the lesser of (a) the product of (i) 86.60% and (ii) the Pool 1-2 Aggregate
Loan 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
1-2
Aggregate Loan Balance for such Distribution Date determined as of the last
day
of the related Collection Period exceeds (2) the Pool 1-2 Overcollateralization
Floor.
Pool
1-2 Stepdown Date:
The
earlier of (x) the first Distribution Date following the Distribution Date
on
which the Class Principal Amounts of the Group 1 Senior Certificates (other
than
the Class 1-AIO Certificates) and the Group 2 Senior Certificates have each
been
reduced to zero and (y) the later to occur of (1) the Distribution Date in
May
2010 and (2) the first Distribution Date on which the Pool 1-2 Senior
Enhancement Percentage (calculated for this purpose after giving effect to
payments or other recoveries in respect of the Mortgage Loans in Pool 1 and
Pool
2 during the related Collection Period, but before giving effect to
distributions on any Group I Certificates such Distribution Date) is greater
than or equal to 13.40%.
45
Pool
1-2 Subordinate Net Funds Cap:
For any
Distribution Date, the weighted average of the Pool 1 Net Funds Cap and the
Pool
2 Net Funds Cap weighted on the basis of the Pool Subordinate Amount for each
Pool for that Distribution Date; provided,
however,
that on
any Distribution Date after the aggregate Class Principal Amount of the Senior
Certificates related to any Mortgage Pool has been reduced to zero, such
weighting will be on the bases of the Pool Balance of the remaining Mortgage
Pool.
Pool
1-2 Target Amount:
With
respect to any Distribution Date, an amount equal to the Pool 1-2 Aggregate
Loan
Balance for such Distribution Date minus
the Pool
1-2 Targeted Overcollateralization Amount for such Distribution
Date.
Pool
1-2 Targeted Overcollateralization Amount:
With
respect to any Distribution Date, prior to the Pool 1-2 Stepdown Date an amount
equal to $4,436,095.19 (i.e.,
0.90%
of the Pool 1-2 Aggregate Loan Balance as of the Cut-off Date) and (y) for
any
Distribution Date on or after the Pool 1-2 Stepdown Date, the greater of (1)
the
lesser of (a) $4,436,095.19 and (b) 1.80% of the Pool 1-2 Aggregate Loan Balance
as of the last day of the Collection Period and (2) the Pool 1-2
Overcollateralization Floor; provided,
however,
for any
Distribution Date on or after the Pool 1-2 Stepdown Date and for which a Pool
1-2 Trigger Event is in effect, the Pool 1-2 Targeted Overcollateralization
Amount will be equal to the Pool 1-2 Targeted Overcollateralization Amount
in
effect for the immediately preceding Distribution Date.
Pool
1-2 Termination Event:
As
defined in Section 7.01(a).
Pool
1-2 Trigger Event:
With
respect to any Distribution Date, means that either a Pool 1-2 Delinquency
Event
or a Pool 1-2 Cumulative Loss Trigger Event is in effect for such Distribution
Date.
Pool
2
or
Pool
2
Mortgage Loans:
The
aggregate of the Mortgage Loans identified on the Mortgage Loan Schedule as
being included in Pool 2.
Pool
2
Cut-off Date Balance:
With
respect to the Mortgage Loans in Pool 2 on the Closing Date, the Pool Balance
of
such Mortgage Loans as of the Cut-off Date.
Pool
2
Monthly Excess Cashflow:
With
respect to any Distribution Date, an amount equal to the sum of (i) the Pool
2
Monthly Excess Interest for such Distribution Date, (ii) the product of (x)
the
Senior Proportionate Percentage for Pool 2 and (y) the Pool 1-2 Aggregate
Overcollateralization Release Amount for such Distribution Date and (iii) any
remaining Group I Principal Distribution Amount for such Distribution Date
with
respect to Pool 2, after applying the principal payment priority set forth
in
Section 5A.02(d)(i) or Section 5A.02(d)(ii), as applicable.
Pool
2
Monthly Excess Cashflow Percentage:
With
respect to any Distribution Date, a fraction (expressed as a percentage) the
numerator of which is Pool 2 Monthly Excess Cashflow for that Distribution
Date
and the denominator of which is Pool 1-2 Monthly Excess Cashflow for such
Distribution Date.
46
Pool
2
Monthly Excess Interest:
With
respect to any Distribution Date, the amount of any Group I Interest Remittance
Amount for Pool 2 remaining after application of clause (i) of Section 5A.02(c)
on such date.
Pool
2
Net Funds Cap:
For
each Distribution Date and the Class 2-A1 and Class 2-A2 Certificates, an annual
rate equal to the weighted average of the Net Mortgage Rates for the Pool 2
Mortgage Loans as of the first day of the related Collection
Period.
Pool
3
or
Pool
3
Mortgage Loans:
The
aggregate of the Mortgage Loans identified on the Mortgage Loan Schedule as
being included in Pool 3.
Pool
3
Cut-off Date Balance:
With
respect to the Mortgage Loans in Pool 3 on the Closing Date, the Pool Balance
of
such Mortgage Loans as of the Cut-off Date.
Pool
3
Initial Optional Termination Date:
The
Distribution Date occurring in the month following the month in which the Pool
Balance of Pool 3 initially declines to less than 10.00% of the Pool 3 Cut-off
Date Balance.
Pool
3
Purchase Price:
A price
equal to the sum of (i) 100% of the unpaid principal balance of each Mortgage
Loan in Pool 3 on the day of such purchase plus
interest
accrued thereon at the applicable Mortgage Rate to the Due Date in the Due
Period immediately preceding the related Distribution Date, (ii) 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, (iii) the
amount of any unreimbursed Servicing Advances and amounts owed to the Trustee
hereunder with respect to such Mortgage Loans, and (iv) the fair market value
of
any REO Property and any other property held by the Trust Fund with respect
to
such Mortgage Loans, such fair market value to be determined by an appraiser
or
appraisers mutually agreed upon by the Master Servicer and the Trustee (reduced,
in the case of REO Property, by (1) reasonably anticipated disposition costs
and
(2) any amount by which the fair market value as so reduced exceeds the
outstanding principal balance of the related Mortgage Loan) plus interest
accrued thereon at the applicable Net Mortgage Rate to the date of such
purchase.
Pool
3
Termination Event:
As
defined in Section 7.01(a).
Pool
Balance:
With
respect to each Mortgage Pool, the aggregate of the Scheduled Principal Balances
of all Mortgage Loans in such Mortgage Pool at the date of
determination.
Pool
Percentage:
With
respect to each Mortgage Pool and any Distribution Date, the fraction, expressed
as a percentage, the numerator of which is the Pool Balance for such Mortgage
Pool for such date and the denominator of which is the Aggregate Loan Balance
for such date.
Pool
Subordinate Amount:
With
respect to either Pool 1 or Pool 2 and any Distribution Date, the excess of
the
related Pool Balance for such Mortgage Pool for the immediately preceding
Distribution Date (or on the Cut-off Date in the case of the first Distribution
Date) over the aggregate Class Principal Amount of the Group 1 Senior
Certificates (other than the Class 1-AIO Certificates) (in the case of Pool
1)
or the aggregate Class Principal Amount of the Group 2 Senior Certificates
(in
the case of Pool 2) immediately prior to the related Distribution Date;
provided,
that
such amount shall never be less than zero.
47
Pooling
REMIC 1 Regular Interests:
Lower-Tier Interests in Pooling REMIC 1 as described in the Preliminary
statement.
Pooling
REMIC 2 Regular Interests:
Lower-Tier Interests in Pooling REMIC 2, as described in the Preliminary
Statement.
Pooling
REMIC Regular Interests:
Any of
the Pooling REMIC 1 Regular Interests or the Pooling REMIC 2 Regular Interests,
as applicable.
Prepayment
Interest Excess:
With
respect to any Distribution Date and any Mortgage Loan for which Aurora is
the
primary servicer, any Principal Prepayment in full received on the Mortgage
Loans from the first day through the sixteenth (16th)
day of
the month during which such Distribution Date occurs, all amounts paid in
respect of interest at the applicable Net Mortgage Rate on such Principal
Prepayment.
Prepayment
Interest Shortfall:
With
respect to any Distribution Date and any Principal Prepayment in full with
respect to those Mortgage Loans serviced by Aurora if such Principal Prepayment
is received on or after the seventeenth (17th)
day of
the month immediately preceding the month of such Distribution Date, but on
or
before the last day of the month immediately preceding the month of such
Distribution Date, the difference between (i) one full month’s interest at the
applicable Net Mortgage Rate (after giving effect to any applicable Relief
Act
Reduction) on the outstanding principal balance of such Mortgage Loan
immediately prior to such prepayment and (ii) the amount of interest actually
received with respect to such Mortgage Loan in connection with such Principal
Prepayment.
Prepayment
Period:
With
respect to any Distribution Date and a Principal Prepayment in full (including
any liquidation) with respect to those Mortgage Loans serviced by Aurora, the
period from the seventeenth day of the month immediately preceding the month
of
such Distribution Date to the sixteenth (16th)
day of
the month of such Distribution Date (except in the case of the May 2007
Distribution Date, for which the related Prepayment Period will be the period
from April 1, 2007 through May 16, 2007. With respect to those Mortgage Loans
serviced by Aurora, any Distribution Date and any Principal Prepayment in part,
the calendar month immediately preceding the month in which such Distribution
Date occurs.
Prepayment
Premiums:
Any
prepayment fees and penalties to be paid by the Mortgagor on a Mortgage Loan
with respect to which the Seller owns the servicing rights, as indicated in
the
Mortgage Loan Schedule. Prepayment Premiums shall not be included in the
Principal Remittance Amount or the Interest Remittance Amount with respect
to
any Pool.
Primary
Mortgage Insurance Policy:
Any
mortgage guaranty insurance, if any, on an individual Mortgage Loan, including
any Bulk PMI Policy or any LPMI Policy, as evidenced by a policy or certificate,
whether such policy is obtained by the originator, the lender, the borrower
or
the Seller on behalf of the Trust Fund.
Principal
Only Certificate:
The
Class 1-APO Certificates.
48
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.
Proceeding:
Any
suit in equity, action at law or other judicial or administrative
proceeding.
Proprietary
Lease:
With
respect to any Cooperative Unit, a lease or occupancy agreement between a
Cooperative Corporation and a holder of related Cooperative Shares.
Prospectus:
The
prospectus supplement dated April 27, 2007 together with the accompanying
prospectus dated March 26, 2007, relating to the Offered
Certificates.
Purchase
Price:
With
respect to the purchase of a Mortgage Loan or related REO Property pursuant
to
Section 2.05 of 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 unreimbursed
Servicing Advances with respect to such Mortgage Loan; (d) any costs and damages
incurred by the Trust Fund with respect to such Mortgage Loan in connection
with
any violation of any federal, state or local predatory or abusive lending laws
or other similar laws arising from or in connection with the origination of
such
Mortgage Loan; and (e) the fair market value of all other property being
purchased (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). The Master Servicer, the Servicer (or the Trustee, in its capacity as
successor master servicer, if applicable) and each Custodian 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
or
related REO Property that are reimbursable to the Master Servicer or the
Servicer under this Agreement, the Servicing Agreement (or to the Trustee
hereunder in its capacity as successor master servicer) or the related Custodial
Agreement, together with any accrued and unpaid compensation due to the Master
Servicer, the Servicer, each Custodian or the Trustee hereunder or
thereunder.
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;
49
(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;
(iii) provide
that if at any time the then current credit standing of the obligor under such
guaranteed investment contract is such that continued investment pursuant to
such contract of funds would result in a downgrading of any rating of the
Certificates or the NIM Securities, the 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 related to this
transaction and to write the insurance provided in connection therewith 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) is not a
Cooperative Loan unless the related Deleted Mortgage Loan was a Cooperative
Loan, (vii) if applicable, has a next adjustment date not later than the next
adjustment date on the Deleted Mortgage Loan, (viii) has the same Due Date
as
the Deleted Mortgage Loan, (ix) has a remaining stated term to maturity not
longer than 18 months and not more than 18 months shorter than the remaining
stated term to maturity of the related Deleted Mortgage Loan; provided,
that
in
no case should such substitute Mortgage Loan have a maturity date later than
the
Final Scheduled Distribution Date; (x) is current as of the date of
substitution, (xi) has a Loan-to-Value Ratio as of the date of substitution
equal to or lower than the Loan-to-Value Ratio of the Deleted Mortgage Loan
as
of such date, (xii) has been underwritten by the Transferor in accordance with
the same underwriting criteria and guidelines as the Deleted Mortgage Loan,
(xiii) has a risk grading determined by the Seller at least equal to the risk
grading assigned on the Deleted Mortgage Loan, (xiv) is secured by the same
property type as the Deleted Mortgage Loan, (xv) conforms to each representation
and warranty applicable to the Deleted Mortgage Loan made in the related
Mortgage Loan Sale Agreement, (xvi) has the same or higher lien position as
the
Deleted Mortgage Loan, (xvii) is covered by a Primary Mortgage Insurance Policy
if the Deleted Mortgage Loan was so covered, (xviii) 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
(xix) for any Mortgage Loan to be substituted into Pool 1, has an original
Scheduled Principal Balance within the maximum dollar amount limitations
prescribed by Xxxxxx Xxx for conforming one-to-four family first and second
lien
residential mortgaged properties. 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 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.
50
Rating
Agency:
Each of
Xxxxx’x and Fitch, and any Rating Agency identified in a supplement to the
prospectus supplement dated April 27, 2007.
Realized
Loss:
With
respect to each Liquidated Mortgage Loan, an amount equal to (i) the unpaid
principal balance of such Mortgage Loan as of the date of liquidation, minus
(ii) Liquidation Proceeds received, to the extent allocable to principal, net
of
amounts that are reimbursable therefrom to the Master Servicer or the Servicer
with respect to such Mortgage Loan (other than Advances of principal) including
expenses of liquidation. In determining whether a Realized Loss is a Realized
Loss of principal, Liquidation Proceeds shall be allocated, first, to payment
of
expenses related to such Liquidated Mortgage Loan, then to accrued unpaid
interest and finally to reduce the principal balance of the Mortgage
Loan.
Recognition
Agreement:
With
respect to any Cooperative Loan, an agreement between the related Cooperative
Corporation and the originator of such Mortgage Loan to establish the rights
of
such originator in the related Cooperative Property.
Record
Date:
With
respect to the Certificates and 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.
51
Regulation
S:
Not
applicable.
Regulation
S Global Security:
Not
applicable.
Related
Senior Principal Distribution Amount:
For
each of Pool 1 and Pool 2 for any Distribution Date will be equal to the lesser
of (x) the sum of the Class Principal Amounts of the Group 1 Senior Certificates
(other than the Class 1-AIO Certificates) (with respect to Pool 1) and the
Group
2 Senior Certificates (with respect to Pool 2) and (y) the product of (a) the
Pool 1-2 Senior Principal Distribution Amount and (b) the related Senior
Proportionate Percentage in each case for such date.
Relevant
Servicing Criteria:
The
Servicing Criteria applicable to each party, as set forth on Exhibit O 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 Trustee, the Paying Agent, each 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:
The
Servicemembers Civil Relief Act, as amended, and any similar state law or
regulation.
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 Relief
Act, any amount by which interest collectible on such Mortgage Loan for the
Due
Date in the related Collection Period is less than interest accrued thereon
for
the applicable one-month period at the Mortgage Rate without giving effect
to
such reduction.
REMIC:
Each
pool of assets in the Trust Fund designated as a REMIC pursuant to the
Preliminary Statement.
REMIC
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.
REO
Property:
A
Mortgaged Property acquired by the Trust Fund through foreclosure or
deed-in-lieu of foreclosure in connection with a defaulted Mortgage Loan or
otherwise treated as having been acquired pursuant to the REMIC
Provisions.
Reportable
Event:
As
defined in Section 6.20(f)(i).
Reporting
Servicer:
As
defined in Section 6.20(e)(i).
Residual
Certificates:
The
Class I-LT-R Certificates, Class II-LT-R Certificates, the Class I-R
Certificates and Class II-R Certificates.
52
Responsible
Officer:
When
used with respect to the Trustee (including in its capacity as Paying Agent),
any vice president, assistant vice president, the secretary, any assistant
secretary, or any officer, working in its Corporate Trust Office, or corporate
trust group, as applicable, 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 II-M5, Class II-M6, Class II-M7, Class I-P, Class II-P, Class I-X, Class
I-LT-R, Class II-LT-R, Class I-R or Class II-R Certificate.
Restricted
Class:
With
respect to each Class of Group II Subordinate Certificates other than the Class
II-M1 Certificates, any related Class of lower priority.
Restricted
Global Security:
Not
Applicable.
Rules:
As
defined in Section 6.20(c).
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
or as a result of any related Deficient Valuation (in each case, 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 the Servicer or the
Master Servicer, and all amounts received thereon which are 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 and the Cut-off Date, as specified in the Mortgage
Loan Schedule. The Scheduled Principal Balance of a Liquidated Mortgage Loan
shall be zero.
Section
7.01(d) Purchase Event:
Any of
(i) the purchase of all the Pooling REMIC 1 Regular Interests, (ii) the purchase
of all the Pooling REMIC 2 Regular Interests or (iii) the purchase of the
Pooling REMIC 1 Regular Interests and the Pooling REMIC 2 Regular
Interests.
Securities
Act:
The
Securities Act of 1933, as amended.
Security
Agreement:
With
respect to any Cooperative Loan, the agreement between the owner of the related
Cooperative Shares and the originator of the related Mortgage Note that defines
the terms of the security interest in such Cooperative Shares and the related
Proprietary Lease.
53
Seller:
Xxxxxx
Brothers Holdings Inc. or any successor in interest thereto.
Seller
Remittance Amount:
With
respect to the Servicer, the meaning assigned to such term in the Servicing
Agreement.
Senior
Certificates:
Collectively, the Group 1 Senior Certificates, the Group 2 Senior Certificates
and the Group II Senior Certificates.
Senior
Proportionate Percentage:
For
Pool 1 with respect to any Distribution Date a fraction, expressed as a
percentage, the numerator of which is the Group I Principal Remittance Amount
for Pool 1 for such Distribution Date and the denominator of which is the
aggregate of the Group I Principal Remittance Amounts for Pool 1 and Pool 2
for
such date. For Pool 2 with respect to any Distribution Date a fraction,
expressed as a percentage, the numerator of which is the Group I Principal
Remittance Amount for Pool 2 for such Distribution Date and the denominator
of
which is the aggregate of the Group I Principal Remittance Amounts for Pool
1
and Pool 2 for such date.
Servicer:
Aurora,
or its successor in interest.
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.
Servicer
Remittance Date:
The day
in each calendar month on which the Servicer is required to remit payments
to
the Collection Account, as specified in the Servicing Agreement, which is the
18th
day of
each calendar month (or, if such 18th
day is
not a Business Day, the next succeeding Business Day).
Servicing
Advances:
Expenditures incurred by the Servicer in connection with the liquidation or
foreclosure of a Mortgage Loan which are eligible for reimbursement under the
Servicing Agreement.
Servicing
Agreement:
The
servicing agreement identified on Exhibit E hereto, dated as of April 1, 2007,
among the Seller, the Master Servicer and the Servicer, and any other servicing
agreement entered into between a successor servicer and the Seller pursuant
to
the terms of this Agreement.
Servicing
Criteria:
The
criteria set forth in paragraph (d) of Item 1122 of Regulation AB, as such
may
be amended from time to time.
Servicing
Fee:
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 Scheduled Principal
Balance of such Mortgage Loan as of the first day of the related Collection
Period.
Servicing
Fee Rate:
With
respect to each Mortgage Loan, the rate specified in the Servicing
Agreement.
54
Servicing
Function Participant:
Any
Subservicer, Subcontractor or any other Person, other than the Servicer, each
Custodian, the Master Servicer, the Paying Agent and the Trustee, that is
participating in the servicing function within the meaning of Regulation AB,
unless such Person’s activities relate only to 5% or less of the Mortgage
Loans.
Servicing
Officer:
Any
officer of the Servicer involved in or responsible for, the administration
and
servicing of the Mortgage Loans whose name appears on a list of servicing
officers furnished by the Servicer to the Master Servicer or Seller upon
request, as such list may from time to time be amended.
Sponsor:
Xxxxxx
Brothers Holdings Inc.
Startup
Day:
The day
designated as such pursuant to Section 10.01(b) hereof.
Subcontractor:
Any
vendor, subcontractor or other Person that is not responsible for the overall
servicing (as “servicing” is commonly understood by participants in the
mortgage-backed securities market) of the Mortgage Loans but performs one or
more discrete material servicing functions required to be performed under this
Agreement, the Servicing Agreement or any subservicing agreement, as identified
in Item 1122(d) of Regulation AB with respect to the Mortgage Loans under the
direction or authority of the Servicer, the Master Servicer, the Paying Agent,
the Trustee or a Custodian.
Subsequent
Recovery:
Any
amount recovered by the Servicer or the Master Servicer with respect to a
Liquidated Mortgage Loan with respect to which a Realized Loss was incurred
after the liquidation or disposition of such Mortgage Loan.
Subservicer:
Any
Person that (i) is considered to be a Servicing Function Participant, (ii)
services Mortgage Loans on behalf of the Servicer or Additional Servicer, and
(iii) is responsible for the performance (whether directly or through
subservicers or Subcontractors) of Servicing functions required to be performed
under this Agreement, the Servicing Agreement or any subservicing agreement
that
are identified in Item 1122(d) of Regulation AB.
Substitution
Amount:
The
amount, if any, by which the Scheduled Principal Balance of a Deleted Mortgage
Loan exceeds the Scheduled Principal Balance of the related Qualifying
Substitute Mortgage Loan, or aggregate Scheduled Principal Balance, if
applicable, plus unpaid interest thereon, and any related unpaid Advances or
Servicing Advances or unpaid Servicing Fees, plus any costs and damages incurred
by the Trust Fund associated with violation of any federal, state or local
predatory or abusive lending laws in connection with the origination of such
Deleted Mortgage Loan.
Tax
Matters Person:
The
“tax matters person” as specified in the REMIC Provisions.
Termination
Price:
As
defined in Section 7.01.
Title
Insurance Policy:
A title
insurance policy maintained with respect to a Mortgage Loan.
55
Total
Distribution Amount:
With
respect to any Distribution Date and Pool 1 and Pool 2, the sum of (i) the
Group
I Interest Remittance Amount for Pool 1 and Pool 2 for such date, (ii) the
Group
I Principal Remittance Amount for Pool 1 and Pool 2 for such date, and (iii)
the
Prepayment Premiums with respect to Pool 1 and Pool 2.
Transfer
Agreements:
As
defined in the Mortgage Loan Sale Agreement.
Transferor:
Each
seller of Mortgage Loans to the Seller pursuant to the Transfer
Agreements.
Trust
Fund:
The
corpus of the Xxxxxx XS Trust 2007-5H created pursuant to this Agreement,
consisting of the Mortgage Loans, the assignment of the Depositor’s rights under
the Transfer Agreements, the Mortgage Loan Sale Agreement and the Servicing
Agreement, such amounts as shall from time to time be held in the Pool 1-2
Basis
Risk Reserve Fund, the Collection Account, Certificate Account, any Custodial
Account and any Escrow Account, the Insurance Policies (or coverage thereunder),
any REO Property and the other items referred to in, and conveyed to the Trustee
under, Section 2.01(a).
Trust
Fund Termination Event:
The
later to occur of the Pool 1-2 Termination Event or Pool 3 Termination
Event.
Trustee:
LaSalle
Bank National Association, a national banking association, not in its individual
capacity, but solely in its capacity as trustee for the benefit of the
Certificateholders under this Agreement, and any successor thereto, and any
corporation or national banking association resulting from or surviving any
consolidation or merger to which it or its successors may be a party and any
successor trustee as may from time to time be serving as successor trustee
hereunder.
Trustee
Fee:
As to
any Distribution Date, any investment earnings from amounts on deposit in the
Certificate Account.
UCC
or
Uniform Commercial Code:
The
Uniform Commercial Code as in effect in any applicable jurisdiction from time
to
time.
Underlying
REMIC Certificates:
The
following Classes of Certificates, issued hereunder in uncertificated form
to
the Exchange Trustee: Class 3-A1 and Class 3-AIO2 Certificates.
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.
Underwriting
Agreement:
The
Underwriting Agreement Standard Terms, dated as of December 21, 2005, as
supplemented by the Terms Agreement, dated as of April 27, 2007, each by and
between the Depositor and Xxxxxx Brothers Inc.
Unpaid
Basis Risk Shortfall:
With
respect to any Distribution Date and any Class of Group I Certificates (other
than the Class 1-A1, Class 1-A2 and Class 1-APO Certificates), the aggregate
of
all Basis Risk Shortfalls with respect to such Certificates 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.
56
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, 93% of all Voting Interests shall
be
allocated to the Offered Certificates. Such Voting Interests shall be allocated
among the Offered Certificates (other than the Class 1-AIO, Class 1-APO, Class
3-AIO1 and Class 3-AIO2 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 the Class 1-AIO, Class 3-AIO1 and Class
3-AIO2 Certificates (in the aggregate) in proportion to their Class Notional
Amounts, while they remain outstanding. At all times during the term of this
Agreement, 1% of all Voting Interests shall be allocated to the Class I-APO
Certificates, while they remain outstanding. At all times during the term of
this Agreement, 1% of all Voting Interests shall be allocated to each of the
Class I-P and Class II-P Certificates, while they remain outstanding. At all
times during the term of this Agreement, 1% of all Voting Interests shall be
allocated to each of the Class I-X, Class I-R and Class II-R 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. Voting Interests allocated to a Class of Exchange
Certificates shall be proportionately allocated to the related Class or Classes
of Exchangeable Certificates on the basis of the related exchange proportions.
In the case of the purchase by the Master Servicer of the Pooling REMIC 1
Regular Interests pursuant to a Section 7.01(d) Purchase Event, the LTURI-holder
shall be allocated 100% of the Voting Interests of the Group I Certificates,
the
Class I-X Certificates and the Class I-R Certificates 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 any Class of Certificates may be exercised by
the
LTURI-holder. In the case of the purchase by the Master Servicer of the Pooling
REMIC 2 Regular Interests pursuant to a Section 7.01(d) Purchase Event, the
LTURI-holder shall be allocated 100% of the Voting Interests of the Group II
Certificates and Class II-R Certificates 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 any Class of such Certificates may be exercised by the LTURI-holder.
In the case of the purchase by the Master Servicer of the Pooling REMIC 1
Regular Interests and the Pooling REMIC 2 Regular Interests pursuant to a
Section 7.01(d) 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 any
Class of Certificates may be exercised by the LTURI-holder.
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
or
the Servicer.
57
Section
1.03. Calculations
Respecting Accrued Interest.
Accrued
interest, if any, on the Certificates (other than the Class 1-APO Certificates)
shall be calculated based upon a 360-day year consisting of twelve 30-day
months.
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), any Custodial Accounts and all amount from
time
to time credited to and the proceeds of the Custodial Accounts, any Escrow
Account established pursuant to Section 9.06 and the Pool 1-2 Basis Risk Reserve
Fund established pursuant to Sections 5.06(a), 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 (or rights
to proceeds or payment 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 proceeds of the
foregoing, to have and to hold (or a Custodian on its behalf), in trust; and
the
Trustee declares that, subject to the review provided for in Section 2.02,
it
has received and shall hold the Trust Fund, as trustee, in trust, for the
benefit and use of the Holders of the Certificates and for the purposes and
subject to the terms and conditions set forth in this Agreement, and,
concurrently with such receipt, has caused to be executed, authenticated and
delivered to or upon the order of the Depositor, in exchange for the Trust
Fund,
Certificates in the authorized denominations evidencing the entire ownership
of
the Trust Fund.
Concurrently
with the execution and delivery of this Agreement, the Depositor does hereby
assign to the Trustee all of its rights and interest under the Mortgage Loan
Sale Agreement, including all rights of the Seller under the Servicing Agreement
and each Transfer Agreement (including the rights to enforce the related
Transferor’s obligation to repurchase First Payment Default Mortgage Loans), 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.
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It
is
agreed and understood by the Depositor and the Trustee (and the Seller has
so
represented and recognized in the Mortgage Loan Sale Agreement) that it is
not
intended that any Mortgage Loan to be included in the Trust Fund be (i) a
“High-Cost Home Loan” as defined in the New Jersey Home Ownership Act effective
November 27, 2003, (ii) a “High-Cost Home Loan” as defined in the New Mexico
Home Loan Protection Act effective January 1, 2004, (iii) a “High-Cost Home
Mortgage Loan” as defined in the Massachusetts Predatory Home Loan Practices Act
effective November 7, 2004 or (iv) a “High Cost Home Loan” as defined in the
Indiana Home Loan Practices Act effective January 1, 2005.
The
foregoing sale, transfer, assignment, set-over, deposit and conveyance does
not
and is not intended to result in the creation or assumption by the Trustee
of
any obligations of the Depositor, the Seller or any other Person in connection
with the Mortgage Loans.
The
Depositor shall have the right to receive any and all loan-level information
regarding the characteristics and performance of the Mortgage Loans upon
request, and to publish, disseminate or otherwise utilize such information
in
its discretion, subject to applicable laws and regulations.
(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)
if
applicable, the original of any guarantee, security agreement or pledge
agreement executed in connection with the Mortgage Note, assigned to the
Trustee;
(iii)
with
respect to any Mortgage Loan other than a Cooperative 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 delivered 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;
59
(iv)
the
original of each assumption, modification or substitution agreement, if any,
relating to the Mortgage Loans, or, as to any assumption, modification or
substitution agreement which cannot be delivered on or prior to the Closing
Date
because of a delay caused by the public recording office where such assumption,
modification or substitution agreement has been delivered for recordation,
a
photocopy of such assumption, modification or substitution agreement, pending
delivery of the original thereof, together with an Officer’s Certificate of the
Depositor certifying that the copy of such assumption, modification or
substitution agreement delivered to the Trustee (or the applicable Custodian)
is
a true copy and that the original of such agreement has been forwarded to the
public recording office;
(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 “LaSalle Bank National
Association, as Trustee of the Xxxxxx XS Trust Mortgage Pass-Through
Certificates, Series 2007-5H,” 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 Transferor, or, in
the
case of an Intervening Assignment that has been lost, a written Opinion of
Counsel delivered 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 other than a Cooperative 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)
if
applicable, the original Primary Mortgage Insurance Policy or certificate or,
an
electronic certification evidencing the existence of the Primary Mortgage
Insurance Policy or certificate, if private mortgage guaranty insurance is
required;
(ix)
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;
60
(x)
with
respect to any manufactured housing contract, any related manufactured housing
sales contract, installment loan agreement or participation interest;
and
(xi)
with
respect to any Cooperative Loan, the Cooperative Loan Documents.
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 other than a Cooperative
Loan shall be recorded; provided,
however,
that
such Assignments need not be recorded if, on or prior to the Closing Date,
the
Depositor delivers, at its own expense, an Opinion of Counsel addressed to
the
Trustee (which must be Independent counsel) acceptable to the Trustee and the
Rating Agencies, to the effect that recording in such states is not required
to
protect the Trustee’s interest in the related Non-MERS Mortgage Loans;
provided,
further,
that
notwithstanding the delivery of any Opinion of Counsel, the Master Servicer
shall cause the Servicer to submit each Assignment of Mortgage for recording
upon the occurrence of a bankruptcy, insolvency or foreclosure relating to
the
Mortgagor under the related Mortgage. Subject to the preceding sentence, as
soon
as practicable after the Closing Date (but in no event more than three months
thereafter except to the extent delays are caused by the applicable recording
office), the Master Servicer, at the expense of the Depositor and with the
cooperation of the Servicer, shall cause to be properly recorded by the Servicer
in each public recording office where the related Mortgages are recorded each
Assignment of Mortgage referred to in subsection (b)(v) above with respect
to
each Non-MERS Mortgage Loan. With respect to each Cooperative Loan, the Master
Servicer, at the expense of the Depositor and with the cooperation of the
Servicer, shall cause the Servicer to take such actions as are necessary under
applicable law in order to perfect the interest of the Trustee in the related
Mortgaged Property.
(ii) With
respect to each MERS Mortgage Loan, the Master Servicer, at the expense of
the
Depositor and with the cooperation of the Servicer, shall cause the Servicer
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 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 Servicer in trust for the benefit of the Trustee
and
the Certificateholders.
61
(f)
The
Depositor shall have the right to receive any and all loan-level information
regarding the characteristics and performance of the Mortgage Loans upon
request, and to publish, disseminate or otherwise utilize such information
in
its discretion, subject to applicable laws and regulations.
(g)
The
trust
created hereunder is hereby named “Xxxxxx XS Trust 2007-5H.”
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 Trustee, the Depositor, the Master
Servicer 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).
(b)
Within
45
days after the Closing Date, the Trustee or the applicable Custodian on behalf
of the Trustee, will, for the benefit of the 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 Trustee, 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 applicable Custodian to give the notice
contemplated herein within 45 days after the Closing Date shall not affect
or
relieve the Depositor of its obligation to repurchase any Mortgage Loan pursuant
to this Section 2.02 or any other Section of this Agreement requiring the
repurchase of Mortgage Loans from the Trust Fund.
62
(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 Custodial Agreement. The Trustee is hereby
authorized and directed by the Depositor to appoint the Custodians and to
execute and deliver the Custodial Agreements.
(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
the
Servicing Agreement. The Depositor hereby directs the Trustee, solely in its
capacity as Trustee hereunder, to execute and deliver, concurrently with the
execution and delivery of this Agreement and the Servicing Agreement to which
the Trustee is a party.
Section
2.03. Representations
and Warranties of the Depositor.
63
(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;
(iv)
this
Agreement has been duly executed and delivered by the Depositor and, assuming
due authorization, execution and delivery by the Trustee and the Master Servicer
constitutes a valid and binding obligation of the Depositor enforceable against
it in accordance with its terms except as such enforceability may be subject
to
(A) applicable bankruptcy and insolvency laws and other similar laws affecting
the enforcement of the rights of creditors generally and (B) general principles
of equity regardless of whether such enforcement is considered in a proceeding
in equity or at law;
(v)
there
are
no actions, suits or proceedings pending or, to the knowledge of the Depositor,
threatened or likely to be asserted against or affecting the Depositor, before
or by any court, administrative agency, arbitrator or governmental body (A)
with
respect to any of the transactions contemplated by this Agreement or (B) with
respect to any other matter which in the judgment of the Depositor will be
determined adversely to the Depositor and will if determined adversely to the
Depositor materially and adversely affect it or its business, assets, operations
or condition, financial or otherwise, or adversely affect its ability to perform
its obligations under this Agreement; and
(vi)
immediately
prior to the transfer and assignment of the Mortgage Loans to the Trustee,
the
Depositor was the sole owner of record and holder of each Mortgage Loan, and
the
Depositor had good and marketable title thereto, and had full right to transfer
and sell each Mortgage Loan to the Trustee free and clear, subject only to
(1)
liens of current real property taxes and assessments not yet due and payable
and, if the related Mortgaged Property is a condominium unit, any lien for
common charges permitted by statute, (2) covenants, conditions and restrictions,
rights of way, easements and other matters of public record as of the date
of
recording of such Mortgage acceptable to mortgage lending institutions in the
area in which the related Mortgaged Property is located and specifically
referred to in the lender’s Title Insurance Policy or attorney’s opinion of
title and abstract of title delivered to the originator of such Mortgage Loan,
and (3) such other matters to which like properties are commonly subject which
do not, individually or in the aggregate, materially interfere with the benefits
of the security intended to be provided by the Mortgage, of any encumbrance,
equity, participation interest, lien, pledge, charge, claim or security
interest, and had full right and authority, subject to no interest or
participation of, or agreement with, any other party, to sell and assign each
Mortgage Loan pursuant to this Agreement.
64
(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 (other than a
breach by the Seller of the representations made pursuant to Sections
1.04(b)(xii), 1.04(b)(xiii), 1.04(b)(xiv), 1.04(b)(xv), 1.04(b)(xvi) and
1.04(b)(xvii) of the Mortgage Loan Sale Agreement) shall be their rights to
enforce the obligations of the applicable Transferor under any applicable
representation or warranty made by it. Pursuant to the terms of the Mortgage
Loan Sale Agreement, the representations and warranties made by the Seller
pursuant to Sections 1.04(b)(xii), 1.04(b)(xiii), 1.04(b)(xiv), 1.04(b)(xv),
1.04(b)(xvi) and 1.04(b)(xvii) of the Mortgage Loan Sale Agreement shall be
the
direct obligations of the Seller. With the exception of the immediately
proceeding sentence, 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.
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 the 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 materially and adversely affects the value
of the related Mortgage Loan, the party discovering such breach shall give
prompt written notice to the other parties; provided,
to the
extent that knowledge of such breach with respect to any Mortgage Loan is known
by any officer, director, employee or agent of Aurora acting in any capacity
other than as Master Servicer hereunder, the Master Servicer shall not be deemed
to have knowledge of any such breach until an officer of the Master Servicer
has
actual knowledge thereof. Within 90 days of the discovery of a breach of any
representation or warranty given to the Trustee by the Depositor 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 in the
case of any First Payment Default Mortgage Loan, the FPD Purchase Price
(excluding any FPD Premium)) 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 any 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 the Mortgage Loan Sale Agreement
the Seller will, in exchange for such substitute mortgage loan, (i) pay to
the
Trust Fund the applicable Purchase Price for the affected Mortgage Loan or
(ii) within two years of the Closing Date, substitute a Qualifying
Substitute Mortgage Loan.
65
Section
2.05. Repurchase,
Purchase or Substitution of Mortgage Loans.
(a)
With
respect to any Mortgage Loan repurchased by the Depositor pursuant to this
Agreement, by the Seller pursuant to the Mortgage Loan Sale Agreement, or by
the
Transferor pursuant to the applicable Transfer Agreement, the principal portion
of the funds (including the FPD Purchase Price (excluding the FPD Premium)
in
the case of any First Payment Default Mortgage Loan) received by the Master
Servicer in respect of such repurchase of a Mortgage Loan will be considered
a
Principal Prepayment and the Purchase Price or FPD Purchase Price (excluding
any
FPD Premium) shall be deposited in the Collection Account or a Custodial
Account, as applicable. The Trustee (i) upon receipt of the full amount of
the
Purchase Price for a Deleted Mortgage Loan, (ii) upon receipt of a written
certification from the Master Servicer that it has received the full amount
of
the Purchase Price for a Deleted Mortgage Loan and has deposited such amount
in
the Collection Account or (iii) upon receipt of notification from the applicable
Custodian that it had received the Mortgage File for a Qualifying Substitute
Mortgage Loan substituted for a Deleted Mortgage Loan (and any applicable
Substitution Amount), shall release or cause to be released and reassign to
the
Depositor, the Seller or the Transferor, as applicable, the related Mortgage
File for the Deleted Mortgage Loan and shall execute and deliver such
instruments of transfer or assignment, in each case without recourse,
representation or warranty, as shall be necessary to vest in such party or
its
designee or assignee title to any Deleted Mortgage Loan released pursuant
hereto, free and clear of all security interests, liens and other encumbrances
created by this Agreement, which instruments shall be prepared by the Servicer
and the Trustee shall have no further responsibility with respect to the
Mortgage File relating to such Deleted Mortgage Loan. The Seller indemnifies
and
holds the Trust Fund, the Master Servicer, the Trustee, the Depositor and each
Certificateholder harmless against any and all taxes, claims, losses, penalties,
fines, forfeitures, reasonable legal fees and related costs, judgments, and
any
other costs, fees and expenses that the Trust Fund, the Trustee, the Master
Servicer, the Depositor, any NIMS Insurer and any Certificateholder may sustain
in connection with any actions of the Seller relating to a repurchase of a
Mortgage Loan other than in compliance with the terms of this Section 2.05
and
the Mortgage Loan Sale Agreement, to the extent that any such action causes
an
Adverse REMIC Event.
66
(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 with the cooperation of the Servicer, shall (i) with respect
to a Qualifying Substitute Mortgage Loan that is a Non-MERS Mortgage Loan,
cause
the Assignment of Mortgage to be recorded by the Servicer if required pursuant
to Section 2.01(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).
(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 Pooling REMIC 1 Regular
Interests or the Pooling REMIC 2 Regular Interests, as applicable) in all of
the
Depositor’s right, title and interest in, to and under, whether now owned or
hereafter acquired, the Trust Fund and all proceeds of any and all property
constituting the Trust Fund to secure payment of the Certificates (or Pooling
REMIC 1 Regular Interests or the Pooling REMIC 2 Regular Interests, as
applicable); and (3) this Agreement shall constitute a security agreement under
applicable law. If such conveyance is deemed to be in respect of a loan and
the
trust created by this Agreement terminates prior to the satisfaction of the
claims of any Person holding any Certificate or Pooling REMIC 1 Regular
Interests or the Pooling REMIC 2 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.
67
(b)
The
Depositor shall, to the extent consistent with this Agreement, take such
reasonable actions as may be necessary to ensure that, if this Agreement were
deemed to create a security interest in the Mortgage Loans and the other
property described above, such security interest would be deemed to be a
perfected security interest of first priority under applicable law and shall
be
maintained as such throughout the term of this Agreement. The Depositor shall,
at its own expense, make all initial filings on or about the Closing Date and
shall forward a copy of such filing or filings to the Trustee. Without limiting
the generality of the foregoing, the Depositor shall prepare and forward for
filing, or shall cause to be forwarded for filing, at the expense of the
Depositor, all filings necessary to maintain the effectiveness of any original
filings necessary under the relevant UCC to perfect the Trustee’s security
interest in or lien on the Mortgage Loans, including without limitation (x)
continuation statements, and (y) such other statements as may be occasioned
by
(1) any change of name of the Seller, the Depositor or the Trustee, (2) any
change of location of the jurisdiction of organization of the Seller or the
Depositor, (3) any transfer of any interest of the Seller or the Depositor
in
any Mortgage Loan or (4) any change under the relevant UCC or other applicable
laws. Neither the Seller nor the Depositor shall organize under the law of
any
jurisdiction other than the State under which each is organized as of the
Closing Date (whether changing its jurisdiction of organization or organizing
under an additional jurisdiction) without giving 30 days prior written notice
of
such action to its immediate and intermediate transferee, including the Trustee.
Before effecting such change, the Seller or the Depositor proposing to change
its jurisdiction of organization shall prepare and file in the appropriate
filing office any financing statements or other statements necessary to continue
the perfection of the interests of its immediate and intermediate transferees,
including the Trustee, in the Mortgage Loans. In connection with the
transactions contemplated by this Agreement, each of the Seller and the
Depositor authorizes its immediate or intermediate transferee to file in any
filing office any initial financing statements, any amendments to financing
statements, any continuation statements, or any other statements or filings
described in this paragraph (b).
ARTICLE
III
THE
CERTIFICATES
Section
3.01. The
Certificates.
(a)
The
Certificates shall be issuable in registered form only and shall be securities
governed by Article 8 of the New York Uniform Commercial Code. The Book-Entry
Certificates will be evidenced by one or more certificates, beneficial ownership
of which will be held in the dollar denominations in Certificate Principal
Amount or Notional Amount, as applicable, or in the Percentage Interests,
specified herein. Each Class of Book-Entry Certificates will be issued in the
minimum denominations in Certificate Principal Amount (or Notional Amount)
or
Percentage Interests specified in the Preliminary Statement hereto and in
integral multiples of $1 in excess thereof. The Class I-P, Class II-P and Class
I-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 1.00% in excess thereof. Each of the Class I-LT-R, Class
II-LT-R, Class I-R and Class II-R Certificates shall be issued as a single
Certificate and maintained in definitive, fully registered form in a minimum
denomination equal to 100% of the Percentage Interest of such Class. The
Certificates may be issued in the form of typewritten certificates.
68
(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 the 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. 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
Trustee to the Authenticating Agent for authentication and the Authenticating
Agent shall authenticate and deliver such Certificates as in this Agreement
provided and not otherwise.
Section
3.02. Registration.
(a)
The
Trustee is hereby appointed, and hereby accepts its appointment as, Certificate
Registrar in respect of the Certificates (and, after a Section 7.01(d) Purchase
Event, the applicable Pooling REMIC Regular Interests) and shall maintain books
for the registration and for the transfer of Certificates (and, after a Section
7.01(d) Purchase Event, the applicable Pooling REMIC 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, after a Section 7.01(d) Purchase Event, the applicable
Pooling REMIC Regular Interests) 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.
(b)
Upon
the
occurrence of a Section 7.01(d) 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 Pooling REMIC 1 Regular Interests or the
Pooling REMIC 2 Regular Interests which notice shall contain a certification
that such transferee is a permitted LTURI holder hereunder. The Pooling REMIC
1
Regular Interests or the Pooling REMIC 2 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 Pooling REMIC 1 Regular Interests or Pooling REMIC
2
Regular Interests are registered on the books of the Certificate Registrar
as
the LTURI-holder for all purposes hereunder.
69
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 Notional 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 (except
as provided in the Exchange Trust Agreement), but the Certificate Registrar
may
require payment of a sum sufficient to cover any tax or governmental charge
that
may be imposed in connection with any 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 Notional Amount) or
Percentage Interest as the Certificate surrendered, upon surrender of the
Certificate to be exchanged at the office of the Certificate Registrar duly
endorsed or accompanied by a written instrument of transfer duly executed by
such Holder or his duly authorized attorney in such form as is satisfactory
to
the Certificate Registrar. Certificates delivered upon any such exchange will
evidence the same obligations, and will be entitled to the same rights and
privileges, as the Certificates surrendered. No service charge shall be made
to
a Certificateholder for any exchange of Certificates (except as provided in
the
Exchange Trust Agreement), but the Certificate Registrar may require payment
of
a sum sufficient to cover any tax or governmental charge that may be imposed
in
connection with any exchange of Certificates. Whenever any Certificates are
so
surrendered for exchange, the Trustee shall execute, and the Trustee or the
Authenticating Agent shall authenticate, date and deliver the Certificates
which
the Certificateholder making the exchange is entitled to receive.
(c)
By
acceptance of a Restricted Certificate, 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.
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 an affiliate (as defined
in
Rule 405 under the Securities Act) of the Depositor 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
70
(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)
No
transfer of an ERISA-Restricted Certificate in the form of a Definitive
Certificate shall be made to any Person or shall be effective unless the Trustee
has received (A) a certificate substantially in the form of Exhibit H hereto
(or
Exhibit D-1, in the case of a Residual Certificate) from such transferee or
(B)
an Opinion of Counsel to the effect that the purchase and holding of such a
Certificate will not constitute or result in prohibited transactions under
Title
I of ERISA or Section 4975 of the Code and will not subject the Trustee, the
Master Servicer, the Depositor, the Servicer or any NIMS Insurer to any
obligation in addition to those undertaken in the Agreement; provided,
however,
that the
Trustee will not require such certificate or opinion in the event that, as
a
result of a change of law or otherwise, the Trustee receives an Opinion of
Counsel to the effect that the purchase and holding of an ERISA-Restricted
Certificate by a Plan or a Person that is purchasing or holding such a
Certificate with the assets of a Plan will not constitute or result in a
prohibited transaction under Title I of ERISA or Section 4975 of the Code.
Each
Transferee of an ERISA-Restricted Certificate that is a Book-Entry Certificate
shall be deemed to have made the representations set forth in Exhibit H. The
preparation and delivery of the certificate and opinions referred to above
shall
not be an expense of the Trust Fund, the Trustee, the Master Servicer, any
NIMS
Insurer or the Depositor.
Notwithstanding
the foregoing, no opinion or certificate shall be required for the initial
issuance of the ERISA-Restricted Certificates. The Trustee 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.
(e)
As
a
condition of the registration of transfer or exchange of any Certificate, the
Certificate Registrar may require the certified taxpayer identification number
of the owner of the Certificate and the payment of a sum sufficient to cover
any
tax or other governmental charge imposed in connection therewith; provided,
however,
that the
Certificate Registrar shall have no obligation to require such payment or to
determine whether or not any such tax or charge may be applicable. No service
charge shall be made to the Certificateholder for any registration, transfer
or
exchange of a Certificate, except as provided in the Exchange Trust
Agreement.
71
(f)
Notwithstanding
anything to the contrary contained herein, no Residual Certificate may be owned,
pledged or transferred, directly or indirectly, by or to (i) a Disqualified
Organization or (ii) an individual, corporation or partnership or other person
unless such person is (A) not a Non-U.S. Person or (B) is a Non-U.S. Person
that
holds a Residual Certificate in connection with the conduct of a trade or
business within the United States and has furnished the transferor and the
Trustee with an effective Internal Revenue Service W-8ECI or successor form
at
the time and in the manner required by the Code (any such person who is not
covered by clause (A) or (B) above is referred to herein as a “Non-permitted
Foreign Holder”).
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.
72
If
any
purported transferee shall become a registered Holder of a Residual Certificate
in violation of the provisions of this Section 3.03(f), then upon receipt of
written notice to the Trustee or the Certificate Register 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.
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 (or Notional
Amount). Upon the issuance of any new Certificate under this Section 3.05,
the
Trustee and Authenticating Agent may require the payment of a sum sufficient
to
cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the Trustee
or the Authenticating Agent) connected therewith. Any replacement Certificate
issued pursuant to this Section 3.05 shall constitute complete and indefeasible
evidence of ownership in the applicable Trust Fund, as if originally issued,
whether or not the lost, stolen or destroyed Certificate shall be found at
any
time.
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, 5A.02 and 5B.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.
73
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 (or Notional 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 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. As of the Closing Date, the Trustee is the
Paying Agent.
(b)
Any
Paying Agent shall comply with its reporting obligations under Regulation AB
with respect to the Trust Fund in form and substance similar to those of the
Trustee pursuant to Section 6.20, and the related assessment of compliance
shall
cover, at a minimum, the elements of the servicing criteria applicable to the
Paying Agent indicated in Exhibit O attached hereto. For so long as the
Depositor is subject to Exchange Act reporting requirements with respect to
the
Trust, the Paying Agent shall give prior written notice to the Sponsor, the
Master Servicer, the Trustee and the Depositor of the appointment of any
Subcontractor by it and a written description (in form and substance reasonably
satisfactory to the Sponsor and the Depositor) of the role and function of
each
Subcontractor utilized by the Paying Agent, as applicable, specifying (A) the
identity of each such Subcontractor and (B) which elements of the servicing
criteria set forth under Item 1122(d) of Regulation AB will be addressed in
assessments of compliance provided by each such Subcontractor. In addition,
for
so long as the Depositor is subject to Exchange Act reporting requirements
with
respect to the Trust, the Paying Agent shall notify the Sponsor, the Master
Servicer, the Trustee and the Depositor within five (5) calendar days of
knowledge thereof (i) of any legal proceedings pending against the Paying Agent
of the type described in Item 1117 (§ 229.1117) of Regulation AB, (ii) any
merger, consolidation or sale of substantially all of the assets of the Paying
Agent and (iii) if the Paying Agent shall become (but only to the extent not
previously disclosed) at any time an affiliate of any of the parties listed
on
Exhibit P hereto or any of their affiliates. On or before March 1st
of each
year, the Depositor shall furnish any change in the information in Exhibit
P to
the Paying Agent and the Trustee.
74
(c)
Any
Paying Agent agrees to indemnify the Depositor, the Trustee and the Master
Servicer, and each of their respective directors, officers, employees and agents
and the Trust Fund and hold each of them harmless from and against any losses,
damages, penalties, fines, forfeitures, legal fees and expenses and related
costs, judgments, and any other costs, fees and expenses that any of them may
sustain arising out of or based upon the failure by such Paying Agent to deliver
any information, report or certification when and as required under Section
6.20
and Section 9.25(a). This indemnification shall survive the termination of
this
Agreement or the termination of such Paying Agent hereunder.
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.
75
(b)
Whenever
notice or other communication to the Certificateholders is required under this
Agreement, unless and until Definitive Certificates shall have been issued
to
Certificate Owners pursuant to Section 3.09(c), the Trustee shall give all
such
notices and communications specified herein to be given to Holders of the
Book-Entry Certificates to the Clearing Agency.
(c)
If
(i)
(A) the Depositor advises the Trustee in writing that the Clearing Agency is
no
longer willing or able to discharge properly its responsibilities with respect
to the Book-Entry Certificates, and (B) the Trustee or the Depositor is unable
to locate a qualified successor, or (ii) after the occurrence of an Event
of Default, Certificate Owners representing beneficial interests aggregating
not
less than 50% of the Class Principal Amount (or Class Notional Amount) of a
Class of Book-Entry Certificates identified as such to the Trustee by an
Officer’s Certificate from the Clearing Agency advise the Trustee and the
Clearing Agency through the Clearing Agency Participants in writing that the
continuation of a book-entry system through the Clearing Agency is no longer
in
the best interests of the Certificate Owners of a Class of Book-Entry
Certificates, the Trustee shall notify any NIMS Insurer 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. None of the Seller,
the
Depositor, the Underwriter, the Master Servicer or the Trustee shall have any
responsibility for any aspect of the records relating to or payments made on
account of beneficial ownership interests of the Book-Entry Certificates held
by
the Clearing Agency or for maintaining, supervising or reviewing any records
relating to such beneficial ownership interests.
Section
3.10. Deposit
of Underlying REMIC Certificates under the Exchange Trust
Agreement.
The
Underlying REMIC Certificates shall be issued in uncertificated form to the
Underwriter pursuant to the Underwriting Agreement, and transferred by the
Underwriter to the Exchange Trustee to be held in trust pursuant to terms of
the
Exchange Trust Agreement.
76
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 Xxxxxx XS Trust Mortgage Pass-Through
Certificates, Series 2007-5H.” The Collection Account shall relate solely to the
Certificates and to the Lower-Tier REMIC Uncertificated Regular Interests issued
by the Trust Fund hereunder, and funds in such Collection Account shall not
be
commingled with any other monies.
(b)
The
Collection Account shall be an Eligible Account. If an existing Collection
Account ceases to be an Eligible Account, the Master Servicer shall establish
a
new Collection Account that is an Eligible Account within 10 days and transfer
all funds and investment property on deposit in such existing Collection Account
into such new Collection Account.
(c)
The
Master Servicer shall give to the Trustee 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. No later than 2:00 p.m. New York
City
time on each Master Servicer Remittance Date, the entire amount on deposit
in
the Collection Account (subject to permitted withdrawals set forth in Section
4.02), 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 (but with prior notice to the Trustee), may choose
to
make daily remittances from the Collection Account to the Trustee for deposit
into the Certificate Account.
(d)
The
Master Servicer shall deposit or cause to be deposited into the Collection
Account, no later than two Business Days following the Closing Date, any amounts
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 the related Due Date, late collections, and any Prepayment Premiums,
on
the Mortgage Loans;
77
(ii)
all
payments on account of interest on the Mortgage Loans, including any Prepayment
Premiums, in all cases, net of the Servicing Fee and the PMI Insurance Premiums,
if any, with respect to each such Mortgage Loan, but only to the extent of
the
amount permitted to be withdrawn or withheld from the Collection Account in
accordance with Sections 5.04 and 9.21;
(iii)
any
unscheduled payment or other recovery with respect to a Mortgage Loan not
otherwise specified in this paragraph (d), including all Net Liquidation
Proceeds with respect to the Mortgage Loans and REO Property, and all amounts
received in connection with the operation of any REO Property, net of (x) any
unpaid Servicing Fees with respect to such Mortgage Loans (but only to the
extent of the amount permitted to be withdrawn or withheld from the Collection
Account in accordance with Sections 5.04 and 9.21) and (y) any amounts
reimbursable to the Servicer with respect to such Mortgage Loan under the
Servicing Agreement and retained by the Servicer;
(iv)
all
Insurance Proceeds;
(v)
all
Advances made by the Master Servicer or the Servicer pursuant to Section 5.04
or
the Servicing Agreement;
(vi)
any
Seller Remittance Amounts remitted by the Servicer;
(vii)
all
amounts paid by the Servicer with respect to Prepayment Interest Shortfalls;
and
(viii)
the
Purchase Price or FPD Purchase Price (including any FPD Premium), if applicable,
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 the 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 the
Holders of Xxxxxx XS Trust Mortgage Pass-Through Certificates, Series 2007-5H.
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 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, prepayment penalties with
respect to mortgages for which the Seller does not own the servicing rights,
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 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.
78
Section
4.02. Application
of Funds in the Collection Account.
The
Master Servicer may, from time to time, make, or cause to be made, withdrawals
from the Collection Account for the following purposes:
(i)
to
reimburse itself or the Servicer for Advances or Servicing Advances made by
it
or by the Servicer pursuant to Section 5.04 or the Servicing Agreement; such
right to reimbursement pursuant to this clause (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 the Servicer, following a final liquidation of a Mortgage
Loan (except as otherwise provided in the Servicing Agreement) for any
previously unreimbursed Advances or Servicing Advances made by it or by the
Servicer (A) that it or the Servicer determines in good faith will not be
recoverable from amounts representing late recoveries of payments of principal
or interest respecting the particular Mortgage Loan as to which such Advance
or
Servicing Advance was made or from Liquidation Proceeds or Insurance Proceeds
with respect to such Mortgage Loan and/or (B) to the extent that such
unreimbursed Advances or Servicing Advances exceed the related Liquidation
Proceeds or Insurance Proceeds, it being understood, in the case of each such
reimbursement, that such Master Servicer’s or Servicer’s right thereto shall be
prior to the rights of the Certificateholders;
(iii)
to
reimburse itself or the Servicer from Liquidation Proceeds for Liquidation
Expenses and for amounts expended by it pursuant to Sections 9.20 and 9.22(c)
or
the Servicing Agreement in good faith in connection with the restoration of
damaged property and, to the extent that Liquidation Proceeds after such
reimbursement exceed the unpaid principal balance of the related Mortgage Loan,
together with accrued and unpaid interest thereon at the applicable Mortgage
Rate less the 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;
79
(iv)
all
Advances made by the Master Servicer, the Servicer or the Trustee pursuant
to
Section 5.04 or the Servicing Agreement;
(v)
to
reimburse itself or the Servicer for expenses incurred by and recoverable by
or
reimbursable to it or the Servicer pursuant to this Agreement, including,
without limitation, Sections 9.04, 9.05, 9.06 9.07(a), 9.16, 9.30 or 11.15
or
pursuant to the Servicing Agreement;
(vi)
to
pay to
the Seller any Seller Remittance Amount;
(vii)
to
pay to
the Depositor or the Seller, 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 FPD Purchase Price), any FPD Premium, if any, (in the case
of
any First Payment Default Loan), or any amounts paid by LBH for shortfalls
in
the Purchase Price for repurchases of First Payment Default Mortgage Loans
pursuant to Section 1.04(f) of the Mortgage Loan Sale Agreement relating to
the
Seller paying the difference if the FPD Purchase Price is less than the Purchase
Price;
(viii)
subject
to Section 5.05, to pay to itself income earned on the investment of funds
deposited in the Collection Account;
(ix)
to
make
payments to the Trustee on each Master Servicer Remittance Date for deposit
into
the Certificate Account in the amount and in the manner provided in Section
4.04;
(x)
to
make
payment to itself, the Trustee and others pursuant to any other provision of
this Agreement;
(xi)
to
withdraw funds deposited in error in the Collection Account;
(xii)
to
clear
and terminate the Collection Account pursuant to Section 7.02;
(xiii)
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 or other successor master servicer thereto
shall be prior to the rights of the Certificateholders; and
(xiv)
to
reimburse the Servicer for such amounts as are due thereto under the Servicing
Agreement and have not been retained by or paid to the Servicer, to the extent
provided in the Servicing Agreement.
80
As
provided in the Servicing Agreement, the Servicer shall be entitled to retain
as
additional servicing compensation any Prepayment Interest Excess (to the extent
not offset by Prepayment Interest Shortfalls).
In
the
event that the Master Servicer fails on any Master Servicer Remittance Date
to
remit to the Trustee any amounts required to be so remitted to the Trustee
pursuant to subclause (viii) 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), (vi) and
(vii) above, the Master Servicer’s, the Servicer’s or such other Person’s
entitlement thereto is limited to collections or other recoveries on the related
Mortgage Loan. The Master Servicer shall therefore keep and maintain a separate
accounting for each Mortgage Loan it master services for the purpose of
justifying any withdrawal from the Collection Account it maintains pursuant
to
such subclause (i), (iii), (vi) and (vii).
Section
4.03. Reports
to Certificateholders.
(a)
On
each
Distribution Date, the Trustee shall prepare (based solely on information
provided by the Master Servicer) and shall make available to the
Certificateholders and any NIMS Insurer a written report, which may be in
electronic form (the “Distribution Date Statement”) setting forth the following
information (on the basis of Mortgage Loan level information obtained from
the
Servicer).
(i)
the
aggregate amount of the distribution to be made on such Distribution Date to
the
Holders of each Class of Certificates (other than the Class 1-AIO, Class 3-AIO1
and Class 3-AIO2 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, other than the Class 1-APO Certificates,
allocable to interest and the calculation thereof;
(iii)
the
amount, if any, of any distributions to the Holders of the Class I-P, Class
II-P, Class I-X, Class I-LT-R, Class II-LT-R, Class I-R and Class II-R
Certificates on such Distribution Date, stated separately, and the aggregate
amounts, if any, of distributions to the Holders of the Class I-P, Class II-P,
Class I-X, Class I-LT-R, Class II-LT-R, Class I-R and Class II-R Certificates
on
all Distribution Dates, stated separately;
(iv)
(A) by
Mortgage Pool and in the aggregate, the aggregate amount of any Advances
required to be made with respect to the related Collection Period by or on
behalf of the Servicer (or the Master Servicer) with respect to such
Distribution Date, (B) the aggregate amount of such Advances actually made,
and (C) the amount, if any, by which (A) above exceeds (B)
above;
81
(v)
by
Mortgage Pool and in the aggregate, the total number of Mortgage Loans, the
aggregate Scheduled Principal Balance of all the Mortgage Loans as of the close
of business on the last day of the related Collection Period, after giving
effect to payments allocated to principal reported under clause (i)
above;
(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 Pool 1-2 Applied Loss
Amounts;
(vii)
the
amount of any Prepayment Premiums distributed to the Class P Components of
the
Class I-P and Class II-P Certificates;
(viii)
by
Mortgage Pool and in the aggregate, the amount of any Realized Losses incurred
with respect to the Mortgage Loans (x) in the applicable Prepayment Period
and
(y) in the aggregate since the Cut-off Date;
(ix)
by
Mortgage Pool and in the aggregate, the amount of the Servicing Fees and PMI
Insurance Premiums paid during the Collection Period to which such distribution
relates;
(x)
by
Mortgage Pool and in the aggregate, the number and Aggregate Loan Balance of
the
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
as of the close of business on the last Business Day of the calendar month
immediately preceding the month in which such Distribution Date occurs, (f)
in
bankruptcy and (g) that are REO Properties (the information in this item (xi)
to
be calculated using the OTS delinquency method);
(xi)
by
Mortgage Pool and in the aggregate, the aggregate Scheduled Principal Balance
of
any Mortgage Loans with respect to which the related Mortgaged Property became
a
REO Property as of the close of business on the last Business Day of the
calendar month immediately preceding the month in which such Distribution Date
occurs;
(xii)
with
respect to substitution of Mortgage Loans in the preceding calendar month,
the
Scheduled Principal Balance of each Deleted Mortgage Loan, and of each
Qualifying Substitute Mortgage Loan;
(xiii)
the
aggregate outstanding Carryforward Interest, Net Prepayment Interest Shortfalls,
Deferred Amounts, Basis Risk Shortfalls and Unpaid Basis Risk Shortfalls, if
any, for each applicable Class of Certificates, after giving effect to the
distribution made on such Distribution Date;
82
(xiv)
the
Certificate Interest Rate applicable to such Distribution Date with respect
to
each Class of Certificates (with a notation if such Certificate Interest Rate
reflects the application of the applicable Net Funds Cap);
(xv)
With
respect to each Pool, the Group I Interest Remittance Amount and the Group
I
Principal Remittance Amount with respect to each Mortgage Pool and the Pool
1-2
Aggregate Overcollateralization Release 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
Pool
1-2 Overcollateralization Amount (based on the Pool 1-2 Percentage) after giving
effect to the distributions made on such Distribution Date;
(xviii)
the
amount of any Pool 1-2 Overcollateralization Deficiency after giving effect
to
the distributions made in such Distribution Date;
(xix)
the
amount of any FPD Premiums, if any, for such Distribution Date;
(xx)
whether
a
Pool 1-2 Trigger Event is in effect for that Distribution Date; and
(xxi)
a
statement as to whether any exchanges of Exchangeable Certificates or Exchange
Certificates have taken place since the preceding Distribution Date, and, if
applicable, the certificate names, certificate balances, including notional
balances, certificate interest rates.
In
addition to the information listed above, for every year in which the Depositor
is subject to Exchange Act reporting with respect to the Certificates, such
Distribution Date Statement shall also include such other information as is
required by Item 1121 (§ 229.1121) of Regulation AB to the extent that the
Trustee shall have received any such information from the Depositor, the
Sponsor, the Master Servicer, the Servicer, the Custodians or any Subservicer
or
Subcontractor therefor, as applicable, no later than four Business Days prior
to
the Distribution Date.
In
the
case of information furnished pursuant to subclauses (i), (ii) and (vii) above,
the amounts shall (except with respect to the Class I-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(d) Purchase Event
with
respect to the Pooling REMIC 1 Regular Interests or the Pooling REMIC 2 Regular
Interests, the information required by subclauses (i), (iii), (v), (viii),
(ix),
(x), (xi), (xii), (xiii), (xvi), (xix), (xxi), (xxii) and (xxiii) (and in the
case of the Class I-LT-R and Class II-LT-R Certificates, subclause (iii)) shall
be provided to the Holder of the Class I-LT-R and/or Class II-LT-R Certificates
and the LTURI-holder of the applicable Pooling REMIC Regular Interests.
83
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 Certificateholders, any NIMS Insurer and the Rating Agencies via the
Trustee’s internet website. The Trustee’s internet website shall initially be
located at “xxx.xxxxxxxx.xxx”. Assistance in using the website can be obtained
by calling the Trustee’s customer service desk at (000) 000-0000. Such parties
that are unable to use the website are entitled to have a paper copy mailed
to
them via first class mail upon request. The Trustee shall have the right to
change the way such statements are distributed in order to make such
distribution more convenient and/or more accessible to the above parties and
the
Trustee shall provide timely and adequate notification to all above parties
regarding any such changes.
The
foregoing information and reports shall be prepared and determined by the
Trustee based solely on Mortgage Loan data provided to the Trustee by the Master
Servicer (in a format agreed to by the Trustee and the Master Servicer) no
later
than 2:00 p.m. Eastern Time four Business Days prior to the Distribution Date.
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 regarding the Mortgage Loans (including
any
First Payment Default Mortgage Loans) and the related REO Property that has
been
provided to the Master Servicer by the Servicer and to the Trustee by the Master
Servicer, and the Trustee shall not be obligated to verify, recompute, reconcile
or recalculate any such information or data. The Trustee shall be entitled
to
conclusively rely on the Mortgage Loan data provided by the Master Servicer
and
shall have no liability for any errors 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. The information and reports described in the first paragraph
of this Section 4.03(a) shall be provided to the Paying Agent (if other than
the
Trustee) by the Trustee no later than 12:00 p.m. Eastern Time two Business
Days
prior to the Distribution Date.
(b)
Upon
the
reasonable advance written request of any 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, to the extent such information is available
to
the Master Servicer exercising reasonable efforts to obtain such information
(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 and 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 the NIM Securities or an investment
in the Certificates; provided,
however,
that the
Trustee and the Master Servicer shall be entitled to be reimbursed by such
Certificateholder for the actual expenses incurred in providing such reports
and
access.
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(c)
Within
90
days, or such shorter period as may be required by statute or regulation, after
the end of each calendar year, the Trustee shall, upon written request, prepare
and make available to any NIMS Insurer each Person who at any time during the
calendar year was a Certificateholder of record, and 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 Section 4.03(a)(i) and (ii) on an annual basis
as
may be required to enable such Holders to prepare their federal income tax
returns; 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 makes available 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 to the extent reasonably available (and the Trustee may rely solely
upon
such information).
(d)
The
Trustee shall prepare and file with the Internal Revenue Service (“IRS”), on
behalf of the Trust Fund, 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 Master Servicer and the Depositor. The Trustee shall,
to the extent reasonably available, furnish any other information that is
required by the Code and regulations thereunder to be made available to
Certificateholders. The Master Servicer, to the extent reasonably available,
shall provide the Trustee with such information as is necessary for the Trustee
to comply with the foregoing.
(e)
So
long
as not prohibited by applicable law, the Master Servicer shall provide to the
Depositor or to any party designated by the Depositor, as promptly as
practicable upon the Depositor's request, any and all loan-level information
that the Depositor may request in any format reasonably requested by the
Depositor.
Section
4.04. Certificate
Account.
(a)
The
Trustee shall establish and maintain in its name, as trustee, a trust account
(the “Certificate Account”) entitled “Certificate Account, LaSalle Bank National
Association, as Trustee, in trust for the benefit of the Holders of Xxxxxx
XS
Trust Mortgage Pass-Through Certificates, Series 2007-5H” 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 20 Business Days and
transfer all funds and investment property on deposit in such existing
Certificate Account into such new Certificate Account. The Certificate Account
shall relate solely to the Certificates and to the Pooling REMIC 1 Regular
Interests or the Pooling REMIC 2 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.
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(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 so remitted. 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, 6.12 or 7.01; 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 Sections 6.11, 6.14 and 7.01 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 5A.02(e)(i)(C) and Section
5B.02(d)(i)(C) hereof;
(ii)
to
withdraw amounts deposited in the Certificate Account in error;
(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.
The
Trustee may invest, or cause to be invested, funds held in the Certificate
Account, which funds, if invested, shall 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
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 shall be subject to its withdrawal on order from time to time. The amount
of
any losses incurred in respect of any such investments shall be paid by the
Trustee for deposit in the Certificate Account out of its own funds, without
any
right of reimbursement therefor, immediately as realized. Funds held in the
Certificate Account may also be held uninvested.
ARTICLE
V
DISTRIBUTIONS
TO HOLDERS OF CERTIFICATES
Section
5.01. Distributions
Generally.
(a)
On
each
Distribution Date, so long as the Offered Certificates are outstanding, the
Trustee (or the Paying Agent on behalf of the Trustee) shall make distributions
to Holders of the Certificates in accordance with this Article V; provided,
however, that
if a
Section 7.01(d) Purchase Event has occurred with respect to any of the Pooling
REMIC 1 Regular Interests or Pooling REMIC 2 Regular Interests, the
distributions related to such Pooling REMIC Regular Interests shall be made
in
accordance with Sections 5A.02(g) and Sections 5B.02(d), as applicable. Such
distributions shall be made by wire transfer if the Certificateholder has
provided the Trustee (or the Paying Agent) with wire instructions or by check
mailed to the address of such Certificateholder as it appears in the books
of
the Trustee (or the Paying Agent) if the Certificateholder has not provided
the
Trustee (or the Paying Agent) with wire instructions in immediately available
funds to an account specified in the request and at the expense of such
Certificateholder; provided,
however,
that the
final distribution in respect of any Certificate shall be made only upon
presentation and surrender of such Certificate at the Corporate Trust Office;
provided,
further,
that the
foregoing provisions shall not apply to any Class of Certificates as long as
such Certificate remains a Book-Entry Certificate in which case all payments
made shall be made through the Clearing Agency and its Clearing Agency
Participants. Notwithstanding such final 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 the Pooling REMIC 1 Regular Interests
or Pooling REMIC 2 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.
86
(b)
All
distributions or allocations made with respect to Certificateholders within
each
Class on each Distribution Date shall be allocated among the outstanding
Certificates in such Class equally in proportion to their respective initial
Class Principal Amounts or initial Class Notional Amounts (or Percentage
Interests).
(c)
The
Trustee (or the Paying Agent on behalf of the Trustee) shall make payments
to
Certificateholders and any other person pursuant to this Article V and make
deposits to the accounts held by it hereunder based solely on the information
set forth in the monthly report furnished by the Master Servicer in accordance
with Section 4.03(a), and shall be entitled to conclusively rely on such
information and reports, and on the calculations contained therein, when making
distributions to Certificateholders and any other party hereunder. The Trustee
shall have no liability for any errors in such reports or information, and
shall
not be required to verify, recompute, reconcile or recalculate any such
information or data.
Section
5.02. Distributions
from the Certificate Account.
(a)
Distributions
from the Certificate Account to the Group I Certificates will be made in
accordance with the provisions set forth in Annex 5A.02 attached
hereto.
(b)
Distributions
from the Certificate Account to the Group II Certificates will be made in
accordance with the provisions set forth in Annex 5B.02 attached
hereto.
Section
5.03. Allocation
of Losses.
(a) On
each
Distribution Date on or prior to a Section 7.01(d) Purchase Event relating
to
the Pooling REMIC 1 Regular Interests, the aggregate Class Principal Amount
of
the Group I Certificates shall be reduced by the amount of any Pool 1-2 Applied
Loss Amount for such date, in the following order of priority:
87
(i)
to
the
Class I-M7 Certificates, until the Class Principal Amount of such Class has
been
reduced to zero;
(ii)
to
the
Class I-M6 Certificates, until the Class Principal Amount of such Class has
been
reduced to zero;
(iii)
to
the
Class I-M5 Certificates, until the Class Principal Amount of such Class has
been
reduced to zero;
(iv)
to
the
Class I-M4 Certificates, until the Class Principal Amount of such Class has
been
reduced to zero;
(v)
to
the
Class I-M3 Certificates, until the Class Principal Amount of such Class has
been
reduced to zero
(vi)
to
the
Class I-M2 Certificates, until the Class Principal Amount of such Class has
been
reduced to zero;
(vii)
to
the
Class 1-M1 Certificates, until the Class Principal Amount of such Class has
been
reduced to zero;
(viii)
to
the
Class 1-M1 Certificates, until the Class Principal Amount of such Class has
been
reduced to zero; and
(ix)
to
the
Group 1 Senior Certificates (other than the Class 1-AIO Certificates),
pro
rata,
(in the
case of Realized Losses attributable to Mortgage Loans in Pool 1) and to the
Group 2 Senior Certificates (in the case of Realized Losses attributable to
Mortgage Loans in Pool 2); provided,
that
additional losses with respect to the Mortgage Loans in Pool 1 that would
otherwise reduce the Class Principal Amounts of the Class 1-A1 Certificates
will
instead be allocated to the Class 1-A2 Certificates, until the Class 1-A2
Certificates are reduced to zero, and then such losses will be allocated to
the
Class 1-A1 Certificates until the Class Principal Amount of such Class has
been
reduced to zero; and in the case of additional losses on the Mortgage Loans
in
Pool 2, losses otherwise allocable to the Class 2-A1 Certificates will instead
be allocated to the Class 2-A2 Certificates, until the Class 2-A2 Certificates
are reduced to zero, and then such losses will be allocated to the Class 2-A1
Certificates until the Class Principal Amount of such Class has been reduced
to
zero.
(b) On
each
Distribution Date on or prior to a Section 7.01(d) Purchase Event relating
to
the Pooling REMIC 2 Regular Interests, the Class Principal Amounts of the Group
II Certificates shall be reduced in the following order of
priority:
(i)
to
the
Class II-M7 Certificates, until the Class Principal Amount thereof has been
reduced to zero;
88
(ii)
to
the
Class II-M6 Certificates, until the Class Principal Amount thereof has been
reduced to zero;
(iii)
to
the
Class II-M5 Certificates, until the Class Principal Amount thereof has been
reduced to zero;
(iv)
to
the
Class II-M4 Certificates, until the Class Principal Amount thereof has been
reduced to zero;
(v)
to
the
Class II-M3 Certificates, until the Class Principal Amount thereof has been
reduced to zero;
(vi)
to
the
Class II-M2 Certificates, until the Class Principal Amount thereof has been
reduced to zero;
(vii)
to
the
Class II-M1 Certificates, until the Class Principal Amount thereof has been
reduced to zero; and
(viii)
to
the
Group II Senior Certificates (other than the Class 3-AIO1, Class 3-AIO2, Class
3-A3, Class 3-A4 and Class 3-A5 Certificates), pro
rata;
provided,
that
additional losses with respect to the Mortgage Loans in Pool 3 that would
otherwise reduce the Class Principal Amount of the Class 3-A1 Certificates
will
instead be allocated to the Class 3-A2 Certificates until the Class 3-A2
Certificates are reduced to zero, and then such losses will be allocated to
the
Class 3-A1 Certificates until the Class Principal Amount of such Class has
been
reduced to zero.
Any
Realized Losses allocated to an Exchange Class shall be proportionately
allocated to the related Exchangeble Class or Classes.
Section
5.04. Advances
by Master Servicer, Servicer and Trustee.
(a)
Subject
to Section 9.07, Advances shall be made in respect of each Determination Date
as
provided herein. If, on any Determination Date, the Servicer determines that
any
Scheduled Payments due during the related Collection Period (other than Balloon
Payments) have not been received, the Servicer shall advance such amount on
the
Deposit Date immediately following such Determination Date to the extent
provided in the Servicing Agreement. If the Servicer fails to remit Advances
required to be made under the Servicing Agreement, the Master Servicer shall
itself make, or shall cause the successor servicer to make, such Advance on
the
Master Servicer Remittance Date immediately following such Determination Date;
provided,
however,
that
required Advances remitted by the Servicer or the Master Servicer may be reduced
by an amount, if any, to be set forth in an Officer’s Certificate to be
delivered to the Trustee on such Determination Date, which if advanced the
Master Servicer or the Servicer has determined would not be recoverable from
amounts received with respect to such Mortgage Loan, including late payments,
Liquidation Proceeds, Insurance Proceeds or otherwise. If the Master Servicer
determines that an Advance is required, it shall on the Master Servicer
Remittance Date immediately following such Determination Date either (i) remit
to the Trustee from its own funds (or funds advanced by the 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 the Servicer
shall be entitled to be reimbursed from the Collection Account for all Advances
made by it as provided in Section 4.02. Notwithstanding anything to the contrary
herein, in the event the Master Servicer determines in its reasonable judgment
that an Advance is non-recoverable, the Master Servicer shall be under no
obligation to make such Advance. The Trustee shall be entitled to conclusively
rely upon any determination by the Master Servicer that an Advance, if made,
would constitute a non-recoverable Advance.
89
(b)
Notwithstanding
anything herein to the contrary, in the event that the Master Servicer or the
Servicer fails for any reason to make an Advance required to be made pursuant
to
this Section 5.04 on or before the Master Servicer Remittance Date, the Trustee,
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 Servicer that would have been deposited in such Certificate
Account over (b) the amount of any Advance made by the Master Servicer or the
Servicer with respect to such Distribution Date; provided,
however,
that the
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 Collection Account and/or the
Certificate Account for Advances made by it pursuant to this Section 5.04 as
if
it were the Master Servicer.
Section
5.05. Compensating
Interest Payments.
The
Master Servicer shall not be responsible for making any Compensating Interest
Payments not made by the Servicer. Any Compensating Interest Payments made
by
the Servicer shall be a component of the Interest Remittance
Amount.
Section
5.06. Basis
Risk Reserve Fund.
(a)
On
the
Closing Date, the Trustee shall establish and maintain in its name, in trust
for
the benefit of the holders of the Group I Certificates, the Pool 1-2 Basis
Risk
Reserve Fund, into which LBH shall initially deposit $1,000. The Pool 1-2 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 moneys, including, without limitation, other moneys of the Trustee held
pursuant to this Agreement.
(b)
On
each
Distribution Date the Trustee (or Paying Agent) shall distribute in the order
of
priority and to the extent specified in Section 5A.02(e)(iv) of this Agreement
any amounts then on deposit in the Pool 1-2 Basis Risk Reserve Fund, including
any earnings thereon. On any Distribution Date, any amounts that the Trustee
is
not required to distribute from the Pool 1-2 Basis Risk Reserve Fund pursuant
to
Section 5A.02(e)(iv) shall remain on deposit in the Pool 1-2 Basis Risk Reserve
Fund.
90
(c)
Funds
in
the Pool 1-2 Basis Risk Reserve Fund shall be invested in Eligible Investments.
The Class I-X Certificates shall evidence ownership of the Pool 1-2 Basis Risk
Reserve Fund for federal income tax purposes and LBH on behalf of the Holders
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 Pool 1-2 Basis Risk Reserve Fund, such funds shall
remain uninvested. The Pool 1-2 Basis Risk Reserve Fund will be terminated
after
the earlier of (A) a Section 7.01(d) Purchase Event or (B) a Pool 1-2
Termination Event and any funds remaining in such fund upon such termination
shall be released to the Holders of the Class I-X Certificates.
Section
5.07. Class
II-P Reserve Fund.
On
the
Closing Date, the Trustee shall establish and maintain in its name, in trust
for
the benefit of the holders of the Class II-P Certificates, the Class II-P
Reserve Fund, into which LBH shall initially deposit $100. The Class II-P
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
moneys, including without limitation, other moneys held by the Trustee pursuant
to this Agreement. Funds in the Class II-P Reserve Fund shall remain uninvested.
On the Distribution Date occurring in May 2010, the Trustee (or Paying Agent)
shall withdraw any amounts on deposit in the Class II-P Reserve Fund and
distribute such amounts to the Holders of the Class II-P Certificates, until
its
Class Principal Balance is reduced to zero in accordance with Annex 5B.02(b)(v).
ARTICLE
VI
CONCERNING
THE TRUSTEE EVENTS OF DEFAULT
Section
6.01. Duties
of Trustee and the Paying Agent.
(a)
The
Trustee, except during the continuance of an Event of Default of which a
Responsible 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 Responsible 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.
(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 in the form required
by this Agreement; provided,
however,
that
the Trustee shall not be responsible for the accuracy or content of any such
resolution, certificate, statement, opinion, report, document, order or other
instrument furnished by the Master Servicer or the Servicer to the Trustee
pursuant to this Agreement, and shall not be required to recalculate or verify
any numerical information furnished to the Trustee pursuant to this Agreement.
Subject to the immediately preceding sentence, if any such resolution,
certificate, statement, opinion, report, document, order or other instrument
is
found not to conform on its face to the form required by this Agreement the
Trustee shall notify the Person providing such resolutions, certificates,
statements, opinions, reports, documents, order or other instrument of the
non-conformity, and if the failure to provide such resolution, certificate,
statement, opinion, report, document, order or other instrument would constitute
an Event of Default under this Agreement, 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.
91
(c)
The
Trustee shall not have any liability arising out of or in connection with this
Agreement, except for its negligence or willful misconduct. 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). 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 personally 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 of the Certificates 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
(i) to remit funds (or to 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 Depositor or the Master Servicer under this
Agreement; and
(iv)
The
Trustee shall not be responsible for any act or omission of the Master Servicer,
the Servicer, the Depositor, the Seller 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, (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.
92
(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 the Servicer under this Agreement or
the
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 or the Pool 1-2 Basis Risk Reserve Fund 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)
Except
as
otherwise provided herein, the Trustee shall not have any duty (A) to record,
file or deposit this Agreement or any agreement referred to herein or any
financing statement or continuation statement evidencing a security interest,
or
to maintain any such recording or filing or depositing or any rerecording,
refiling or redepositing of any such statement or agreement, (B) to procure
or
maintain any insurance, (C) to pay or discharge 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 other than from
funds
available in the Collection Account or the Certificate Account, or (D) to
confirm or verify the contents of any reports or certificates of the Master
Servicer, the Servicer or the Depositor delivered to the Trustee pursuant to
this Agreement believed by the Trustee to be genuine and to have been signed
or
presented by the proper party or parties.
(i)
The
Trustee shall not be liable in its individual capacity for an error of judgment
made in good faith by a Responsible Officer or any other officer 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, none of the Trustee or any Paying
Agent shall be liable for special, indirect or consequential losses or damages
of any kind whatsoever (including, but not limited to, lost profits), even
if
the Trustee or the Paying Agent, as applicable, has been advised of the
likelihood of such loss or damage and regardless of the form of
action.
(k)
On
or
before March 15 of each calendar year for so long as the Depositor is subject
to
Exchange Act reporting requirements for the Xxxxxx XS Trust 2007-5H, beginning
in March 2008, the Trustee and Paying Agent (if other than the Trustee) shall
deliver to the Sponsor, the Master Servicer and the Depositor a report regarding
its assessment of compliance with the Servicing Criteria applicable to such
party, as identified on Exhibit O hereto, as of and for the period ending the
end of the fiscal year ending no later than December 31 of the year prior to
the
year of delivery of the report. Each such report shall include (a) a statement
of the party’s responsibility for assessing compliance with the Servicing
Criteria applicable to such party, (b) a statement that such party used the
criteria identified in Item 1122(d) of Regulation AB (§ 229.1122(d)) to assess
compliance with the applicable Servicing Criteria, (c) disclosure of any
material instance of noncompliance identified by such party and (d) a statement
that a registered public accounting firm has issued an attestation report on
such party’s assessment of compliance with the applicable Servicing Criteria,
which report shall be delivered by the Trustee as provided in Section 6.01(l).
In the event that the Trustee and the Paying Agent are the same party, the
Relevant Servicing Criteria of the Paying Agent shall be included in the
Trustee’s report.. In addition, on or before March 15th of each calendar year
for so long as the Depositor is subject to Exchange Act reporting requirements
for the Xxxxxx XS Trust 2007-5H, beginning in March 2008, the Trustee and Paying
Agent (if other than the Trustee) shall, at their own expense, furnish or cause
to be furnished to the Sponsor and the Depositor an assessment of compliance
and
accountant’s attestation of any Subservicer or Subcontractor with respect to the
Trustee or Paying Agent, as applicable.
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(l)
On
or
before March 15th of each calendar year for so long as the Depositor is subject
to Exchange Act reporting requirements for the Xxxxxx XS Trust 2007-5H,
beginning in March 2008, the Trustee and Paying Agent (if other than the
Trustee) shall, at their own expense, cause a registered public accounting
firm
(who may also render other services to Trustee or Paying Agent), which is a
member of the American Institute of Certified Public Accountants, to furnish
to
the Sponsor, the Master Servicer and the Depositor a report 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 made by the Trustee or Paying Agent pursuant to Section 6.01(k) above.
In the event that the Trustee and the Paying Agent are the same party, the
attestation report caused to be furnished by the Trustee shall also address
the
Relevant Servicing Criteria of the Paying Agent.
(m)
The
Trustee shall give prompt 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 and accountant’s attestations
provided by each such Subcontractor.
(n)
For
as
long as the Depositor is subject to Exchange Act reporting with respect to
the
Trust Fund, the Trustee and the Paying Agent (if other than the Trustee) shall
notify the Depositor, the Master Servicer and the Sponsor within five (5) 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 and (ii) 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 P hereto, together
with a description thereof. On or before March 1st of each year, the Depositor
shall distribute the information in Exhibit P to the Trustee.
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(o)
The
Trustee agrees to indemnify the Depositor and the Master Servicer, and their
respective directors, officers, employees and agents and the Trust Fund and
hold
each of them harmless 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 any failure by the Trustee to comply with the provisions of Subsections
6.01(k) through (n) above or any failure by the Trustee to deliver any
information, report, certification, accountants’ letter, or other material when
and as required under this Agreement, including any report under Section 6.20;
provided,
however,
that in
no event shall the Trustee be liable for any special, consequential, indirect
or
punitive damages pursuant to this Section 6.01(o), even if advised of the
possibility of such damages.
(p)
The
Paying Agent and Certificate Registrar shall have the same rights, protections,
immunities and indemnities as are afforded to the Trustee pursuant to this
Article VI.
Section
6.02. Certain
Matters Affecting the Trustee.
Except
as
otherwise provided in Section 6.01:
(i)
The
Trustee may request and may rely upon, and shall be protected in acting or
refraining from acting upon, any resolution, Officer’s Certificate, certificate
of auditors or any other certificate, statement, instrument, opinion, report,
notice, request, consent, order, 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;
(ii)
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;
(iii)
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;
(iv)
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 or, if such Classes have
been
retired pursuant to a Section 7.01(d) Purchase Event, the LTURI-holder;
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;
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(v)
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;
(vi)
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;
(vii)
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
(viii)
The
Trustee shall not be required to give any bond or surety in respect of the
execution of the Trust Fund created hereby or the powers granted
hereunder.
Section
6.03. Trustee
Not Liable for Certificates.
The
Trustee makes no representations as to the validity or sufficiency of this
Agreement, the Exchange Trust Agreement, the Servicing Agreement, any Custodial
Agreement, the Certificates (other than the certificate of authentication on
the
Certificates), the Pooling REMIC 1 Regular Interests or the Pooling REMIC 2
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, the Servicing Agreement, the Exchange
Trust Agreement, any Custodial Agreement or the validity, priority, perfection
or sufficiency of the security for the Certificates, the Pooling REMIC 1 Regular
Interests or the Pooling REMIC 2 Regular Interests issued or intended to be
issued hereunder. Except as otherwise provided herein, the Trustee shall have
no
responsibility for filing any financing or continuation statement in any public
office at any time or to otherwise perfect or maintain the perfection of any
security interest or lien granted to it hereunder or to record this
Agreement.
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Section
6.04. Trustee
May Own Certificates.
The
Trustee and any Affiliate or agent of the Trustee in its individual or any
other
capacity may become the owner or pledgee of Certificates, the Pooling REMIC
1
Regular Interests or the Pooling REMIC 2 Regular Interests 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 the Servicer. If such corporation or
national banking association publishes reports of condition at least annually,
pursuant to law or to the requirements of the aforesaid supervising or examining
authority, then, for the purposes of this Section, the combined capital and
surplus of such corporation or national banking association shall be deemed
to
be its combined capital and surplus as set forth in its most recent report
of
condition so published. In case at any time the Trustee shall cease to be
eligible in accordance with provisions of this Section, the Trustee shall resign
immediately in the manner and with the effect specified in Section
6.06.
Section
6.06. Resignation
and Removal of Trustee.
(a)
The
Trustee may at any time resign and be discharged from the trust hereby created
by giving written notice thereof to the Depositor, 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) the Trustee shall
fail to observe or perform in any material respect any of the covenants or
agreements of the Trustee contained in this Agreement, (iv) a tax is imposed
or
threatened with respect to the Trust Fund by any state in which the Trustee
or
the Trust Fund held by the Trustee is located, (v) the continued use of the
Trustee would result in a downgrading of the rating by any Rating Agency of
any
Class of Certificates with a rating or (vi) the Trustee shall fail to deliver
the information or reports required pursuant to Section 6.01(k) through (n)
hereto, then the Depositor, any NIMS Insurer or the Master Servicer 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;
provided,
however,
that if
the Trustee is removed for the failure to provide the accountant’s attestation
pursuant to Section 6.01(l) of this Agreement, the Trustee shall reimburse
the
Depositor for reasonable out-of pocket costs incurred by the Depositor in
providing for a successor Trustee.
97
(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 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 and one copy to each of
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 and 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.
(a)
Any
successor trustee appointed as provided in Section 6.06 shall execute,
acknowledge and deliver to the Depositor, the Master Servicer and any NIMS
Insurer and to its predecessor trustee (i) an instrument accepting such
appointment hereunder and (ii) if such successor trustee is appointed at any
time during the period that a Form 10-K is being filed with respect to the
Trust
in accordance with the Exchange Act and the rules and regulations of the
Commission, the certification required pursuant to the first sentence of Section
6.01(k) indicating which Servicing Criteria are applicable to such successor
trustee, 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. The 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.
98
(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
6.07, 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.
(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 (acting as successor master
servicer) to make an Advance pursuant to Section 5.04 and 6.14 hereof shall
not
be affected or assigned by the appointment of a co-trustee. The Trustee shall
not be responsible for any action or omission of any separate trustee,
co-trustee or custodian. Notwithstanding the foregoing, at any time during
the
period that a Form 10-K is being filed with respect to the Trust in accordance
with the Exchange Act and the rules and regulations of the Commission, no such
co-custodian or co-trustee shall be vested with any powers, rights and remedies
under this Agreement unless such party has agreed to comply with all Regulation
AB requirements set forth under this Agreement or the related Custodial
Agreement, as applicable.
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(b)
Every
separate trustee, co-trustee, and custodian shall, to the extent permitted
by
law, be appointed and act subject to the following provisions and
conditions:
(i)
all
powers, duties, obligations and rights conferred upon the Trustee in respect
of
the receipt, custody and payment of moneys shall be exercised solely by the
Trustee;
(ii)
all
other
rights, powers, duties and obligations conferred or imposed upon the Trustee
shall be conferred or imposed upon and exercised or performed by the Trustee
and
such separate trustee, co-trustee, or custodian jointly, except to the extent
that under any law of any jurisdiction in which any particular act or acts
are
to be performed the Trustee shall be incompetent or unqualified to perform
such
act or acts, in which event such rights, powers, duties and obligations,
including the holding of title to the Trust Fund or any portion thereof in
any
such jurisdiction, shall be exercised and performed by such separate trustee,
co-trustee, or custodian;
(iii)
no
trustee or custodian hereunder shall be personally liable by reason of any
act
or omission of any other trustee or custodian hereunder; and
(iv)
the
Trustee or the Certificateholders evidencing more than 50% of the Aggregate
Voting Interests of the Certificates may at any time accept the resignation
of
or remove any separate trustee, co-trustee or custodian, so appointed by it
or
them, if such resignation or removal does not violate the other terms of this
Agreement.
(c)
Any
notice, request or other writing given to the Trustee shall be deemed to have
been given to each of the then separate trustees and co-trustees, as effectively
as if given to each of them. Every instrument appointing any separate trustee,
co-trustee or custodian shall refer to this Agreement and the conditions of
this
Article VI. Each separate trustee and co-trustee, upon its acceptance of the
trusts conferred, shall be vested with the estates or property specified in
its
instrument of appointment, either jointly with the Trustee or separately, as
may
be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the conduct
of, affecting the liability of, or affording protection to, the Trustee. Every
such instrument shall be filed with the Trustee and a copy given to the Master
Servicer and any NIMS Insurer.
100
(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 (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 arising out of or based upon the 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.
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.
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(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, including in its individual capacity, and its respective directors,
officers, employees and agents shall be entitled to indemnification from the
Trust Fund for any loss, liability or expense incurred in connection with any
legal proceeding or incurred without negligence or willful misconduct on their
part, arising out of, or in connection with, the acceptance or administration
of
the trusts created hereunder or in connection with the performance of their
duties hereunder or under the the Mortgage Loan Sale Agreement, the Exchange
Trust Agreement, any Transfer Agreement, the Servicing Agreement or any
Custodial Agreement, including any applicable fees and expenses payable pursuant
to Section 6.12 and the costs and expenses of defending themselves against
any
claim in connection with the exercise or performance of any of their powers
or
duties hereunder, provided that:
(i)
with
respect to any such claim, the Trustee shall have given the Depositor, the
Master Servicer, any NIMS Insurer and the Holders written notice thereof
promptly after the Trustee shall have knowledge thereof; provided that failure
of the Trustee to provide such written notice shall not relieve the Trust Fund
of the obligation to indemnify the Trustee under this Section 6.11;
102
(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 fifth 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 Custodians.
The
Trustee shall be entitled to (i) receive, and is authorized to pay itself,
the
amount of income or gain earned from investment of or other earnings on funds
in
the Certificate Account and (ii) 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 Regulations Section 1.860G-1(b)(3)(ii) or (ii) arise
from its negligence, bad faith or willful misconduct. The Trustee shall be
entitled to reimbursement of its reasonable expenses and disbursements incurred
or made in connection with a Section 7.01(d) Purchase Event in accordance with
Section 4.04(b). Each Custodian shall receive compensation and indemnification
amounts 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 indemnification amounts from amounts on deposit in the
Certificate Account prior to any distributions to Certificateholders pursuant
to
Sections 5A.02 and 5B.02 hereof.
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.
103
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) 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 or Class Notional Amount of each
Class of Certificates affected thereby; or
(ii)
Any
failure by the Master Servicer to duly perform, within the required time period
and without notice, its obligations to provide any certifications required
pursuant to Sections 9.25 and 9.26; or
(iii)
Except
with respect to those items listed in clause (ii) above, any failure by the
Master Servicer to duly perform, within the required time period, without notice
or grace period, its obligations to provide any information, data or materials
required to be provided hereunder pursuant to Sections 9.23 and 9.29(b),
including any items required to be included in any Exchange Act report;
or
(iv)
Any
failure on the part of the Master Servicer duly to observe or perform in any
material respect any other of the covenants or agreements on the part of the
Master Servicer contained in this Agreement which continues unremedied for
a
period of 30 days (or 15 days, in the case of failure to maintain any Insurance
Policy required to be maintained pursuant to this Agreement) 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 not less than 25% of the Class Principal
Amount (or Class Notional Amount) of each Class of Certificates affected thereby
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
104
(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 such Servicer with a Xxxxxx Mae-
or
Xxxxxxx Mac-approved servicer within 60 days of the date the Master Servicer
receives such notice or 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 failure
continues unremedied for a period of one Business Day (but in no event later
than 12:00 p.m. New York time on the related Distribution Date) after the date
upon which such written notice of such failure shall have been given to the
Master Servicer by the Trustee.
If
an
Event of Default described in clauses (i) through (xii) of this Section 6.14
shall occur, then, in each and every case, subject to applicable law, so long
as
any such Event of
105
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 (or Class Notional 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 6.14 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 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 and pursuant to and under the terms of
this
Agreement; provided,
however,
the
parties acknowledge that notwithstanding the preceding sentence, there may
be a
transition period, not to exceed 90 days, in order to effect the transfer of
the
Master Servicer’s obligations to the Trustee; provided,
however
the
obligation to make Advances by the Trustee shall be effective upon the Trustee
providing notice of the termination to the Master Servicer pursuant to this
Section 6.14. 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 servicing from the
predecessor Master 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 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 Fund 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 Fund for any such expense incurred
by
the Trust Fund; 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.
106
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 of which a Responsible Officer of the Trustee
has
actual knowledge, the Trustee shall promptly notify any NIMS Insurer 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 to the Trustee on the Master Servicer
Remittance Date.
(b)
Within
90
days of 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 failure to provide information required by this Agreement shall not
be considered a default by the Trustee hereunder. In addition, the Trustee
shall
have no responsibility for any act or omission of the Master Servicer prior
to
the issuance of any notice of termination and within a period of time not to
exceed 90 days after the issuance of written notice of termination pursuant
to
Section 6.14(a) or Section 9.28 or for any breach of representation or warranty
by such predecessor 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.
(c)
Notwithstanding
the above, the Trustee may, if it shall be unwilling to continue to so act,
or
shall, if it is unable to so act, petition a court of competent jurisdiction
to
appoint, or appoint on its own behalf any established housing and home finance
institution servicer, master servicer, servicing or mortgage servicing
institution having a net worth of not less than $15,000,000 and meeting such
other standards for a successor master servicer as are set forth in this
Agreement, as the successor to such Master Servicer in the assumption of all
of
the responsibilities, duties or liabilities of the Master Servicer hereunder.
Such successor master servicer shall have no responsibility for any act or
omission of the Master Servicer prior to such successor’s assumption of the
Master Servicer’s rights and obligations hereunder and such successor master
servicer shall also have no liability relating to the representations and
107
warranties
of the Master Servicer set forth in Section 9.14. Any entity designated by
the
Trustee as a successor master servicer may be an Affiliate of the Trustee;
provided,
however,
that,
unless such Affiliate meets the net worth requirements and other standards
set
forth herein for a successor master servicer, the Trustee in its individual
capacity shall agree, at the time of such designation, to be and remain liable
to the Trust Fund for such Affiliate’s actions and omissions in performing its
duties hereunder. In connection with such appointment and assumption, the
Trustee may make such arrangements for the compensation of such successor out
of
payments on Mortgage Loans as it and such successor shall agree; provided,
however,
that no
such compensation shall be in excess of that permitted to the Master Servicer
hereunder. The Trustee and such successor shall take such actions, consistent
with this Agreement, as shall be necessary to effectuate any such succession
and
may make other arrangements with respect to the servicing to be conducted
hereunder which are not inconsistent herewith. The Master Servicer shall
cooperate with the Trustee and any successor master servicer in effecting the
termination of the Master Servicer’s responsibilities and rights hereunder
including, without limitation, notifying Mortgagors of the assignment of the
master servicing functions and providing the Trustee and successor master
servicer, as applicable, all documents and records in electronic or other form
reasonably requested by it to enable it to assume the Master Servicer’s
functions hereunder and the transfer to the Trustee or such successor master
servicer, as applicable, all amounts which shall at the time be or should have
been deposited by the Master Servicer in the Collection Account and any other
account or fund maintained with respect to the Certificates or the Pooling
REMIC
1 Regular Interests or the Pooling REMIC 2 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.
108
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 and any NIMS Insurer. 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, 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 a Responsible Officer of 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 and any NIMS Insurer.
For all purposes of this Agreement, in the absence of actual knowledge by a
Responsible Officer of the Trustee, the Trustee shall not be deemed to have
knowledge of any failure of the Master Servicer or any other Event of Default
unless notified in writing by the Depositor, the Master Servicer or the
Certificateholders.
109
Section
6.20. Preparation
of Tax Returns and 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. The Trustee shall prepare
and
file required 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 Form 1099
supplemental tax information and such other information within the control
of
the Trustee as the Depositor may reasonably request in writing, and shall
distribute to each Certificateholder such forms and furnish such information
within the control of the Trustee as are required by the Code and the REMIC
Provisions to be furnished to them, and will prepare and distribute to
Certificateholders Form 1099 (supplemental tax information) (or otherwise
furnish information within the control of the Trustee) to the extent required
by
applicable law. The Master Servicer shall 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 each REMIC created hereby, an application on IRS Form SS-4. The
Trustee, upon receipt from the IRS of the Notice of Taxpayer Identification
Number Assigned for each REMIC, shall promptly forward copies of such notices
to
the Master Servicer, the Trustee and the Depositor. The Trustee will file an
IRS
Form 8811. The Trustee shall have no obligation to verify the information in
any
form 8811 or form SS-4 filings.
(c)
The
Depositor shall prepare or cause to be prepared the initial current report
on
Form 8-K. Thereafter, within 15 days (or, if applicable, within such shorter
period of time as is required under the rules of the Commission) as in effect
from time to time (the “Rules”)) following each Distribution Date, the Trustee
shall, in accordance with industry standards and 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 each of which reports and any amendment thereof shall be signed by the
Exchange Act Signing Party.
(d)
Reports
Filed on Form 10-D.
(i)
Within
15 days following each Distribution Date (or such later date as may be
permissible due to an extension of the filing deadline under the Exchange Act),
the Trustee will prepare and file a distribution report on Form 10-D (the
“Distribution Report”) with respect to the Trust Fund, which Distribution Report
shall include (A) a copy of the Distribution Date Statement prepared by the
Trustee in respect of the related Distribution Date detailing all applicable
data elements specified in Item 1121(a) of Regulation AB and (B) the information
identified in clauses (A) through (I) below, as specified on Exhibit Q;
provided, that, the Trustee shall have received from the Depositor, the Sponsor,
the Master Servicer, the Servicer, any Custodian or any Subservicer or
Subcontractor therefor, no later than three Business Days after the related
Distribution Date, the following additional information, data, and materials,
in
a form suitable for conversion to the format required for filing with the
Commission via XXXXX, required to be included in the Distribution Report on
Form
10-D for such Distribution Date:
110
(A)
Item
1 -
Distribution and Pool Performance Information (each of the data elements
specified in Item 1121(a)(11), (12) and (14) of Regulation AB);
(B)
Item
2 -
Legal Proceedings (information required by Item 1117 of Regulation
AB);
(C)
Item
3 -
Sale of Securities and Use of Proceeds (information required by Item 2 of Part
II of Form 10-Q);
(D)
Item
4 -
Defaults Upon Senior Securities (information required by Item 3 of Part II
of
Form 10-Q);
(E)
Item
5 -
Submission of Matters to a Vote of Security Holders (information required by
Item 4 of Part II of Form 10-Q);
(F)
Item
6 -
Significant Obligors of Pool Assets (information required by Item 1112(b) of
Regulation AB);
(G)
Item
7 -
Significant Enhancement Provider Information (information required by Items
1114(b)(2) and 1115(b) of Regulation AB);
(H)
Item
8 -
Other Information (all other information required to be disclosed on Form 8-K
during the period covered by the report and not yet reported); and
(I)
Item
9 -
Exhibits (all exhibits required to be filed by Form 10-D and Item 601 of
Regulation S-K other than the Distribution Date Statement to be provided by
the
Trustee).
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 reported by the parties set forth on Exhibit Q to the Depositor and the
Trustee and directed and approved by 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 to the
extent that such information is required to be provided by a party other than
the Trustee, except as set forth in the next paragraph.
(ii) 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
111
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 duly authorized representative of
the
Exchange Act Signing Party shall sign the Form 10-D and return an electronic
or
fax copy of such signed Form 10-D (with an original executed hard copy to follow
by overnight mail) to the Trustee. If a Form 10-D cannot be filed on time or
if
a previously filed Form 10-D needs to be amended, the Trustee will follow the
procedures set forth in subsection (g)(ii) of this Section 6.20. Promptly (but
no later than one Business Day) after filing with the Commission, the Trustee
will make available on its internet website a final executed copy of each Form
10-D filed by the Trustee. Each party to this Agreement acknowledges that the
performance by the Trustee of its duties under this Section 6.20(d) related
to
the timely preparation and filing of Form 10-D is contingent upon such parties
strictly observing all applicable deadlines in the performance of their duties
under this Section 6.20(d). The Trustee shall have no liability for any loss,
expense, damage, claim arising out of or with respect to any failure to properly
prepare and/or timely file such Form 10-D, where such failure results from
the
Trustee’s inability or failure to obtain or receive, on a timely basis, any
information from any other party hereto needed to prepare or file such Form
10-D, not resulting from its own negligence, bad faith or willful misconduct.
The Trustee shall not be responsible (1) for the content of any of the
information provided pursuant to clauses (d)(i)(A) - (I) above (unless such
item
is provided by and specific to the Trustee or its Subcontractor, in which case
the Trustee will be responsible for the content of such information;
provided
that
such
information is not revised without the prior consent of the Trustee), (2) for
determining whether any such information is required to be included in any
Form
10-D (unless such information is specific to the Trustee, in which case the
Trustee shall be responsible for making such a determination), (3) for
reformatting any information that is not in a form suitable for conversion
to
the format required for filing with the Commission via XXXXX so that it is
able
to be filed on XXXXX or (4) for the failure to include any information if it
is
not provided to the Trustee on a timely basis (unless such item is specific
to
the Trustee, in which case the Trustee will be responsible for the failure
to
include such information, unless such information is not included in the final
Form 10-D without the consent of the Trustee).
The
Trustee has no duty under this Agreement to monitor or enforce the performance
by the parties listed on Exhibit Q of their duties under this paragraph or
proactively solicit or procure from such parties any Additional Form 10-D
Disclosure information. The Depositor will be responsible for any reasonable
fees and expenses assessed or incurred by the Trustee in connection with
including any Additional Form 10-D Disclosure on Form 10-D pursuant to this
Section 6.20(d).
(iii) Form
10-D
requires the registrant to indicate (by checking “yes” or “no”) that it “(1) has
filed all reports required to be filed by Section 13 or 15(d) of the Exchange
Act during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to
such
filing requirements for the past 90 days.” At the date of filing of each annual
report on Form 10-K with respect to the Trust Fund, the Depositor shall be
deemed to represent to the Trustee that as of such date, the Depositor has
filed
all such required reports during the preceding 12 months and that is has been
subject to such filing requirements for the past 90 days. The Depositor hereby
directs the Trustee to check “yes” with respect to both clauses (1) and (2)
above. The Depositor shall notify the Trustee in writing, no later than the
fifth calendar day after the related Distribution Date with respect to the
filing of a report on Form 10-D, if the answer to either of clause (1) or clause
(2) above is “no.” The Trustee shall be entitled to rely on such direction in
preparing and/or filing any such Form 10-D.
112
(e)
Reports
Filed on Form 10-K.
(i) On
or
prior to the 90th
day
after the end of each fiscal year of the Trust Fund or such earlier date as
may
be required by the Exchange Act (the “10-K Filing Deadline”) (it being
understood that the fiscal year for the Trust Fund ends on December
31st
of each
year), commencing in March 2008, and, unless and until a Form 15 Suspension
Notification shall have been filed, the Trustee shall prepare and file (but
will
not execute) a Form 10-K in respect of the Trust Fund, which shall include
the
certification required pursuant to Rule 13a-14 under the Exchange Act (the
“Form
10-K Certification”) signed by an appropriate party or parties (which Form 10-K
Certification the Trustee shall not be required to prepare or sign) and such
other information as is required by the Rules; provided,
that,
the Trustee shall have received from the Depositor, the Servicer, each
Custodian, each Additional Servicer, any Servicing Function Participant and
the
Master Servicer (each, a “Reporting Servicer”), no later than March 15th of each
calendar year prior to the filing deadline for such Annual Report, all
information, data, assessments of compliance, accountant’s attestations and
exhibits required to be provided or filed with such Annual Report including
information, data, assessments of compliance, accountant’s attestations and
exhibits required to be provided in connection with the following Items and
other filing requirements of Form 10-K:
(A) Item
9B -
Other Information (information required to be reported on Form 8-K in the fourth
quarter but not reported);
(B) Item
15 -
Exhibits and Financial Statement Schedules (including all exhibits required
to
be filed pursuant to Item 601 of Regulation S-K under the Exchange Act other
than the certification specified in Item 601(b)(31)(ii) of Regulation S-K and
the Assessment of Compliance, Attestation Report, and Compliance Statement
specified in Item 601(b)(33), (34) and (35) of Regulation S-K with respect
to
those Servicing Criteria as to which the Trustee is the Item 1122 Responsible
Party);
(C) Significant
Obligor Financial Information (Item 1112(b) of Regulation AB);
(D) Significant
Enhancement Provider Financial Information (Items 1114(b)(2) and 1115(b) of
Regulation AB);
(E) Legal
Proceedings (Item 1117 of Regulation AB);
(F) Affiliations
and Certain Relationships and Related; Transactions (Item 1119 of Regulation
AB);
113
(G) Compliance
with Applicable Servicing Criteria (Item 1122 of Regulation AB);
and
(H) Servicer
Compliance Statement (Item 1123 of Regulation AB).
Any
disclosure or information listed in (A) through (H) above that is required
to be
included on Form 10-K (“Additional
Form 10-K Disclosure”)
shall
be reported by the parties set forth on Exhibit R to the Depositor and the
Trustee and directed and approved by 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 to the
extent that such information is required to be provided by a party other than
the Trustee, except as set forth in the next paragraph.
(ii) 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 filed by the Trustee. The parties to
this
Agreement acknowledge that the performance by the Trustee of its duties under
this Section 6.20(e) related to the timely preparation and filing of Form 10-K
is contingent upon such parties (and any Additional Servicer or Servicing
Function Participant) strictly observing all applicable deadlines in the
performance of their duties under this Section 6.20(e), Section 9.25(a), Section
9.25(b) and Section 9.26. The Trustee shall have no liability for any loss,
expense, damage or 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. The Trustee shall not be responsible (1) for the
content of any of the information provided pursuant to clauses (e)(i)(A) -
(H)
above (unless such item is provided by and specific to the Trustee or its
Subcontractor, in which case the Trustee will be responsible for the content
of
such information; provided
that
such
information is not revised without the prior consent of the Trustee), (2) for
determining whether any such information is required to be included in any
Form
10-K (unless such information is specific to the Trustee, in which case the
Trustee shall be responsible for making such a determination), (3) for
reformatting any information that is not in a form suitable for conversion
to
the format required for filing with the Commission via XXXXX so that it is
able
to be filed on XXXXX or (4) for the failure to include any information if it
is
not provided to the Trustee on a timely basis (unless such item is specific
to
the Trustee, in which case the Trustee will be responsible for the failure
to
include such information, unless such information is not included in the final
Form 10-K without the consent of the Trustee).
114
The
Trustee has no duty under this Agreement to monitor or enforce the performance
by the parties listed on Exhibit R of their duties under this paragraph or
proactively solicit or procure from such parties any Additional Form 10-K
Disclosure information. The Depositor will be responsible for any reasonable
fees and expenses assessed or incurred by the Trustee in connection with
including any Additional Form 10-K Disclosure on Form 10-K pursuant to this
paragraph.
(iii) Unless
a
Form 15 Suspension Notification with respect to the Trust Fund has been filed,
if so requested, on or prior to March 15th
of each
year, beginning in March 2008, the Trustee shall sign a certification in the
form attached hereto as Exhibit M (the “Back-up Certification”) for the benefit
of the Exchange Act Signing Party and the Person who signs the Form 10-K
Certification (the “Certifying Party”) regarding certain aspects of such Form
10-K Certification, upon which the Exchange Act Signing Party and the Certifying
Party can reasonably rely (provided,
however,
that the
Trustee shall not be required to undertake an analysis of, and shall have no
responsibility for, any financial information, the accountant’s report,
certification or other materials contained therein, except for those
computations prepared by the Trustee and reflected in the distribution report).
Nothing in this Section 6.20(i) shall relieve the Trustee of its responsibility
for the matters as to which it is certifying in the form attached hereto as
Exhibit M.
(iv) Form
10-K
requires the registrant to indicate (by checking “yes” or “no”) that it “(1) has
filed all reports required to be filed by Section 13 or 15(d) of the Exchange
Act during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to
such
filing requirements for the past 90 days.” The Depositor hereby directs the
Trustee to check “yes” with respect to both clauses (1) and (2) above. The
Depositor shall notify the Trustee in writing, no later than the 15th calendar
day of March in any year in which the Trust is subject to the reporting
requirements of the Exchange Act, if the answer to either of clause (1) or
clause (2) above is “no.” The Trustee shall be entitled to rely on such
direction in preparing and/or filing any such Form 10-K.
(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”), at the written direction and
expense of the Depositor, the Trustee shall prepare and file Current Reports
on
Form 8-K in respect of the Trust Fund, as required by the Exchange Act;
provided,
that,
the Depositor shall have timely notified the Trustee of an item reportable
on a
Current Report on Form 8-K and shall have delivered to the Trustee no later
than
two Business Days prior to the filing deadline for such Current Report, all
information, data, and exhibits required to be provided or filed with such
Current Report, including, particularly, information, data and exhibits, in
a
form suitable for conversion to the format required for filing with the
Commission via XXXXX, required to be provided in connection with the following
Items of Form 8-K:
115
(A) Item
1.01
- Entry into a Material Definitive Agreement;
(B) Item
1.02
- Termination of a Material Definitive Agreement;
(C) Item
1.03
- Bankruptcy or Receivership;
(D) Item
2.04
- Triggering Events that Accelerate or Increase a Direct Financial Obligation
or
an Obligation under an Off-Balance Sheet Arrangement;
(E) Item
3.03
- Material Modification to Rights of Security Holders;
(F) Item
5.03
- Amendments of Articles of Incorporation or Bylaws; Change of Fiscal
Year
(G) Item
6.02
- Change in Servicer or Trustee;
(H) Item
6.03
- Change in Credit Enhancement or Other External Support;
(I) Item
6.04
- Failure to Make a Required Distribution; and
(J) Item
6.05
- Securities Act Updating Disclosure.
Any
disclosure or information related to a Reportable Event or that is otherwise
required to be included on Form 8-K other than the initial Form 8-K
(“Form
8-K Disclosure Information”)
shall
be reported by the parties set forth on Exhibit S to the Depositor and the
Trustee and directed and approved by the Depositor pursuant to the following
paragraph, and the Trustee will have no duty or liability for any failure
hereunder to determine or prepare any Form 8-K Disclosure Information or any
Form 8-K to the extent that such information is required to be provided by
a
party other than the Trustee, except as set forth in the next paragraph.
(ii) 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 1 p.m. New York City time
on the 4th
Business
Day after the Reportable Event, a duly authorized officer of the Exchange Act
Signing Party shall sign the Form 8-K and return
116
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 filed by the Trustee. 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 or file such
Form
8-K, not resulting from its own negligence, bad faith or willful misconduct.
The
Trustee shall not be responsible (1) for the content of any of the information
provided pursuant to clauses (f)(i)(A) - (J) above (unless such item is provided
by and specific to the Trustee or its Subcontractor, in which case the Trustee
will be responsible for the content of such information; provided
that
such
information is not revised without the prior consent of the Trustee), (2) for
determining what information is required to be filed on a Form 8-K in connection
with the transactions contemplated by this Agreement (unless such information
is
specific to the Trustee, in which case the Trustee will be responsible for
making such a determination, unless such information is not included in the
final Form 8-K without the consent of the Trustee), (3) for reformatting any
information that is not in a form suitable for conversion to the format required
for filing with the Commission via XXXXX so that it is able to be filed on
XXXXX
or (4) for any late filing of a Form 8-K in the event that it does not receive
all information, data, signatures and exhibits required to be provided or filed
on or prior to the second Business Day prior to the applicable filing deadline.
The Trustee has no duty under this Agreement to monitor or enforce the
performance by the parties listed on Exhibit S of their duties under this
paragraph or proactively solicit or procure from such parties any Additional
Form 10-K Disclosure information. The Depositor will be responsible for any
reasonable fees and expenses assessed or incurred by the Trustee in connection
with including any Form 8-K Disclosure Information on Form 8-K pursuant to
this
paragraph.
(g)
Delisting;
Amendments; Late Filings.
(i) Prior
to
January 30th of the first year in which the Trustee is able to do so under
applicable law, unless otherwise directed by the Depositor in writing, 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. The Paying Agent
is entitled to assume that a Form 15 will be filed for such year unless the
Trustee notifies the Paying Agent that a From 15 will not be filed.
(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 Form 10-D/A and 10-K/A as applicable, pursuant to Rule 12b-25
of
the Exchange Act. In the case of Form 8-K, the Trustee will, upon receipt of
all
required Form 8-K Disclosure Information and upon the approval and direction
of
the Depositor, include such disclosure information on the next Form 10-D. In
the
event that any previously filed Form 8-K, 10-D or 10-K needs to be amended
with
respect to an additional disclosure item, the Trustee will notify the Depositor
and any applicable party affected thereby and such parties will cooperate to
prepare any necessary Form 8-K/A, 10-D/A or 10-K/A. Any Form 15, Form 12b-25
or
any amendment to Form 8-K, 10-D or 10-K shall be signed by a senior officer
or a
duly authorized representative, as applicable, of the Exchange Act Signing
Party. The parties to this Agreement acknowledge that the performance by the
Trustee of its duties under this Section 6.20(g) related to the timely
preparation and filing of Form 15, a Form 12b-25 or any amendment to Form 8-K,
10-D or 10-K is contingent upon each such party performing its duties under
this
Section. The Trustee shall have no liability for any loss, expense, damage
or
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.
117
(h)
The
Trustee, with the prior consent of the Depositor, may include in any Exchange
Act report all relevant information, data, and exhibits as the Trustee may
receive in connection with such report irrespective of any provision that may
permit the exclusion of such material. For example, the Trustee, with the prior
consent of the Depositor, may file all Assessments of Compliance, Attestation
Reports and Compliance Statements timely received from any Item 1122 Responsible
Party irrespective of any applicable minimum pool asset percentage requirement
for disclosure related to such Item 1122 Responsible Party.
(i)
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.
(j)
The
Depositor and the Master Servicer, by mutual agreement, shall determine which
of
the Depositor or the Master Servicer shall be the initial Exchange Act Signing
Party. Upon such determination, the Depositor shall timely notify the Trustee,
and such notice shall provide contact information for the Exchange Act Signing
Party. If the Depositor and Master Servicer, at any time, mutually agree to
change the identity of the Exchange Act Signing Party, the Depositor shall
provide timely notice to the Trustee of any such change. Any n notice delivered
pursuant to this Section 6.20 may be by fax or electronic copy notwithstanding
the notice provisions of Section 11.07.
118
Section
6.21. Compliance
with Regulation AB.
Each
of
the parties hereto acknowledges and agrees that the purpose of Sections 6.01
and
6.20 of this Agreement is to facilitate compliance by the Sponsor, the Master
Servicer, the Depositor and the Trustee with the provisions of Regulation AB,
as
such may be amended or clarified from time to time. Therefore, each of the
parties agrees that (a) the obligations of the parties hereunder shall be
interpreted in such a manner as to accomplish compliance with Regulation AB,
(b)
the parties’ obligations hereunder will be supplemented and modified as
necessary to be consistent with any such amendments, interpretive advice or
guidance from the Commission, convention or consensus among active participants
in the asset-backed securities markets, or otherwise in respect of the
requirements of Regulation AB and (c) the parties shall comply with reasonable
requests made by the Sponsor, the Master Servicer, the Depositor or the Trustee
for delivery of additional or different information, to the extent such
information is available or reasonably attainable, as the Sponsor, the Master
Servicer, the Depositor or the Trustee may determine in good faith is necessary
to comply with the provisions of Regulation AB.
Section
6.22. No
Merger.
The
Xxxxxx XS Trust 2007-5H shall not to be merged or consolidated with any other
entity, except as a result of a final judicial determination.
Section
6.23. Reporting
Requirements of the Commission.
The
Trustee and the Master Servicer shall reasonably cooperate with the Depositor
and its counsel to enter into such amendments or modifications to this Agreement
as may be necessary to comply with the Rules and any interpretations thereof
by
the staff of the Commission, subject to the provisions of Section 11.03
hereof.
ARTICLE
VII
PURCHASE
OF MORTGAGE LOANS AND
TERMINATION
OF THE TRUST FUND
| Section 7.01. |
Purchase
of Mortgage Loans; Termination of a Mortgage Pool or the Trust Fund
Upon
Purchase or Liquidation of Mortgage Loans; Purchase of the Pooling
REMIC 1
Regular Interests or the Pooling REMIC 2 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 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 and 9.14) with respect to Pool 1 and Pool 2 shall terminate
on
the earliest of (i) the final payment or other liquidation of the last Mortgage
Loan remaining in Pool 1 and Pool 2 and the disposition of all related REO
Property, (ii) the latest to occur of 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 “Pool 1-2 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 Pool 1-2 Termination Event,
each REMIC related to Pool 1 and Pool 2 shall be terminated in a manner that
shall qualify as a “qualified liquidation” under the REMIC Provisions as
evidenced by an Opinion of Counsel provided to the Trustee at the expense of
the
Trust Fund.
119
The
respective obligations and responsibilities of the Trustee and the Master
Servicer created hereby (other than the obligation of the Trustee to make
payments to Certificateholders as set forth in Section 7.02, the obligation
of
the Master Servicer to make a final remittance to the Trustee pursuant to
Section 4.01, and the obligations of the Master Servicer to the Trustee pursuant
to Sections 9.10 and 9.14) with respect to Pool 3 shall terminate on the
earliest of (i) the final payment or other liquidation of the last Mortgage
Loan
remaining in Pool 3 and the disposition of all related REO Property, (ii) the
latest to occur of the sale of the property held by the Trust Fund in accordance
with Section 7.01(d) and (iii) the Latest Possible Maturity Date (each, a “Pool
3 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 Pool 3 Termination Event,
each REMIC related to Pool 3 shall be terminated in a manner that shall qualify
as a “qualified liquidation” under the REMIC Provisions as evidenced by an
Opinion of Counsel provided to the Trustee at the expense of the Trust
Fund.
(b)
On
any
Distribution Date occurring on or after the Pool 1-2 Initial Optional
Termination Date, the Master Servicer or the 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 purchase the Mortgage
Loans in Pool 1 and Pool 2 and any REO Property related to Pool 1 and Pool
2 for
the Pool 1-2 Purchase Price upon written direction to the Trustee (delivered
no
later than 30 days prior to the anticipated sale date); provided,
however, if
there
are any Group I NIM Securities outstanding, the Master Servicer may only
exercise its option after receiving the prior written consent of the holders
of
such Group I NIM Securities and, if such consent is given, the Pool 1-2 Purchase
Price shall also include an amount equal to the sum of (1) any accrued interest
on the Group I NIM Securities, (2) the unpaid principal balance of any such
Group I NIM Securities and (3) any other reimbursable expenses owed by the
issuer of the Group I NIM Securities (the “Group I NIM Redemption Amount”). Upon
exercise of such option, the property of the Trust Fund in Pool 1 and Pool
2
shall be sold to the Master Servicer for the Pool 1-2 Purchase Price. The Master
Servicer, the Servicer (or the Trustee, if applicable) shall be reimbursed
from
the Pool 1-2 Purchase Price for any Mortgage Loan in Pool 1 and Pool 2 or
related REO Property for any Advances made or other amounts advanced with
respect to the Mortgage Loans in Pool 1 and Pool 2 that are reimbursable to
the
Master Servicer or the Trustee under this Agreement or the Servicing Agreement,
together with any accrued and unpaid compensation and any other amounts due
to
the Master Servicer or the Trustee hereunder or the Servicer thereunder, and
the
Trustee shall be entitled to be reimbursed from the Pool 1-2 Purchase Price
for
any related amounts owed to the Trustee under Section 6.11 and Section 6.12
hereof. If the NIMS Insurer directs the Master Servicer to exercise its right
to
cause the Trust Fund to sell its property in Pool 1 and Pool 2 as described
above, then (i) the Master Servicer shall cause the Trust Fund to sell its
property in Pool 1 and Pool 2 as described above, (ii) the NIMS Insurer shall
remit the Pool 1-2 Purchase 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) the Trustee
shall transfer the property of the Trust Fund in Pool 1 and Pool 2 to the NIMS
Insurer. The NIMS Insurer shall be obligated to reimburse the Master Servicer
and the Trustee for their reasonable out-of-pocket expenses incurred in
connection with its sale of the property in Pool 1 and Pool 2 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 Master Servicer’s or Trustee’s
sale of the property in Pool 1 and Pool 2 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 the case may be, negligence, bad
faith or willful misconduct.
120
On
any
Distribution Date occurring on or after the Pool 3 Initial Optional Termination
Date, the Master Servicer or the LTURI-holder, as applicable, with the prior
written consent of the Seller (which consent shall not be unreasonably withheld)
has the option to purchase the Mortgage Loans in Pool 3 and any REO Property
related to Pool 3 for the Pool 3 Purchase Price upon written direction to the
Trustee (delivered no later than 30 days prior to the anticipated sale date).
Upon exercise of such option, the property of the Trust Fund in Pool 3 shall
be
sold to the Master Servicer for the Pool 3 Purchase Price. The Master Servicer,
the Servicer (or the Trustee, if applicable) shall be reimbursed from the Pool
3
Purchase Price for any Mortgage Loan in Pool 3 or related REO Property for
any
Advances made or other amounts advanced with respect to the Mortgage Loans
in
Pool 3 that are reimbursable to the Master Servicer or the Trustee under this
Agreement or the Servicing Agreement, together with any accrued and unpaid
compensation due to the Master Servicer hereunder or the Servicer thereunder,
and the Trustee shall be entitled to be reimbursed from the Pool 3 Purchase
Price for any related amounts owed to the Trustee under Section 6.11 and Section
6.12 hereof.
(c)
[Reserved].
(d)
On
any
Distribution Date occurring on or after the Pool 1-2 Initial Optional
Termination Date or Pool 3 Initial Optional Termination Date, as applicable,
and
provided there are no related NIM Securities outstanding, in the case of the
Group I NIM Securities, the Master Servicer, with the prior written consent
of
the Seller, which consent shall not be unreasonably withheld, has the option
to
purchase all of the Pooling REMIC 1 Regular Interests or the Pooling REMIC
2
Regular Interests, respectively.
Upon
exercise of such option with respect to Pool 1 and Pool 2, the Pooling REMIC
1
Regular Interests shall be sold to the Master Servicer at a price (the “Pooling
REMIC 1 Regular Interest Price”) equal to the sum of (i) 100% of the unpaid
principal balance of each Pool 1 and Pool 2 Mortgage Loan on the day of such
purchase plus interest accrued thereon at the applicable Mortgage Rate with
respect to any such 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 Pooling REMIC 1, 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 related
to
Pool 1 and Pool 2 (other than Pooling 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 Pooling REMIC 1 Regular
Interests and the Class I-LT-R Certificates will evidence the entire beneficial
interest in the property of the Trust Fund. Following a purchase of the Pooling
REMIC 1 Regular Interests pursuant to this subsection, the Trust Fund (and
Pooling REMIC 1) will remain outstanding and final payment on the Certificates
(other than the Class I-LT-R Certificates) will be made in accordance with
Section 7.03(a)(iii) and 5A.02. The Trust Fund, as it relates Pool 1 and Pool
2,
will terminate upon the occurrence of a Pool 1-2 Termination Event, in
accordance with Section 7.01(a).
121
Upon
exercise of such option with respect to Pool 3, the Pooling REMIC 2 Regular
Interests shall be sold to the Master Servicer at a price (the “Pooling REMIC 2
Regular Interests Purchase Price”) equal to the sum of (i) 100% of the unpaid
principal balance of each Pool 3 Mortgage Loan on the day of such purchase
plus
interest accrued thereon at the applicable Mortgage Rate with respect to any
such 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 Pooling
REMIC 2, such fair market value to be determined by an independent appraiser
or
appraisers mutually agreed upon by the Master Servicer and the Trustee (reduced,
in the case of REO Property, by (1) reasonably anticipated disposition costs
and
(2) any amount by which the fair market value as so reduced exceeds the
outstanding principal balance of the related Mortgage Loan plus interest accrued
thereon at the applicable Net Mortgage Rate to the date of such purchase).
If
the Master Servicer elects to exercise such option, each REMIC created pursuant
to this Agreement related to Pool 3 (other than Pooling REMIC 2) 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 Pooling
REMIC 2 Regular Interests and the Class II-LT-R Certificates will evidence
the
entire beneficial interest in the property of the Trust Fund. Following a
purchase of the Lower-Tier REMIC 2 Uncertificated Regular Interests pursuant
to
this subsection, the Trust Fund (and Pooling REMIC 2) will remain outstanding
and final payment on the Certificates (other than the Class II-LT-R
Certificates) will be made in accordance with Section 7.03(a)(iii) and 5B.02.
The Trust Fund, as it relates to Pool 3, will terminate upon the occurrence
of a
Pool 3 Termination Event, in accordance with Section 7.01(a).
The
Trust
Fund will terminate upon the occurrence of a Trust Fund Termination Event,
in
accordance with Section 7.01(a).
| Section 7.02. |
Procedure
Upon Termination of Trust Fund or Purchase of Pooling REMIC 1 Regular
Interests or the Pooling REMIC 2 Regular Interests.
|
(a)
Notice
of
any Trust Fund Termination Event and notice of the purchase of the Pooling
REMIC
1 Regular Interests or the Pooling REMIC 2 Regular Interests, specifying the
Distribution Date upon which the final distribution to the Certificates (other
than the Class I-LT-R or Class II-LT-R Certificates, in the case of a purchase
of the Pooling REMIC 1 Regular Interests or the Pooling REMIC 2 Regular
Interests, respectively) shall be made, shall be given promptly by the Trustee
by first class mail to Certificateholders mailed no later than 5 Business Days
after the Trustee has received notice from the Master Servicer of its election
to cause (x) sale of all of the property of the Trust Fund related to Pool
1 and
Pool 2, or related to Pool 3 pursuant to Section 7.01(b), (y) the purchase
of
the Pooling REMIC 1 Regular Interests or the Pooling REMIC 2 Regular Interests
pursuant to Section 7.01(d), or (z) upon the final payment or other liquidation
of the last Mortgage Loan or REO Property in the applicable Pool in the Trust
Fund. In the case of a Trust Fund Termination Event, the Trustee shall also
give
notice to the Master Servicer and the Certificate Registrar at the time notice
is given to the Holders.
122
In
the
case of a Pool 1-2 Termination Event or Pool 3 Termination Event, as applicable,
such notice shall specify (A) the Distribution Date upon which final
distribution on the related Certificates, Pooling REMIC 1 Regular Interests
or
Pooling REMIC 2 Regular Interests of all amounts required to be distributed
to
Certificateholders pursuant to Section 5A.02 and Section 5B.02, as applicable,
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, Pooling
REMIC 1 Regular Interests and Pooling REMIC 2 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, Pooling REMIC 1 Regular
Interests or Pooling REMIC 2 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 Pooling REMIC 1 Regular Interests or Pooling REMIC
2
Regular Interests, such notice shall specify (A) the Distribution Date upon
which final distribution on the Certificates (other than the Class I-LT-R
Certificates and Class II-LT-R Certificates) of all amounts required to be
distributed to Certificateholders pursuant to 5A.02 and Section 5B.02, as
applicable, (other than any distributions to the Class I-LT-R Certificates
in
respect of Pooling REMIC 1 and the Class II-LT-R Certificate in the case of
Pooling REMIC 2) will be made upon presentation and surrender of the
Certificates (other than the Class I-LT-R Certificates or Class II-LT-R
Certificates, as applicable) 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 I-LT-R Certificates or Class II-LT-R Certificates, as
applicable) at the office or agency of the Trustee therein specified. Upon
any
such purchase of the Pooling REMIC 1 Regular Interests or Pooling REMIC 2
Regular Interests, the duties of the Certificate Registrar with respect to
the
related Certificates 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 related 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 either the Pooling REMIC 1 Regular Interests or
Pooling REMIC 2 Regular Interests, all amounts that would be distributed on
the
related Certificates (other than the Class I-LT-R Certificates or the Class
II-LT-R Certificate, as applicable, and exclusive of amounts payable from any
fund that is treated as an Excluded Trust Asset) absent such purchase shall
be
payable to the applicable LTURI-holder.
123
(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 either the Pooling REMIC 1 Regular
Interests or Pooling REMIC 2 Regular Interests shall be reimbursed from proceeds
received from such termination or purchase.
| Section 7.03. |
Additional
Requirements for any Trust Fund Termination Event or Purchase of
either
the Pooling REMIC 1 Regular Interests or Pooling REMIC 2 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(d) 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 any
of
the Pooling REMIC 1 Regular Interests or Pooling REMIC 2 Regular Interests
pursuant to Section 7.01(b) or Section 7.01(d), 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 I-LT-R and Class II-LT-R Certificates, in the case of
a
purchase of the Pooling REMIC 1 Regular Interests or Pooling REMIC 2 Regular
Interests, respectively, 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 of the Trust Fund or purchase the Pooling REMIC 1 Regular
Interests or Pooling REMIC 2 Regular Interests, the Trustee shall adopt a plan
of complete liquidation on behalf of each related REMIC (other than Pooling
REMIC 1, in the case of a purchase of the Pooling REMIC 1 Regular Interests,
other than Pooling REMIC 2, in the case of the purchase of the Pooling REMIC
2
Regular Interests), meeting the requirements of a qualified liquidation under
the REMIC Provisions;
124
(ii)
Any
sale
of the assets of the Trust Fund, the Pooling REMIC 1 Regular Interests or
Pooling REMIC 2 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 I-LT-R and Class II-LT-R Certificates, in
the
case of a purchase of the Pooling REMIC 1 Regular Interests or Pooling REMIC
2
Regular Interests, respectively);
(iii)
On
the
date specified for final payment of the Certificates (other than the Class
I-LT-R and Class II-LT-R Certificates, in the case of a purchase of the Pooling
REMIC 1 Regular Interests or Pooling REMIC 2 Regular Interests, respectively),
the Trustee shall make final distributions of principal and interest on such
Certificates. 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(d) 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
Purchase Right of NIMS Insurer.
The
NIMS
Insurer, if any, may purchase any Distressed Mortgage Loan in the related
Mortgage Pool or Mortgage Pools 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, Servicing
Fees or Trustee Fees and any unreimbursed expenses of the Trustee allocable
to
such Distressed Mortgage Loan. Any such purchase shall be accomplished by the
NIM 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
purchase which would be materially adverse to the related
Certificateholders.
125
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, any 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.
126
(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 none of the
Depositor, the Master Servicer, any NIMS Insurer, the Certificate Registrar,
the
Paying Agent or 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, the Certificate Registrar and the
Paying Agent 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.
127
(c)
The
ownership of Certificates, Pooling REMIC 1 Regular Interests or Pooling REMIC
2
Regular Interests (whether or not such Certificates, Pooling REMIC 1 Regular
Interests or Pooling REMIC 2 Regular Interests shall be overdue and
notwithstanding any notation of ownership or other writing thereon made by
anyone other than the Trustee) shall be proved by the Certificate Register,
and
none of the Trustee, the Master Servicer, the Paying Agent 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, Pooling REMIC 1 Regular Interests
or
Pooling REMIC 2 Regular Interests shall bind every future Holder of the same
Certificate, Pooling REMIC 1 Regular Interests or Pooling REMIC 2 Regular
Interests and the Holder of every Certificate, Pooling REMIC 1 Regular Interests
or Pooling REMIC 2 Regular Interests issued upon the registration of transfer
thereof or in exchange therefor or in lieu thereof, in respect of anything
done,
omitted or suffered to be done by the Trustee or the Master Servicer in reliance
thereon, whether or not notation of such action is made upon such Certificate,
Pooling REMIC 1 Regular Interests or Pooling REMIC 2 Regular
Interests.
ARTICLE
IX
ADMINISTRATION
AND SERVICING OF MORTGAGE LOANS
BY
THE
MASTER SERVICER
Section
9.01. Duties
of the Master Servicer.
The
Certificateholders, by their purchase and acceptance of the Certificates,
Pooling REMIC 1 Regular Interests or Pooling REMIC 2 Regular Interests, appoint
Aurora Loan Services LLC, as Master Servicer. For and on behalf of the
Depositor, the Trustee and the Certificateholders, the Master Servicer shall
master service the Mortgage Loans in accordance with the provisions of this
Agreement and the provisions of the Servicing Agreement.
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 the Servicer Fidelity Bond in accordance with
the
provisions of the 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 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.
128
(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, each Rating Agency and the Depositor a copy of the annual audited
financial statements of its parent on or prior to March 31st of each year
commencing on March 31, 2008. Such financial statements shall include
comparative balance sheets, income statements, statement of changes in
shareholder's equity, statements of cash flows, a consolidating schedule showing
consolidated subsidiaries and any related notes required pursuant to generally
accepted accounting principles, certified by a nationally recognized firm of
Independent Accountants to the effect that such financial statements were
examined and prepared in accordance with generally accepted accounting
principles applied on a basis consistent with that of the preceding
year.
Section
9.04. Power
to Act; Procedures.
(a)
The
Master Servicer shall master service the Mortgage Loans and shall have full
power and authority, subject to the REMIC Provisions and the provisions of
Article X hereof, and the Servicer shall have full power and authority (to
the
extent provided in the Servicing Agreement) to do any and all things that it
may
deem necessary or desirable in connection with the servicing and administration
of the Mortgage Loans, including but not limited to the power and authority
(i)
to execute and deliver, on behalf of the Certificateholders and the Trustee,
customary consents or waivers and other instruments and documents, (ii) to
consent to transfers of any Mortgaged Property and assumptions of the Mortgage
Notes and related Mortgages, (iii) to collect any Insurance Proceeds and
Liquidation Proceeds, and (iv) to effectuate foreclosure or other conversion
of
the ownership of the Mortgaged Property securing any Mortgage Loan, in each
case, in accordance with the provisions of this Agreement and the Servicing
Agreement, as applicable; provided that the Master Servicer shall not take,
or
knowingly permit the Servicer to take, any action that is inconsistent with
or
prejudices the interests of the Trust Fund or the Certificateholders in any
Mortgage Loan or the rights and interests of the Depositor, the Trustee, the
Certificateholders under this Agreement. The Master Servicer further is
authorized and
129
empowered
by the Trustee, on behalf of the Certificateholders and the Trustee, in its
own
name or in the name of the Servicer (to the extent permitted in the Servicing
Agreement), when the Master Servicer or the Servicer, as the case may be,
believes it is appropriate in its best judgment to register any Mortgage Loan
with MERS, or cause the removal from the registration of any Mortgage Loan
on
the MERS system, to execute and deliver, on behalf of the Trustee and the
Certificateholders or any of them, any and all instruments of assignment and
other comparable instruments with respect to such assignment or re-recording
of
a Mortgage in the name of MERS, solely as nominee for the Trustee and its
successor and assigns. The Master Servicer shall represent and protect the
interests of the Trust Fund in the same manner as it protects its own interests
in mortgage loans in its own portfolio in any claim, proceeding or litigation
regarding a Mortgage Loan and shall not make or knowingly permit the Servicer
to
make any modification, waiver or amendment of any term of any Mortgage Loan
that
would cause an Adverse REMIC Event. Without limiting the generality of the
foregoing, the Master Servicer in its own name or in the name of the Servicer,
and the Servicer, to the extent such authority is delegated to the Servicer
under the Servicing Agreement, is hereby authorized and empowered by the Trustee
when the Master Servicer or the Servicer, as the case may be, believes it
appropriate in its best judgment and in accordance with Accepted Servicing
Practices and the Servicing Agreement, to execute and deliver, on behalf of
itself and the Certificateholders, the Trustee or any of them, any and all
instruments of satisfaction or cancellation, or of partial or full release
or
discharge and all other comparable instruments, with respect to the Mortgage
Loans and with respect to the Mortgaged Properties. The Trustee shall execute,
upon request, any powers of attorney furnished to it by the Master Servicer
empowering the Master Servicer or the Servicer to execute and deliver
instruments of satisfaction or cancellation, or of partial or full release
or
discharge, and to foreclose upon or otherwise liquidate Mortgaged Property,
and
to appeal, prosecute or defend in any court action relating to the Mortgage
Loans or the Mortgaged Property, in accordance with the Servicing Agreement
and
this Agreement, and the Trustee shall execute and deliver such other documents,
as the Master Servicer may request, necessary or appropriate to enable the
Master Servicer to master service or administer the Mortgage Loans and carry
out
its duties hereunder and to allow the Servicer to service the Mortgage Loans,
in
each case in accordance with Accepted Servicing Practices (and the Trustee
shall
have no liability for misuse of any such powers of attorney by the Master
Servicer or the Servicer). If the Master Servicer or the Trustee has been
advised that it is likely that the laws of the state in which action is to
be
taken prohibit such action if taken in the name of the Trustee or that the
Trustee would be adversely affected under the “doing business” or tax laws of
such state if such action is taken in its name, then upon request of the Trustee
the Master Servicer shall join with the Trustee in the appointment of a
co-trustee pursuant to Section 6.09 hereof. In no event shall the Master
Servicer, without the Trustee’s written consent: (i) initiate any action, suit
or proceeding solely under the Trustee’s name without indicating the Master
Servicer in its applicable, representative capacity, so long as the
jurisdictional and procedural rules will allow for this insertion to occur,
(ii)
initiate any action, suit or proceeding not directly relating to the servicing
of a Mortgage Loan (including but not limited to actions, suits or proceedings
against Certificateholders, or against the Depositor 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 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.
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(b)
In
master
servicing and administering the Mortgage Loans, the Master Servicer shall employ
procedures, and shall exercise the same care that it customarily employs and
exercises master servicing and administering loans for its own account, giving
due consideration to Accepted Servicing Practices where such practices do not
conflict with this Agreement. Consistent with the foregoing, the Master Servicer
may, and may permit the Servicer to, in its discretion waive any late payment
charge (but not any Prepayment Premium, except as set forth below) and extend
the due dates for payments due on a Mortgage Note; provided,
however,
that
the maturity of any Mortgage Loan shall not be extended past the Final Scheduled
Distribution Date. In the event of any such modification, the Servicer or Master
Servicer shall calculate the Scheduled Payment for such Mortgage Loan based
on
the modified terms of such Mortgage Loan and shall only be required to make
Advances pursuant to Section 5.04 to the extent of such new Scheduled Payment.
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 Servicer, reasonably foreseeable, (2) in the case of a waiver
of
a Prepayment Premium if (a) such Mortgage Loan is in default or default by
the
related Mortgagor is, in the reasonable judgment of the Master Servicer or
the
Servicer, reasonably foreseeable, and such waiver would maximize recovery of
total proceeds taking into account the value of such Prepayment Premium and
the
related Mortgage Loan or (b) if the prepayment is not a result of a refinancing
by the Servicer or any of its affiliates and (i) the collection of the
Prepayment Premium would be in violation of applicable laws or (ii) 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) such modification, waiver or amendment
would not cause an Adverse REMIC Event.
Section
9.05. Enforcement
of Servicer’s and Master Servicer’s Obligations.
(a)
The
Servicing Agreement requires the 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 the Servicer on behalf of the Master Servicer. Any fees and other
amounts payable to the Servicer shall be deducted from amounts remitted to
the
Master Servicer by the Servicer to the extent permitted by the Servicing
Agreement and shall not be an obligation of the Trust Fund, the Trustee or
the
Master Servicer.
(b)
The
Master Servicer shall not be required to (i) take any action with respect to
the
servicing of any Mortgage Loan that the Servicer is not required to take under
the Servicing Agreement and (ii) cause the Servicer to take any action or
refrain from taking any action if the Servicing Agreement does not require
the
Servicer to take such action or refrain from taking such action; in both cases
notwithstanding any provision of this Agreement that requires the Master
Servicer to take such action or cause the Servicer to take such
action.
131
(c)
The
Master Servicer, for the benefit of the Trustee, any NIMS Insurer and the
Certificateholders, shall use its reasonable best efforts to enforce the
obligations of the Servicer under the Servicing Agreement, and shall, upon
obtaining actual knowledge of the failure of the Servicer to perform its
obligations in accordance therewith, to the extent that such non-performance
of
such obligations would have a material adverse effect on a Mortgage Loan, the
Trust Fund or the Certificateholders, terminate the rights and obligations
of
the 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
Agreement and the pursuit of other appropriate remedies, shall be in such form
and carried out to such an extent and at such time as the Master Servicer,
in
its good faith business judgment, would require were it the owner of the related
Mortgage Loans. The Master Servicer shall pay the costs of such enforcement
at
its own expense, and shall be reimbursed therefor initially (i) from a general
recovery resulting from such enforcement only to the extent, if any, that such
recovery exceeds all amounts due in respect of the related Mortgage Loans,
(ii)
from a specific recovery of costs, expenses or attorneys’ fees against the party
against whom such enforcement is directed, and then, (iii) to the extent that
such amounts are insufficient to reimburse the Master Servicer for the costs
of
such enforcement, from the Collection Account.
(d)
The
Master Servicer shall be entitled to conclusively rely on any certifications
or
other information provided by the Servicer under the terms of the Servicing
Agreement, in its preparation of any certifications, notifications, filings
or
reports, in accordance with the terms hereof or as may be required by applicable
law or regulation.
Section
9.06. Collection
of Taxes, Assessments and Similar Items.
(a)
To
the
extent provided in the Servicing Agreement, the Master Servicer shall cause
the
Servicer to establish and maintain one or more custodial accounts at a
depository institution (which may be a depository institution with which the
Master Servicer or the Servicer establishes accounts in the ordinary course
of
its servicing activities), the accounts of which are insured to the maximum
extent permitted by the FDIC (each, an “Escrow Account”) and to deposit therein
any collections of amounts received with respect to amounts due for taxes,
assessments, water rates, standard hazard insurance policy premiums, Payaheads,
if applicable, or any comparable items for the account of the Mortgagors.
Withdrawals from any Escrow Account may be made (to the extent amounts have
been
escrowed for such purpose) only in accordance with the Servicing Agreement.
The
Servicer shall be entitled to all investment income not required to be paid
to
Mortgagors on any Escrow Account maintained by the Servicer. The Master Servicer
shall make (or cause to be made) to the extent provided in the Servicing
Agreement advances to the extent necessary in order to effect timely payment
of
taxes, water rates, assessments, standard hazard insurance policy premiums
or
comparable items in connection with the related Mortgage Loan (to the extent
that the Mortgagor is required, but fails, to pay such items), provided that
it
or the Servicer has determined that the funds so advanced are recoverable from
escrow payments, reimbursement pursuant to Section 4.02 or
otherwise.
132
(b)
Costs
incurred by the Master Servicer or by the Servicer in effecting the timely
payment of taxes and assessments on the properties subject to the Mortgage
Loans
may be added to the amount owing under the related Mortgage Note where the
terms
of the Mortgage Note so permit; provided,
however,
that the
addition of any such cost shall not be taken into account for purposes of
calculating the distributions to be made to Certificateholders. Such costs,
to
the extent that they are unanticipated, extraordinary costs, and not ordinary
or
routine costs shall be recoverable as a Servicing Advance by the Master Servicer
pursuant to Section 4.02.
Section
9.07. Termination
of Servicing Agreement; Successor Servicers.
(a)
The
Master Servicer shall be entitled to terminate the rights and obligations of
the
Servicer under the Servicing Agreement in accordance with the terms and
conditions of the Servicing Agreement and without any limitation by virtue
of
this Agreement; provided,
however,
that in
the event of termination of the Servicing Agreement by the Master Servicer
or
the Servicer, the Master Servicer shall either act as Servicer of the related
Mortgage Loans or provide for the servicing of the Mortgage Loans by a successor
servicer to be appointed as provided in the 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 the Servicer (or by the Trust Fund, if the Servicer is unable
to
fulfill its obligations hereunder) for all costs associated with the transfer
of
servicing from the predecessor servicer, including without limitation, any
costs
or expenses associated with the complete transfer of all servicing data and
the
completion, correction or manipulation of such servicing data, as may be
required by the Master Servicer to correct any errors or insufficiencies in
the
servicing data or otherwise to enable the Master Servicer to service the
Mortgage Loans properly and effectively.
(b)
If
the
Master Servicer acts as a successor servicer, it will not assume liability
for
the representations and warranties of the Servicer, if any, that it replaces.
The Master Servicer shall use reasonable efforts to have the successor servicer
assume liability for the representations and warranties made by the terminated
Servicer in the Servicing Agreement, and in the event of any such assumption
by
the successor servicer, the Trustee or the Master Servicer, as applicable,
may,
in the exercise of its business judgment, release the terminated Servicer from
liability for such representations and warranties.
(c)
If
the
Master Servicer acts as a successor servicer, it will have the same obligations
to made Advances as the Servicer under the Servicing Agreement and to reimburse
itself for unreimbursed Advances if required by the Servicing Agreement but
will
have no obligation to make an Advance if it determines in its reasonable
judgment that such Advance is non-recoverable. To the extent that the Master
Servicer is unable to find a successor servicer that is willing to service
the
Mortgage Loans for the Servicing Fee because of the obligation of the Servicer
to make Advances regardless of whether such Advance is recoverable, the
Servicing Agreement may be amended to provide that the successor servicer shall
have no obligation to make an Advance if it determines in its reasonable
judgment that such Advance is non-recoverable and provides an Officer’s
Certificate to such effect to the Master Servicer and the Trustee and any NIMS
Insurer.
133
Section
9.08. Master
Servicer Liable for Enforcement.
Notwithstanding
the 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 such Servicing
Agreement. The Master Servicer shall use commercially reasonable efforts to
ensure that the Mortgage Loans are serviced in accordance with the provisions
of
this Agreement and shall use commercially reasonable efforts to enforce the
provisions of the Servicing Agreement for the benefit of the Certificateholders
and any NIMS Insurer. The Master Servicer shall be entitled to enter into any
agreement with the Servicer for indemnification of the Master Servicer and
nothing contained in this Agreement shall be deemed to limit or modify such
indemnification. Except as expressly set forth herein, the Master Servicer
shall
have no liability for the acts or omissions of the Servicer in the performance
by the Servicer of its obligations under the Servicing Agreement.
Section
9.09. No
Contractual Relationship Between the 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 the Servicer in its capacity
as such and not as an originator shall be deemed to be between the Servicer,
the
Seller and the Master Servicer, and the Trustee, any NIMS Insurer and the
Depositor shall not be deemed parties thereto and shall have no obligations,
duties or liabilities with respect to the Servicer except as set forth in
Section 9.10 hereof, but shall have rights thereunder as third party
beneficiaries. It is furthermore understood and agreed by the parties hereto
that the obligations of the Servicer are set forth in their entirety in the
Servicing Agreement and the Servicer has no obligations under and is not
otherwise bound by the terms of this Agreement.
Section
9.10. Assumption
of Servicing Agreement by Trustee.
(a)
In
the
event the Master Servicer shall for any reason no longer be the Master Servicer
(including by reason of any Event of Default under this Agreement), after a
period not to exceed ninety days after the issuance of any notice of termination
pursuant to Section 6.14 or Section 9.28, as applicable, the Trustee shall,
in
accordance with Section 6.14, thereupon assume all of the rights and obligations
of such Master Servicer hereunder and under the 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 the 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 (or other successor master servicer’s)
assumption (but not its performance, except to the extent that costs or
liability of the Trustee (or other successor master servicer’s) are created or
increased as a result of negligent or wrongful acts or omissions of the Master
Servicer prior to its replacement as Master Servicer) of the Master Servicer’s
obligations, duties or responsibilities thereunder; provided that the Master
Servicer shall not indemnify or hold harmless the Trustee against negligent
or
willful misconduct of the Trustee.
134
(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 the Servicing Agreement and the related
Mortgage Loans and an accounting of amounts collected and held by it and
otherwise use its best efforts to effect the orderly and efficient transfer
of
the Servicing Agreement to the assuming party.
Section
9.11. Due-on-Sale
Clauses; Assumption Agreements; Easements.
(a)
To
the
extent provided in the Servicing Agreement, to the extent Mortgage Loans contain
enforceable due-on-sale clauses, and to the extent that the Master Servicer
has
knowledge of the conveyance of a Mortgaged Property, the Master Servicer shall
cause the Servicer to enforce such clauses in accordance with the Servicing
Agreement. If applicable law prohibits the enforcement of a due-on-sale clause
or such clause is otherwise not enforced in accordance with the Servicing
Agreement, and, as a consequence, a Mortgage Loan is assumed, the original
Mortgagor may be released from liability in accordance with the Servicing
Agreement.
(b)
The
Master Servicer or the Servicer, as the case may be, shall be entitled to
approve a request from a Mortgagor for the granting of an easement thereon
in
favor of another Person or any alteration or demolition of the related Mortgaged
Property if it has determined, exercising its good faith business judgment
in
the same manner as it would if it were the owner of the related Mortgage Loan,
that the security for, and the timely and full collectability of, such Mortgage
Loan would not be materially adversely affected thereby. Any fee collected
by
the Master Servicer or the Servicer for processing such a request will be
retained by the Master Servicer or the Servicer as additional servicing
compensation.
Section
9.12. Release
of Mortgage Files.
(a)
Upon
(i)
becoming aware of the payment in full of any Mortgage Loan or (ii) the receipt
by the Master Servicer of a notification that payment in full has been or will
be escrowed in a manner customary for such purposes, the Master Servicer shall,
or shall cause the Servicer to, promptly notify the Trustee (or the 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 hereof 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 Servicer the related Mortgage File;
provided,
however,
that in
lieu of sending a hard copy certification of a Servicing Officer, the Master
Servicer may, or may cause, the Servicer to, deliver the request for release
in
a mutually agreeable electronic format, and to the extent that such a request,
on its face, originates from a Servicing Officer, no original signature shall
be
required. 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 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 the Servicer, to the extent such authority is provided for
under the Servicing Agreement, is authorized, to give, as agent for the Trustee,
as the mortgagee under the Mortgage that secured the Mortgage Loan, an
instrument of satisfaction (or assignment of mortgage without recourse)
regarding the Mortgaged Property subject to the Mortgage, which instrument
of
satisfaction or assignment, as the case may be, shall be delivered to the Person
or Persons entitled thereto against receipt therefor of such payment, it being
understood and agreed that no expenses incurred in connection with such
instrument of satisfaction or assignment, as the case may be, shall be
chargeable to the Collection Account.
135
(b)
From
time
to time and as appropriate for the servicing or foreclosure of any Mortgage
Loan
and in accordance with Accepted Servicing Practices and the Servicing Agreement,
the Trustee shall execute such documents as shall be prepared and furnished
to
the Trustee by the Master Servicer, or by the Servicer (in form reasonably
acceptable to the Trustee) and as are necessary to the prosecution of any such
proceedings. The Trustee or the applicable Custodian, shall, upon request of
the
Master Servicer, or of the 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 trust 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 the Servicer no longer exists unless (i) the Mortgage Loan shall
be
liquidated, in which case, upon receipt of a certificate of a Servicing Officer
similar to that hereinabove specified, the trust receipt shall be released
by
the Trustee or the applicable Custodian, as applicable, to the Master Servicer
(or the Servicer) or (ii) the Mortgage File has been delivered directly or
through the Servicer to an attorney, or to a public trustee or other public
official as required by law, for purposes of initiating or pursuing legal action
or other proceedings for the foreclosure of the Mortgaged Property either
judicially or non-judicially, and the Master Servicer has delivered directly
or
through the Servicer to the Trustee a certificate of a Servicing Officer
certifying as to the name and address of the Person to which such Mortgage
File
or such document was delivered and the purpose of such delivery.
Section
9.13. Documents,
Records and Funds in Possession of Master Servicer To Be Held for Trustee.
(a)
The
Master Servicer shall transmit, or shall cause the Servicer to transmit, to
the
Trustee such documents and instruments coming into the possession of the Master
Servicer or the Servicer from time to time as are required by the terms hereof
or of the Servicing Agreement to be delivered to the Trustee or the applicable
Custodian. Any funds received by the Master Servicer or by the Servicer in
respect of any Mortgage Loan or which otherwise are collected by the Master
Servicer or the Servicer as Liquidation Proceeds or Insurance Proceeds in
respect of any Mortgage Loan shall be held for the benefit of the Trustee and
the Certificateholders subject to the Master Servicer’s right to retain or
withdraw from the Collection Account the Master Servicing Fee and other amounts
provided in this Agreement and to the right of the Servicer to retain its
Servicing Fee and other amounts as provided in the Servicing Agreement. The
Master Servicer shall, and shall (to the extent provided in the Servicing
Agreement) cause the Servicer to, provide access to information and
documentation regarding the Mortgage Loans to the Trustee, its 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.
136
(b)
All
Mortgage Files and funds collected or held by, or under the control of, the
Master Servicer, or the Servicer, in respect of any Mortgage Loans, whether
from
the collection of principal and interest payments or from Liquidation Proceeds
or Insurance Proceeds, shall be held by the Master Servicer, or by the Servicer,
for and on behalf of the Trustee and the Certificateholders and shall be and
remain the sole and exclusive property of the Trustee; provided,
however,
that the
Master Servicer and the Servicer shall be entitled to setoff against, and deduct
from, any such funds any amounts that are properly due and payable to the Master
Servicer or the Servicer under this Agreement or the Servicing Agreement and
shall be authorized to remit such funds to the 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, the Servicer or the Master Servicer that are
collected by the Servicer or the Master Servicer in connection with the Mortgage
Loans, whether as scheduled installments of principal and interest or as full
or
partial prepayments of principal or interest or as Liquidation Proceeds or
Insurance Proceeds or otherwise, and in all proceeds of the foregoing and
proceeds of proceeds (but excluding any fee or other amounts to which the
Servicer is entitled under the Servicing Agreement, or the Master Servicer
or
the Depositor is entitled to hereunder); and the Master Servicer agrees that
so
long as the Mortgage Loans are assigned to and held by the Trustee or 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
the
Servicer shall be held by the Master Servicer or the Servicer for and on behalf
of the Trustee as the Trustee’s agent and bailee for purposes of perfecting the
Trustee’s security interest therein as provided by the applicable Uniform
Commercial Code or other applicable laws.
(d)
The
Master Servicer agrees that it shall not, and shall not authorize the Servicer
to, create, incur or subject any Mortgage Loans, or any funds that are deposited
in any Custodial Account, Escrow Account or the Collection Account, or any
funds
that otherwise are or may become due or payable to the Trustee, to any claim,
lien, security interest, judgment, levy, writ of attachment or other
encumbrance, nor assert by legal action or otherwise any claim or right of
setoff against any Mortgage Loan or any funds collected on, or in connection
with, a Mortgage Loan.
Section
9.14. Representations
and Warranties of the Master Servicer.
137
(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:
(i)
it
is
validly existing and in good standing as a limited liability company under
the
laws of the State of Delaware, and as Master Servicer has full power and
authority to transact any and all business contemplated by this Agreement and
to
execute, deliver and comply with its obligations under the terms of this
Agreement, the execution, delivery and performance of which have been duly
authorized by all necessary company action on the part of the Master
Servicer;
(ii)
the
execution and delivery of this Agreement by the Master Servicer and its
performance and compliance with the terms of this Agreement will not (A) violate
the Master Servicer’s certificate of formation or limited liability company
agreement, (B) violate any law or regulation or any administrative decree or
order to which it is subject or (C) constitute a default (or an event which,
with notice or lapse of time, or both, would constitute a default) under, or
result in the breach of, any material contract, agreement or other instrument
to
which the Master Servicer is a party or by which it is bound or to which any
of
its assets are subject, which violation, default or breach would materially
and
adversely affect the Master Servicer’s ability to perform its obligations under
this Agreement;
(iii)
this
Agreement constitutes, assuming due authorization, execution and delivery hereof
by the other respective parties hereto, a legal, valid and binding obligation
of
the Master Servicer, enforceable against it in accordance with the terms hereof,
except as such enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium and other laws affecting the enforcement of
creditors’ rights in general, and by general equity principles (regardless of
whether such enforcement is considered in a proceeding in equity or at
law);
(iv)
the
Master Servicer is not in default with respect to any order or decree of any
court or any order or regulation of any federal, state, municipal or
governmental agency to the extent that any such default would materially and
adversely affect its performance hereunder;
(v)
the
Master Servicer is not a party to or bound by any agreement or instrument or
subject to any certificate of formation or limited liability company agreement
provision or any other company restriction or any judgment, order, writ,
injunction, decree, law or regulation that may materially and adversely affect
its ability as Master Servicer to perform its obligations under this Agreement
or that requires the consent of any third person to the execution of this
Agreement or the performance by the Master Servicer of its obligations under
this Agreement;
(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;
138
(vii)
the
Master Servicer, or an affiliate thereof the primary business of which is the
servicing of conventional residential mortgage loans, is a Xxxxxx Xxx- or
Xxxxxxx Mac-approved seller/servicer;
(viii)
no
consent, approval, authorization or order of any court or governmental agency
or
body is required for the execution, delivery and performance by the Master
Servicer of or compliance by the Master Servicer with this Agreement or the
consummation of the transactions contemplated by this Agreement, except for
such
consents, approvals, authorizations and orders (if any) as have been
obtained;
(ix)
the
consummation of the transactions contemplated by this Agreement are in the
ordinary course of business of the Master Servicer;
(x)
the
Master Servicer has obtained an Errors and Omissions Insurance Policy and a
Fidelity Bond in accordance with Section 9.02 each of which is in full force
and
effect, and each of which provides at least such coverage as is required
hereunder; and
(xi)
the
information about the Master Servicer under the heading “The Master Servicer” in
the Offering Document 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, any NIMS Insurer and the Trustee
and hold them harmless against any loss, damages, penalties, fines, forfeitures,
legal fees and related costs, judgments, and other costs and expenses resulting
from any claim, demand, defense or assertion based on or grounded upon, or
resulting from, a breach of the Master Servicer’s representations and warranties
contained in Section 9.14(a). It is understood and agreed that the enforcement
of the obligation of the Master Servicer set forth in this Section to indemnify
the Depositor and the Trustee as provided in this Section constitutes the sole
remedy (other than as set forth in Section 6.14) of the Depositor, any NIMS
Insurer and the Trustee, respecting a breach of the foregoing representations
and warranties. Such indemnification shall survive any termination of the Master
Servicer as Master Servicer hereunder, and any termination of this
Agreement.
Any
cause
of action against the Master Servicer relating to or arising out of the breach
of any representations and warranties made in this Section shall accrue upon
discovery of such breach by any of the Depositor, the Master Servicer or the
Trustee or notice thereof by any one of such parties to the other parties.
(c)
It
is
understood and agreed that the representations and warranties of the Depositor
set forth in Sections 2.03(a)(i) through (vi) shall survive the execution and
delivery of this Agreement. The Depositor shall indemnify the Master Servicer
and hold it harmless against any loss, damages, penalties, fines, forfeitures,
legal fees and related costs, judgments, and other costs and expenses resulting
from any claim, demand, defense or assertion based on or grounded upon, or
resulting from, a breach of the Depositor’s representations and warranties
contained in Sections 2.03(a)(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.
139
(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).
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 (other than a Cooperative Loan), the Master Servicer shall
maintain, or cause to be maintained by the Servicer, standard fire and casualty
insurance and, where applicable, flood insurance, all in accordance with the
provisions of this Agreement and the Servicing Agreement, as applicable. It
is
understood and agreed that such insurance shall be with insurers meeting the
eligibility requirements set forth in the Servicing Agreement and that no
earthquake or other additional insurance is to be required of any Mortgagor
or
to be maintained on property acquired in respect of a defaulted loan, other
than
pursuant to such applicable laws and regulations as shall at any time be in
force and as shall require such additional insurance.
Pursuant
to Section 4.01, any amounts collected by the Master Servicer, or by the
Servicer, under any insurance policies maintained pursuant to this Section
9.16
or the Servicing Agreement (other than amounts to be applied to the restoration
or repair of the property subject to the related Mortgage or released to the
Mortgagor in accordance with the Servicing Agreement) shall be deposited into
the Collection Account, subject to withdrawal pursuant to Section 4.02. Any
cost
incurred by the Master Servicer or the Servicer in maintaining any such
insurance if the Mortgagor defaults in its obligation to do so shall be added
to
the amount owing under the Mortgage Loan where the terms of the Mortgage Loan
so
permit; provided, however, that the addition of any such cost shall not be
taken
into account for purposes of calculating the distributions to be made to
Certificateholders and shall be recoverable by the Master Servicer or the
Servicer pursuant to Section 4.02.
Section
9.17. Presentment
of Claims and Collection of Proceeds.
The
Master Servicer shall cause the Servicer (to the extent provided in the
Servicing Agreement) to, prepare and present on behalf of the Trustee and the
Certificateholders all claims under the Insurance Policies with respect to
the
Mortgage Loans, and take such actions (including the negotiation, settlement,
compromise or enforcement of the insured’s claim) as shall be necessary to
realize recovery under such policies. Any proceeds disbursed to the Master
Servicer (or disbursed to the Servicer and remitted to the Master Servicer)
in
respect of such policies or bonds shall be promptly deposited in the Collection
Account or the Custodial Account upon receipt, except that any amounts realized
that are to be applied to the repair or restoration of the related Mortgaged
Property or related to the related Mortgagor in accordance with the Master
Servicer’s or the Servicer’s normal servicing procedures need not be so
deposited (or remitted).
140
Section
9.18. Maintenance
of the Primary Mortgage Insurance Policies.
(a)
The
Master Servicer shall not take, or knowingly permit the Servicer (consistent
with the Servicing Agreement) to take, any action that would result in
noncoverage under any applicable Primary Mortgage Insurance Policy of any loss
which, but for the actions of such Master Servicer or the Servicer, would have
been covered thereunder. To the extent that coverage is available, the Master
Servicer shall use its best reasonable efforts to keep in force and effect,
or
to cause the Servicer to keep in force and effect (to the extent that the
Mortgage Loan requires the Mortgagor to maintain such insurance), primary
mortgage insurance applicable to each Mortgage Loan in accordance with the
provisions of this Agreement and the Servicing Agreement, as applicable. The
Master Servicer shall not, and shall not knowingly permit the Servicer to,
cancel or refuse to renew any such Primary Mortgage Insurance Policy that is
in
effect at the date of the initial issuance of the Certificates and is required
to be kept in force hereunder except in accordance with the provisions of this
Agreement and the Servicing Agreement, as applicable.
(b)
The
Master Servicer agrees, to the extent provided in Servicing Agreement, to cause
the Servicer to present, on behalf of the Trustee and the Certificateholders,
claims to the insurer under any Primary Mortgage Insurance Policies and, in
this
regard, to take such reasonable action as shall be necessary to permit recovery
under any Primary Mortgage Insurance Policies respecting defaulted Mortgage
Loans. Pursuant to Section 4.01, any amounts collected by the Master Servicer
or
the Servicer under any Primary Mortgage Insurance Policies shall be deposited
in
the Collection Account, subject to withdrawal pursuant to Section
4.02.
Section
9.19. Trustee
To Retain Possession of Certain Insurance Policies and Documents.
The
Trustee (or the applicable Custodian on behalf of the Trustee) shall retain
possession and custody of the originals of the Primary Mortgage Insurance
Policies or certificate of insurance if applicable and any certificates of
renewal as to the foregoing as may be issued from time to time as contemplated
by this Agreement. Until all amounts distributable in respect of the
Certificates have been distributed in full and the Master Servicer otherwise
has
fulfilled its obligations under this Agreement, the Trustee (or the applicable
Custodian) shall also retain possession and custody of each Mortgage File in
accordance with and subject to the terms and conditions of this Agreement.
The
Master Servicer shall promptly deliver or cause the Servicer to deliver to
the
Trustee (or the applicable Custodian), upon the execution or receipt thereof
the
originals of the Primary Mortgage Insurance Policies and any certificates of
renewal thereof, and such other documents or instruments that constitute
portions of the Mortgage File that come into the possession of the Master
Servicer or the Servicer from time to time.
141
Section
9.20. Realization
Upon Defaulted Mortgage Loans.
The
Master Servicer shall use its reasonable best efforts to, or to cause the
Servicer to, foreclose upon, repossess or otherwise comparably convert the
ownership of Mortgaged Properties securing such of the Mortgage Loans as come
into and continue in default and as to which no satisfactory arrangements can
be
made for collection of delinquent payments, all in accordance with the Servicing
Agreement. Alternatively, the Master Servicer may take, or authorize the
Servicer to take, other actions in respect of a defaulted Mortgage Loan, which
may include (i) accepting a short sale (a payoff of the Mortgage Loan for
an amount less than the total amount contractually owed in order to facilitate
a
sale of the Mortgaged Property by the Mortgagor) or permitting a short
refinancing (a payoff of the Mortgage Loan for an amount less than the total
amount contractually owed in order to facilitate refinancing transactions by
the
Mortgagor not involving a sale of the Mortgaged Property), (ii) arranging
for a repayment plan or (iii) agreeing to a modification in accordance with
Section 9.04. In connection with such foreclosure or other conversion or action,
the Master Servicer shall, consistent with Section 9.18, follow such practices
and procedures as it shall reasonably determine to be in the best interests
of
the Trust Fund and the Certificateholders and which shall be consistent with
its
customary practices in performing its general mortgage servicing activities;
provided that the Master Servicer shall not be liable in any respect hereunder
if the Master Servicer is acting in connection with any such foreclosure or
other conversion or action in a manner that is consistent with the provisions
of
this Agreement. Neither the Master Servicer, nor the Servicer, shall be required
to expend its own funds or incur other reimbursable charges in connection with
any foreclosure, or attempted foreclosure which is not completed, or toward
the
correction of any default on a related senior mortgage loan, or towards the
restoration of any property unless it shall determine (i) that such
restoration and/or foreclosure will increase the proceeds of liquidation of
the
Mortgage Loan to the Certificateholders after reimbursement to itself for such
expenses or charges and (ii) that such expenses and charges will be
recoverable to it through Liquidation Proceeds or Insurance Proceeds (as
provided in Section 4.02).
Section
9.21. Compensation
to the Master Servicer.
The
Master Servicer shall be entitled to withdraw from the Collection Account,
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.
142
Section
9.22. REO
Property.
(a)
In
the
event the Trust Fund acquires ownership of any REO Property in respect of any
Mortgage Loan, the deed or certificate of sale shall be issued to the Trustee,
or to its nominee, on behalf of the Certificateholders. The Master Servicer
shall use its reasonable best efforts to sell, or cause the Servicer, to the
extent provided in the Servicing Agreement any REO Property as expeditiously
as
possible and in accordance with the provisions of this Agreement and the
Servicing Agreement, as applicable, but in all events within the time period,
and subject to the conditions set forth in Article X hereof. Pursuant to its
efforts to sell such REO Property, the Master Servicer shall protect and
conserve, or cause the Servicer to protect and conserve, such REO Property
in
the manner and to such extent required by the Servicing Agreement, subject
to
Article X hereof.
(b)
The
Master Servicer shall deposit or cause to be deposited all funds collected
and
received by it, or recovered from the Servicer, in connection with the operation
of any REO Property in the Collection Account.
(c)
The
Master Servicer and the Servicer, upon the final disposition of any REO
Property, shall be entitled to reimbursement for any related unreimbursed
Advances and other unreimbursed advances as well as any unpaid Master Servicing
Fees or Servicing Fees from Liquidation Proceeds received in connection with
the
final disposition of such REO Property; provided, that (without limitation
of
any other right of reimbursement that the Master Servicer or the Servicer shall
have hereunder) any such unreimbursed Advances as well as any unpaid Net Master
Servicing Fees or Servicing Fees may be reimbursed or paid, as the case may
be,
prior to final disposition, out of any net rental income or other net amounts
derived from such REO Property.
(d)
The
Liquidation Proceeds from the final disposition of the REO Property, net of
any
payment to the Master Servicer and the Servicer as provided above, shall be
deposited in the Collection Account on or prior to the Determination Date in
the
month following receipt thereof and be remitted by wire transfer in immediately
available funds to the Trustee for deposit into the Certificate Account on
the
next succeeding Master Servicer Remittance Date.
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 to this Agreement. On or before March 1st of each
year, the Depositor shall distribute the information in Exhibit V hereto 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 the Servicer strictly observing all requirements and deadlines in the
performance of their duties under the Servicing Agreement. The Master Servicer
shall have no liability for any loss, expense, damage or claim arising out
of or
with respect to any failure to properly prepare and/or timely deliver all such
information where such failure results from the Master Servicer’s inability or
failure to obtain or receive, on a timely basis, any information from the
Servicer needed to prepare or deliver such information, which failure does
not
result from the Master Servicer’s own negligence, bad faith or willful
misconduct.
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 Servicer or by
the
Depositor.
(c)
All
information, reports and statements prepared by the Master Servicer under this
Agreement shall be based upon information supplied to the Master Servicer by
the
Servicer without independent verification thereof and the Master Servicer shall
be entitled to rely on such information.
Section
9.25. Assessment
of Compliance and Attestation Reports .
(a)
Assessment
of Compliance
(i)
By
March
15 of each year, commencing in March 2008, the Master Servicer, at its own
expense, shall furnish, and shall cause any Servicing Function Participant
engaged by it to furnish, 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 (as identified on Exhibit O) 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 (or any Servicing Function Participant engaged by it) submit
their assessments to the Trustee and the Depositor, 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 such report on assessment of compliance, the Exchange
Act
Signing Party shall confirm that the assessments, taken as a whole, address
all
of the 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
O and
on any similar exhibit set forth in the Servicing Agreement in respect of the
Servicer, and each Custodial Agreement in respect of each Custodian, and, where
the Master Servicer is the Exchange Act Signing Party, shall notify the
Depositor of any exceptions.
(b)
Attestation
Reports
(i)
By
March
15 of each year in which the Depositor is required to file reports with respect
to the Trust Fund in accordance with the Exchange Act and the rules and
regulations of the Commission, commencing in March 2008, the Master Servicer,
at
its own expense, shall cause, and shall cause any Servicing Function Participant
engaged by it to cause, at its own expense, a registered public accounting
firm
(which may also render other services to the Master Servicer 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.
145
(ii)
Promptly
after receipt of such report from the Master Servicer or any Servicing Function
Participant engaged by such parties, the Exchange Act Signing Party shall
confirm that each assessment submitted pursuant subsection (a) of this Section
9.25 is coupled with an attestation meeting the requirements of this Section
and
notify the Depositor of any exceptions.
(c)
The
Master Servicer’s obligation to provide assessments of compliance and
attestations under this Section 9.25 shall terminate upon the filing of a Form
15 suspension notice on behalf of the Trust Fund.
Section
9.26. Annual
Statement of Compliance with Applicable Servicing Criteria .
(a)
The
Master Servicer shall deliver (and the Master Servicer shall cause any
Additional Servicer engaged by it to deliver) to the Sponsor, the Depositor
and
the Trustee on or before March 15 of each year, commencing in March 2008, an
Officer’s Certificate stating, as to the signer thereof, that (A) a review of
such party’s activities during the preceding calendar year or portion thereof
and of such party’s performance under this Agreement, or such other applicable
agreement in the case of an Additional Servicer, has been made under such
officer’s supervision and (B) to the best of such officer’s knowledge, based on
such review, such party has fulfilled all its obligations under this Agreement,
or such other applicable agreement in the case of an Additional Servicer, in
all
material respects throughout such year or portion thereof, or, if there has
been
a failure to fulfill any such obligation in any material respect, specifying
each such failure known to such officer and the nature and status thereof.
(b)
Copies
of
such statements shall be provided to any Certificateholder upon request, by
the
Master Servicer or by the Trustee at the Master Servicer’s expense if the Master
Servicer failed to provide such copies (unless (i) the Master Servicer shall
have failed to provide the Trustee with such statement or (ii) the Trustee
shall
be unaware of the Master Servicer’s failure to provide such
statement).
(c)
The
Master Servicer shall give prompt written notice to the Trustee, the Sponsor
and
the Depositor of the appointment of any Subcontractor by it and a written
description (in form and substance satisfactory to the Trustee, the Sponsor
and
the Depositor) of the role and function of each Subcontractor utilized by the
Master Servicer, specifying (A) the identity of each such Subcontractor and
(B)
which elements of the Servicing Criteria set forth under Item 1122(d) of
Regulation AB will be addressed in assessments of compliance provided by each
such Subcontractor.
(d)
The
Master Servicer shall notify the Trustee, the Depositor and the Sponsor within
five (5) days of knowledge thereof (i) of any legal proceedings pending against
the Master Servicer of the type described in Item 1117 (§ 229.1117) of
Regulation AB and (ii) if the Master Servicer shall become (but only to the
extent not previously disclosed) at any time an affiliate of any of the parties
listed on Exhibit P to this Agreement. On or before March 1st of each year,
the
Depositor shall distribute the information in Exhibit P to the Master
Servicer.
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.
146
Section
9.28. Resignation
of Master Servicer.
Except
as
otherwise provided in Sections 9.27, 9.28 and 9.29 hereof, the Master Servicer
shall not resign from the obligations and duties hereby imposed on it unless
it
or the Trustee 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 a period of time not to exceed 90 days after the Trustee
receives written notice thereof from the Master Servicer and 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.
Section
9.29. Assignment
or Delegation of Duties by the Master Servicer.
Except
as
expressly provided herein, the Master Servicer shall not assign or transfer
any
of its rights, benefits or privileges hereunder to any other Person, or delegate
to or subcontract with, or authorize or appoint any Subservicer, Subcontractor
or 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.
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 assessment report as provided in Section 9.25(a) and an
attestation report as provided for in Section 9.25(b), which reports the Master
Servicer shall include in its attestation and assessment reports.
147
Section
9.30. Limitation
on Liability of the Master Servicer and Others.
(a)
The
Master Servicer undertakes to perform such duties and only such duties as are
specifically set forth in this Agreement.
(b)
No
provision of this Agreement shall be construed to relieve the Master Servicer
from liability for its own negligent action, its own negligent failure to act
or
its own willful misconduct; provided,
however,
that
the duties and obligations of the Master Servicer shall be determined solely
by
the express provisions of this Agreement, the Master Servicer shall not be
liable except for the performance of such duties and obligations as are
specifically set forth in this Agreement; no implied covenants or obligations
shall be read into this Agreement against the Master Servicer and, in absence
of
bad faith on the part of the Master Servicer, the Master Servicer may
conclusively rely, as to the truth of the statements and the correctness of
the
opinions expressed therein, upon any certificates or opinions furnished to
the
Master Servicer and conforming to the requirements of this
Agreement.
(c)
None
of
the Master Servicer, the Seller or the Depositor or any of the directors,
officers, employees or agents of any of them shall be under any liability to
the
Trustee or the Certificateholders for any action taken or for refraining from
the taking of any action in good faith pursuant to this Agreement, or for errors
in judgment; provided,
however,
that
this provision shall not protect the Master Servicer, the Seller or the
Depositor or any such person against any liability that would otherwise be
imposed by reason of willful misfeasance, bad faith or negligence in its
performance of its duties or by reason of reckless disregard for its obligations
and duties under this Agreement. The Master Servicer, the Seller and the
Depositor and any director, officer, employee or agent of any of them shall
be
entitled to indemnification by the Trust Fund and will be held harmless against
any loss, liability or expense incurred in connection with any legal action
relating to this Agreement or the Certificates other than any loss, liability
or
expense incurred by reason of willful misfeasance, bad faith or negligence
in
the performance of his or its duties hereunder or by reason of reckless
disregard of his or its obligations and duties hereunder. The Master Servicer,
the Seller and the Depositor and any director, officer, employee or agent of
any
of them may rely in good faith on any document of any kind prima facie properly
executed and submitted by any Person respecting any matters arising hereunder.
The Master Servicer shall be under no obligation to appear in, prosecute or
defend any legal action that is not incidental to its duties to master service
the Mortgage Loans in accordance with this Agreement and that in its opinion
may
involve it in any expenses or liability; provided,
however,
that
the Master Servicer may in its sole discretion undertake any such action that
it
may deem necessary or desirable in respect to this Agreement and the rights
and
duties of the parties hereto and the interests of the Certificateholders
hereunder. In such event, the legal expenses and costs of such action and any
liability resulting therefrom shall be expenses, costs and liabilities of the
Trust Fund and the Master Servicer shall be entitled to be reimbursed therefor
out of the Collection Account it maintains as provided by Section
4.02.
Section
9.31. Indemnification;
Third-Party Claims.
148
The
Master Servicer agrees to indemnify the Depositor, the Sponsor, the Trustee
and
any NIMS Insurer and their respective officers, directors, agents and
affiliates, and hold each of them harmless against any and all claims, losses,
penalties, fines, forfeitures, reasonable legal fees and related costs,
judgments, and any other costs, liability, fees and expenses that the Depositor,
the Sponsor, the Trustee or any NIMS Insurer may sustain arising out of or
based
upon (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 , provided,
however,
that in
no event shall the Master Servicer be liable for any special, consequential,
indirect or punitive damages pursuant to this Section 9.31, even if advised
of
the possibility of such damages, (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.
ARTICLE
X
REMIC
ADMINISTRATION
Section
10.01. REMIC
Administration.
(a)
REMIC
elections as set forth in the Preliminary Statement shall be made on Forms
1066
or other appropriate federal tax or information return for the taxable year
ending on the last day of the calendar year in which the Certificates are
issued. The regular interests and residual interest in each REMIC shall be
as
designated in the Preliminary Statement. For purposes of such designations,
the
interest rate of any regular interest that is computed by taking into account
the weighted average of the Net Mortgage Rates of the Mortgage Loans shall
be
reduced by the amount of any expense paid by the Trust to the extent that (i)
such expense was not taken into account in computing the Net Mortgage Rate
of
any Mortgage Loan, (ii) such expense does not constitute an “unanticipated
expense” of a REMIC within the meaning of Treasury Regulation Section
1.860G-1(b)(3)(ii), (iii) such expense does not relate to an Excluded Trust
Asset and (iv) 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.
149
(d)
The
Trustee shall prepare, sign and file all of each REMIC’s federal and applicable
state tax and information returns as such REMIC’s direct representative. As used
herein, applicable state tax and information returns shall mean returns as
may
be required by the laws of any state the applicability of which to the Trust
Fund shall have been confirmed to the Trustee in writing either by the delivery
to the Trustee of an Opinion of Counsel to such effect, or by delivery to the
Trustee of a written notification to such effect by the taxing authority of
such
state. The expenses of preparing and filing such returns shall be borne by
the
Trustee.
(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 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
Fund
for the performance of its duties under this subsection (e); provided,
however,
that
such compensation shall not exceed $5,000 per year; provided,
further,
that,
after a Section 7.01(d) Purchase Event, any expenses incurred by the Trustee
in
connection with such Section 7.01(d) Purchase Event shall be reimbursed to
the
Trustee, regardless of the limitation set forth above, in accordance with
Section 4.04(b).
(f)
The
Trustee, the Master Servicer and the Holders of Certificates shall take any
action, within their respective control and scope of their duties, or cause
any
REMIC to take any action necessary to create or maintain the status of any
REMIC
as a REMIC under the REMIC Provisions and shall assist each other as necessary
to create or maintain such status. Neither the Trustee, the Master Servicer
nor
the Holder of any Residual Certificate shall knowingly take any action, within
their respective control, cause any REMIC to take any action or fail to take
(or
fail to cause to be taken) any action, within their respective control and
scope
of their duties, that, under the REMIC Provisions, if taken or not taken, as
the
case may be, could result in an Adverse REMIC Event unless the Trustee, any
NIMS
Insurer and the Master Servicer have received an Opinion of Counsel (at the
expense of the party seeking to take such action) to the effect that the
contemplated action will not 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.
150
(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 Certificate
Account, and shall reduce amounts otherwise payable to holders of regular
interests in any such REMIC, as the case may be.
(h)
The
Trustee shall, for federal income tax purposes, maintain books and records
with
respect to each REMIC on a calendar year and on an accrual basis.
(i)
No
additional contributions of assets shall be made to any REMIC, except as
expressly provided in this Agreement.
(j)
Neither
the Trustee nor the Master Servicer shall enter into any arrangement by which
any REMIC will receive a fee or other compensation for services.
(k)
Upon
the
request of any Rating Agency, the Trustee shall deliver 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 the Pool 1-2 Basis Risk Reserve Fund 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 I-X Certificates and that is not an asset of any
REMIC and all amounts deposited into such accounts shall be treated as amounts
distributed to the Class I-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 Holders of the Class I-X Certificates (in the case of any Group I NIM
Redemption Amount) in exchange for an interest in the Class I-X Certificates
immediately before the purchase of the property held by the Trust
Fund.
(n)
The
Trustee shall treat the rights of the Group I Certificateholders (other than
the
Holders of the Class 1-A1, Class 1-A2, Class I-X, Class I-LT-R, Class I-R and
Class I-P Certificates) to receive Basis Risk Shortfalls and Unpaid Basis Risk
Shortfalls as rights in interest rate cap contracts, written by the Class I-X
Certificateholders. Thus, each Group I Certificateholder (other than the Holders
of the Class 1-A1, Class 1-A2, Class I-X, Class I-LT-R, Class I-R, Class I-P
and
Class II-P Certificates) shall be treated as representing not only ownership
of
regular interests in a REMIC, but also ownership of an interest in an interest
rate cap 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 $10,000 as of the Closing
Date.
151
(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.
None
of
the Depositor, the Master Servicer or the Trustee shall sell, dispose of, or
substitute for any of the Mortgage Loans, except in a disposition pursuant
to
(i) the foreclosure of a Mortgage Loan, (ii) the bankruptcy of the Trust Fund,
(iii) the termination of each REMIC pursuant to Article VII of this Agreement,
(iv) a substitution pursuant to Article II of this Agreement or (v) a repurchase
of Mortgage Loans pursuant to Article II of this Agreement, nor acquire any
assets for any REMIC, nor sell or dispose of any investments in the Certificate
Account for gain, nor accept any contributions to any REMIC after the Closing
Date, unless the Trustee and any NIMS Insurer has received an Opinion of Counsel
(at the expense of the party causing such sale, disposition, or substitution)
that such disposition, acquisition, substitution, or acceptance will not (a)
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 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 I-X
Certificateholder or the Holder of a 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 pursuant to this Section 10.03 (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.
152
Section
10.04. REO
Property.
(a)
Notwithstanding
any other provision of this Agreement, the Master Servicer, acting on behalf
of
the Trustee hereunder, shall not, except to the extent provided in the Servicing
Agreement, knowingly permit the Servicer to, rent, lease, or otherwise earn
income on behalf of any REMIC with respect to any REO Property which might
cause
an Adverse REMIC Event unless the Master Servicer and any NIMS Insurer has
advised, or has caused the Servicer to advise, the Trustee in writing to the
effect that, under the REMIC Provisions, such action would not result in an
Adverse REMIC Event.
(b)
The
Master Servicer shall cause the Servicer (to the extent provided in the
Servicing Agreement) to make reasonable efforts to sell any REO Property for
its
fair market value. In any event, however, the Master Servicer shall, or shall
cause the Servicer (to the extent provided in the 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 Master
Servicer, acting on the Trustee’s behalf hereunder, shall, or shall cause the
Servicer to, continue to attempt to sell the REO Property for its fair market
value for such period longer than three years as such extension permits (the
“Extended Period”). If the Master Servicer has not received such an extension
and the Master Servicer or the Servicer, acting on behalf of the Trustee
hereunder, is unable to sell the REO Property within 33 months after its
acquisition by the Trust Fund or if the Master Servicer has received such an
extension, and the Master Servicer or the Servicer is unable to sell the REO
Property within the period ending three months before the close of the Extended
Period, the Master Servicer shall cause the Servicer, before the end of the
three year period or the Extended Period, as applicable, to (i) purchase such
REO Property at a price equal to the REO Property’s fair market value or (ii)
auction the REO Property to the highest bidder (which may be the Servicer)
in an
auction reasonably designed to produce a fair price prior to the expiration
of
the three-year period or the Extended Period, as the case may be.
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.
153
Section
11.03. Amendment.
(a)
On
or
prior to a Section 7.01(d) 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, 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 and any NIMS Insurer shall be provided with an Opinion of Counsel
addressed to the Trustee and any NIMS Insurer (at the expense of the party
requesting such amendment) to the effect that such amendment is permitted under
this Section. Any such amendment shall be deemed not to adversely affect in
any
material respect any Holder, if the Trustee receives written confirmation from
each Rating Agency that such amendment will not cause such Rating Agency to
reduce then current rating assigned to the Certificates.
(b)
On
or
prior to a Section 7.01(d) 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, 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 is permitted hereunder; 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(d) Purchase Event but on or prior to a Pool 1-2 Trust Fund
Termination Event or Pool 3 Termination Event, this Agreement may be amended
from time to time by the Depositor, the Master Servicer, the LTURI-holder and
the Trustee. Prior to entering into any amendment pursuant to this paragraph,
the Trustee shall be provided with an Opinion of Counsel addressed to the
Trustee and any NIMS Insurer (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.
154
(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,
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.
(f)
Notwithstanding
anything to the contrary in the Servicing Agreement, the Trustee shall not
consent to any amendment of the Servicing Agreement unless (i) such amendment
is
effected pursuant to the standards provided in Section 11.03(a) or 11.03(b)
with
respect to amendment of this Agreement and (ii) except for a Permitted Servicing
Amendment, any such amendment pursuant to Section 11.03(a)(iii) shall not be
materially inconsistent with the provisions of the 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 Class Notional Amount,
as applicable (or Percentage Interest), Certificates owned by the Depositor,
the
Master Servicer, the Trustee, the Servicer or Affiliates thereof are not to
be
counted so long as such Certificates are owned by the Depositor, the Master
Servicer, the Trustee, the Servicer 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, 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 Trustee
in
providing such information shall be reimbursed by the Depositor.
(b)
The
Trustee shall make available to any person to whom a Prospectus was delivered,
upon the request of such person specifying the document or documents requested,
(i) a copy (excluding exhibits) of any report on Form 8-K or Form 10-K filed
with the Securities and Exchange Commission pursuant to Section 6.20(c) and
(ii)
a copy of any other document incorporated by reference in the Prospectus (to
the
extent 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.
155
(c)
On
each
Distribution Date, the Trustee shall make available on its website or otherwise
deliver to the Depositor a copy of the report delivered to Certificateholders
pursuant to Section 4.03.
Section
11.06. Governing
Law.
THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE
STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS (OTHER
THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW) AND THE OBLIGATIONS, RIGHTS
AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH
SUCH LAWS.
Section
11.07. Notices.
All
demands, notices and communications hereunder shall be in writing and shall
be
deemed to have been duly given when received by (a) in the case of the
Depositor, Structured Asset Securities Corporation, 000 Xxxxxxx Xxxxxx, 0xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Mortgage Finance, LXS 0000-0X,
(x) in the case of the Seller, Xxxxxx Brothers Holdings Inc., 000 Xxxxxxx
Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Mortgage Finance, LXS
2007-5H, (c) in the case of the Trustee, the Corporate Trust Office, and
(d) in the case of the Master Servicer, Aurora Loan Services LLC, 00000
Xxxx Xxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxx 00000; Attention: Master Servicing,
LXS
2007-5H, 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.
156
Section
11.10. Headings
Not To Affect Interpretation.
The
headings contained in this Agreement are for convenience of reference only,
and
they shall not be used in the interpretation hereof.
Section
11.11. Benefits
of Agreement.
The
Depositor shall promptly notify the Custodians, the Master Servicer and the
Trustee in writing of the issuance of any Class of NIMS Securities issued by
a
NIMS Insurer and the identity of such NIMS Insurer. Thereafter, the NIMS Insurer
shall be deemed a third-party beneficiary of this Agreement to the same extent
as if it were a party hereto, and shall be subject to and have the right to
enforce the provisions of this Agreement so long as the NIMS Securities
remaining outstanding or the NIMS Insurer is owed amounts in respect of its
guarantee of payment of such NIMS Securities. Nothing in this Agreement or
in
the Certificates, express or implied, shall give to any Person, other than
the
parties to this Agreement and their successors hereunder, the NIMS Insurer,
the
Certificateholders, any benefit or any legal or equitable right, power, remedy
or claim under this Agreement, except to the extent specified in Section
11.15.
Section
11.12. Special
Notices to the Rating Agencies and any NIMS Insurer.
(a)
The
Depositor shall give prompt notice to the Rating Agencies and any NIMS Insurer
of the occurrence of any of the following events of which it has
notice:
(i)
any
amendment to this Agreement pursuant to Section 11.03;
(ii)
any
Assignment by the Master Servicer of its rights hereunder or delegation of
its
duties hereunder;
(iii)
the
occurrence of any Event of Default described in Section 6.14;
(iv)
any
notice of termination given to the Master Servicer pursuant to Section 6.14
and
any resignation of the Master Servicer hereunder;
(v)
the
appointment of any successor to any Master Servicer pursuant to Section
6.14;
(vi)
the
making of a final payment pursuant to Section 7.02; and
(vii)
any
termination of the rights and obligations of the Servicer under the Servicing
Agreement.
157
(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
Moody’s, to:
Xxxxx’x
Investors Service, Inc.
00
Xxxxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Residential Mortgages
If
to
Fitch, to:
Fitch
Ratings, Inc.
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 the Servicing
Agreement, the Servicing Agreement shall govern unless such provisions shall
adversely affect the Trustee or the Trust Fund.
Section
11.14. Counterparts.
This
Agreement may be executed in one or more counterparts, each of which shall
be
deemed to be an original, and all of which together shall constitute one and
the
same instrument.
Section
11.15. Transfer
of Servicing.
The
Seller agrees that it shall provide written notice to the Master Servicer,
any
NIMS Insurer and the Trustee thirty days prior to any proposed transfer or
assignment by the Seller of its rights under the Servicing Agreement or of
the
servicing thereunder from time to time with respect to any Mortgage Loan or
group of Mortgage Loans, or delegation of its rights or duties thereunder or
any
portion thereof to any other Person other than the Servicer under the Servicing
Agreement; provided,
however,
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 the Seller to an affiliate of the Seller. In addition,
the
ability of the Seller to transfer or assign its rights and delegate its duties
under the Servicing Agreement or to transfer the servicing thereunder, from
time
to time with respect to any Mortgage Loan or group of Mortgage Loans, to a
successor servicer shall be subject to the following conditions:
158
(i)
Satisfaction
of the conditions to such transfer as set forth in the Servicing Agreement
including, without limitation, receipt of written consent of any NIMS Insurer
and the Master Servicer (such consent not to be unreasonably withheld) to such
transfer;
(ii)
Such
successor servicer must be qualified to service loans for Xxxxxx Xxx or Xxxxxxx
Mac, and must be a member in good standing of MERS;
(iii)
Such
successor servicer must satisfy the seller/servicer eligibility standards in
the
Servicing Agreement, exclusive of any experience in mortgage loan origination
and must be reasonably acceptable to the Master Servicer, whose approval shall
not be unreasonably withheld;
(iv)
Such
successor servicer must execute and deliver to the Trustee and the Master
Servicer an agreement, in form and substance reasonably satisfactory to the
Trustee and the Master Servicer, that contains an assumption by such successor
servicer of the due and punctual performance and observance of each covenant
and
condition to be performed and observed by the Servicer under the Servicing
Agreement or, in the case of a transfer of servicing to a party that is already
a Servicer pursuant to this Agreement, an agreement to add the related Mortgage
Loans to the Servicing Agreement already in effect with the
Servicer;
(v)
If
the
successor servicer is not a Servicer of Mortgage Loans at the time of the
transfer, there must be delivered to the Trustee and the Master Servicer 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
transferring Servicer to take such steps, as may be necessary or appropriate
to
effectuate and evidence the transfer of the servicing of the specified Mortgage
Loans to such successor or replacement 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 or replacement 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 or replacement
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 or replacement
servicer, or, if such transfer occurs after a 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 or replacement
159
servicer,
continue to forward to such successor or replacement 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 or replacement 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 or replacement servicer, continue to cooperate
with the successor or replacement servicer to facilitate such transfer in such
manner and to such extent as the successor or replacement servicer may
reasonably request. Notwithstanding the foregoing, the prior Servicer shall
be
obligated to perform the items listed above to the extent provided in the
Servicing Agreement.
[SIGNATURES
TO FOLLOW]
160
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/
Xxxxx X.
Xxxxxxx
Name:
Xxxxx X. Xxxxxxx
Title:
Senior Vice President
LASALLE
BANK NATIONAL ASSOCIATION,
as
Trustee
By:
/s/
Xxxx
Xxxxxxxx
Name:
Xxxx Xxxxxxxx
Title:
Assistant Vice President
Solely
for purposes of Section 6.11 and 11.15,
accepted
and agreed to by:
XXXXXX
BROTHERS HOLDINGS INC.
By:
/s/
Xxxxxxx
Xxxxxxxx
Name:
Xxxxxxx Xxxxxxxx
Title:
Authorized Signatory
EXHIBIT
A
FORMS
OF
CERTIFICATES
X-0
XXXXXXX
X-0
FORM
OF
INITIAL CERTIFICATION
Date
LaSalle
Bank National Association
000
X.
XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx,
Xxxxxxxx 00000
Attention:
Global Securities and Trust Services - Xxxxxx XS Trust 0000-0X
Xxxxxx
Loan Services LLC, as Master Servicer
00000
Xxxx Xxxxxxx Xxxxx
Xxxxxxxxx,
Xxxxxxxx 00000
Structured
Asset Securities Corporation,
as
Depositor
000
Xxxxxxx Xxxxxx
0xx
Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Mortgage Finance, LXS 2007-5H
|
Re:
|
Trust
Agreement dated as of April 1, 2007 (the “Trust
Agreement”),
|
by
and
among Structured Asset Securities Corporation, as Depositor,
Aurora
Loan Services LLC, as Master Servicer and LaSalle Bank National
Association,
as Trustee with respect to Xxxxxx XS Trust Mortgage
Pass-Through
Certificates, Series 2007-5H
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
LaSalle
Bank National Association
000
X.
XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx,
Xxxxxxxx 00000
Attention:
Global Securities and Trust Services - Xxxxxx XS Trust 0000-0X
Xxxxxx
Loan Services LLC, as Master Servicer
00000
Xxxx Xxxxxxx Xxxxx
Xxxxxxxxx,
Xxxxxxxx 00000
Structured
Asset Securities Corporation,
as
Depositor
000
Xxxxxxx Xxxxxx, 0xx
Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Mortgage Finance, LXS 2007-5H
|
Re:
|
Trust
Agreement dated as of April 1, 2007 (the “Trust
Agreement”),
|
by
and
among Structured Asset Securities Corporation, as Depositor,
Aurora
Loan Services LLC, as Master Servicer and LaSalle Bank National
Association,
as Trustee with respect to Xxxxxx XS Trust
Mortgage
Pass-Through Certificates, Series 2007-5H
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).
[Custodian]
By:
_____________________________________
Name:
Title:
X-0-0
XXXXXXX
X-0
FORM
OF
FINAL CERTIFICATION
Date
LaSalle
Bank National Association
000
X.
XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx,
Xxxxxxxx 00000
Attention:
Global Securities and Trust Services - Xxxxxx XS Trust 0000-0X
Xxxxxx
Loan Services LLC, as Master Servicer
00000
Xxxx Xxxxxxx Xxxxx
Xxxxxxxxx,
Xxxxxxxx 00000
Structured
Asset Securities Corporation,
as
Depositor
000
Xxxxxxx Xxxxxx, 0xx
Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Mortgage Finance, LXS 2007-5H
|
Re:
|
Trust
Agreement dated as of April 1, 2007 (the “Trust
Agreement”),
|
by
and
among Structured Asset Securities Corporation, as Depositor,
Aurora
Loan Services LLC, as Master Servicer and LaSalle Bank National
Association,
as Trustee with respect to Xxxxxx XS Trust Mortgage Pass-Through
Certificates,
Series 2007-5H
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.
[Custodian]
By:
_____________________________________
Name:
Title:
X-0-0
XXXXXXX
X-0
FORM
OF
ENDORSEMENT
Pay
to
the order of LaSalle Bank National Association, as trustee (the “Trustee”),
under a Trust Agreement dated as of April 1, 2007, among Structured Asset
Securities Corporation, as depositor, Aurora Loan Services LLC, as master
servicer, and the Trustee, relating to Xxxxxx XS Trust Mortgage Pass-Through
Certificates, Series 2007-5H, 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 April 1, 2007 by and among Structured
Asset Securities Corporation, as Depositor, LaSalle Bank National Association,
as Trustee, and Aurora Loan Services LLC, as Master Servicer (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] [Master Servicer] hereby certifies that the
Purchase Price (or FPD Purchase Price (in the case of a First Payment Default
Mortgage Loan)) has been credited to the Certificate Account or Collection
Account, as applicable, pursuant to the Trust Agreement.)
5. Other.
(Describe)
The
undersigned acknowledges that the above Mortgage File will be held by the
undersigned in accordance with the provisions of the Trust Agreement and will
be
returned to you within ten (10) days of our receipt of the Mortgage File, except
if the Mortgage Loan has been paid in full, or repurchased or substituted for
a
Qualifying Substitute Mortgage Loan (in which case the Mortgage File will be
retained by us permanently) 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 either (x) is not, and on __________________ [date
of
transfer] will not be, an employee benefit plan or other retirement
arrangement subject to Section 406 of the Employee Retirement Income
Security Act of 1974, as amended (“ERISA”), or Section 4975 of the Code
(collectively, a “Plan”) or a person acting on behalf of any such Plan or
investing the assets of any such Plan to acquire a Residual Certificate;
(y) if the Residual Certificate has been the subject of an
ERISA-Qualifying Underwriting, is an insurance company that is purchasing
the Residual Certificate with funds contained in an “insurance company
general account” as defined in Section V(e) of Prohibited Transaction
Class Exemption (“PTCE”) 95-60 and the purchase and holding of the
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, any NIMS Insurer 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, any NIMS Insurer 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,
and LaSalle Bank National Association, as Trustee, dated as of April
1,
2007, relating to Xxxxxx XS Trust Mortgage Pass-Through Certificates,
Series 2007-5H, 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.
|
|
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.
|
D-1-2
|
11.
|
That
the Purchaser agrees to such amendments of the Trust Agreement as
may be
required to further effectuate the restrictions on transfer of any
Residual Certificate to such a “disqualified organization,” an agent
thereof, a Book-Entry Nominee, or a person that does not satisfy
the
requirements of paragraph 7 and paragraph 10
hereof.
|
|
12.
|
That
the Purchaser consents to the designation of the Trustee as its agent
to
act as “tax matters person” of the Trust Fund pursuant to the Trust
Agreement.
|
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:
D-1-3
Personally
appeared before me the above-named [name of officer] ________________, known
or
proved to me to be the same person who executed the foregoing instrument and
to
be the [title of officer] _________________ of the Purchaser, and acknowledged
to me that he [she] executed the same as his [her] free act and deed and the
free act and deed of the Purchaser.
Subscribed
and sworn before me this _____ day of __________, 20__.
NOTARY
PUBLIC
_____________________________
COUNTY
OF_____________________
STATE
OF______________________
My
commission expires the _____ day of __________, 20__.
X-0-0
XXXXXXX
X-0
RESIDUAL
CERTIFICATE TRANSFER AFFIDAVIT (TRANSFEROR)
Date
|
Re:
|
Xxxxxx
XS Trust Mortgage Pass-Through Certificates, Series
2007-5H
|
_______________________
(the “Transferor”) has reviewed the attached affidavit of
_____________________________ (the “Transferee”), and has no actual knowledge
that such affidavit is not true and has no reason to believe that the
information contained in paragraph 7 thereof is not true, and has no reason
to
believe that the Transferee has the intention to impede the assessment or
collection of any federal, state or local taxes legally required to be paid
with
respect to a Residual Certificate. In addition, the Transferor has conducted
a
reasonable investigation at the time of the transfer and found that the
Transferee had historically paid its debts as they came due and found no
significant evidence to indicate that the Transferee will not continue to pay
its debts as they become due.
Very
truly yours,
_______________________________
Name:
Title:
D-2-1
EXHIBIT
E
LIST
OF
SERVICING AGREEMENT
|
1.
|
Servicing
Agreement dated as of April 1, 2007 among the Xxxxxx Brothers Holdings
Inc., as seller, and Aurora Loan Services LLC, in the dual capacities
of
servicer and Master Servicer, and acknowledged by the
Trustee.
|
E-1
EXHIBIT
F
FORM
OF
RULE 144A TRANSFER CERTIFICATE
|
Re:
|
Xxxxxx
XS Trust
|
Mortgage
Pass-Through Certificates
Series
2007-5H
Reference
is hereby made to the Trust Agreement dated as of April 1, 2007 (the “Trust
Agreement”) by and among Structured Asset Securities Corporation, as Depositor,
Aurora Loan Services LLC, as Master Servicer, and LaSalle 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
Dear
Sirs:
In
connection with our proposed purchase of $______________ principal amount of
Xxxxxx XS Trust Mortgage Pass-Through Certificates, Series 2007-5H (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 April
1,
2007 (the “Trust Agreement”) by and among the Depositor, Aurora Loan
Services LLC, as Master Servicer, and LaSalle 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.
|
|
(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.
|
G-1
|
(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.
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-2
EXHIBIT
H
FORM
OF
ERISA TRANSFER AFFIDAVIT
|
STATE
OF NEW YORK
|
)
|
|
)
ss.:
|
|
|
COUNTY
OF NEW YORK
|
)
|
The
undersigned, being first duly sworn, deposes and says as follows:
1. The
undersigned is the ______________________ of (the “Investor”), a [corporation
duly organized] and existing under the laws of __________, on behalf of which
he
makes this affidavit.
2. In
the
case of an ERISA-Restricted Certificate, the Investor either (x) is not, and
on
___________ [date of transfer] will not be, an employee benefit plan or other
retirement arrangement subject to Section 406 of the Employee Retirement Income
Security Act of 1974, as amended (“ERISA”), or Section 4975 of the Internal
Revenue Code of 1986, as amended (the “Code”) (collectively, a “Plan”) or a
person acting on behalf of any such Plan or investing the assets of any such
Plan to acquire a Certificate; (y) if the Certificate has been the subject
of an
ERISA-Qualifying Underwriting, is an insurance company that is purchasing the
Certificate with funds contained in an “insurance company general account” as
defined in Section V(e) of Prohibited Transaction Class Exemption (“PTCE”) 95-60
and the purchase and holding of the Certificate are covered under Sections
I and
III of PTCE 95-60; or (z) herewith delivers to the Trustee an opinion of counsel
(a “Benefit Plan Opinion”) satisfactory to the Trustee, and upon which the
Trustee, the Master Servicer, any NIMS Insurer 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, any NIMS Insurer 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, and LaSalle Bank National
Association, as Trustee, dated as of April 1, 2007, regarding Xxxxxx XS Trust
Mortgage Pass-Through Certificates, Series 2007-5H, no transfer of the
ERISA-Restricted Certificates shall be permitted to be made to any person unless
the Trustee has received a certificate from such transferee in the form
hereof.
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___.
H-1
_________________________________
[Investor]
By:______________________________
Name:
Title:
ATTEST:
____________________________
|
STATE
OF
|
)
|
|
)
ss.:
|
|
|
COUNTY
OF
|
)
|
Subscribed
and sworn before me this _____ day of _________ 20___.
______________________________
NOTARY
PUBLIC
My
commission expires the
_____
day
of __________, 20___.
H-2
EXHIBIT
I
FORM
OF
EXCHANGE TRUST AGREEMENT
I-1
EXHIBIT
J
CLASS
TABLE
|
Class
|
Related
Mortgage
Pool
|
Class
Principal
or
Notional
Amount(1)
|
Initial
Interest
Rate(2)
|
Interest
Rate or
Interest
Rate Formula
|
Exchange/Exchangeable
|
Interest
Accrual
Convention
|
Minimum
Denominations
|
|
1-A1
|
1
|
$168,351,000
|
6.50%
|
6.50%
|
Not
Applicable
|
30/360
|
$25,000
|
|
1-A2
|
1
|
$18,706,000
|
6.50%
|
6.50%
|
Not
Applicable
|
30/360
|
$25,000
|
|
1-APO
|
1
|
$7,483,000
|
0.00%
|
Not
Applicable
|
Not
Applicable
|
Not
Applicable
|
$1,000,000
|
|
1-AIO
|
1
|
$194,540,000
|
0.75%
|
0.75%(3)(4)
|
Not
Applicable
|
30/360
|
$1,000,000
|
|
2-A1
|
2
|
$227,227,000
|
6.50%
|
6.50%(4)
|
Not
Applicable
|
30/360
|
$25,000
|
|
2-A2
|
2
|
$38,108,000
|
6.50%
|
6.50%(4)
|
Not
Applicable
|
30/360
|
$25,000
|
|
3-A1
|
3
|
$337,690,000
|
5.65%
|
(5)
|
Exchange(13)
|
30/360
|
$25,000
|
|
3-A2
|
3
|
$37,521,000
|
7.03%
|
(6)
|
Not
Applicable
|
30/360
|
$25,000
|
|
3-A3
|
3
|
$337,690,000
|
6.05%
|
(7)
|
Exchangeable
|
30/360
|
$25,000
|
|
3-A4
|
3
|
$337,690,000
|
6.45%
|
(8)
|
Exchangeable
|
30/360
|
$25,000
|
|
3-A5
|
3
|
$337,690,000
|
6.90%
|
(9)
|
Exchangeable
|
30/360
|
$25,000
|
|
3-AIO1
|
3
|
$337,690,000
|
0.13%
|
(10)
|
Not
Applicable
|
30/360
|
$1,000,000
|
|
3-AIO2
|
3
|
$337,690,000
|
1.25%
|
(11)
|
Exchange(13)
|
30/360
|
$1,000,000
|
|
I-M1
|
1,
2
|
$12,323,000
|
6.12%
|
6.12%(4)
|
Not
Applicable
|
30/360
|
$100,000
|
|
I-M2
|
1,
2
|
$6,900,000
|
6.17%
|
6.17%(4)
|
Not
Applicable
|
30/360
|
$100,000
|
|
I-M3
|
1,
2
|
$1,972,000
|
6.27%
|
6.27%(4)
|
Not
Applicable
|
30/360
|
$100,000
|
|
I-M4
|
1,
2
|
$3,450,000
|
6.52%
|
6.52%(4)
|
Not
Applicable
|
30/360
|
$100,000
|
|
I-M5
|
1,
2
|
$1,479,000
|
6.76%
|
6.76%(4)
|
Not
Applicable
|
30/360
|
$100,000
|
|
I-M6
|
1,
2
|
$1,232,000
|
7.10%
|
7.10%(4)
|
Not
Applicable
|
30/360
|
$100,000
|
|
I-M7
|
1,2
|
$1,232,000
|
7.10%
|
7.10%(4)
|
Not
Applicable
|
30/360
|
$100,000
|
|
II-M1
|
3
|
$11,090,000
|
7.03%
|
(12)
|
Not
Applicable
|
30/360
|
$100,000
|
|
II-M2
|
3
|
$10,063,000
|
7.03%
|
(12)
|
Not
Applicable
|
30/360
|
$100,000
|
|
II-M3
|
3
|
$4,929,000
|
7.03%
|
(12)
|
Not
Applicable
|
30/360
|
$100,000
|
|
II-M4
|
3
|
$3,491,000
|
7.03%
|
(12)
|
Not
Applicable
|
30/360
|
$100,000
|
|
II-M5
|
3
|
$2,465,000
|
7.03%
|
(12)
|
Not
Applicable
|
30/360
|
$100,000
|
|
II-M6
|
3
|
$1,848,000
|
7.03%
|
(12)
|
Not
Applicable
|
30/360
|
$100,000
|
|
II-M7
|
3
|
$1,642,941
|
7.03%
|
(12)
|
Not
Applicable
|
30/360
|
$100,000
|
|
I-X
|
1,2
|
(14)
|
Not
Applicable
|
Not
Applicable
|
Not
Applicable
|
Not
Applicable
|
10%
|
|
I-P
|
1,2
|
$100
|
Not
Applicable
|
Not
Applicable
|
Not
Applicable
|
Not
Applicable
|
10%
|
|
II-P
|
3
|
$100
|
Not
Applicable
|
Not
Applicable
|
Not
Applicable
|
Not
Applicable
|
10%
|
|
I-R
|
1,2
|
Not
Applicable
|
Not
Applicable
|
Not
Applicable
|
Not
Applicable
|
Not
Applicable
|
100%
|
|
II-R
|
3
|
Not
Applicable
|
Not
Applicable
|
Not
Applicable
|
Not
Applicable
|
Not
Applicable
|
100%
|
_____________________
|
(1)
|
These
balances are approximate as described in the prospectus
supplement.
|
|
(2)
|
Reflects
the interest rate as of the April 30, 2007 closing
date.
|
|
(3)
|
The
Class 1-AIO Certificates will be interest-only certificates; they
will not
be entitled to payments of principal and will accrue interest on
their
notional balance at an interest rate equal to the lesser of (1) 0.75%
per
annum and (2) the excess, if any, of (x) the pool 1 net funds cap
over (y)
6.25% per annum, subject to a minimum interest rate of 0.00% per
annum, as
described in the prospectus supplement. For any distribution date,
the
class notional amount of the Class 1-AIO Certificates will be equal
to the
aggregate class principal amount of the Class 1-A1, Class 1-A2 and
Class
1-APO Certificates immediately preceding the related distribution
date.
The initial class notional amount of the Class 1-AIO Certificates
is equal
to $194,540,000.
|
|
(4)
|
The
interest rates of each of the Class 1-AIO, Class 2-A1, Class 2-A2,
Class
I-M1, Class I-M2, Class I-M3, Class I-M4, Class I-M5, Class I-M6
and Class
I-M7 Certificates are subject to the applicable net funds cap, as
described in the prospectus supplement under “Summary of Terms—The
Certificates—Payments on the Certificates—Interest
Distributions.”
|
|
(5)
|
The
Class 3-A1 Certificates will bear interest based on an interest rate
equal
to the lesser of (1) 5.65% per annum and (2) the net WAC for pool
3 for
each distribution date on or prior to the distribution date in February
2012. Beginning with the distribution date in March 2012 and for
each
distribution date thereafter, the Class 3-A1 Certificates will bear
interest based on an interest rate equal to the net WAC for pool
3, as
described in the prospectus
supplement.
|
|
(6)
|
The
Class 3-A2 Certificates will bear interest based on an interest rate
equal
to the net WAC for pool 3.
|
|
(7)
|
The
Class 3-A3 Certificates will bear interest based on an interest rate
equal
to the least of (1) 6.05% per annum, (2) the sum of (x) 5.65% per
annum
and (y) the product of 0.32 and the interest rate for the Class 3-AIO2
Certificates for the related distribution date and (3) the net WAC
for
pool 3 for each distribution date on or prior to the distribution
date in
February 2012. Beginning with the distribution date in March 2012
and for
each distribution date thereafter, the Class 3-A3 Certificates will
bear
interest based on an interest rate equal to the net WAC for pool
3, as
described in the prospectus
supplement.
|
J-1
|
(8)
|
The
Class 3-A4 Certificates will bear interest based on an interest rate
equal
to the least of (1) 6.45% per annum, (2) the sum of (x) 5.65% per
annum
and (y) the product of 0.64 and the interest rate for the Class 3-AIO2
Certificates for the related distribution date and (3) the net WAC
for
pool 3 for each distribution date on or prior to the distribution
date in
February 2012. Beginning with the distribution date in March 2012
and for
each distribution date thereafter, the Class 3-A4 Certificates will
bear
interest based on an interest rate equal to the net WAC for pool
3, as
described in the prospectus
supplement.
|
|
(9)
|
The
Class 3-A5 Certificates will bear interest based on an interest rate
equal
to the least of (1) 6.90% per annum, (2) the sum of (x) 5.65% per
annum
and (y) the interest rate for the Class 3-AIO2 Certificates for the
related distribution date and (3) the net WAC for pool 3 for each
distribution date on or prior to the distribution date in February
2012.
Beginning with the distribution date in March 2012 and for each
distribution date thereafter, the Class 3-A5 Certificates will bear
interest based on an interest rate equal to the net WAC for pool
3, as
described in the prospectus
supplement.
|
|
(10)
|
The
Class 3-AIO1 Certificates will be interest-only certificates; they
will
not be entitled to payments of principal and will accrue interest
on their
notional balance at an interest rate equal to the excess, if any,
of (x)
the net WAC of pool 3 over (y) 6.90% per annum, subject to a minimum
interest rate of 0.00% per annum, for each distribution date on or
prior
to the distribution date in February 2012, as described in the prospectus
supplement. After the distribution date in February 2012, the Class
3-AIO1
Certificates will not longer be entitled to receive distributions
of any
kind. For any distribution date on or prior to the distribution date
in
February 2012, the class notional amount of the Class 3-AIO1 Certificates
will be equal to the class principal amount of the Class 3-A1 Certificates
immediately preceding the related distribution date. After the
distribution date in February 2012, the class notional amount of
the Class
3-AIO1 Certificates will be zero. The initial class notional amount
of the
Class 3-AIO1 Certificates is equal to
$337,690,000.
|
|
(11)
|
The
Class 3-AIO2 Certificates will be interest-only certificates; they
will
not be entitled to payments of principal and will accrue interest
on their
notional balance at an interest rate equal to the lesser of (1) 1.25%
per
annum and (2) the excess, if any, of (x) the net WAC of pool 3 over
(y)
5.65% per annum, subject to a minimum interest rate of 0.00% per
annum,
for each distribution date on or prior to the distribution date in
February 2012, as described in the prospectus supplement. After the
distribution date in February 2012, the Class 3-AIO2 Certificates
will not
longer be entitled to receive distributions of any kind. For any
distribution date on or prior to the distribution date in February
2012,
the class notional amount of the Class 3-AIO2 Certificates will be
equal
to the class principal amount of the Class 3-A1 Certificates immediately
preceding the related distribution date. After the distribution date
in
February 2012, the class notional amount of the Class 3-AIO2 Certificates
will be zero. The initial class notional amount of the Class 3-AIO2
Certificates is equal to
$337,690,000.
|
|
(12)
|
The
Class II-M1, Class II-M2, Class II-M3 and Class II-M4 Certificates
will
bear interest based on an interest rate equal to the net WAC for
pool 3,
as described in the prospectus
supplement.
|
| (13) |
These
classes of certificates are Exchange Certificates. Certain combinations
of
Exchange Certificates can be exchanged for corresponding Exchangeable
Certificates.
|
| (14) |
For
purposes of the REMIC Provisions, the Class I-X Certificate shall
have an
initial principal balance of $4,436,466.27, but shall not accrue
interest
on that balance. The Class I-X Certificate shall be entitled to all
amounts distributable with respect to the Class MT1-X Interest in
Middle-Tier REMIC 1.
|
J-2
EXHIBIT
K
LIST
OF
CUSTODIAL AGREEMENTS
|
1.
|
The
Custodial Agreement dated and effective as of April 1, 2007, by and
between Deutsche Bank National Trust Company, as custodian, and LaSalle
Bank National Association, as
trustee.
|
|
2.
|
The
Custodial Agreement dated and effective as of April 1, 2007, by and
between LaSalle Bank National Association, as custodian, and LaSalle
Bank
National Association, as trustee.
|
|
3.
|
The
Custodial Agreement dated and effective as of April 1, 2007, by and
between U.S. Bank National Association, as custodian, and LaSalle
Bank
National Association, as trustee.
|
K-1
EXHIBIT
L
[Reserved]
L-1
EXHIBIT
M
FORM
OF
BACK-UP CERTIFICATION TO BE PROVIDED TO
THE
DEPOSITOR AND/OR THE MASTER SERVICER BY THE TRUSTEE
Structured
Asset Securities Corporation
000
Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Mortgage Finance, LXS 0000-0X
Xxxxxx
Loan Services LLC
00000
Xxxx Xxxxxxx Xxxxx
Xxxxxxxxx,
Xxxxxxxx 00000
|
Re:
|
Xxxxxx
XS Trust
|
|
Mortgage
Pass-Through Certificates, Series
2007-5H
|
Reference
is made to the Trust Agreement dated as of April 1, 2007 (the “Trust
Agreement”), by and among LaSalle Bank National Association, (the “Trustee”),
Aurora Loan Services LLC, as master servicer (the “Master Servicer”), and
Structured Asset Securities Corporation, as depositor (the “Depositor”). The
Trustee hereby certifies to the Depositor and the Master Servicer, and its
officers, directors and affiliates, and with the knowledge and intent that
they
will rely upon this certification, that:
|
(i)
|
I
have reviewed the annual report on Form 10-K for the fiscal year
[ ] (the
“Annual Report”) and all reports on Form 10-D required to be filed in
respect of the period covered by the Annual Report (collectively
with the
Annual Report, the “Reports”), of the Trust;
|
|
(ii)
|
Based
on my knowledge, the Reports, taken as a whole, do not contain any
untrue
statement of a material fact or omit to state a material fact required
to
be stated therein or necessary to make the statements made, in light
of
the circumstances under which such statements were made, not misleading
with respect to the period covered by the Annual
Report;
|
|
(iii)
|
Based
on my knowledge, the distribution information required to be provided
by
the Trustee under the Trust Agreement for inclusion in the Reports
is
included in the Reports.
|
Date:
LaSalle
Bank National Association, as Trustee
By: ________________________________
Name: ______________________________
Title: _______________________________
M-1
EXHIBIT
N-1
[Reserved]
N-1
EXHIBIT
N-2
[Reserved]
N-2
EXHIBIT
N-3
[Reserved]
N-3
EXHIBIT
N-4
[Reserved]
N-4
EXHIBIT
O
FORM
OF
CERTIFICATION REGARDING 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 April 1, 2007
(the
“Agreement”), by and among LaSalle Bank National Association (the “Trustee”),
Aurora Loan Services LLC, as master servicer (the “Master Servicer”), and
Structured Asset Securities Corporation, as depositor (the “Depositor”) with
respect to Xxxxxx XS Trust Mortgage Pass-Through Certificates, Series 2007-5H.
|
Reg
AB Reference
|
Servicing
Criteria
|
Paying
Agent
(including
the Trustee if acting as Paying Agent)
|
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 mortgage loans 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 mortgage loans are deposited into the appropriate custodial bank
accounts and related bank clearing accounts no more than two business
days
following receipt, or such other number of days specified in the
transaction agreements.
|
X
|
X
|
X
|
|
1122(d)(2)(ii)
|
Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made
only by authorized personnel.
|
X
|
X
|
O-1
|
Reg
AB Reference
|
Servicing
Criteria
|
Paying
Agent
(including
the Trustee if acting as Paying Agent)
|
Trustee
|
Master
Servicer
|
|
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
|
|
|
Investor
Remittances and Reporting
|
||||
|
1122(d)(3)(i)
|
Reports
to investors, including those to be filed with the Commission, are
maintained in accordance with the transaction agreements and applicable
Commission requirements. Specifically, such reports (A) are prepared
in
accordance with timeframes and other terms set forth in the transaction
agreements; (B) provide information calculated in accordance with
the
terms specified in the transaction agreements; (C) are filed with
the
Commission as required by its rules and regulations; and (D) agree
with
investors’ or the trustee’s records as to the total unpaid principal
balance and number of mortgage loans serviced by the Servicer.
|
X
|
X
|
O-2
|
Reg
AB Reference
|
Servicing
Criteria
|
Paying
Agent
(including
the Trustee if acting as Paying Agent)
|
Trustee
|
Master
Servicer
|
|
1122(d)(3)(ii)
|
Amounts
due to investors are allocated and remitted in accordance with timeframes,
distribution priority and other terms set forth in the transaction
agreements.
|
X
|
X
|
X
|
|
1122(d)(3)(iii)
|
Disbursements
made to an investor are posted within two business days to the Servicer’s
investor records, or such other number of days specified in the
transaction agreements.
|
X
|
X
|
|
|
1122(d)(3)(iv)
|
Amounts
remitted to investors per the investor reports agree with cancelled
checks, or other form of payment, or custodial bank statements.
|
X
|
X
|
|
|
Pool
Asset Administration
|
||||
|
1122(d)(4)(i)
|
Collateral
or security on mortgage loans is maintained as required by the transaction
agreements or related pool asset documents.
|
|
||
|
1122(d)(4)(ii)
|
Mortgage
loans and related documents are safeguarded as required by the transaction
agreements
|
|
||
|
1122(d)(4)(iii)
|
Any
additions, removals or substitutions to the asset pool are made,
reviewed
and approved in accordance with any conditions or requirements in
the
transaction agreements.
|
|
X
|
|
|
1122(d)(4)(iv)
|
Payments
on mortgage loans, 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 mortgage loans agree with the Servicer’s
records with respect to an obligor’s unpaid principal balance.
|
|||
|
1122(d)(4)(vi)
|
Changes
with respect to the terms or status of an obligor's mortgage loans
(e.g.,
loan modifications or re-agings) are made, reviewed and approved
by
authorized personnel in accordance with the transaction agreements
and
related pool asset documents.
|
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
|
O-3
|
Reg
AB Reference
|
Servicing
Criteria
|
Paying
Agent
(including
the Trustee if acting as Paying Agent)
|
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 mortgage loans including, for
example,
phone calls, letters and payment rescheduling plans in cases where
delinquency is deemed temporary (e.g., illness or unemployment).
|
|||
|
1122(d)(4)(ix)
|
Adjustments
to interest rates or rates of return for mortgage loans with variable
rates are computed based on the related 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 mortgage loans, or such other
number
of days specified in the transaction agreements.
|
|||
|
1122(d)(4)(xi)
|
Payments
made on behalf of an obligor (such as tax or insurance payments)
are made
on or before the related penalty or expiration dates, as indicated
on the
appropriate bills or notices for such payments, provided that such
support
has been received by the servicer at least 30 calendar days prior
to these
dates, or such other number of days specified in the transaction
agreements.
|
|
||
|
1122(d)(4)(xii)
|
Any
late payment penalties in connection with any payment to be made
on behalf
of an obligor are paid from the Servicer’s funds and not charged to the
obligor, unless the late payment was due to the obligor’s error or
omission.
|
|
||
|
1122(d)(4)(xiii)
|
Disbursements
made on behalf of an obligor are posted within two business days
to the
obligor’s records maintained by the servicer, or such other number of days
specified in the transaction agreements.
|
|
||
|
1122(d)(4)(xiv)
|
Delinquencies,
charge-offs and uncollectible accounts are recognized and recorded
in
accordance with the transaction agreements.
|
X
|
O-4
|
Reg
AB Reference
|
Servicing
Criteria
|
Paying
Agent
(including
the Trustee if acting as Paying Agent)
|
Trustee
|
Master
Servicer
|
|
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
|
O-5
EXHIBIT
P
TRANSACTION
PARTIES
|
Sponsor
and Seller:
|
Xxxxxx
Brothers Holdings Inc.
|
|
Depositor:
|
Structured
Asset Securities Corporation
|
|
Trustee:
|
LaSalle
Bank National Association
|
|
Securities
Administrator:
|
None
|
|
Master
Servicer:
|
Aurora
Loan Services LLC
|
|
Credit
Risk Manager:
|
None
|
|
PMI
Insurer(s):
|
None
|
|
Interest
Rate Swap Counterparty:
|
None
|
|
Interest
Rate Cap Counterparty:
|
None
|
|
Primary
Servicer(s):
|
Aurora
Loan Services LLC
|
|
Primary
Originator(s):
|
Xxxxxx
Brothers Bank, FSB
|
|
Custodian(s):
|
U.S.
Bank National Association, LaSalle Bank National Association and
Deutsche
Bank National Trust Company
|
P-1
EXHIBIT
Q
Additional
Form 10-D Disclosure
|
ADDITIONAL
FORM 10-D DISCLOSURE
|
|
|
Item
on Form 10-D
|
Party
Responsible
|
|
Item
1: Distribution and Pool Performance Information
|
|
|
Information
included in the Monthly Statement
|
Master
Servicer
Servicer
Trustee
|
|
Any
information required by 1121 which is NOT included on the Monthly
Statement
|
Depositor
|
|
Item
2: Legal Proceedings
Any
legal proceeding pending against the following entities or their
respective property, that is material to Certificateholders, including
any
proceeding known to be contemplated by governmental
authorities:
|
|
|
▪
Issuing Entity (Trust Fund)
|
Trustee,
Master Servicer and Depositor
|
|
▪
Sponsor (Seller)
|
Depositor
|
|
▪
Depositor
|
Depositor
|
|
▪
Trustee
|
Trustee
|
|
▪
Master Servicer
|
Master
Servicer
|
|
▪
Custodian
|
Custodian
|
|
▪
1110(b) Originator
|
Depositor
|
|
▪
Any 1108(a)(2) Servicer (other than the Master Servicer or Securities
Administrator)
|
Servicer
|
|
▪
Any other party contemplated by 1100(d)(1)
|
Depositor
|
|
Item
3: Sale of Securities and Use of Proceeds
Information
from Item 2(a) of Part II of Form 10-Q:
With
respect to any sale of securities by the sponsor, depositor or issuing
entity, that are backed by the same asset pool or are otherwise issued
by
the issuing entity, whether or not registered, provide the sales
and use
of proceeds information in Item 701 of Regulation S-K. Pricing information
can be omitted if securities were not registered.
|
Depositor
|
Q-1
|
Item
4: Defaults Upon Senior Securities
Information
from Item 3 of Part II of Form 10-Q:
Report
the occurrence of any Event of Default (after expiration of any grace
period and provision of any required notice)
|
Trustee
|
|
Item
5: Submission of Matters to a Vote of Security
Holders
Information
from Item 4 of Part II of Form 10-Q
|
Trustee
|
|
Item
6: Significant Obligors of Pool Assets
Item
1112(b) - Significant
Obligor Financial Information*
|
Depositor
|
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Item.
|
|
|
Item
7: Significant Enhancement Provider Information
|
Depositor
|
|
Item
8: Other Information
Disclose
any information required to be reported on Form 8-K during the period
covered by the Form 10-D but not reported
|
Any
party responsible for the applicable Form 8-K Disclosure
item
|
|
Item
9: Exhibits
|
|
|
Monthly
Statement to Certificateholders
|
Trustee
|
|
Exhibits
required by Item 601 of Regulation S-K, such as material
agreements
|
Depositor
|
Q-2
EXHIBIT
R
Additional
Form 10-K Disclosure
|
ADDITIONAL
FORM 10-K DISCLOSURE
|
|
|
Item
on Form 10-K
|
Party
Responsible
|
|
Item
1B: Unresolved Staff Comments
|
Depositor
|
|
Item
9B: Other Information
Disclose
any information required to be reported on Form 8-K during the fourth
quarter covered by the Form 10-K but not reported
|
Any
party responsible for disclosure items on Form 8-K
|
|
Item
15: Exhibits, Financial Statement Schedules
|
Depositor
|
|
Reg
AB Item 1112(b): Significant Obligors of Pool
Assets
|
|
|
Significant
Obligor Financial Information*
|
Depositor
|
|
*This
information need only be reported on the Form 10-K if updated information
is required pursuant to the Item.
|
|
|
Reg
AB Item 1114(b)(2): Credit Enhancement Provider Financial
Information
|
|
|
▪
Determining applicable disclosure threshold
|
Depositor
|
|
▪
Requesting required financial information (including any required
accountants’ consent to the use thereof) or effecting incorporation by
reference
|
Depositor
|
|
*This
information need only be reported on the Form 10-K if updated information
is required pursuant to the Item.
|
Depositor
|
|
Reg
AB Item 1115(b): Derivative Counterparty Financial
Information
|
|
|
▪
Determining current maximum probable exposure
|
Depositor
|
|
▪
Determining current significance percentage
|
Depositor
|
|
▪
Requesting required financial information (including any required
accountants’ consent to the use thereof) or effecting incorporation by
reference
|
Depositor
|
|
*This
information need only be reported on the Form 10-K if updated information
is required pursuant to the Item.
|
|
|
Reg
AB Item 1117: Legal Proceedings
Any
legal proceeding pending against the following entities or their
respective property, that is material to Certificateholders, including
any
proceeding known to be contemplated by governmental
authorities:
|
|
R-1
|
ADDITIONAL
FORM 10-K DISCLOSURE
|
|
|
Item
on Form 10-K
|
Party
Responsible
|
|
▪
Issuing Entity (Trust Fund)
|
Trustee,
Master Servicer and Depositor
|
|
▪
Sponsor (Seller)
|
Depositor
|
|
▪
Depositor
|
Depositor
|
|
▪
Trustee
|
Trustee
|
|
▪
Master Servicer
|
Master
Servicer
|
|
▪
Custodian
|
Custodian
|
|
▪
1110(b) Originator
|
Depositor
|
|
▪
Any 1108(a)(2) Servicer (other than the Master Servicer or Securities
Administrator)
|
Servicer
|
|
▪
Any other party contemplated by 1100(d)(1)
|
Depositor
|
|
Reg
AB Item 1119: Affiliations and Relationships
|
|
|
Whether
(a) the Sponsor (Seller), Depositor or Issuing Entity is an affiliate
of
the following parties, and (b) to the extent known and material,
any of
the following parties are affiliated with one another:
|
Depositor
as to (a)
Sponsor/Seller
as to (a)
|
|
▪
Master Servicer
|
Master
Servicer
|
|
▪
Trustee
|
Trustee
|
|
▪
Any other 1108(a)(3) servicer
|
Servicer
|
|
▪
Any 1110 Originator
|
Depositor/Sponsor
|
|
▪
Any 1112(b) Significant Obligor
|
Depositor/Sponsor
|
|
▪
Any 1114 Credit Enhancement Provider
|
Depositor/Sponsor
|
|
▪
Any 1115 Derivate Counterparty Provider
|
Depositor/Sponsor
|
|
▪
Any other 1101(d)(1) material party
|
Depositor/Sponsor
|
|
Whether
there are any “outside the ordinary course business arrangements” other
than would be obtained in an arm’s length transaction between (a) the
Sponsor (Seller), Depositor or Issuing Entity on the one hand, and
(b) any
of the following parties (or their affiliates) on the other hand,
that
exist currently or within the past two years and that are material
to a
Certificateholder’s understanding of the Certificates:
|
Depositor
as to (a)
Sponsor/Seller
as to (a)
|
|
▪
Master Servicer
|
Master
Servicer
|
|
▪
Trustee
|
Trustee
|
|
▪
Any other 1108(a)(3) servicer
|
Servicer
|
|
▪
Any 1110 Originator
|
Depositor/Sponsor
|
|
▪
Any 1112(b) Significant Obligor
|
Depositor/Sponsor
|
|
▪
Any 1114 Credit Enhancement Provider
|
Depositor/Sponsor
|
R-2
|
ADDITIONAL
FORM 10-K DISCLOSURE
|
|
|
Item
on Form 10-K
|
Party
Responsible
|
|
▪
Any 1115 Derivate Counterparty Provider
|
Depositor/Sponsor
|
|
▪
Any other 1101(d)(1) material party
|
Depositor/Sponsor
|
|
Whether
there are any specific relationships involving the transaction or
the pool
assets between (a) the Sponsor (Seller), Depositor or Issuing Entity
on
the one hand, and (b) any of the following parties (or their affiliates)
on the other hand, that exist currently or within the past two years
and
that are material:
|
Depositor
as to (a)
Sponsor/Seller
as to (a)
|
|
▪
Master Servicer
|
Master
Servicer
|
|
▪
Trustee
|
Trustee
|
|
▪
Any other 1108(a)(3) servicer
|
Servicer
|
|
▪
Any 1110 Originator
|
Depositor/Sponsor
|
|
▪
Any 1112(b) Significant Obligor
|
Depositor/Sponsor
|
|
▪
Any 1114 Credit Enhancement Provider
|
Depositor/Sponsor
|
|
▪
Any 1115 Derivate Counterparty Provider
|
Depositor/Sponsor
|
|
▪
Any other 1101(d)(1) material party
|
Depositor/Sponsor
|
R-3
EXHIBIT
S
Form
8-K
Disclosure Information
|
FORM
8-K DISCLOSURE INFORMATION
|
|
|
Item
on Form 8-K
|
Party
Responsible
|
|
Item
1.01- Entry into a Material Definitive Agreement
Disclosure
is required regarding entry into or amendment of any definitive agreement
that is material to the securitization, even if depositor is not
a party.
Examples:
servicing agreement, custodial agreement.
Note:
disclosure not required as to definitive agreements that are fully
disclosed in the prospectus
|
All
parties
|
|
Item
1.02- Termination of a Material Definitive Agreement
Disclosure
is required regarding termination of any definitive agreement that
is
material to the securitization (other than expiration in accordance
with
its terms), even if depositor is not a party.
Examples:
servicing agreement, custodial agreement.
|
All
parties
|
|
Item
1.03- Bankruptcy or Receivership
Disclosure
is required regarding the bankruptcy or receivership, with respect
to any
of the following:
|
Depositor
|
|
▪
Sponsor (Seller)
|
Depositor/Sponsor
(Seller)
|
|
▪
Depositor
|
Depositor
|
|
▪
Master Servicer
|
Master
Servicer
|
|
▪
Affiliated Servicer
|
Servicer
|
|
▪
Other Servicer servicing 20% or more of the pool assets at the time
of the
report
|
Servicer
|
|
▪
Other material servicers
|
Servicer
|
|
▪
Trustee
|
Trustee
|
|
▪
Significant Obligor
|
Depositor
|
|
▪
Credit Enhancer (10% or more)
|
Depositor
|
|
▪
Derivative Counterparty
|
Depositor
|
S-1
|
FORM
8-K DISCLOSURE INFORMATION
|
|
|
Item
on Form 8-K
|
Party
Responsible
|
|
▪
Custodian
|
Custodian
|
|
Item
2.04- Triggering Events that Accelerate or Increase a Direct Financial
Obligation or an Obligation under an Off-Balance Sheet
Arrangement
Includes
an early amortization, performance trigger or other event, including
event
of default, that would materially alter the payment priority/distribution
of cash flows/amortization schedule.
Disclosure
will be made of events other than waterfall triggers which are disclosed
in the monthly statements to the certificateholders.
|
Depositor
Master
Servicer
Trustee
|
|
Item
3.03- Material Modification to Rights of Security
Holders
Disclosure
is required of any material modification to documents defining the
rights
of Certificateholders, including the Pooling and Servicing
Agreement.
|
Trustee
Depositor
|
|
Item
5.03- Amendments of Articles of Incorporation or Bylaws; Change of
Fiscal
Year
Disclosure
is required of any amendment “to the governing documents of the issuing
entity”.
|
Depositor
|
|
Item
6.01- ABS Informational and Computational
Material
|
Depositor
|
|
Item
6.02- Change of Servicer or Securities Administrator
Requires
disclosure of any removal, replacement, substitution or addition
of any
master servicer, affiliated servicer, other servicer servicing 10%
or more
of pool assets at time of report, other material servicers or
trustee.
|
Master
Servicer/Depositor/
Servicer/Trustee
|
|
Reg
AB disclosure about any new servicer or master servicer is also
required.
|
Servicer/Master
Servicer/Depositor
|
|
Reg
AB disclosure about any new Trustee is also required.
|
Trustee
|
|
Item
6.03- Change in Credit Enhancement or External
Support
Covers
termination of any enhancement in manner other than by its terms,
the
addition of an enhancement, or a material change in the enhancement
provided. Applies to external credit enhancements as well as derivatives.
|
Depositor/Trustee
|
S-2
|
FORM
8-K DISCLOSURE INFORMATION
|
|
|
Item
on Form 8-K
|
Party
Responsible
|
|
Reg
AB disclosure about any new enhancement provider is also
required.
|
Depositor
|
|
Item
6.04- Failure to Make a Required Distribution
|
Trustee
|
|
Item
6.05- Securities Act Updating Disclosure
If
any material pool characteristic differs by 5% or more at the time
of
issuance of the securities from the description in the final prospectus,
provide updated Reg AB disclosure about the actual asset
pool.
|
Depositor
|
|
If
there are any new servicers or originators required to be disclosed
under
Regulation AB as a result of the foregoing, provide the information
called
for in Items 1108 and 1110 respectively.
|
Depositor
|
|
Item
7.01- Reg FD Disclosure
|
All
parties
|
|
Item
8.01- Other Events
Any
event, with respect to which information is not otherwise called
for in
Form 8-K, that the registrant deems of importance to
certificateholders.
|
Depositor
|
|
Item
9.01- Financial Statements and Exhibits
|
Responsible
party for reporting/disclosing the financial statement or
exhibit
|
S-3
SCHEDULE
A
MORTGAGE
LOAN SCHEDULE
[On
file
with XxXxx Xxxxxx LLP]
Schedule
A
ANNEX
5A.02
DISTRIBUTIONS
FROM THE CERTIFICATE ACCOUNT
TO
THE
GROUP I CERTIFICATES
Section
5A.02. Distributions
from the Certificate Account to the Group I Certificates.
(a)
On
each
Distribution Date on or prior to a Section 7.01(d) Purchase Event, a Pool 1-2
Termination Event, the Trustee (or the Paying Agent on behalf of the Trustee)
shall withdraw from the Certificate Account the Total Distribution Amount for
Pool 1 and Pool 2 (to the extent such amount is on deposit in the Certificate
Account) and shall allocate such amounts to the interests issued in respect
of
each REMIC created pursuant to this Agreement and shall distribute such amounts
as specified in subparagraphs (b) through (f) of this Section 5A.02. On each
Distribution Date after a Section 7.01(d) Purchase Event but on or prior to
a
Pool 1-2 Termination Event, the Trustee (or the Paying Agent on behalf of the
Trustee) shall withdraw from the Certificate Account the Total Distribution
Amount for Pool 1 and Pool 2 (to the extent such amount is on deposit in the
Certificate Account), and shall allocate such amount to the interests issued
in
respect of each REMIC created pursuant to this Agreement. All allocations and
distributions made between and with respect to Pool 1 and Pool 2 in this Section
5A.02 shall be made concurrently.
(b)
On
each
Distribution Date on or prior to a Section 7.01(d) Purchase Event related to
the
Pooling REMIC 1 Regular Interest, the Trustee (or the Paying Agent on behalf
of
the Trustee) shall distribute the Group I Interest Remittance Amount for Pool
1
for such date in the following order of priority:
(i)
concurrently, to
the
Group 1 Senior Certificates (other than the Class 1-APO Certificates),
pro
rata,
Current
Interest and any Carryforward Interest for such Classes for such Distribution
Date; provided,
however,
that
any shortfall in Current Interest and Carryforward Interest shall be allocated
among such Classes in proportion to the amount of Current Interest and
Carryforward Interest that would otherwise be distributable thereon;
and
(ii)
for
application pursuant to Section 5A.02(e) below, as part of Pool 1-2 Monthly
Excess Cashflow for such Distribution Date, any Pool 1 Monthly Excess Interest
remaining undistributed after application pursuant to clause (i) of this Section
5A.02(b).
(c)
On
each
Distribution Date on or prior to a Section 7.01(d) Purchase Event related to
the
Pooling REMIC 1 Regular Interests, the Trustee (or the Paying Agent on behalf
of
the Trustee) shall distribute the Group I Interest Remittance Amount for Pool
2
for such date in the following order of priority:
(i)
concurrently, to
the
Group 2 Senior Certificates, pro
rata,
Current
Interest and any Carryforward Interest for such Classes for such Distribution
Date; provided,
however,
that
any shortfall in Current Interest and Carryforward Interest shall be allocated
among such Classes in proportion to the amount of Current Interest and
Carryforward Interest that would otherwise be distributable thereon;
and
Annex
5A.02
(ii)
for
application pursuant to Section 5A.02(e) below, as part of Pool 1-2 Monthly
Excess Cashflow for such Distribution Date, any Pool 2 Monthly Excess Interest
remaining undistributed after application pursuant to clause (i) of this Section
5A.02(c).
(d)
On
each
Distribution Date on or prior to a Section 7.01(d) Purchase Event related to
the
Pooling REMIC 1 Regular Interests, the Trustee (or the Paying Agent on behalf
of
the Trustee) shall distribute the Group I Principal Distribution Amount for
each
of Pool 1 and Pool 2 for such date concurrently, as follows:
(i)
On
each
Distribution Date (a) prior to the Pool 1-2 Stepdown Date or (b) on or after
the
Pool 1-2 Stepdown Date and with respect to which a Pool 1-2 Trigger Event is
in
effect, until the aggregate Certificate Principal Amount of the Group I
Certificates (other than the Class 1-AIO Certificates) equals the Pool 1-2
Target Amount for such Distribution Date, the Trustee (or the Paying Agent
on
behalf of the Trustee) shall make the following distributions,
concurrently:
(A)
For
Pool 1:
The
Group I Principal Distribution Amount for Pool 1 shall be distributed in the
following order of priority:
(1)
concurrently,
on a pro
rata
basis,
to the Group 1 Senior Certificates (other than the Class 1-AIO Certificates),
in
proportion to their aggregate Class Principal Amounts, until the Class Principal
Amount of each such class has been reduced to zero;
(2)
to
the
Group 2 Senior Certificates, after giving effect to distributions pursuant
to
Section 5A.02(d)(i)(B)(1) below, in accordance with the Group 2 Senior Priority,
until the Class Principal Amount of each such Class has been reduced to zero;
and
(3)
for
application pursuant to Section 5A.02(d)(i)(C) below, any Group I Principal
Distribution Amount remaining after application pursuant to clauses (1) and
(2)
above.
(B)
For
Pool 2:
The
Group I Principal Distribution Amount for Pool 2 shall be distributed in the
following order of priority:
(1)
concurrently,
on a pro
rata
basis,
to the Class 2-A1 and Class 2-A2 Certificates, in proportion to their aggregate
Class Principal Amounts, until the Class Principal Amount of each such class
has
been reduced to zero;
(2)
to
the
Group 1 Senior Certificates (other than the Class 1-AIO Certificates),
after giving effect to distributions pursuant to Section 5A.02(d)(i)(A)(1)
above, in accordance with the Group 1 Senior Priority, until the Class Principal
Amount of each such Class has been reduced to zero; and
Annex
5A.02
(3)
for
application pursuant to Section 5A.02(d)(i)(C) below, any Group I Principal
Distribution Amount remaining after application pursuant to clauses (1) and
(2)
above;
(C)
On
each
Distribution Date, the Trustee (or the Paying Agent on behalf of the Trustee)
will distribute the aggregate of any remaining Group I Principal Distribution
Amounts from Sections 5A.02(d)(i)(A)(3) and (B)(3) above, in the following
order
of priority:
(1)
to
the
Group I Subordinate Certificates, in accordance with the Group I Subordinate
Priority, until the Class Principal Amount of each such Class has been reduced
to zero; and
(2)
for
application as part of Pool 1-2 Monthly Excess Cashflow for such Distribution
Date, as provided in Section 5A.02(e), any Group I Principal Distribution Amount
from Pool 1 and Pool 2 remaining after clause (1) above.
(ii)
On
each
Distribution Date (a) on or after the Pool 1-2 Stepdown Date and (b) with
respect to which a Pool 1-2 Trigger Event is not in effect, the Trustee (or
the
Paying Agent on behalf of the Trustee) shall distribute Group I Principal
Distribution Amount for each of Pool 1 and Pool 2, concurrently, in the
following order of priority:
(A)
(1)
so
long as any of the Group I Subordinate Certificates are outstanding, to the
Group 1 Senior Certificates (other than the Class 1-AIO Certificates) (from
the
Group I Principal Distribution Amount for Pool 1) and to the Group 2 Senior
Certificates (from the Group I Principal Distribution Amount for Pool 2), in
each case in accordance with the Group 1 Senior Priority or Group 2 Senior
Priority, as applicable, in an amount equal to the lesser of (x) the excess,
if
any, of (a) the Group I Principal Distribution Amount for the related Mortgage
Pool for such Distribution Date and (y) the Related Senior Principal
Distribution Amount for the related Mortgage Pool for such Distribution Date,
in
each case, until the Class Principal Amount of each such Class has been reduced
to zero; or (2) otherwise to the Group 1 Senior Certificates (other than the
Class 1-AIO Certificates) and to the Group 2 Senior Certificates (in each case
in accordance with the Group 1 Senior Priority or Group 2 Senior Priority,
as
applicable), the Group I Principal Distribution Amount for the related Mortgage
Pool for such Distribution Date until the Class Principal Amount of each such
Class has been reduced to zero;
(B)
to
the
Class I-M1 Certificates, an amount equal to the lesser of (x) the excess, if
any, of (a) the aggregate of the Group I Principal Distribution Amounts for
Pool
1 and Pool 2 for such Distribution Date over (b) the amount distributed to
the
applicable Group 1 Senior Certificates and the Group 2 Senior Certificates
on
such date pursuant to clause (A) above, and (y) the I-M1 Principal Distribution
Amount for such date, until the Class Principal Amount of such Class has been
reduced to zero;
Annex
5A.02
(C)
to
the
Class I-M2 Certificates, an amount equal to the lesser of (x) the excess, if
any, of (a) the aggregate of the Group I Principal Distribution Amounts for
Pool
1 and Pool 2 for such Distribution Date over (b) the amount distributed to
the
applicable Group 1 Senior Certificates, the Group 2 Senior Certificates and
the
Class I-M1 Certificates on such date pursuant to clauses (A) and (B) above,
and
(y) the I-M2 Principal Distribution Amount for such date, until the Class
Principal Amount of such Class has been reduced to zero;
(D)
to
the
Class I-M3 Certificates, an amount equal to the lesser of (x) the excess, if
any, of (a) the aggregate of the Group I Principal Distribution Amounts for
Pool
1 and Pool 2 for such Distribution Date over (b) the amount distributed to
the
applicable Group 1 Senior Certificates, the Group 2 Senior Certificates and
the
Class I-M1 and Class I-M2 Certificates on such date pursuant to clauses (A),
(B)
and (C) above, and (y) the I-M3 Principal Distribution Amount for such date,
until the Class Principal Amount of such Class has been reduced to
zero;
(E)
to
the
Class I-M4 Certificates, an amount equal to the lesser of (x) the excess, if
any, of (a) the aggregate of the Group I Principal Distribution Amounts for
Pool
1 and Pool 2 for such Distribution Date over (b) the amount distributed to
the
applicable Group 1 Senior Certificates, the Group 2 Senior Certificates and
the
Class I-M1, Class I-M2 and Class I-M3 Certificates on such date pursuant to
clauses (A), (B), (C) and (D) above, and (y) the I-M4 Principal Distribution
Amount for such date, until the Class Principal Amount of such Class has been
reduced to zero;
(F)
to
the
Class I-M5 Certificates, an amount equal to the lesser of (x) the excess, if
any, of (a) the aggregate of the Group I Principal Distribution Amounts for
Pool
1 and Pool 2 for such Distribution Date over (b) the amount distributed to
the
applicable Group 1 Senior Certificates, the Group 2 Senior Certificates and
the
Class I-M1, Class I-M2, Class I-M3 and Class I-M4 Certificates on such date
pursuant to clauses (A), (B), (C), (D) and (E) above, and (y) the I-M5 Principal
Distribution Amount for such date, until the Class Principal Amount of such
Class has been reduced to zero;
(G)
to
the
Class I-M6 Certificates, an amount equal to the lesser of (x) the excess, if
any, of (a) the aggregate of the Group I Principal Distribution Amounts for
Pool
1 and Pool 2 for such Distribution Date over (b) the amount distributed to
the
applicable Group 1 Senior Certificates, the Group 2 Senior Certificates and
the
Class I-M1, Class I-M2, Class I-M3, Class I-M4 and Class I-M5 Certificates
on
such date pursuant to clauses (A), (B), (C), (D), (E) and (F) above, and (y)
the
I-M6 Principal Distribution Amount for such date, until the Class Principal
Amount of such Class has been reduced to zero;
(H)
to
the
Class I-M7 Certificates, an amount equal to the lesser of (x) the excess, if
any, of (a) the aggregate of the Group I Principal Distribution Amounts for
Pool
1 and Pool 2 for such Distribution Date over (b) the amount distributed to
the
applicable Group 1 Senior Certificates, the Group 2 Senior Certificates and
the
Class I-M1, Class I-M2, Class I-M3, Class I-M4, Class I-M5 and Class I-M6
Certificates on such date pursuant to clauses (A), (B), (C), (D), (E), (F)
and
(G) above, and (y) the I-M7 Principal Distribution Amount for such date, until
the Class Principal Amount of such Class has been reduced to zero;
and
Annex
5A.02
(I)
for
application as part of Pool 1-2 Monthly Excess Cashflow for such Distribution
Date, as provided in Section 5A.02(e), any Group I Principal Distribution Amount
remaining from Pool 1 and Pool 2 after application pursuant to clauses (A)
through (H) above;
(e)
On
each
Distribution Date on or prior to a Section 7.01(d) Purchase Event related to
the
Pooling REMIC 1 Regular Interests, the Trustee shall distribute the sum of
Pool
1 Monthly Excess Interest and Pool 2 Monthly Excess Interest for such
Distribution Date in the following order of priority:
(i)
for
each
Distribution Date, to the Group I Certificates after application of the Group
I
Interest Remittance Amount and the Group I Principal Distribution Amount for
each of Pool 1 and Pool 2, in the following order of priority;
(A)
concurrently,
on a pro
rata
basis,
based on amounts due, to the Group 1 Senior Certificates (other than the Class
1-APO Certificates) and Group 2 Senior Certificates, any Current Interest and
Carryforward Interest for such Classes for such Distribution Date, to the extent
unpaid after distributions pursuant to Section 5A.02(b)(i) and Section
5A.02(c)(i), respectively; provided,
however,
that
any shortfall in Current Interest and Carryforward Interest will be allocated
among such Classes in proportion to the amount of Current Interest and
Carryforward Interest that would otherwise be distributable
thereon;
(B)
to
the
Group I Subordinate Certificates, in accordance with the Group I Subordinate
Priority, Current Interest and any Carryforward Interest for each such Class
on
such Distribution Date; and
(C)
to
the
Trustee, any amounts reimbursable pursuant to Section 4.04(b)(i) and not
previously reimbursed to the Trustee;
(ii)
for
each
Distribution Date occurring (a) before the Pool 1-2 Stepdown Date or (b) on
or
after the Pool 1-2 Stepdown Date but for which a Pool 1-2 Trigger Event is
in
effect, then until the aggregate Certificate Principal Amount of the Group
I
Certificates equals the Pool 1-2 Target Amount, in reduction of the Class
Principal Amounts of the Group I Certificates in the following order of
priority:
(A)
pro
rata,
to the
Group 1 Senior Certificates (other than the Class 1-AIO Certificates) and the
Group 2 Senior Certificates, in proportion to the aggregate Class Principal
Amount of the Senior Certificates related to each Group, in each case in
accordance with the Group 1 Senior Priority or Group 2 Senior Priority, as
applicable, in reduction of their respective Class Principal Amounts, until
the
Class Principal Amount of each such Class has been reduced to zero;
and
Annex
5A.02
(B)
to
the
Group I Subordinate Certificates, in accordance with the Group I Subordinate
Priority, in reduction of their Class Principal Amounts, until the Class
Principal Amount of each such Class has been reduced to zero;
(iii)
for
each
Distribution Date occurring on or after the Pool 1-2 Stepdown Date and for
which
a Pool 1-2 Trigger Event is not in effect, in the following order of
priority:
(A)
pro
rata,
to the
Group 1 Senior Certificates (other than the Class 1-AIO Certificates) and the
Group 2 Senior Certificates, in proportion to the aggregate Class Principal
Amount of the Senior Certificates related to each such Group, in each case
in
accordance with the Group 1 Senior Priority or Group 2 Senior Priority, as
applicable, in reduction of their respective Class Principal Amounts, until
the
aggregate Class Principal Amount of each such Class, after giving effect to
previous principal distributions on such Distribution Date pursuant to Section
5A.02(d)(ii) above, equals the Pool 1-2 Senior Target Amount;
(B)
to
the
Class I-M1 Certificates, in reduction of their Class Principal Amount, until
the
aggregate Class Principal Amount of the applicable Group 1 Senior Certificates,
Group 2 Senior Certificates and Class I-M1 Certificates, after giving effect
to
distributions on such Distribution Date, equals the I-M1 Target
Amount;
(C)
to
the
Class I-M2 Certificates, in reduction of their Class Principal Amount, until
the
aggregate Class Principal Amount of the applicable Group 1 Senior Certificates,
Group 2 Senior Certificates and Class I-M1 and Class I-M2 Certificates, after
giving effect to distributions on such Distribution Date, equals the I-M2 Target
Amount;
(D)
to
the
Class I-M3 Certificates, in reduction of their Class Principal Amount, until
the
aggregate Class Principal Amount of the applicable Group 1 Senior Certificates,
Group 2 Senior Certificates and Class I-M1, Class I-M2 and Class I-M3
Certificates, after giving effect to distributions on such Distribution Date,
equals the I-M3 Target Amount;
(E)
to
the
Class I-M4 Certificates, in reduction of their Class Principal Amount, until
the
aggregate Class Principal Amount of the applicable Group 1 Senior Certificates,
Group 2 Senior Certificates and Class I-M1, Class I-M2, Class I-M3 and Class
I-M4 Certificates, after giving effect to distributions on such Distribution
Date, equals the I-M4 Target Amount;
(F)
to
the
Class I-M5 Certificates, in reduction of their Class Principal Amount, until
the
aggregate Class Principal Amount of the applicable Group 1 Senior Certificates,
Group 2 Senior Certificates and Class I-M1, Class I-M2, Class I-M3, Class I-M4
and Class I-M5 Certificates, after giving effect to distributions on such
Distribution Date, equals the I-M5 Target Amount;
Annex
5A.02
(G)
to
the
Class I-M6 Certificates, in reduction of their Class Principal Amount, until
the
aggregate Class Principal Amount of the applicable Group 1 Senior Certificates,
Group 2 Senior Certificates and Class I-M1, Class I-M2, Class I-M3, Class I-M4,
Class I-M5 and Class I-M6 Certificates, after giving effect to distributions
on
such Distribution Date, equals the I-M6 Target Amount; and
(H)
to
the
Class I-M7 Certificates, in reduction of their Class Principal Amount, until
the
aggregate Class Principal Amount of the applicable Group 1 Senior Certificates,
Group 2 Senior Certificates and Class I-M1, Class I-M2, Class I-M3, Class I-M4,
Class I-M5, Class I-M6 and Class I-M7 Certificates, after giving effect to
distributions on such Distribution Date, equals the I-M7 Target Amount;
and
(iv)
to
the
Pool 1-2 Basis Risk Reserve Fund, an amount equal to the Basis Risk Payment
for
such Distribution Date, and then from the Pool 1-2 Basis Risk Reserve Fund,
in
the following order of priority:
(A)
concurrently,
to the Class 1-AIO Certificates and the Group 2 Senior Certificates,
pro
rata,
any
remaining Basis Risk Shortfalls and Unpaid Basis Risk Shortfalls, in proportion
to their respective Basis Risk Shortfalls and Unpaid Basis Risk Shortfalls;
(B)
to
the
Group I Subordinate Certificates, in accordance with the Group I Subordinate
Priority, any applicable Basis Risk Shortfalls and Unpaid Basis Risk Shortfalls
for each such Class and for such Distribution Date from amounts on deposit
in
the Pool 1-2 Basis Risk Reserve Fund; and
(C)
for
addition to the amounts distributable pursuant to subclause (viii) below, to
the
Class I-X Certificates, any amounts remaining in the Pool 1-2 Basis Risk Reserve
Fund in excess of amounts required to be on deposit therein after application
pursuant to subclauses (A) and (B) above for such Distribution Date;
(v)
to
the
Group 1 Senior Certificates (other than the Class 1-AIO Certificates) and the
Group 2 Senior Certificates, pro
rata,
in
proportion to their respective Deferred Amounts, any applicable Deferred Amount
(and any interest accrued on such Deferred Amounts at the related Interest
Rate)
for each such Class and such Distribution Date;
(vi)
to
the
Group I Subordinate Certificates, in accordance with the Group I Subordinate
Priority, any Deferred Amount for each such Class and such Distribution
Date;
(vii)
on
the
Distribution Date occurring in May 2010 (or
the
next succeeding Distribution Date on which sufficient funds are available in
the
Certificate Account to make such distributions to the Class I-P Certificates),
$100 to the Class I-P Certificates in payment of its Class I-P Principal
Amount;
Annex
5A.02
(viii)
to
the
Class I-X Certificate, the Class I-X Distributable Amount for such Distribution
Date; and
(ix)
to
the
Class I-LT-R Certificate, any amount remaining on such date after application
pursuant to clauses (i) through (viii) above to the extent attributable to
Pooling REMIC 1, and otherwise to the Class I-R Certificate;
(f)
On
each
Distribution Date on or prior to a Section 7.01(d) Purchase Event related to
the
Pooling REMIC 1 Regular Interests, an amount equal to the aggregate of all
Prepayment Premiums collected with respect to the Pool 1 and Pool 2 Mortgage
Loans during the preceding Prepayment Period shall be distributed to the Class
I-P Certificates.
(g)
On
each
Distribution Date occurring after a Section 7.01(d) Purchase Event, but on
or
prior to a Pool 1-2 Termination Event, the Trustee (or the Paying Agent on
behalf of the Trustee), shall withdraw from the Certificate Account the Total
Distribution Amount for Pool 1 and Pool 2 (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 Pooling REMIC 1 Regular Interests created
pursuant to this Agreement and shall distribute such Total Distribution Amount
first,
to
the
Trustee, any amounts reimbursable pursuant to Section 4.04(b)(i) and not
previously reimbursed to the Trustee; second,
to the
LTURI-holder, any remaining related Total Distribution Amount for Pool 1 and
Pool 2 to the extent payable on the Pooling REMIC 1 Regular Interests as
provided in the Preliminary Statement; and third,
to the
Class I-LT-R Certificates, any remaining amounts.
Annex
5A.02
ANNEX
5B.02
DISTRIBUTIONS
FROM THE CERTIFICATE ACCOUNT
TO
THE
GROUP II CERTIFICATES
Section
5B.02. Distributions
from the Certificate Account to the Group II Certificates.
(a)
On
each
Distribution Date on or prior to a Section 7.01(d) Purchase Event, a Pool 3
Termination Event, the Trustee (or the Paying Agent on behalf of the Trustee)
shall withdraw from the Certificate Account the Group II Available Distribution
Amount for Pool 3 (to the extent such amount is on deposit in the Certificate
Account) and shall allocate such amounts to the interests issued in respect
of
each REMIC created pursuant to this Agreement and shall distribute such amounts
as specified in subparagraphs (b) and (c) of this Section 5B.02. On each
Distribution Date after a Section 7.01(d) Purchase Event but on or prior to
a
Pool 3 Termination Event, the Trustee (or the Paying Agent on behalf of the
Trustee) shall withdraw from the Certificate Account the Group II Available
Distribution Amount for Pool 3 (to the extent such amount is on deposit in
the
Certificate Account), and shall allocate such amount to the interests issued
in
respect of each REMIC created pursuant to this Agreement.
(b)
On
each
Distribution Date on or prior to a Section 7.01(d) Purchase Event related to
the
Pooling REMIC 2 Regular Interest, the Trustee (or the Paying Agent on behalf
of
the Trustee) shall distribute the Group II Available Distribution Amount for
such date in the following order of priority:
(i)
to
payment of Accrued Certificate Interest on each Class of Group II Senior
Certificates reduced, in each case, by any Net Prepayment Interest Shortfalls
for Group II (allocated to each Class of Group II Certificates on that
Distribution Date, as described herein); provided,
however,
that
any shortfall in available amounts for the Group II Certificates will be
allocated among the Classes of Group II Certificates, in proportion to the
amount of such interest (as so reduced) that would otherwise be distributable
thereon;
(ii)
to
payment of any outstanding Group II Interest Shortfalls on the Group II Senior
Certificates; provided,
however,
that
any shortfall in available amounts for Group II will be allocated among the
Classes of Group II Certificates in proportion to the amount of such interest
(as so reduced) that would otherwise be distributable thereon;
(iii)
to
the
Group II Senior Certificates (other than the Class 3-AIO1 and Class 3-AIO2
Certificates), the Group II Senior Principal Distribution Amount, pro
rata,
to the
Class 3-A1 and Class 3-A2 Certificates, in reduction of their Class Principal
Amounts, until their Class Principal Amounts have been reduced to zero;
(iv)
pro
rata,
to the
Class II-M1, Class II-M2, Class II-M3, Class II-M4, Class II-M5, Class II-M6
and
Class II-M7 Certificates, the following amounts, in the following order of
priority: (x) Accrued Certificate Interest thereon (as reduced by any Net
Prepayment Interest Shortfalls allocated to that Class on that Distribution
Date), (y) any outstanding Group II Interest Shortfalls previously allocated
to
that class and (z) the related Class’s Subordinate Class Percentage of the Group
II Subordinate Principal Distribution Amount for that Distribution Date,
provided,
however,
with
respect to each Class of Group II Subordinate Certificates other than the Class
II-M7 Certificates, if on any Distribution Date the Credit Support Percentage
for that Class is less than that Class’s Original Credit Support Percentage,
then no distributions in respect of clauses (2) and (3) of the definition of
Group II Subordinate Principal Distribution Amount will be made to any
Restricted Classes, and the amount otherwise distributable to the Restricted
Classes in respect of such payments will be allocated among the remaining
related Classes of Group II Subordinate Certificates, proportionately, based
upon their respective Class Principal Amounts;
Annex
5B.02
(v) on
the
Distribution Date occurring in May 2010 (or
the
next succeeding Distribution Date on which sufficient funds are available in
the
Certificate Account to make such distributions to the Class II-P Certificates),
$100 to the Class II-P Certificates in payment of its Class II-P Principal
Amount; and
(vi) to
the
Class II-LT-R Certificate, any amount remaining on such date after application
pursuant to clauses (i) through (v) above to the extent attributable to Pooling
REMIC 2, and otherwise to the Class II-R Certificate;
(c)
On
each
Distribution Date on or prior to a Section 7.01(d) Purchase Event related to
the
Pooling REMIC 2 Regular Interests, an amount equal to the aggregate of all
Prepayment Premiums collected with respect to the Pool 3 Mortgage Loans during
the preceding Prepayment Period shall be distributed to the Class II-P
Certificates.
(d)
On
each
Distribution Date occurring after a Section 7.01(d) Purchase Event, but on
or
prior to a Pool 3 Termination Event, the Trustee (or the Paying Agent on behalf
of the Trustee), shall withdraw from the Certificate Account the Group II
Available Distribution Amount (to the extent such amount is on deposit in the
Certificate Account) and shall allocate such amount to the interests issued
in
respect of the Pooling REMIC 2 Regular Interests created pursuant to this
Agreement and shall distribute such Group II Available Distribution Amount
first,
to
the
Trustee, any amounts reimbursable pursuant to Section 4.04(b)(i) and not
previously reimbursed to the Trustee; second,
to the
LTURI-holder, any remaining related Group II Available Distribution Amount
to
the extent payable on the Pooling REMIC 2 Regular Interests as provided in
the
Preliminary Statement; and third,
to the
Class II-LT-R Certificates, any remaining amounts.
Annex
5B.02
